Allahabad High Court
Rajpal vs State on 9 April, 2019
Bench: Sudhir Agarwal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 04.12.2018 Delivered on 09.04.2019 Court No. - 34 Case :- JAIL APPEAL No. - 4351 of 2010 Appellant :- Rajpal Respondent :- State Counsel for Appellant :- From Jail Counsel for Respondent :- G.A. & Case :- CRIMINAL APPEAL No. - 5118 of 2002 Appellant :- Vikram Singh & Others Respondent :- State Of U.P. Counsel for Appellant :- Vinod Kumar Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam,J.)
1. Both the appeals namely Jail Appeal No.4351 of 2010 and Criminal Appeal No. 5118 of 2002 have been preferred against a common judgment and order dated 13.11.2002 passed by Sri Raja Ram Saroj, Additional Sessions Judge, Fast Track Court No.3, Meerut in Sessions Trial No.95 of 1995 and Sessions Trial No.1201 of 1995.
2. Jail Appeal No.4351 of 2010 has been preferred under Section 383 Cr.P.C. by Raj Pal through Jail Superintendent, Agra whereas Criminal Appeal No.5118 of 2002 has been filed by accused-appellants Vikram Singh, Satya Pal and Tara.
3. By impugned judgment dated 13.11.2002 accused-appellants Rajpal and Vikarm have been convicted and sentenced under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as "IPC") to life imprisonment with a fine of Rs.10,000/-. In default of payment of fine, they will undergo further imprisonment of six months. It was further provided that out of the amount of fine of Rs.20,000/-, Rs.10,000/- shall be paid to the widow of deceased-Raj Kumar and remaining amount shall be deposited in Government treasury. Accused-appellants Tara and Satyapal have been convicted and sentenced under Section 302 IPC read with 34 IPC to life imprisonment and fine of Rs.10,000/- each. In case of default in payment of fine, they have to further undergo six months additional imprisonment. Out of the amount of fine so recovered Rs.10,000/- has to be paid to the widow of deceased-Ram Kumar and remaining amount would be deposited in Government treasury. Further, accused-appellants Raj Pal, Vikram, Tara and Satyapal have been convicted and sentenced under Section 323 IPC read with 34 IPC to undergo one year simple imprisonment each.
4. Prosecution case surfacing from First Information Report (hereinafter referred to as 'FIR') and material available on record may be stated as under:-
5. On 13.07.1994 Informant, PW-1 Kartare, was sitting alongwith his family in front of his house. At about 07:00 AM accused-appellants Vikram Singh, his brother Satyapal S/o Jhabrey, Tara S/o Atru all R/o informant Village Meeva, Police Station Mawana, District Meerut and accused-appellants Raj Pal S/o Suraj Mal, R/o Village Roordhana, Police Station Sandhana, District Meerut came over there armed with Tabal and Lathis; and exhorted that Informant was posing himself as big bully and they (accused) will settle the score. When Informant opposed and resisted them accused Vikram using filthy languages inflicted Ram Kumar on his head with Tabal and Raj Pal assaulted on his neck with Balkati with intention to kill him. When the witnesses rushed to save Ram Kumar, accused persons assaulted them also with Lathi, Tabal and Balkati. On hearing alarm, Kamal Singh and Raj Pal S/o Dhumi reached there and rescued them. Thereafter accused made their escape good. Informant PW-1 Kartare, PW-2 Dhumi and PW-3 Baleshwari alongwith injured Ram Kumar proceeded for Police Station Mawana. On the way, Informant got report scribed by a typist and after reading and hearing that report, he put his signature thereon. This report Exhibit-Ka 1 was presented in the Police Station.
6. Immediately after receipt of the written report Exhibit-Ka 1, Police sent injured-Ram Kumar to Mawana Hospital. Informant-PW1 Kartare, Dhumi and Baleshwari also went to Mawana Hospital alongwith Police personnel where their injuries were examined. During course of treatment injured-Ram Kumar succumbed to his injuries on 15.07.1994. After presentation of written report Exhibit-Ka 1, Chik report Exhibit-Ka 6 was prepared by Head Moharir Abdul Salam at 08:30 PM. He also made an entry regarding FIR and General Diary, a copy of which is Exhibit-Ka 7.
7. After registration of the case, investigation was commenced by PW-7 Sub Inspector Babu Ram Singh. He made relevant entries in Case Diary and went to Primary Health Center Mawana, where he found condition of injured Ram Kumar precarious and unable to make any statement. He also recorded statement of PW-1, Informant Kartare, PW-2 Dhumi and PW-3 Balreshwari. Injured Kartare, Dhumi and Baleshwari were also medically examined. On pointing out by informant, Investigating Officer (hereinafter referred to as "I.O.") inspected place of occurrence, prepared site plan Exhibit Ka-8. Initially, case was registered under Section 307 IPC, as Case Crime No.247 of 1994 against accused-appellants. After death of Ram Kumar, case was converted under Section 302 IPC. Copy of amended General Diary at Report No.24 entered on 17.07.1994 at 16:45 hours is Exhibit-Ka 9 on record. Thereafter PW-8 Sub Inspector K.K. Singh went to P.L. Sharma Hospital, Meerut on 16.07.1994. He prepared inquest Exhibit-Ka 10 and after duly sealing the dead body, sent the same to District Hospital, Meerut alongwith necessary documents, namely Form No.13, letter of request to Chief Medical Officer (hereinafter referred to as 'CMO'), letter to RI Exhibit- Ka-11 and Photo Nash Exhibit-Ka 14.
8. Autopsy on the dead body of deceased-Ram Kumar was conducted by PW-10 Dr. V.P. Singh on 16.07.1994 at about 4:30 PM. On external examination, he found deceased aged about 25 years of average body built and rigor mortis was found present through all over the body. He found following ante mortem injuries on his person:
1. Stitched wound 11 cm with 8 stitches on left skull towards left side of head on upper part of left years.
2. Contusion 4cm x 2cm of left forehead, 0.5cm above medial end of left forehead, above left eye brow.
3. Stitched wound 18 cm with 28 stitches on right face, 1 cm below level of right ear, transversely place extending to medial end of left eye, mid nose.
4. Traumatic swelling 8 cm x 6 cm on right skull, lateral aspect.
5. Stitched wound 14 cm on palm aspect of left hand, bearing left thumb and dorsal aspect of left hand. 27 stitches is present. Fracture of metacarpal left little finger and left ring finger.
9. On internal examination Doctor found fracture of temporal, parietal and occipital bones on left side. Membranes and brain lacerated; left side heart contains 200 gms of blood; teeth 16/16; stomach contained semi digested food material 50 ml; large intestine contained gases and faecal matter; gall bladder half full; kidneys weighed 200 gm; spleen 90 gm; urinary bladder was empty. In the opinion of Doctor death was caused due to coma as a result of ante mortem injuries. He prepared postmortem report Exhibit-Ka 16 and after sealing the dead body alongwith clothes of deceased PW-10 handed over the same to the Constable who had brought the dead body.
10. Initially injuries of injured Ram Kumar, prior to his death had been examined by PW-4 Dr. R.D. Sharma on 13.07.1994 at 10:30 AM. After medical examination, he prepared injury report Exhibit-Ka-2. He found following injuries on his person:
1. Incised wound 18 cm x 3 cm x bone on right side face staring from right ear to middle of nose, fresh bleeding present. Injury kept under observation. Advised X-Ray.
2. Incised wound 5 cm x 1 cm through and through on the back and middle aspect of left hand. Injury kept under observation. Advised X-Ray.
3. Detailed examination postponed as the condition of patient is serious. Patient admitted.
11. Injury of informant PW-1 Kartare was examined by Dr. A.K. Verma PW-6 on 13.07.1994 at 11:10 AM. He found following injury on his person vide injury report Exhibit Ka 4:-
1. Lacerated wound 1 cm x 0.2 cm x skin deep on the right side face head 0.6 cm above inner end of right eye brow. Bleeding presented.
12. Injuries of PW-2 Dhumi was examined by Dr. A.K. Verma PW-6 on the same day at 11:20 AM., who found following injuries on his person vide injury report Exhibit-Ka3:
1. Red abrasion 4 cm x 2 cm on the back of right forearm, 9 cm above wrist joint. Bleeding presented.
2. Red contusion 6 cm x 0.6 cm on the outer aspect of right thigh, 11 cm above knee joint.
13. Injuries of PW-3 Baleshwari was examined by same doctor on the same day at about 11:30 AM. He found following injuries on his person vide injury report Exhibit-Ka 5:
1. Red abrasion 3 cm x 1 cm on the front of left knee. Bleeding present.
2. Red abrasion 2.5 cm x 0.2 cm on front of left leg, 4 cm below from knee joint.
3. Red abrasion 0.6 cm x 0.4 cm on the front of left leg 7.5 cm below injury no.2.
14. After conclusion of investigation, Investigating Officer Sub Inspector B.L. Gautam PW-9 submitted the charge sheet Exhibit-Ka 15 in the Court of Chief Judicial Magistrate, Meerut, who took cognizance of the offence on 09.09.1994. The case being triable by Court of Sessions, it was committed on 09.01.1995 to Sessions Court. The case was registered as Session Trial No.1211 of 1995 and transferred to the Court of 1st Additional Sessions Judge, Meerut who framed charges against the accused-persons on 22.09.1995 as under:-
Accused Tara :
"I, R.P. Yadav, 1st Additional Sessions Judge, Meerut do hereby charge you: Tara, as follows:-
Firstly: That you on 13.07.1994 at about 07:00 A.M. in village Miva, within the circle of Police Station Mawana, District Meerut, in furtherence of common intention with co-accused Vikram Singh, Rajpal and Satyapal, did commit murder by knowingly causing the death of Sri Ram Kumar and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Secondly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Dhoomi and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Thirdly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Kartare and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions; & Fourthly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Baleshwari and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions.
And I hereby direct that you be tried on the said charges."
Accused Raj Pal :
"I, R.P. Yadav, 1st Additional Sessions Judge, Meerut do hereby charge you: Raj Pal, as follows:-
Firstly: That you on 13.07.1994 at about 07:00 A.M. in village Miva, within the circle of Police Station Mawana, District Meerut, commit murder by knowingly causing the death of Sri Ram Kumar and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions;
Secondly: That you on the said date, time and place in furtherance of common intention of co-accused Vikram Singh, Satya Pal and Tara voluntarily caused hurt to Dhoomi and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Thirdly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Kartare and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions; & Fourthly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Baleshwari and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions.
And I hereby direct that you be tried on the said charges."
Accused Vikram Singh :
"I, R.P. Yadav, 1st Additional Sessions Judge, Meerut do hereby charge you: Vikram Singh, as follows:-
Firstly: That you on 13.07.1994 at about 07:00 A.M. in village Miva, within the circle of Police Station Mawana, District Meerut, commit murder by knowingly causing the death of Sri Ram Kumar and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions;
Secondly: That you on the said date, time and place in furtherance of common intention of co-accused Raj Pal, Satya Pal and Tara voluntarily caused hurt to Dhoomi and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Thirdly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Kartare and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions; & Fourthly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Baleshwari and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions:
And I hereby direct that you be tried on the said charges."
Accused Satya Pal :
"I, R.P. Yadav, 1st Additional Sessions Judge, Meerut do hereby charge you: Satya Pal, as follows:-
Firstly: That you on 13.07.1994 at about 07:00 A.M. in village Miva, within the circle of Police Station Mawana, District Meerut, in furtherence of common intention with co-accused Vikram Singh, Rajpal and Tara, did commit murder by knowingly causing the death of Sri Ram Kumar and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Secondly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Dhoomi and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions;
Thirdly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Kartare and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions; & Fourthly: That you on the said date, time and place in furtherance of common intention of aforesaid co-accused voluntarily caused hurt to Baleshwari and thereby committed an offence punishable under Section 323 IPC read with Section 34 IPC and within the cognizance of the Court of Sessions.
And I hereby direct that you be tried on the said charges."
15. The accused-appellants pleaded not guilty and claimed to be tried.
16. In support of its case prosecution examined in all ten witnesses, out of whom PW-1 Kartare Informant; PW-2 Dhumi; and PW-3 Baleshwari are the witnesses of fact. They have stated on oath regarding occular version of incident. Rest are formal witnesses. PW-4 Dr. R.D. Sharma had examined injured-Ram Kumar on 13.07.1994 at about 10:30 AM and has proved injury report Exhibit-Ka 2. PW-5 Constable Fakir Singh is a witness of carrying the dead body of deceased Ram Kumar in sealed condition from P.L. Sharma Hospital to District Hospital for postmortem. PW-6 Dr. A.K. Verma had examined injured PW-1 Kartare, Informant, PW-2 Dhumi and PW-3 Baleshwari and has proved their injury reports, Exhibit- Ka 3, Ka 4 and Ka 5 respectively. PW-7 Sub Inspector Babu Ram Singh Yadav was first Investigating Officer, who immediately after registration of FIR had started investigation. He has proved Chik FIR Exhibit-Ka 6 and copy of General Diary Exhibit-Ka 7. PW-8 Sub Inspector K.K. Singh is the second Investigating Officer, who had visited P.L. Sharma Hospital on 16.07.1994 after receiving information of death of deceased on 15.07.1994 at 8:10 PM. He has proved inquest (Panchayat Nama) Exhibit-Ka 10 as also relevant documents i.e. Form no. 13, letter to CMO, letter to RI and Photo Nash Exhibit-Ka 11, Ka 12, Ka 13 and Ka 14 respectively. PW-9 is third Investigating Officer Sub Inspector B.L. Gautam, who had arrested accused, recovered weapons of assault and submitted charge sheet Exhibit-Ka 15 in Court. PW-10 Dr. V.P. Singh had conducted postmortem over the dead body of deceased-Ram Kumar and had proved injury report Exhibit-Ka 16.
17. After conclusion of prosecution evidence statement of accused-appellants under Section 313 Cr.P.C. was recorded. They all have stated the prosecution story to be false and concocted. They have stated that death of deceased was due to Coma; forged postmortem report has been got prepared, charge sheet is not in the hand writing of Investigating Officer; alleged eye witnesses Kamal Singh and Raj Pal were not produced in Court and witnesses are deposing falsely. In defence accused-appellants have also produced Head Constable Jag Mohan Shukla DW-1 who has deposed that Parcha No.3 of Case Diary was not written by him.
18. On appreciation of evidence on record and hearing Counsel for parties learned Additional Sessions Judge, Fast Track Court No. 3, Meerut recorded verdict of conviction and sentenced the accused-appellants under Sections 302, 302/34 and 323/34 IPC by the impugned judgment and order dated 13.11.2002, mentioned above. Being aggrieved the accused-appellants are before this Court by means of Jail Appeal No.4351 of 2010 and Criminal Appeal No.5118 of 2002.
19. Heard Sri Avinash Jaiswal, learned Amicus Curiae for appellant in Jail Appeal No.4351 of 2010 and Sri Vinod Kumar Tripathi, learned Counsel for the appellants in Criminal Appeal No.5118 of 2002; and learned AGA for the State in both the cases.
20. Apex Court in A. Raghavamma and another versus A. Chenchamma and another, AIR 1964 SC 136 has propounded that burden of proof and onus of proof are two different things. Burden of proof lies upon a person, who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
21. In Kali Ram versus State of Himachal Pradesh, AIR 1973 SC 2773 Court, while propounding about - appreciation of evidence in criminal trial, has propounded that in a criminal trial the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, it cannot be succeeded. Prosecution to prove charge beyond all reasonable doubt. Whereas accused is to prove only till establishing preponderance of probability as has been lead by in Pratap versus State of U.P., AIR 1976 SC 966. While appreciating evidence, Court administering criminal justice should be of cautious that suspicion how so ever strong cannot taken place of prove, as has been propounded in State of Punjab versus Bhajan Singh, AIR 1975 SC 258. While hearing an appeal; in an appeal, the burden is on the appellant to show how the judgment under appeal is wrong ? He must show where the appreciation has gone wrong ?, as has been propounded in Narvada Prasad versus Chagan Lal, AIR 1979 SC 393.
22. In present appeal, learned Counsel for convict appellants assailed impugned judgment on the ground that (a) FIR is full of suspicion, no material facts as names of all injured, injuries over person of them are written in it, which prove it to be ante timed and suspicious. Trial Court failed to appreciate facts raised before it. (b) The alleged injury on the witnesses were not entered in FIR. (c) Motive alleged in FIR is very weak and vague. (d) Witnesses named in FIR as eye witnesses i.e. Kamla Singh, Raj Pal and other witnesses of locality have not been examined by prosecution whereas presence of PW-2 Dhumi and PW-3 Baleshwari have not been mentioned in FIR. (e) Witnesses examined by prosecution i.e. Kartare, PW-2 Dhumi and PW-3 Baleshwari were related witnesses; they were interested and inimical to convict appellants, no reliance may be placed upon their testimony. Thus non-examination of independent witness raised suspicion over prosecution case and conviction was not to be based on the testimony of related witnesses, hence impugned order is liable to be set aside. (f) The injury alleged to be caused by Tabal, Balkati and Lathis were not in consonance with the injuries found on the person of injured, neither injured had gone to police station nor their injuries were examined at police station nor 'Chhithi Majrubi' was given by police nor the Medico Legal Examination was upon pretext of police, which further creates doubt. The private person has brought injured deceased for admission at Hospital and in bed head ticket a case of accident was written in it but Trial Court failed to take notice of it. (g) Blood stained clothes, earth taken from place of alleged occurrence were neither taken by Investigating Officer nor proved for proving place of occurrence. (h) Name of accused was not over inquest proceedings which itself establishes FIR to be anti timed. Hence, this appeal for setting aside judgment.
23. Learned AGA argued that all these arguments were raised before Trial Court and Trial Judge by a reasoned analysis has given no force to this arguments. Court in Harish Chandra Singh versus State of U.P. and others, 2002 (44) SCC 1100 has propounded that mere omission to mention number of case crime, details of FIR and name of complainant's witnesses in inquest Panchnama, cannot establish that FIR was anti timed. In Amar Singh versus Balwindar Singh and another, AIR 2003 SC 1164 Court has propounded that the requirement to Section 179 of Cr.P.C. is that the Police Officer shall record the apparent cause of death, describing the wounds as may be found on the body and also weapons or instruments by which they appear to have been committed and this has to be done in the presence of two or more responsible inhabitants of neighbourhood. This Section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery, etc., therefore, merely because the facts about the occurrence were not mentioned in the inquest report, it could not be said that at least by the time the report was prepared the Investigating Officer was not sure of the facts of the case. This Court in Saleem Pahlawan versus State of U.P., 2010 Cr.L.J. (NOC 1214) 314 has propounded that purpose of inquest is to certain the cause of death of deceased and nature and no recital for other fact is important. Hence, non mentioning of case crime number or names of accused in inquest report, as is argued by learned Counsel for convict appellants, is of no avail. Apex Court has repeatedly propounded that merely because witnesses happened to be relative witnesses of deceased, their evidences cannot be discarded. Related witnesses are good witnesses, but their testimony is to be appreciated carefully. There is no requirement of law that name of all witnesses be given in FIR, there is a catena of judgments of this Court itself as well as of Apex Court that FIR is not encyclopedia and is not expected to be with all details of the occurrence. In Dalip Singh versus State of Punjab, AIR 1953 SC 364, Court has propounded that ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. Court in Baitullah versus State of U.P., 1977 Cr.L.J. 4644, while interpreting Section 3 of the Indian Evidence Act, 1872, has propounded that testimony of interested witnesses cannot be discarded merely on the ground that he was interested witness. It is normally accepted that related witnesses would not leave real culprit and rope an innocent person. This has further been reiterated in Gangadhar Behera And Ors vs State Of Orissa , 2003 Cr.L.J. 41 SC. Apex Court has propounded that under Section 3 of the Indian Evidence Act, 1872 - relationship is not of factor to effect credibility of witnesses. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Court in Munshi Prasad and others versus State of Bihar, 2002 (1) SCC 352 has propounded that inquest report in-comparison with postmortem report is not basic of substance evidence, discrepancies occurring in inquest report are not fatal to the prosecution case nor a suspicious circumstance, so is to benefit the close relative. It is quality of evidence and not quantity which is required. Test is - has the prosecution been able to bring home the charges with the evidence available on record ? If the evidence on record is satisfactory trustworthy, an increase in number of witnesses not required. Normal discrepancies in testimony of witnesses does not affect core of prosecution case, testimony cannot be disbelieved on normal discrepancies.
24. In the present case, occurrence took place on 13.04.1994 within the area of Village Meeva, six kilometer from Police Station Mawana and this Case Crime No.247 of 1994, under Section 307 IPC was instantly got lodged on the same day at Police Station Mawana at 08:30 PM, upon typed report having signature of PW-1 Kartare against Vikram, Satpal, Tara and Rajpal with contention that Informant, Kartare alongwith his family members was sitting in front of his house ,situated at Village Meeva; at 07:00 PM on 13.07.1994 when Vikram Singh, his brother Satyapal S/o Jhabrey, Tara S/o Atru all R/o informant Village Meeva, Police Station Mawana, District Meerut along-with their relative Raj Pal S/o Suraj Mal, R/o Village Roordhana, Police Station Sandhana, District Meerut, all armed with Tabal and Lathis, came there and abused, on protest they gave assault in which Vikram assaulted over the head of Ram Kumar by Tabal (sharp edged weapon), Raj Pal gave blow with intention to kill, blow of Balkati over his neck and; when Informant and other witnesses tried to intervene and save Ram Kumar, they were assaulted by those accused persons. When Kamal Singh and Raj Pal S/o Dhumi rushed on spot, accused persons ran from spot. These facts have been proved by PW-1 Kartare in his examination in chief that after this occurrence Dhumi, Kartare, Ram Kumar, Kamal Singh and Baleshwari were taken by Tractor at Police Station Mawana, on the way this report was got typed, upon dictation of this witness upon reading and hearing, he has put his signature and filed at police station, which is Exhibit-Ka 1. Ram Kumar was instantly sent at Mawana Hospital by police, thereafter Informant-PW-1, Dhumi and Baleshwari were taken at Mawana Hospital by police person and they were medically examined. But Ram Kumar was instantly shifted to Meerut Government Hospital. Ram Kumar who was badly injured was taken at Manawa Government Hospital but from there referred to District Hospital i.e. P.L. Sharma Hospital, Meerut. He died during course of treatment at 08:00 AM on 15.07.1994. There is no contradiction, embellishment or exaggeration regarding registration of this case crime number or submission on Exhibit-Ka.1, on above date and time at above police station. In cross examination of this witness and hair splitting arguments raised by learned Counsel for appellants endeavour to show minor contradictions is of no legal consequence. Registration of case crime number Exhibit-Ka 1 has further been corroborated by testimony of PW-7 S.I. Babu Ram Yadav that while being posted at Police Station Mawana on 13.07.1994, this case crime number was got registered at 08:30 AM, upon Exhibit-Ka 1, by Head Moharir Abdul Salam at Chik No. 196 and this registration of case crime number was entered in General Diary at entry no.13 at 08:30 AM of which original General Diary was before this witness at the time of his examination and these two were under hand writing and signature of Head Moharir Abdul Salam. Those have been formally proved as Exhibit-Ka 6 and 7. There is no contradiction about this testimony and this witness has further proved that after death of injured this case crime number was converted under offence of murder by entry in General Diary. Hence, this was instant registration of case crime number.
25. PW-1 Kartare, PW-2 Dhumi, PW-3 Baleshwari in their testimony have said in examination in chief about occurrence and injury occurred over them in this occurrence caused by those named accused persons and their medical examination at Government Hospital, Mawana, these injuries and presence of those injuries over persons of those injured and instant Medico Legal Examination, have been proved by PW-4 Dr. R.D. Sharma that while being posted at District Hospital, Meerut in emergency duty at 10:30 AM on 13.07.1994, he had conducted Medico Legal Examination of injured Ram Kumar, aged about 25 years S/o Baleshwar, R/o Village Meeva, Police Station Mawana, District Meerut upon bringing by Nain Singh S/o Chuttan Singh and found following injuries over his person:-
1. Incised wound 18'' x 3'' bone deep (it is typographical error because in Exhibit-Ka.2 Medico Legal Examination report of injured, injuries has been written of 18 cm x 3 cm bone deep. Likewise second injury is also written in inches but Exhibit-Ka.2 it is in cms.). On right side face starting from right er to middle of nose, fresh bleeding present. Injury kept under observation. Advised X-Ray.
2. Incised wound 5 cm x 1 cm through and through on the back and middle aspect of left hand. Injuries kept under observation. Advised X-Ray.
3. Detailed examination postponed as the condition of patient was serious. Patient admitted.
26. Injury nos. 1 and 2 were kept under observations, advised X-Ray. Both injuries caused by sharp edged weapon, about fresh duration and this Medico Legal Examination report was prepared under hand writing and signature and was proved on record as Exhibit-Ka 2. In cross examination it has specifically been answered that bed head ticket of injured Ram Kumar was examined by this witnesses and it was under hand writing and signature of Dr. R.C. Awasthi which has been proved as Exhibit-Ka.2 in which it was mentioned to be private Medico Legal case, admitted in emergency ward. But it was not written to be an accidental case nor under knowledge of this witness as to who had written this accident case. He was treated by Surgeon Dr. R.C. Awasthi and he has examined and written injuries on person subsequently. Though after death, autopsy examination was conducted and there were five injuries over person of deceased. But it was written to be two by this witness, because it was specifically written that examination was postponed because condition of injured was serious. Hence those injuries were left by him, which were written in postmortem examination report as well as in the report of Surgeon Dr. R.C. Awasthi. Hence this witness has categorically answered that this was not an injury on accident. Testimony of PW-1, PW-2 and PW-3 regarding their injuries occurred in above occurrence have been further corroborated by testimony but Dr. A.K. Verma PW-6, discussed in paragraph nos.11, 12 and 13 supra. There is no contradiction, embellishment or exaggeration in testimony of these witnesses and there is corroboration about injuries narrated by injured witnesses PWs.1, 2 and 3.
27. PW-8 S.I. K.K. Singh has formally proved that after having information through a memo of P.L. Sharma Hospital on 15.07.1994, while he was posted at Police Station Delhi Gate as Sub Inspector at Merrut. He was deputed on duty of inquest proceedings and he rushed at above Hospital where dead body was kept and inquest proceeding was got conducted and the same is under hand writing and signature of this witness, proved as Exhibit-Ka 10, the requisite papers as written in para 7 of supra were formally proved.
28. There is no contradiction, embellishment or exaggeration in his testimony. In cross examination rather the same is with reiteration of examination in chief and in corroboration with witnesses of fact. Inquest report reveals death of injured while under treatment at P.L. Sharma Hospital, Meerut owing to anti mortem injuries on the person of deceased. This death was of 08:10 PM on 15.07.1994. For further ascertainment of probable cause of death, autopsy examination was deemed necessary, for which requisite papers were got prepared and dead body was sent in sealed position for autopsy examination.
29. PW-10 Dr V.P. Singh has conducted autopsy examination written in para 8 and 9 supra. There was fracture of temporal and parietal bone on left side with laceration of brain membranes and same was cause of death. Autopsy examination report Exhibit-Ka 10, establishes death of deceased Ram Kumar, owing to ante mortem injuries occurred in this occurrence, for which he was under treatment at above Hospital. Hence, this was formally proved to be a death neither accidental nor suicidal nor caused by any machinery, rather it was death by assault and above ante mortem injuries resulting grievous heart and fracture of all those skull bone with laceration of brain membrane i.e. by those injuries sufficient under all probabilities to cause of death. Hence, it was culpable homicide amounting to murder punishable under Section 302 IPC .
30. When convict appellants were put question no.5 regarding Medico Legal Examination of Ram Kumar at 03:30 AM on 13.04.1994 and report Exhibit-Ka 2 each of the convict appellants, answered that they were not aware of those i.e. Exhibit-Ka 2 was not disputed.
31. Testimony of Exhibit-Ka 10 to 14 was asked in question no.8 and answer was same that not under knowledge (pata nahi), though Exhibit-Ka 16 has been said to be forged report but same has been formally and cogently proved by those witnesses.
32. In answer to question no.15, put under Section 313 Cr.P.C., convict appellant Vikram has said that it was a case of accident in which deceased was injured and false implication was lodged. This was contention of convict Satpal too, but no evidence in defence to establish or bring fact for establishing preponderance of probability regarding facts raised by defence, whereas this formal evidence of PWs 8 and 10 has proved this death of Ram Kumar as a murder.
33. PW-1 Kartare, Informant, as well as injured witness in his testimony in examination in chief has proved assault by Raj Pal, Vikarm, Tara and Satpal over Ram Kumar and while interception was made by this witness and other family members Dhumi, Baleshwari, they were also assaulted by those accused persons. Vikram gave blow of Tabal (sharp edged weapon) over head of Ram Kumar, and Raj Pal gave blow by Balkati over his neck, this fact has been fully corroborated by injuries found on the person of Ram Kumar in medical examination as well as inquest and autopsy examination report because there is injury of sharp edged weapon over head and injury of sharp edged weapon over neck and both these were categorically assigned to Vikram and Raj Pal. In cross examination which continued for so many dates there is full corroboration with no material contradiction, embellishment or exaggeration.
34. Learned Counsel for convict appellants argued over so called variance in his testimony. But in State of U.P. versus Krishna Master and others, 2010 (Cr.L.J.) 3889 (SC) Court has propounded that a rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements, when is natural manner discrepancies are guarantee of truth. Court in Leela Ram versus State of Haryana, 2000 SCC (Criminal) 222 has propounded that minor embellishment and trivial discrepancies are usual in witnesses statements. In spite of hair splitting on any point, totally of situation ought to have been reviewed. Hence, on the perusal of hole of evidence of this PW-1, it is established that he is a trustworthy, wholly reliable witness having no material discrepancies in his testimony.
35. PW-2 Dhumi is also injured witness and he in his examination in chief has reiterated contention of FIR Exhibit-Ka 1. He has said that these accused persons, armed with Lathi, Vikram armed with Tabal, Rajpal armed with Balkati, Tara and Satpal armed with Lathis came at door of informant in the morning of the occurrence and assaulted Ram Kumar while abusing and when protest was raised, Vikram gave blow of Tabal with intention to kill Ram Kumar, and Raj Pal gave blow over neck by Balkati when these witnesses, his sister Balehswari, brother Kartare intervened to save Ram Kumar; Tara and Satpal gave blow to lathi to these witnesses. This occurrence was witnessed by Raj Pal as well as Kamla and PWs. 4 to 5 and others who saved them. Accused persons ran from spot. These witnesses Dhumi, Ram Kumar, Baleshwari and Kartare sustained injuries over their person. Ram Kumar was instantly sent to Hospital and Kartare went Police Station to get FIR lodge. Witnesses and injured were taken by police for medical examination, Mawana at Government Hospital, Mawana and Ram Kumar died on 3rd day under treatment. Under cross examination, the same contention has been reiterated and there is no material discrepancies rather there is full corroboration, there is no discrepancy, exaggeration or embellishment.
36. PW-3 is Smt. Baleshwari, injured witness, who in her examination in chief and cross examination has fully corroborated testimony of PW 1 and 2. Upon appraisal of evidence, it was found to be without any contradiction, embellishment or exaggeration. She being injured witness was fully reliable and trustworthy. Hence, all these were injured of the occurrence, who were instantly taken at police station, from where sent for medical examination and were medically examined, in which injuries found over their persons were written in Medico Legal Examination report and proved by Medical Officer as above. Witness have fully proved occurrence and assault by those convict appellant resulting death / murder of Ram Kumar and injuries to above witness.
37. PW-7 Investigating Officer, Sub Inspector Babu Ram Yadav, in his examination, has proved his investigation and steps taken by him and documents prepared under his hand writing and signature, which were exhibited as above, regarding which there is no contradiction or exaggeration. Second Investigating Officer, Inspector B.L. Gautam PW-9, in his testimony, has said that he was entrusted investigation of this case crime number on 18.07.1994, on which date at about 06:00 PM, he arrested Vikram and Satpal, while being with illegal Tamancha and Kartoos (cartridges) with them, their statements were got recorded in which Vikram made disclosure thereby assurance for getting Tabal, used in the occurrence, recovered on his pointing and upon this disclosure both of them were taken at Village Meeva, where effort was made for getting Tabal recovered on pointing of Vikram from Talab (pond). But the same could not be recovered, the recovery memo was prepared and on the basis of which offence under Section 25 of Arms Act was registered. Tara and Rajpal were arrested at Police Station Chandidevi, District Ambala, Haryana of which information was received by this witness on 10.08.1994. This fact was got ascertained that both of those accused persons were so arrested and sent under judicial custody under Section 41/109 Cr.P.C. on 02.08.1994. Warrant B was requested to be issued by the Court of Magistrate. Statement of witnesses of inquest, Constable Fakir Singh, who carried body for autopsy examination was got recorded in case diary and after investigation charge sheet Exhibit-Ka 15 was filed under his hand writing and signature. In cross examination, statements of examination in chief were reiterated with no discrepancies or contradiction.
38. Learned Counsel for convict appellants argued regarding alleged irregularities of Investigating Officer regarding non sending of blood stained mud, plain mud for forensic examination, non examination of FIR witnesses or non coming forward of witnesses written in FIR to support prosecution case. This arguments were raised before Trial Court also and Trial Court has cogently with detailed reason has rejected argument. In Dhanraj Singh versus State of Punjab, AIR 2004 SC 1920 Court has propounded that non-sending of blood stained soil, weapon of assault, pellets etc. for chemical of ballistic examination by Investigating Officer are defect in investigation and are not fatal to prosecution.
39. This has again being held by this Court in Netrapal and others versus State of U.P., 2010 (71) ACC 757 (Alld. H.C.) that non examination of FIR witnesses, not coming forward to support prosecution case, no effect over prosecution.
40. There is a catena of judgments of this Court as well as Apex Court with this proposition of law that it is a quality of evidence produced by prosecution which is needed for basing conviction not the quantity of evidence, even single witness who is fully reliable and competent to prove charge beyond reasonable doubt is sufficient for basing conviction. Three categories of witnesses i.e. wholly reliable, wholly unreliable and partly reliable, partly unreliable, are to be appreciated by presiding Judge in administration of criminal justice and if single witness is wholly reliable, proving prosecution beyond doubt, no further evidence is needed. There is no dispute regarding wholly unreliable witness he is to be rejected as a whole. Where witness seems to be partly reliable and partly unreliable. If their testimony is capable of separation then partly reliable portion will be taken and if the same is being supported with other evidence same is to be accepted. Meaning thereby, as per law propounded in Major Singh versus State of Punjab, 2006 (10) SCC 499 as well as Punju @ Bal Chandra and others versus State of Tamil Naidu, 2008 (1) SCC (Cr.L.J.) 331 and Lallu Majhi versus State of Jharkhand, AIR 2003 SCC 854 conviction can rest on evidence of solitary evidence, if it is clear cogent and unimpeachable.
41. In present case, three witnesses, who are injured in the occurrence, have proved prosecution beyond all reasonable doubt. This trial was based on a direct evidence of those three injured witnesses. Hence, motive was of no avail, assault was in day time in which those who intervened for interception and saving, got injured having been badly assaulted. Hence, in view of law propounded in Gopi Nath versus State of U.P., 2001 (6) SCC 620; that where accused persons openly assaulted with lethal weapon and threatend other with dire consequences, in case of intervention this will deprive other to be witness. Hence, under law no other witnesses were needed, where those three injured witnesses proved prosecution cases. More so no other witness may dare to come as witness against convicted appellants under above circumstances. More so it was not necessary to examine each and every witness because public prosecutor is with discretion to discard witness not supporting prosecution. It is his discretion, as has been held in Hukum Singh versus State of Rajasthan, 2000 (7) SCC 490.
42. Learned Counsel for convict appellants has argued before Trial Judge as is apparent in the judgment and have argued before this Court regarding alleged discrepancies, irregularities, contradiction, but all those are not material contradiction effecting prosecution. Rather the same may be irregularities in investigation. As propounded in Rajendra Prasad versus Narcotic Cell, AIR 1999 SC 2292; after all Court has bounden duty of administration of criminal justice and not to found error committed by prosecution parties or to declare who amongst parties performed better. Failure of investigating agency to take necessary steps to prove guilt beyond doubt cannot be ground to reject the prosecution. Hence, law regarding appreciation of evidence in criminal trial , as has been propounded in Ganesh K. Gulve versus State of Maharashtra, AIR 2002 SC 3068 is that in order to appreciate evidence, Court is required to bear in mind set up of the Informant to which the crime is committed, the level of understanding of witnesses, over jealousness of near relation to ensure that every one, even remotely connected, with crime, be also punished. Every one has different way of narration for same facts. These are only illustrations. Bearing in mind these broad principles, evidence is required to be appreciated to find what part out of evidence represents true and correct state of affairs. It is for the Courts to separate grain from chaff. Hence, under all above said principles of law and appreciation of evidence of PWs 1, 2 and 3 supported by formal medical evidence as well as inquest and autopsy report, coupled with testimony of Investigating Officer, Charges levelled against convict appellants are fully proved beyond reasonable doubt by prosecution and Trial Court has rightly appreciated facts and law placed before it. There was no illegality or irregularity in conclusion of the Court, drawn for conviction of convict appellants under impugned judgment.
43. Regarding sentence under Section 302 IPC, Code provides punishment for offence of murder defined under Section 300 IPC. Which provides punishment for murder, who ever commits murder shall be punished with death or imprisonment for lief and shall also be liable to fine i.e. two punishments either death punishment or imprisonment for life coupled with fine is to be awarded for offence of murder defined under Section 300 IPC punishable under Section 302 IPC.
44. Apex Court in Laxaman Naik versus State of Orissa, 1994 SCC (criminal) 656 has propounded that imposition of appropriate punishment is the manner in which the Court respond to the societies cry for justice against the criminals. Justice demands that Court should impose punishment be fitting the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of criminals but also the right of victim of crime and the society at large, while consider the imposition of appropriate punishment on the point i.e. (i) Diabolical planning, (ii) Brutal Execution, (iii) Calculated, (iv) Faith of society totally shaken, (v) Shocking of judicial consensus, (vi) Savage nature of crime. Upon these points Court is to judge existence of aggravating and mitigating circumstance. In Macchi Singh versus State of Punjab, 1983 (3) SCC (Criminal) 681, the test of rarest of rare case for warranting death punishment in case of child rape and victim of murder; (i) Motivation, preparation, (ii) Vulnerability of victim, (iii) Enormity of crime, (iv) Brutality of execution. Same law has been propounded by Apex Court repeatedly like Bachan Singh versus State of Punjab, AIR 1980 SC 898; Dhananjay Chatterji versus State of West Bengal, 1994 SCC (Criminal) 358; Kamta Tiwari versus State of Madhya Pradesh, 1996 SCC (Criminal) 1298; Mulari versus State of Madhya Pradesh, 2000 SCC (Criminal) 438.
45. The aggravating and mitigating circumstance in present case did not brought the case for imposing death punishment to convict appellants. Rather it was a case for life imprisonment with fine and learned Trial Judge has sentenced life imprisonment with fine of Rs.10,000/- to each of convict appellants, under Section 302 IPC, in default in payment of fine, six months additional imprisonment, one year imprisonment under Section 323/34 IPC. Out of which Rs.5,000/- from each fine Rs.10,000/- was to be paid to wife of deceased Ram Kumar and rest 50% was to be deposited with State. This sentence was appropriate, based of proved facts on record and within judicial precedent. Therefore, both of these appeals are devoid of merit and are being dismissed accordingly.
46. Certified copy along with record be sent to Court concerned for follow up action. Copy of this judgment be also supplied to accused-appellants through concerned Superintendent of Jail.
47. Sri Avinash Jaiswal, learned Amicus Curiae for appellant in Jail Appeal No.4351 of 2010 has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs.15,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Avinash Jaiswal, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 09.04.2019 I.A.Siddiqui