Allahabad High Court
Raj Kumar Singh & Others vs State Of U.P. on 30 July, 2018
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 1813 of 1983 Appellant :- Raj Kumar Singh & Others Respondent :- State Of U.P. Counsel for Appellant :- B.K.Solanki,A.Hajela,A.K.Awasthi,Hari Kesh Singh,L.V.Singh,Manish Tiwari,Subodh Kumar Counsel for Respondent :- A.G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
[Delivered by: Hon'ble Chandra Dhari Singh,J.]
1. The instant criminal appeal has been preferred on behalf of the accused-appellants against the impugned judgment and order dated 01.08.1983 passed by the VI Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981 (State vs. Raj Kumar Singh and others) under Sections 302/149, 307/149 and 148 IPC, whereby the accused-appellants have been convicted and sentenced for the life imprisonment, ten years simple imprisonment and three years simple imprisonment respectively.
2 (I). Brief facts of the case is that on 08.04.1980 at around 12.15 PM, one Ratiram arrived at Police Station Kanth and stated that eight days before Holi, Rajkumar purchased a buffalo from his elder brother Bramhapal Singh at the rate of Rs. 1900/-, which he promised to pay after eight days of Holi and when he did not pay as per the promise and kept on avoiding, then Bramhapal Singh stopped Rajkumar from harvesting the crop and said that until my money is paid, you will not be allowed to harvest the crop. On the day before incident, in the evening, Rajkumar Singh asked Bramhapal Singh to come tomorrow at Simra Khera to collect his money. On 8.4.1980, the cousin brother of informant, namely Mahendra Singh came to his house and asked Bramhapal Singh to go Simra Khera with him for bringing his money from Rajkumar, on the request, Bramhapal Singh, one villager Badshah Singh and his brother-in-law Sripal Singh alongwith Mahendra Singh came to the house of Sher Singh and sat on a bed in drawing room. After a while, Mahendra Singh called Rajkumar Singh, who had come with a rifle in his hand alongwith Karan Singh armed with a rifle, Sukhlal armed with a single barrel gun, Jagdish Singh armed with a single barrel gun, Harpal Singh armed with a single barrel gun and Nankoo Singh armed with a double barrel gun and all of them stood in lane and at about 9.00 AM, as soon as Bramhapal Singh asked for his money, Harpal Singh asked Rajkumar Singh "now what are you looking for, immediately repay the debt of Bramhapal Singh". On this Rajkumar Singh opened fire shot with his rifle upon Bramhapal Singh, which hit his head, due to which he fell down unconscious and after that all the associates of Rajkumar Singh, namely Harpal Singh, Karan Singh, Jagdish Singh, Sukhpal Singh and Nankoo Singh had opened fire from their respective weapons. Thereafter, complainant, Badshah Singh, Sripal Singh and Mahendra Singh ran away from the spot. Out of shots fired from the side of accused, one fire hit Mahendra Singh. The complainant and other eye-witnesses ran into house of Sher Singh and when they returned on the spot, Bramhapal Singh found dead.
(II). After the FIR was lodged, Investigating Officer investigated the matter and after completion of investigation, charge-sheet was submitted against the accused persons Rajkumar, Harpal, Jagdish Singh, Karan Singh, Sukhlal and Nankoo Singh under Sections 148, 302/149 and Section 307/149 IPC.
(III). The prosecution has examined Dr. R.N. Rastogi (PW-1), Ratipal Singh (PW-2), Sripal Singh (PW-3), Mahendra Singh (PW-4), Dr. R.K. Gupta (PW-5) and Jagdish Singh (PW-6) as witnesses against the accused persons.
(IV). The accused Jagdish Singh has filed three documents vide List 65 Kha, which were recorded as Exhibit Kha-3, Exhibit Kha-4, Exhibit Kha-5. Exhibit Kha-3 is medical examination report of accused Jagdish Singh which was conducted by Dr. R.P. Gulati at Tilhar Hospital. Exhibit Kha-4 (Khatauni 1390 to 1395) is copy of Fasali wherein some portion of land is recorded in the name of Jagdish Singh and other persons. Exhibit Kha-5 (Khatauni 1379 to 1394) is copy of Fasali wherein name of Jagdish Singh is recorded against some portion of land.
(V). The trial court after concluding the proceedings vide judgment and order dated 01.08.1983, convicted the appellants herein for committing the murder and sentenced them to undergo life imprisonment.
(VI). Aggrieved by the judgment and order dated 01.08.1983 passed by the VI Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981 (State vs. Raj Kumar Singh and others) under Sections 302/149, 307/149 and 148 IPC, the instant criminal appeal was preferred by the appellants.
3. The PW-1 Dr. R.N. Rastogi has deposed in his statement that on 08.04.1980 at 7.15 P.M, he examined Mahendra Singh, who was brought by Constable Swami Dayal and identified by him and he found following injuries on his body;
1Wounds of gun shot. Two wounds of 0.3 c.m. Diameter and 0.4 c.m. Deep in back at Lumber Vertebra Two and Three level at both side at 3 c.m. Right and 5.5 c.m. from spine. He was not found any pellet on touching. No symptoms of ranginess and regeneration.
2Three pellet injuries of the said measurement towards palm fingers.
3In counting fifteen pellet injuries at back side of left hip and on back side of left thigh. On being touched two other pellet have been found. Other particulars are same as injury no. 1.
4In counting six gun pellet injuries were found at back side of right leg and back side of hip, thigh and leg. On being touched one pellet was found. Other particulars are same as injury no. 1.
4. All these injuries were received within one day and were caused by firearm such as gun. Injury no. 1 was kept under observation and other injuries were simple. Injury nos. 1 and 3 were advised for X-ray. Doctor concerned opined that there is possibility of receiving such injuries on 08.04.1980 at 9.00 AM. He further stated that the injury report has been prepared at the time of examination in his handwriting and signature. Thumb impression and identification of injured is marked therein and report was marked as Exhibit Ka-1.
5. PW-2 Ratipal Singh has deposed in his statement that the deceased Bramhapal Singh was his real brother. Accused Rajkumar Singh, Harpal Singh, Sukhlal, Karan Singh, Jagdish Singh are still alive and Nankoo Singh had died. Rajkumar resides at Simra Khera, which is one kilometer away from his place. Accused Harpal resides at Sunderpur, which is one kilometer away from his place. Jagdish Singh resides at village Rahdeva which is five kilometer away from his place. Karan Singh and Sukhlal reside at village Mahiyapur and all the accused persons are friends. He further deposed that two years ago before eight days of Holi, Rajkumar Singh had purchased a buffalo from Bramhapal Singh at the rate of Rs 1900/- with a promise to pay the said amount after eight days. On being asked to give money back, Rajkumar started giving excuses. When money was not received, Bramhapal Singh asked field share-holders to stop wheat crop harvesting of Rajkumar at Simra Khera. On stopping of crop harvesting, Rajkumar came and said to come tomorrow in the evening at his place and collect the money. Next morning, Mahendra Singh came at the house of PW-2 and asked Bramhapal Singh to go with him for bringing his money back from Rajkumar. It is stated that his brother Bramhapal Singh, his brother-in-law Sripal Singh and one villager Badshah Singh had gone to the village 'Simra Khera' at the house of Sher Singh and sat on a bed in drawing room. After a while, Mahendra Singh called Rajkumar, who had come with Harpal, Sukhlal, Nankoo, Karan Singh and Jagdish Singh armed with their respective weapons. When Bramhapal Singh asked for his money, Harpal Singh asked Rajkumar Singh "now what are you looking for, immediately repay the debt of Bramhapal Singh". On this, Rajkumar Singh from the two or three steps away fired on Bramhapal Singh from his rifle which hit at right side of his head and, thereafter, complainant, Sripal Singh, Badshah Singh and Mahendra Singh ran away from the spot. Out of shots fired from the side of accused, one fire hit Mahendra Singh as he was the last one. Thereafter, they all ran into house of Sher Singh. This incident had taken place in early morning of 8.4.1980 at 9.00 A.M. When they came to Bramhapal Singh, he was found dead. FIR of the said incident was written by Sripal and same was recorded as Exhibit Ka-2. Mahendra Singh had come to police station and his medical examination was conducted.
6. PW-3 Sripal Singh has deposed in his statement that deceased Bramhapal Singh was brother of his brother-in-law and accused Rajkumar, Karan Singh, Sukhlal, Jagdish Singh and Nankoo were known to him. He further stated that about two years ago, he had come to place of his brother-in-law. Around 7.00 AM to 8.00 AM, Mahendra Singh had come to call Bramhapal Singh for bringing his money back from Rajkumar. Complainant alongwith Bramhapal Singh, Mahendra Singh, Ratipal Singh and Badshah Singh had gone to village Simra Khera; after reaching Simra Khera, they sat in drawing room of Sher Singh. Mahendra Singh had gone to call Rajkumar and Rajkumar had come with Karan Singh, Nankoo, Sukhlal, Jagdish Singh and Harpal armed with their respective weapons. Mahendra Singh was sitting on bed adjacent to Bramhapal Singh. Harpal asked to repay the debt of Bramhapal Singh. Rajkumar had fired from two or three steps away with his rifle upon Bramhapal Singh, which hit at the right side of his forehead and he fell down there. As soon as, Bramhapal Singh was hit by fire-shot, they all ran away due to fear. Accused persons also fired on them and Mahendra Singh had sustained injuries and all of them had entered into the house of Sher Singh. After sometime, when they came on the spot, Bramhapal Singh was found dead.
7. PW-4 Mahendra Singh deposed in his statement that Bramhapal Singh and Ratipal are not his cousin brother. He further stated that he had heard that accused Rajkumar had purchased a buffalo from Bramhapal Singh. He further stated that accused Rajkumar, Harpal etc. were known to him except Karan Singh. He stated that the incident in question took place around two years ago. He further stated that they reached at the place of Sher Singh and sat on a bed. After some altercation taken place between Rajkumar and Bramhapal, accused Rajkumar fired on Bramhapal Singh due to that the deceased Bramhapal Singh caused head injury and he died on the spot. It is stated that they all ran away due to fear and at the said point of time, he also received fire shot injury at the back.
8. PW-5 Dr. P.K. Gupta has deposed in his statement that on 09.04.1980 the postmortem of dead body of Bramhapal Singh was conducted by him. The dead body of Bramhapal Singh was brought and identified by Sri Kumar Dixit and Khilla Chowkidar. The death of deceased occurred one day before. Stomach was distended. Green spots were present on the body. Stool present in anus. Following injuries were found on the dead body of Bramhapal Singh:
1Gun shot wound of entry 2.5 cm X 3 cm through and through cavity deep with blackening and inverted margin on the center of forehead 3cm above the root of noes direction-anterior to posterior. All the bones of head were fractured.2
Gun shot wound of exit 5.2cm X 5cm through and through of occipital.3
Two Gun shot wound of entry each of 0.5cm X 0.5cm into cavity deep with inverted margin on the right side chest, one 7cm above the right nipple, another is 8cm above the right nipple. Directions from right to left of second and third ribs broken.4
Three gun shot wounds of entry each 0.2cm X 0.2cm skin deep on the abdomen front, 16.5 cm above to umbilicus towards left side in the direction of 2' O clock and one direction anterior to posterior.5
One gun shot wound of entry 0.2cm X 0.2cm into skin deep 2cm below and to left side of umbilicus at 5' O clock direction anterior to posterior.6
Multiple gun shot wounds of entry each of 0.2cm X 0.2cm muscle deep through and through on the anterior aspect on upper arm and forearm with inverted margin. Direction anterior to posterior.7
Multiple gun shot wounds of exit with inverted margin each of 0.4cm X 0.4cm through and through on the posterior aspect on upper arm and forearm.8
Two gun shot wounds of entry with inverted margin each of 0.2cm X 0.2cm X muscle deep on the base of left thumb near web of thumb and under finger. Direction anterior to posterior.9
Two gun shot wounds of entry with inverted margin each of 1.2cm x 1.4 cm X through and through another 1 cm X 1cm X through and through on the right thigh of anterior and middle, 12cm above the right knee joint.10
Multiple (5) gun shot wounds of exit with inverted margin each of 0.5cm X 0.5cm X through and through on the right thigh posteriorly and 8 cm above the posterior of right knee joint.11
Multiple gun shot wounds of entry with inverted margins each of 0.2cm X 0.2cm X muscle deep in an area of 12.5cm X 10cm just below the right knee joint on the upper anterior of leg.12
Gun shot wound of entry 4cm X 4.2cm X through and through on the right leg laterally and 10cm below the right knee joint with blackening. Direction posterior to anterior.13
Multiple gun shot wounds exit each of 0.5cm X 0.5cm X through and through, one large 3cm X 4cm through and through 11cm below to right knee joint.14
Two gun shot wounds of entry with inverted margin each of 3cm X 3cm X through and through on the inner (middle upper part of left thigh), 25cm above the left knee joint, another 20cm above the left knee joint. Thigh bone was fractured. Direction right anterior to left posterior.15
Two gun shot wounds of exit with inverted margins each of 0.5cm X 0.5cm X through and through on the left thigh laterally and posteriorly 20cm above the left knee joint.16
Gun shot wound of exit with inverted margin 0.5cm X 0.5cm X through and through on the upper posterior part of the left hip, 12cm below hip bone.
All entry wounds of bullets penetrated inside and exit wounds outstretched.
Internal Examination In addition to above mentioned fractured bones, brain membrane was torn. Brain was ruptured coming out of wounds. Right and left membrane of lungs were ruptured and blood was present in the cavity. Lungs were ruptured. Stomach was empty, small intestine was empty, stool was present in large intestine.
45 small pellets and 4 large pellets and cardboard were recovered and details of which as follows;
a.
Cardboard and 19 small pellets were recovered from brain, three small pellets were recovered from injury no. 4 in abdomen. One pellet from injury no. 5, 9 pellets from right forearm, 2 pellets from left palm, 11 pellets from right leg and knee joint, 2 large pellets from left chest and 2 large pellets were recovered from bone of left thigh.
Pellets were sealed and handed over to Constable who brought the dead body.
In the doctor's opinion the cause of death is bleeding and shock which were caused by above injuries. There is possibility that all these injuries were sufficient to cause death on 08.04.1980 at 9.00 AM. This report has been prepared at the time of postmortem in his hand writing and signature, which is Exhibit Ka 3.
9. PW-6 S.I. Jagdish Singh has deposed in his statement that Ratipal has submitted a report Exhibit Ka-2 in relation to the incident which took place on 08.04.1980 at about 9.00 AM of which Constable Clerk Bhagwan Swaroop Saxena had prepared the report, which is Exhibit Ka-5. Constable Saxena had entered the case as Report No. 16 at 12.15 PM, photocopy of which is Exhibit Ka-6. He identified handwriting and signatures of Sri Bhagwan Swaroop Saxena.
10. Mr. Manish Tiwary, learned counsel appearing for the accused persons, has submitted that PW 4 namely Mahendra Singh, who is the injured eye-witness and hence the star witness of the prosecution, has given narration of the occurrence totally different from the version of the FIR and as what has been deposed by PW 2 namely Ratipal Singh who happens to be the brother of the deceased Brahmapal Singh and is also the first informant of the present case. PW-4 Mahendra Singh who is the star witness produced by prosecution has not even made a whisper about Karan Singh in his whole testimony and has in fact in his examination-in-chief categorically stated that he doesn't know Karan Singh. Moreover, he has introduced entirely a new person as an accused namely Chhote Singh, who was not even named in the FIR or in the testimony of PW 2 and PW 3. He has given an entirely different manner of occurrence from what has been stated in FIR or the testimony of PW 2 and PW 3. He further submitted that PW 2 in his testimony has stated that since Mahendra Singh is the relative of Karan Singh but the same relation has not been proved by the prosecution in the entire case as neither any suggestion has been given to PW 4 in this regard nor any such question has been put to Karan Singh in his statement under Section 313 Cr.P.C. Moreover in his statement under Section 313 Cr.P.C., the appellants had also stated the reason for their false implication and had also stated that they were not present at the time of occurrence and, therefore, the onus lying upon the defence stands discharged. Allegedly, the occurrence has taken place outside the house of Sher Singh but Sher Singh or any of his family members or any of his neighbours were never produced by the prosecution during trial. It has been further contended that PW 6 Jagdish Singh, who was the Investigating Officer of the present case, has categorically stated that in the site map he has nowhere marked the place from where the blood-stained earth and plain earth were collected. Learned counsel submits that there were no pellets or any remnants of bullet recovered from outside Sher Singh's house or from inside his house.
11. Per-contra, learned AGA appearing on behalf of the State has submitted that PW 1, PW 3 and PW 4 supported entirely to the prosecution story. The testimony of these witnesses supported the version of the FIR. Learned AGA submits that though there is some minor contradictions among the statements of the witnesses but it cannot be fatal for the prosecution story. He further submitted that PW 2, PW 3 and PW4 specifically stated in their testimony that the accused persons fired on Bramhapal Singh by their respective weapons, therefore, he sustained 16 injuries on different part of the body. As per the postmortem report the nature of injuries and time of receiving the same are corroborated with the testimony of the witnesses. He further submits that the doctor concerned also stated in his testimony that after seeing injuries of the deceased, the time of the incident would be at about 9.00 AM on 08.04.1980. The motive is also established by the prosecution as there was some money dispute between the accused and the deceased, therefore, the accused persons had enmity with the deceased and on demand of money, they came with their respective weapons and started firing on the deceased and caused multiple firearm injuries, due to which, he died on the spot. Learned AGA submits that present appeal is devoid of merit and, as such, same is liable to be dismissed.
12. We have considered rival contentions and perused the impugned judgment and materials on record.
13. For analysing the arguments advanced by the learned counsel for the parties, we have to consider the legal propositions involved in the instant case. Learned counsel appearing on behalf of the accused persons submitted that in the cross-examination Dr. Rastogi deposed that 24 hours have been passed since infliction of injuries. Thus, in such a situation, when Dr. Rastogi conducted medical examination at 7.05 PM then incident should have not been occurred at about 9.00 A.M. on 08.04.1980.
We have perused the statement and cross examination of Dr. Rastogi. Dr. Rastogi nowhere stated that 24 hours have been passed since infliction of injuries, whereas he stated that injuries were caused within a day. In cross examination he also stated that duration of causing injuries is within 24 hours. In his statement he further clarified that injuries are possibly sustained on 08.04.1980 at 9.00 AM. Thus, in such a situation, it cannot be said that the statement of Dr. Rastogi does not support the prosecution version.
14. In the defence, it was stated that as per the prosecution version, report and statements of witnesses, Raj Kumar fired from rifle which hit Bramhapal Singh on right side of his head, but as per the report and statement of Dr. P.K. Gupta, no injury of rifle was found as deposed in para 5 of his statement, cardboard and 19 small pellets were recovered from his brain. Thus, injury cannot be sustained by rifle because cardboard and small pellets could not have been recovered, if it was a rifle shot.
We perused the report of complainant, statement of complainant and report of doctor and statement of witness Sripal and Mahendra. As per statement of witness Ratipal and Sripal, Rajkumar fired from rifle, which hit the right side of head of deceased Bramhapal and, thereafter, Bramhapal fell down on the bed and they all ran away as soon as Bramhapal was shot. We also perused the statement of Dr. P.K. Gupta, which mentions that there are no injury at the right side of the head of deceased Bramhapal, there is bullet entry wound just 3cm above the nose at the center of forehead of deceased Bramhapal Singh but it is not at the right side of head and this injury was not caused with rifle. It seems that when Rajkumar fired with his rifle, then its bullet had passed from right side of head of Bramhapal Singh and due to fear of bullet, Bramhapal Singh fell down on the bed, the witnesses prospected that bullet of rifle hit Bramhapal Singh. As soon as bullet hit, the witnesses got nervous and ran away and when they returned after sometime, they found Bramhapal dead. Therefore, witnesses prospected that deceased Bramhapal Singh got injured by fire-shot of rifle of Rajkumar and due to this prosecution witnesses deposed that injury was received by fire-shot of rifle of Rajkumar. As Rajkumar fired a shot with rifle and his companions co-accused were equipped with guns and they also fired with their respective weapons on the deceased, therefore, deceased got multiple bullet injuries.
Therefore, it is proved that all accused persons participated in the commission of crime and, therefore, they were convicted by the trial court under Sections 302/149. After fire from the rifle, all accused persons had caused injuries to the deceased Bramhapal with their respective weapons.
15. It is also stated that Dr. P.K. Gupta stated in his testimony that Bramhapal had eaten food 12 hours before his death which makes it clear that Bramhapal had not died at 9.00 AM rather his death occurred at some other time as it cannot be believed that Bramhapal Singh had to go other village at 9.00 AM and he would have gone without eating anything and if he had eaten something then certainly some portion of food could have been found in his stomach.
In this respect, we perused the statement of witnesses and cross examination and we found that accused persons have not asked any question from any witness whether Bramhapal had eaten something before leaving or not, thus, in such a situation, it does not seem correct presumption that Bramhapal must had eaten something before leaving. It seems that at the time when Bramhapal went in the morning, he did not eat anything and in night whatever food he would have taken, same would have been digested. Dr. Gupta further clarified that there is possibility of death of deceased on 08.04.1980 at 9.00 AM.
16. It is also stated that there are contradictions in the deposition of the testimony of the witnesses, as such, the witnesses Ratipal Singh stated that Rajkumar fired from two to three steps away whereas Sripal Singh stated in his testimony that Rajkumar was standing in the street from four to five steps away from them and he moved two to three steps and then fired, so, there is difference in distance as told by them. All the accused persons equipped with their respective weapons fired on the deceased, therefore, it is not possible for any witness to collect the distance of firing, therefore, such contradictions are very natural.
17. It was also submitted by learned counsel for the appellants that no person of village, where such an incident occurred was produced as witness. All witnesses are interested witnesses and they are related to each other. The evidence of an interested witness does not suffer from any infirmity as such, but the Court requires as a rule of precedence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care.
18. In the case of Yogesh Singh Vs. Mahabeer Singh and others [Criminal Appeal No. 1482 of 2013] Hon'ble Supreme Court has held as follows;
"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:
"25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice." [See also Krishnan Vs. State, (2003) 7 SCC 56; Valson and Anr. Vs. State of Kerala, (2008) 12 SCC 24 and Bhaskar Ramappa Madar and Ors. Vs. State of Karnataka, (2009) 11 SCC 690].
19. In Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793, the Hon'ble Supreme Court has held as follows;
"The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community."
20. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of the Hon'ble Supreme Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
21. In Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Hon'ble Supreme Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
22. A survey of the judicial pronouncements of the Hon'ble Supreme Court on this point leads to the inescapable conclusion that the evidence of a 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.
Discrepancies in Evidence
23. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission.
24. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety.
25. In State of Rajasthan Vs. Om Prakash AIR 2007 SC 2257, while dealing with a similar issue, the Hon'ble Supreme Court held as follows;
"12. ......irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions."
26. In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon'ble Supreme Court laid down certain guidelines in this regard, which require to be followed by the Courts in such cases. The Hon'ble Supreme Court observed as under :-
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw- backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
27. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies, which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.
28. Thus, in view of the above, the law on the point can be summarised to be that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as a whole.
29. In the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (AIR 2000 SC 3352), the Hon'ble Supreme Court held that while discrepancies in the testimony of a witness, which may be caused by memory lapses were acceptable, contradictions in the testimony were not. The Hon'ble Supreme Court observed as follows;
"Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
30. The difference between discrepancies and contradictions was explained by the Hon'ble Supreme Court in State of Himachal Pradesh v. Lekh Raj and Anr. (AIR 1999 SC 3916). Reference may also be made to the decision of an earlier judgment of Hon'ble Supreme Court in the case of State of Haryana v. Gurdial Singh & Pargat Singh (AIR 1974 SC 1871), where the prosecution witness had come out with two inconsistent versions of the occurrence. One of these versions was given in the Court while the other was contained in the statement made before the Police. This Court held that these are contradictory versions on which the conclusion of fact could not be safely based. The Hon'ble Supreme Court in the case of Gurdial Singh (Supra) has observed as follows;
"21. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police...In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained."
31. The Hon'ble Supreme Court in the case of Kehar Singh and Ors. Vs. State (Delhi Administration) AIR 1988 SC 1883, has observed that if the discrepancies between the first version and the evidence in Court were material, it was safer to err in acquitting than in convicting the accused.
32. Another settled rule of appreciation of evidence, as already indicated, is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes, it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
33. In the case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and another, 2013 (12) SCC 796, the Hon'ble Supreme Court had observed as follows;
"28..........It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission."
34. In the present case, the trial court found that the testimonies of the eye witnesses are reliable. The trial court also noted that there was motive to kill the deceased and same was proved by the witnesses produced by the prosecution. All accused persons had come on the spot with deadly weapons with intention to kill the deceased. All of the accused persons fired on him with their respective firearms, therefore, the deceased sustained 16 bullet injuries.
35. In the present case, we do not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence, which would tilt the balance in favour of the appellants. The minor improvements, embellishments are insignificant and ought to be ignored, since the evidence of the witness otherwise overwhelmingly corroborate each other in material particulars.
36. In view of the foregoing discussion, we do not find any merit in the instant criminal appeal. The trial court has correctly analyzed the material on record in the factual as well as legal perspectives to arrive on its conclusion. We, therefore, dismiss this criminal appeal and upheld the judgment and order dated 01.08.1983 passed by the VI Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981 (State vs. Raj Kumar Singh and others).
37. The judgment and order passed by the VI Additional District & Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1981 (State vs. Raj Kumar Singh and others) thus upheld. The appeal is, accordingly, dismissed. If the appellants are on bail, then bail bonds are hereby cancelled and they are directed to surrender before the trial court within a fortnight, failing which the learned Sessions Court shall take appropriate steps to put the appellants accused back in jail to undergo the sentence as awarded to them.
38. Let a copy of the judgment alongwith the lower court record be immediately sent to the court below for compliance and necessary entries in the relevant register.
Order Date :- 30.07.2018
Shekhar
(Chandra Dhari Singh, J.) (Naheed Ara Moonis, J.)