Allahabad High Court
Raja Hussain vs State on 6 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1411, 2020 CRI LJ 1102, 2020 (1) ALJ 70, 2019 (109) ACC (SOC) 92 (ALL)
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 13.03.2019
Delivered on 06.09.2019
Court No. - 34
Case :- JAIL APPEAL No. - 5632 of 2007
Appellant :- Raja Hussain
Respondent :- State
Counsel for Appellant :- From Jail, Nishi Mehrotra (A.C.)
Counsel for Respondent :- Rishi chadha (A.G.A.)
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J.)
1. This jail appeal has been filed by accused-appellant Raza Hussain through Senior Superintendent, Central Jail, Varanasi against judgment and order dated 04.03.2006 passed by Sri Alla Rakkhey Khan, Additional Sessions Judge (FTC-I), Kushinagar at Padrauna in Sessions Trial No.56 of 2002, (State versus Raza Hussain), under Sections 302 and 324 IPC. By the impugned judgment accused-appellant has been convicted under Sections 302 and 324 IPC. Under Section 302 IPC, he has been sentenced to undergo life imprisonment along-with fine of Rs.25,000/-. In the event of default of payment of fine, he has to undergo further one year's simple Imprisonment. He has been sentenced to undergo three years Rigorous Imprisonment, under Section 324 IPC and also with a fine of Rs.5,000/-. In case of default in payment of fine, three months simple Imprisonment has to be suffered by him. Both the sentences have been directed to run concurrently.
2. The facts emanating from Fist Information Report (hereinafter referred to as "FIR") and the material available on record may briefly be stated as under for adjudication of this appeal:-
3. Informant Abdul Hannan, PW-1 son of Mukhtar Khan resident of village Dhanauji Khurd was village Pradhan. On 10.02.1990 at about 10:00 P.M., Raza Hussain younger brother of Abdul Haq son of Rasheed Miyan had come from Gauhati, (Assam) at the house of Abdul Haq. He called Abdul Haq and when Abdul Haq opened the door, Raza Hussain stabbed knife in his stomach. When his wife Husna Bano went to rescue him, accused stabbed her also in her stomach. On hearing noise, Zahrul Haq and his wife rushed to save them but Raza Hussain assaulted Zahrul Haq also with knife on his back. Thereafter, Raza Hussain could succeed in fleeing away after throwing the knife. On alarm being raised, Mohd. Hussain, Khurshid and many other persons of the village reached the place of occurrence and took injured persons to Fazilnagar Hospital, where they were medically examined. Noticing deteriorating condition of injured persons, Informant and others took them to Deoria Civil Hospital, where Doctors referred them to Medical College, Gorakhpur. All the injured were then taken to Medical College, Gorakhpur on 11.02.1990 in the morning. Due to strike of Doctors, injured could be not admitted or attended. Injured Smt. Husna Bano died at 09:00 A.M. and Abdul Haq at 09:30 A.M. on 11.02.1990 in the Hospital.
4. Postmortem of Smt. Husna Bano was conducted on 11.02.1990 and her last rites were observed in the Village. Postmortem of Abdul Haq was conducted on 12.02.1990. Since family members and other persons were busy in taking care of deceased in Hospital, PW-1, Informant went to Police Station Patherwa, District Deoria and handed over written report Ex.Ka-1 containing aforesaid details at the Police Station. On the basis of written report Ex.Ka-1 filed by PW-1 Abdul Hannan, chick FIR Ex.Ka-10 was prepared and case under Section 302 and 324 I.P.C. was registered against accused-appellant Raza Hussain, on 12.12.1990 at 9:15 A.M.
5. After registration of Case, Investigation was initiated by PW-7 Prem Singh Bist, the then Station Officer (hereinafter referred to as 'SO') of Police Station Patherwa, District Deoria. He rushed to spot, recorded statement of PW-1 Abdul Hannan, PW-2 Khurshid Alam, Amzad Ali, Mohd. Hussain, Imtyaz Ali and Jamshed. On indicating place of occurrence by witnesses, Investigating Officer (hereinafter referred to as 'IO') prepared site plan Ex.Ka-8. He took in possession an earthen lamp (Dhibri) from rooms of Abdul Haq and Zahrul Haq and handed over the same in custody of Rashidan and prepared recovery memo Ex.Ka-2. Blood stained knife lying on the spot was taken in possession, and sealed recovery memo Ex.Ka-3 was prepared in respect thereof. Thereafter, he recorded statements of other witnesses and made efforts for searching the accused.
6. PW-5 Dr. S.K. Sharma had examined injured Abdul Haq (deceased) on 10.02.1990 at 11.30 P.M and prepared injury report Ex.Ka-4. He found following injuries on his person :-
Punctured wound 3 cm x 1.5 cm x depth not measured, on the middle and upper part of the right half of abdominal wall, 4 cm away from middle and 17 cm below right nipple. Pain and distension of abdomen present, three stitches were applied. Referred to Surgeon, District Hospital Deoria (suspected peritonitis).
7. The same Doctor PW-5 had examined injured Zahrul Haq on 10.02.1990 at 11.45 P.M and prepared injury report Ex.Ka-5. He found following injuries on his person :-
Punctured wound 3.5 cm x 1.5 cm x depth not measured, lying medial on the middle of left half of back, 5 cm away from midline and 20 cm below inferior angle of left scapula. Referred to Surgeon, District Hospital Deoria for opinion and management. Three stitches were applied.
8. The same doctor PW-5 had also examined injured Husna Bano (deceased) on 10.02.1990 at 11.55 P.M and prepared injury report Ex.Ka-6. He found following injuries on her person :-
Punctured wound 3.5 cm x 1.5 cm x depth not measured, on the middle and upper part of abdominal wall 2 cm left to midline and 7 cm above the umbilicus. Three stitches were applied. Injuries to be kept under observation. Referred to District Hospital, for Surgeon opinion and management.
9. As stated above, Husna Bano and Abdul Haq succumbed to their injuries in the morning of 11.02.1990 in Hospital.
10. Autopsy on the dead body of Husna Bano was conducted by PW-8 Dr. O.N. Gupta on 11.02.1990 at 3:30 P.M. According to him, deceased was aged about 30 years and of average body built; her eyes and mouth were half closed; rigor mortis was present in all four limbs. He found following ante-mortem injuries on her person :-
1. A stitched wound of 1½ cm long with three stitches in the middle of the epigastric region. On opening the stitches the wound was found cavity deep, stomach punctured in area of 1 cm x 1 cm region. Stomach containing undigested food which was coming out of wound of stomach. About 1½ liter of blood present in Abdomenal cavity.
11. According to doctor Husna Bano died due to hamarrage and shock as a result of ante-mortem injuries. He prepared autopsy report Ex.Ka-11-A.
12. Autopsy on the dead body of Abdul Haq was conducted by Dr. P.N. Pandey, PW-6 on 12.02.1990 at 5:00 P.M. According to him, deceased was aged about 35 years and of average built body; rigor mortis was present all over the body except upper limb; no decomposition; eyes closed; mouth and face pale; nails and lips livid. He found following ante-mortem injuries on his person :-
Stitched wound with 3 stitches on the right side epigastrium 8 cm below the lung right costal margin in mid Clavicle bone. On opening, the wound was cavity deep with clotted blood 3 Lbs in peritoneal cavity. Omentum was cut with the mesentery of the traversa column, mesenteric and arotal vessals cut, small cut mark ½ cm x ½ cm x lumen deep on the lower part of transverse column. A cut mark ½ cm x ½ cm x 1 cm deep on the right Lobe of liver, anterior aspect, clotted blood present.
13. In the opinion of doctor, death had occurred due to hamarrage and shock as a result of ante-mortem injuries. He prepared postmortem report Ex.Ka.-7.
14. After conclusion of the investigation, PW-7, Prem Singh, I.O., submitted charge-sheet Ex.Ka-09 in Court against accused-appellant under Section 302 and 324 I.P.C.
15. CJM, Deoria took cognizance of the offence against accused-appellant. Case, being exclusively triable by Court of Sessions, committed to Sessions Court on 06.05.2002. It was registered as Sessions Trial No.56 of 2002. Learned Sessions Judge framed charges against accused-appellant on 25.02.2003 as under:-
"I, D.P. Varshney, Sessions Judge, Kushinagar at Padrauna do hereby charge you Raza Hussain as follows: -
Firstly - That on 10th February, 1990 at 22:00 hours at Village Dhanauji Khurd lying within the local limits of Police Station Pataherawa, District Kushinagar you committed murder of Abdul Haq and his wife Hushbano and thereby committed an offence punishable under Section 302 IPC and within my cognizance.
Secondly - That on the aforesaid date, time and place, you also caused knife injuries on the person of Jahirulhaq and thereby committed an offence punishable under Section 324 IPC and within the cognizance.
And I hereby direct that you be tried on the said charge."
16. Accused-appellant pleaded not guilty and claimed trial.
17. In order to prove guilt of accused, prosecution examined as many as eleven witnesses, out of whom, PW-1 Abdul Hannan (Gram Pradhan), PW-2 Khursheed Alam, PW-3 Zahrul Haque, PW-4 Nazma Khatoon (wife of Zahrul Haque PW-3) are witnesses of fact. PW-5 to 11 are formal witnesses.
18. PW-5 Dr. S.K. Sharma had initially examined injuries of deceased Abdul Haque, injured Zahrul Haque and deceased Husna Bano and proved injury reports Ex.Ka-4, 5 and 6 respectively; PW-6 Dr. P.N. Pandey, had conducted postmortem on the dead body of Abdul Haque and proved injury report Ex.Ka-7; PW-8 Dr. O.N. Gupta had conducted postmortem on the dead body of deceased Husna Bano and proved postmortem report Ex.Ka-11-A; PW-9 Tribhuwan is a Ward-Boy, who had gone to Kotwali Gorakhpur along with information papers no. 14-Ka/9 and 14-Ka/2 with respect to death of Abdul Haque and Husna Bano; and PW-7 Prem Singh Bist is the I.O. and has proved site plan Ex.Ka.-8, recovery memo in respect of earthen lamp Ex.Ka-2, as also Ex.Ka-3 recovery memo in respect of blood stained knife. He has also proved charge sheet Ex.Ka-9 and stated that he recognizes writing and signatures of Constable Moharrir Dev Nath Singh, who had prepared Chick FIR Ex.Ka-10 and had made entry in the G.D., a copy whereof is Ex.Ka-11. PW-10 S.I. Mahendra Pratap Singh has proved inquest Ex.Ka-12 in respect of deceased Abdul Haque, Photo Nash Ex.Ka-13, Chalan Nash Ex.Ka-14, Paper police form no. 13 Ex.Ka-15 and request to C.M.O. for post mortem Ex.Ka-16. PW-11 C.P. Manmohan Misra has proved handwriting and signatures of S.I. Shyam Nandan Singh, who at the relevant time had visited the hospital and prepared inquest Ex.Ka-17 in respect of deceased Husna Bano. He has stated that relevant documents Photo Nash Ex.Ka-18, letter to C.M.O. to District Hospital Ex.Ka-19, Chalan Nash Ex.Ka-20 and letter to S.P. Ex.Ka-21 had been written and signed by S.I. Shyam Nandan Singh.
19. After closure of prosecution evidence, accused-appellant was examined under Section 313 Cr.P.C. He has stated prosecution story to be false and concocted and that witnesses were deposing falsely. Documents prepared by Police and Health Department are stated to be false. According to him in order to usurp the land of accused-appellant, Pradhan in connivance with Pattidars of accused has got him implicated in the false case. He has stated that he was not present at his house.
20. On appreciation of evidence available on record and after hearing both the parties, learned Additional Sessions Judge recorded the verdict of conviction and sentence against the accused-appellant as stated above.
21. Feeling aggrieved, accused-appellant has approached this Court through Senior Superintendent, Central Jail, Varanasi assailing the impugned judgement.
22. We have heard Ms. Nishi Mehrotra, Amicus Curiae for appellant and Sri Rishi Chaddha, learned AGA for State at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.
23. Leaned Amicus Curiae appearing for accused-appellant assailed the impugned judegment and order and advanced arguments as under:-
(i) There is no eye witness of the case. None has seen the real incident. PWs 1 and 2 themselves admitted that they have not seen any person assaulting and they reached on the spot after the real incident.
(ii) No independent witness has been produced by prosecution. PW-4 Nazma Khatoon is wife of PW-3 Zahrul Haq (injured) and she cannot be termed as independent witness.
(iii) No other witness is produced by prosecution whereas FIR itself recites that Mohd. Hussain, Khursheed and other villagers have reached there. Mohd. Hussain is said to be eye witness but she could not be produced by prosecution, therefore, presumption under Section 114(g) of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") goes against prosecution.
(iv) There is no motive of incident to accused to commit the present crime.
(v) FIR has been lodged, two days after the incident without any proper explanation.
(vi) There are major contradiction in the statement of witnesses which may render the prosecution case doubtful.
(vii) Medical evidence does not support the prosecution version.
(viii) Prosecution failed to establish its case beyond reasonable doubt against accused and accused is entitled to benefit of doubt and deserves acquittal.
24. Learned AGA for the State opposed submissions of learned Amicus Curiea for accused-appellant and contended that accused is named in the FIR; he is brother of Abdul Haq; PW-3 is injured witness and PW-4 is eye witness; she, being wife of PW-3, is natural witness; PW-3 is injured and his presence cannot be doubted; Medical evidence is totally compatible with ocular version; prosecution proved its case beyond reasonable doubt and Trial Court has rightly convicted him. He sought dismissal of appeal.
25. Although time, date and place of occurrence, death of Abdul Haq and Hushna Bano and injury of PW-3 could not be disputed from the side of defence but according to Advocate, he is not responsible for causing death of Abdul Haq and Hushna Bano. We find that injuries found on the person of PW-3 are established by prosecution. Even otherwise from the evidence of PWs 1 to 4 time, date and place of incident stands established.
26. Only question remains for consideration is "whether accused-appellant committed murder of Abdul Haq and Smt. Hushna Bano, and caused injury to PW-3 Zahrul Haq by inflicting knife; and Trial Court has rightly convicted accused-appellant?"
27. Now, we would like to briefly consider the statement of witnesses examined by prosecution and some important decisions on the point.
28. Point nos.1, 2 and 3 of arguments made by learned Amicus Curiae for appellant are being dealt altogether.
29. PW-1 Abdul Hannan has deposed that on the fateful day at about 10:00 PM in the night, he was sleeping in his house. Hearing shrikes of Abdul Haq, Zahrul Haq and Husna Bano, he came out of his house and reached there and saw that all the three persons with knife injuries. They were shouting that accused Raza Hussain has assaulted them with knife. When Zahrul Haq, PW-3 came to save them, accused assaulted him with knife on the back. Accused-appellant ran away from the spot throwing knife. All the injured were taken to PHC Fazilnagar, from where they were referred to District Hospital, Deoria but in Deoria hospital injured were not admitted and referred to Gorakhpur Medical College. Victim Husna Bano and Abdul Haq succumbed to injuries. He has further deposed that there was a dispute of partition between accused and deceased due to which accused committed murder of his brother and his wife. PW-1 being Pradhan of village presented written Tehrir (Ex.Ka-1) in the police station concerned. Witness has proved recovery of knife. Witness stated in the cross-examination that he has not seen anybody killing deceased. In this way PW-1 is not an eye witness of incident. He has proved other circumstances which happened after incident. Witness stated in cross-examination that he has not seen any one assaulting. He reached ten minutes after the incident.
30. PW-2, Khurshid Alam deposed that at about 10:00 PM in the fateful night, he was sleeping in his house. On hearing noise of villagers, he arrived at spot and saw that beneath of Neem tree, victim Abdul Haq, his wife Husna Bano and one Zahrul Haq were injured. Abdul Haq was shouting that Raza Hussain stabbed knife to him and his wife Hushna Bano. Abdul Haq and Hushna Bano received knife injuries on stomach and Zahrul Haq received knife injury on his back. Incident was witnessed by PW-2 himself and Mohd. Husain and other villagers. It is further deposed by him that Hushna Bano and Abdul Haq succumbed to injuries in Gorakhpur Hospital. In cross-examination, he stated that he has not seen any person inflicting knife. He has arrived at spot after 6 - 7 minutes of incident.
31. PWs 1 and 2 admitted in their cross-examination that they were not present on spot at the time of incident but both told that when they reached on spot injured Abdul Haq was shouting that accused Raza Hussain assaulted him and his wife Hushna Bano with knife. In this way both the witnesses have not seen actual incident.
32. PW-3, Zahrul Haq deposed that on the fateful night at about 10:00 PM, on hearing shrieks of Abdul Haq, he reached the spot and saw that Raza Hussain was inflicting knife blow to Abdul Haq. When his wife Hushna Bano rushed to save her husband, accused-appellant inflicted knife blow to Hushna Bano also. When he (witness) rushed to save them, accused inflicted knife blow to him on his back. Thereafter accused ran away from the spot throwing knife at some distance. Incident was seen by his wife Nazma Khatoon and Mohd. Khurshid Hussain in the light of lantern. All the injured persons were taken to PHC Fazilnagar where from they were referred to District Hospital, Deoria. On that date, there was a strike of doctors in Deoria hospital, then injured were taken to Gorakhpur Medical College wherefrom due to strike of doctors, they went to District Hospital, Gorakhpur. On the next day of incident Hushna Bano and Abdul Haq succumbed to injuries. Due to enmity regarding land, accused Raza Hussain murdered his brother and his Bhabi (wife of brother).
33. PW-4 Nazma Khatoon deposed that in the fateful night at 10:00 PM, she slept after taking meal. When she heard noise, she woke up and rushed there and saw that accused-appellant Raza Hussain got opened the door of his brother Abdul Haq. When Abdul Haq opened door, accused-appellant Raza Hussain stabbed the knife in the stomach of Abdul Haq. Hushna Bano came to save her husband, accused-appellant also stabbed knife in her stomach. On the noise, she and her husband rushed to save them, then accused-appellant Raza Hussain inflicted knife injuring on the back of her husband and ran away from there throwing knife at some distance. On the noise, Mohd Hussain, Khurshid and some other persons came there and took all three injured persons to Government Hospital Fazilnagar wherefrom they referred to District Hospital Deoria, thereafter to medical college, Gorakhpur but due to non-availability of doctors, three injured persons were admitted to District Hospital, Gorakhpur where Abdul Haq and Hushna Bano succumbed to injuries on next date.
34. PWs 3 and 4 withstood lengthy cross-examination but nothing material could be brought so as to disbelieve their statements on oath. PW-3 Zahrul Haq is injured witness and PW-4 is an eye witness and wife of PW-3. Both the witnesses have supported prosecution case. PW-4 deposed that on the shrieks of Abdul Haq, she himself and her husband (PW-3) reached the spot. PW-3 was injured in the same incident and PW-4 being wife of PW-3 are natural witnesses and their presence on spot can not be doubted.
35. From the statements of PWs 3 and 4, injured and eye witness respectively and that of PWs 1 and 2 who proved that when they reached on spot Abdul Haq was shouting that Raza Hussain assaulted them with knife, it is established that accused Raza Hussain assaulted Abdul Haq, Smt. Hushan Bano and PW-3 Zahrul Haq by causing injuries with knife. Later on Abdul Haq and Smt. Hushna Bano succumbed to injuries.
36. So far as legal position for non-examination of entire witnesses are concerned, it is well settled principal of law that it is not necessary for the prosecution to prove all the witnesses in support its case, quality of witnesses is material not the quantity of witnesses. In view of Section 134 of Act,1872, we do not find any substance in the submission of learned counsel for the appellant. Section 134 of Act, 1872, reads as under:-
"134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact."
37. Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of Act, 1872, but if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.
38. In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and emphasis of Court is always on quality of evidence. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
39. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381 a similar view has been taken placing reliance on earlier judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.
40. In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229, Court held that :-
"The legal position in respect of the testimony of a solitay eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it."
41. In State of Haryana v. Inder Singh and Ors. reported in (2002) 9 SCC 537, Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal case. The testimony of a sole witness must be confidence-inspiring, leaving no doubt in the mind of the Court.
42. So far as question of interested witness is concerned, it is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364, where Court has held as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
43. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed as follows :-
"There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim"
44. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."
45. It is settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.
46. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned counsel for appellants.
47. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :-
"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."
48. So far as the question of delay in lodging FIR is concerned, FIR itself recites that all the three injured persons were taken to Fazilnagar Hospital for treatment, where they were medically examined in the night. On seeing serious condition of victims they were taken to District Hospital, Deoria where from Doctor referred the victims to Medical College, Gorakhpur but due to strike of Doctors they could not be admitted in Medical College and they were got admitted in District Hospital Gorakhpur. On 13.02.1990, victim Hushna Bano succumbed to injuries at 09:00 AM and Abdul Haq breath the last at 09:30 AM in the Hospital. In this way delay in FIR is properly explained.
49. It is well settled, if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, Court has held;
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
50. In Amar Singh Vs. Balwinder Singh & Ors. (2003) 2 SCC 518, Court held :
"In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR."
51. In this connection it will also be useful to take note of the following observation made in Tara Singh V. State of Punjab AIR (1991) SC 63.
"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
52. In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."
53. From the above discussed exposition of law, it is manifest that prosecution version cannot be rejected solely on the ground of delay in lodging FIR. Court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident, as narrated by witnesses, has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of prosecution. Even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it has been observed by Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused.
54. In this case, as we have already said, delay has been properly explained. The contention, therefore, that there is undue delay in lodging F.I.R. is not acceptable, hence rejected.
55. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case and accused-appellant are not entitled to get benefit of the same.
56. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
57. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
58. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.
59. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is Minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution.
60. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. Only such omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].
61. Learned Amicus Curiae appearing for appellant advanced her arguments and submitted that medical evidence does not support prosecution case, therefore, accused-appellant is entitled to benefit of doubt and they are liable to be acquitted.
62. Here we would like to consider the submissions of PW-5 Doctor S.K. Sharma posted in PHC Fazilnagar, District Deoria conducted medical examination of Abdul Haq at 11:30 PM on 10.2.1990 in the night and found punctured wound 3 cm x 1.5 cm in stomach. On the same day at about 11.45 PM, he examined Zahrul Haq and found punctured wound 3.5 cm x 1.5 cm over the left scapula. He examined Smt. Hushna Bano at about 11.50 PM and found punctured wound 3.5 cm x 1.5 cm on the left side of stomach. He opined that injuries found on their person of victimss were fresh and possible to be occurred from sharp cutting weapon like knife. Doctor further opined that injuries on the person of Abdul Haq and Hushna Bano were sufficient to cause death in ordinary course of nature. He proved medico legal report as Ex.Ka-4, 5 and 6.
63. PW-6, Dr. P.N. Pandey, conducted autopsy over the dead body of Abdul Haq and proved post mortem. He opined that death was due to shock and hemorrhage on account of ante mortem injuries which was possible on 10.2.1990 at about 10 PM due to sharp cutting weapon like knife.
64. Both the doctors proved injuries on the part of victims and injuries were found to be caused by knife. PW-3 also sustained knife injuries over the left scapula which was supported by PW-5 Dr. S.K. Sharma. As per prosecution accused inflicted knife injury to Abdul Haq, Smt. Hushna Bano and PW-3 Zahrul Haq. There is no difference between medical evidence and ocular evidence. Medical evidence is totally compatible with the ocular version, therefor, we are not inclined to accept the argument of Amicus Curiae on this behalf and rejected the same.
65. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and Trial Court has rightly convicted him for having committed an offence under Section 302 read with 324 IPC. Appeal is devoid of merit and liable to be dismissed.
66. So far as sentence of accused-appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
67. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
68. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of murder and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no ground appears to interfere in the matter on the point of punishment imposed upon him.
69. We, therefore, find no merit in appeal. Present jail appeal lacks merit and is accordingly, dismissed and judgement and order dated 04.03.2006 passed by Additional Sessions Judge (FTC-I), Kushinagar at Padrauna in Sessions Trial No.56 of 2002, under Sections 302 and 324 IPC, is maintained and confirmed.
70. Lower Court record along with a copy of this judgment be sent back immediately to District Court and Jail concerned for compliance and apprising the accused-appellant.
71. Before parting, we provide that Ms. Nishi Mehrotra, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 06.09.2019 I.A.Siddiqui