Allahabad High Court
Sarjeet And Another vs State Of U.P. on 14 December, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- CRIMINAL APPEAL No. - 3171 of 2010 Appellant :- Sarjeet And Another Respondent :- State of U.P. Counsel for Appellant :- Faneesh Mishra,Chandra Kesh Misra,D.S. Misra,Deepak Kumar Pandey,Dr.C.P.Upadhyay,Govind Saran Hajela,Pradeep Kumar Bhardwaj,Renu Singh,T. Islam Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
( Per : Justice Nalin Kumar Srivastava )
1. This Criminal Appeal has been preferred by appellants - Sarjeet and Devendar against the judgment and order dated 1.5.2010 passed by Additional District and Sessions Judge, Fast Track-I Court No.9, District Gautam Budh Nagar in Sessions Trial No.291 of 2002 (State Vs. Hari Singh and Others) arising out of Case Crime No.42 of 2002 under Sections 147, 148, 302, 120-B IPC, Police Station Dankaur, District Gautam Budh Nagar, convicting and sentencing both the appellants for the offence under Section 147 IPC to undergo six months imprisonment with fine of Rs.500/- each, for the offence under Section 148 IPC to undergo one year imprisonment with fine of Rs.1000/- each and for the offence under Section 302 IPC to undergo imprisonment for life with fine of Rs.10,000/- each with default sentence.
Brief Facts of the case -
2. Prosecution story, in nutshell, as unfolded in written report (Ex.Ka.-1), is as follows:
On 21.3.2002 at about 7.00 a.m. the complainant Nepal Singh alongwith Ramesh, Gajraj and Pawan was sitting in his Gher, when his son Bijendra was sent to Milak to collect money. After Bijrendra left, the complainant saw that accused Sarjeet and Devendar alongwith 5-6 young aged unknown fellows armed with country made pistols and knives were going towards Milak. Apprehending that the accused may not indulge in fight with his son Bijendra, the complainant alongwith Ramesh and others went towards Milak and saw that near Johar Bijendra was caught hold by accused Devendar, Sarjeet and their 5-6 associates who were beating him. The accused Devendar and Sarjeet armed with knives assaulted his son Bijendra on his face and cut his neck. When the complainant raised alarm, hearing his shrieks, Prithvi, Satti and Malkhey alongwith other people reached at the place of occurrence, then the accused persons fled away towards the village Milak. It is further stated in the report that 5-6 years back, accused Devendar's brother Harveer had fallen in a well and died, for which the accused Devendar and his family members had a suspicion over the informant party. A land dispute was also pending between the informant and accused Sarjeet's father Hari Singh. Due to aforesaid reasons, Hari Singh, Jasram, Sarjeet, Devendar called other miscreants on 20.3.2002 at their house and after hatching conspiracy committed murder of the son of the complainant. With the help of villagers, the complaint took his son to Government Hospital in injured condition where the doctors declared him dead.
3. On the basis of written report (Ex.Ka.-1), on 21.03.2002 at 9:05 hours, Chik First Information Report at Crime No.42 of 2002 under Sections 148, 302, 120-B IPC was registered against accused-persons at P.S. Dankaur as Ex.Ka.-3.
4. The investigation started. During the course of examination, both the accused were arrested and murder weapon knives were recovered at the pointing out of the accused-persons. The Investigating Officer recorded the statement of all the witnesses of fact and also the formal witnesses.
5. The inquest of deceased Bijendra was conducted and autopsy of the body was performed by Dr. Yashwant Singh P.W.17 who found the following ante-mortem injuries over the body of the deceased :
(i) Incised wound 7 cm. x 3.5 cm. x great vessel deep & muscle deep on left side neck (left sub mandibula region). On examination - trachea cut, muscles cut, internal carotid artery and internal jugular vein cut and esophagus cut.
(ii) Multiple incised wounds in an area of 12 cm. x 10 cm. of left side face & chest of sizes varying from 1 cm. x 0.5 cm. x sub cut deep to 2.5 cm. x 1 cm. x muscle deep.
(iii) Incised wound 1 cm. x 0.5 cm. x sub cutaneous deep right side chest 8 cm. medial to right nipple at 4'O clock position.
(iv) Incised wound 1 cm. x 0.5 cm. x sub cutaneous deep right side abdomen 6 cm. outer to umbilical at 9'O clock position.
It was found by the doctor that the death was caused due to shock and haemorrhage as a result of ante-mortem injuries.
6. After completing all the formalities, the Investigating Officer submitted charge-sheet against five accused-persons.
7. The appellants / accused appeared before the Court and the matter, being exclusively triable by the Sessions, was committed to the Court of Sessions.
8. Accused Hari Singh, Devendar, Inder, Sarjeet and Jasram were charged under Sections 147, 148, 302/149, 120-B IPC and charges under Section 25/4 Arms Act were also framed separately against accused Devendar and Sarjeet.
9. The accused-persons denied all the charges and claimed to be tried.
Evidence adduced by the Prosecution -
10. The prosecution, to bring home the charge against the accused persons, has relied upon the oral as well as documentary evidence.
11. As per oral evidence, a total of 17 witnesses have been produced by the prosecution, who are as under.
1. Nepal Singh P.W.1, the informant / eyewitness
2. Gajraj Singh P.W.2, eyewitness
3. H.C. Rampal Singh P.W.3, scribe of F.I.R. and G.D.
4. Prithi Singh P.W.4, eye-witness / witness of inquest
5. Constable Jai Prakash Sharma P.W.5, witness of recovery of murder weapon
6. Santi @ Santo P.W.6, witness of fact
7. Ram Mehar P.W.7, witness of fact
8. Constable Nekpal P.W.8, scribe of F.I.R. and G.D. under Section 25/4 Arms Act
9. Ram Singh P.W.9, witness of fact
10. Dhiri Singh @ Dheeraj Singh P.W.10, witness of recovery of murder weapon
11. Amarpal P.W.11, witness of recovery of murder weapon
12. Constable Shaukendra Singh P.W.12, witness of memo of recovery of murder weapon
13. Malkhey P.W.13, witness of fact
14. S.I. Binda Singh Chandel P.W.14, second Investigating Officer
15. S.I. Rakesh Babu Yadav P.W.15, first Investigating Officer
16. S.I. Om Prakash Singh P.W.16, third Investigating Officer
17. Dr. Yashwant Singh P.W.17 (Performed Autopsy)
12. The Investigating Officer of the matter under Section 25 Arms Act C.P. Balbeer Singh has not been examined and P.W.16 has deposed for him as secondary witness.
13. To support the oral evidence, the following documentary evidence was produced by the prosecution, which is as under.
1. Written Report Ex.Ka.-1
2. Memo of supurdagi of cycle Ex.Ka.-2
3. Chik F.I.R.
Ex.Ka.-3
4. G.D. Ex.Ka.-4
5. Inquest Report Ex.Ka.-5
6. Memo of Fard of blood-stained and plain soil, blood-stained knife and bicycle Ex.Ka.-6
7. Chik F.I.R. and G.D. under Section 25 Arms Act Ex.Ka.- 7 & 8 respectively
8. Recovery memo of murder weapon knife Ex.Ka.-9
9. Site plan of the place of recovery Ex.Ka.-10
10. Charge-sheet Ex.Ka.-11
11. Site plan of the place of occurrence Ex.Ka.-12
12. Papers relating to postmortem, photo nash, challan nash, letter to C.M.O. and letter to R.I. Ex.Ka.13, 14, 15, 16, 17 respectively
13. Charge-sheet against accused Inder Ex.Ka.-18
14. Charge-sheet- 2 Sets under Section 25/4 Arms Act Ex.Ka.-19 & 20 respectively
15. Autopsy Report Ex.Ka.-21 Statement under Section 313 Cr.P.C. -
14. The incriminating circumstances and evidence available on record against the accused-persons were put to them in their statements under Section 313 Cr.P.C. wherein the plea of false implication has been taken and the truthfulness and genuineness of the entire oral and documentary evidence produced by the prosecution was denied. However, no defence evidence has been adduced by the accused-persons / appellants.
15. Having heard both the sides and after analyzing the evidence on record the learned trial court found that the prosecution has succeeded to prove its case beyond reasonable doubt and recorded conviction of the accused persons and sentenced them as mentioned here-in-above.
Submissions made by the learned counsel for Appellants -
16. It has been submitted by the learned counsel for the appellants that the witnesses of fact, except P.W.1, have been declared hostile by the prosecution and do not support its case at all. P.W.1 is said to be the sole eye-witness of the case and his statement is also shaky and does not inspire confidence. It has also been submitted that the testimony of P.W.1 is full of contradictions and unnatural statements. It has further been submitted that public witnesses of the alleged recovery of the murder weapons at the pointing out of the accused-persons are also not reliable and have been declared hostile which resulted into the acquittal of accused persons of the charges under Arms Act. It has further been submitted that the informant had a grudge with the accused-persons / appellants for some land dispute and in order to grab that land, he has falsely implicated the appellants in this case. On the aforesaid grounds, it has been prayed that the accused-persons / appellants are liable to be acquitted as the prosecution miserably failed to prove its case.
Submissions made on behalf of the State -
17. Per contra, the learned A.G.A. vehemently opposing the submissions made by the learned counsel for the appellants, has contended that the prosecution has successfully proved its case beyond reasonable doubt. The evidence of P.W.1 is trustworthy and reliable and as per the established legal principles, the conviction can always be successfully recorded on the basis of the evidence of sole eye-witness. The recovery of murder weapon - knives at the pointing out of the appellants has been proved by the cogent evidence. It is a case of cold-blooded murder of a young chap and all the relevant evidence to record the conviction of the appellants is available on record. The false implication theory does not find any basis in the light of the evidence on record. On these grounds, the dismissal of the present criminal appeal has been prayed for.
Analysis - Ocular Evidence -
18. We have heard the submissions made by the learned counsel for the appellants and learned A.G.A. We have to travel through the entire prosecution evidence so as to reach at the right conclusion whether impugned judgment is liable to be sustained or not and before we go through the evidence, we have patiently noted the submissions made by the learned counsel for the appellants while assailing the impugned judgment as well as by the learned A.G.A.
19. At the very outset, it is to be borne in mind that present is the case which is based on eye-witness account. P.W.1 Nepal Singh, P.W.2 Gajraj Singh, P.W.4 Prithi Singh, P.W.6 Santi @ Santo and P.W.13 Malkhey have been produced by the prosecution as eye-witnesses of the occurrence.
20 P.W.1, who is the father of the deceased and also the informant of the case, has proved the prosecution case in his deposition and without any hesitation he has categorically stated that on the fateful day his son Bijendra was caught by the accused-persons - Devendar, Sarjeet and six other unknown persons. Accused Devendar and Sarjeet gave several blows over the face and neck of the deceased. The unknown accused-persons had desi pistols with them. He had seen the occurrence and witnesses Chaman, Ramesh and Gajraj were also present with him. On their shrieks, other persons of the village also came there and the accused-persons fled away. The deceased in injured condition was taken to the hospital, but was declared dead by the doctor. This witness has also proved the written report Ex.Ka.-1 and the memo of supurdgi of cycle on which the deceased was going as Ex.Ka.-2. No material contradiction is found in the entire testimony of P.W.1 despite a lengthy cross-examination by the defence. His presence over the place of occurrence is natural and probable because at the time of the occurrence, he was sitting along with other persons in his Gher and had sent his son Bijendra to the village Milkey to receive some money. This witness also clearly states that the accused-persons had previous enmity and grudge with him and when his son went by his cycle and he saw the accused-persons nearby, he had a suspicion for some mishappening, so he chased them and became the witness of the fatal incident.
Evidence of Hostile Witnesses - Evidentiary value
21. The learned counsel for the appellants has contended that the witnesses Chaman and Ramesh, who are said to accompany the informant at the time of the occurrence, have not been produced by the prosecution and the third witness Gajraj, who has been examined as P.W.2, is a hostile witness and does not support the prosecution version at all and categorically states that he has seen nothing. The statement of P.W.4 Prithi Singh, P.W.6 Santi @ Santo and P.W.13 Malkhey has also been assailed by the learned counsel for the appellants by arraying them in the category of total hostile witness. He has contended that in no material terms, these witnesses support the deposition of P.W.1 and their testimony proves the appellants innocent.
22. A perusal of the statement of P.W.2, P.W.4, P.W.6 and P.W.13 shows that they have nowhere stated to see the accused-persons attacking over the deceased and thereby causing his murder. This makes us to travel through the relevant laws and legal position in respect of the evidence of a hostile witness and to scrutinize the statement of the aforesaid witnesses in the light of the relevant legal position.
23. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], has held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base the conviction upon his testimony if corroborated by other reliable evidence.
24. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], it has been reiterated that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
25. In State of U.P. vs. Ramesh Prasad Misra and another, AIR 1996 SC 2766, the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
26. In Gura Singh vs. State of Rajasthan (2001) 2 SCC 205, the Hon'ble Supreme Court held like this - "It is a misconceived notion that merely because the witnesses have been declared hostile their entire evidence is excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness". (Para 11) "............In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy." (Paras 12 and 11)
27. In the light of the aforesaid settled legal position, the law on the subject can be summarized to the effect that the testimony of hostile witness cannot be thrown away just on the basis of the fact that he has not supported the prosecution case and was cross-examined by the prosecutor. The testimony of hostile witness can be relied upon to the extent it supports the prosecution case. Needless to say that the testimony of such witness should be scrutinized meticulously and very cautiously.
28. P.W.2, in his cross-examination, has stated that when the villagers came to know about the injuries of Bijendra at about 9:30 A.M., he along with other villagers Prithi, Hari Singh etc. reached the spot and took Bijendra to Dankaur from the place of occurrence. He has also admitted that Harveer, the brother of accused Devendar had died after falling into a Well 5 - 6 years before the occurrence. This statement affirms the time and place of occurrence and also the history of enmity between the parties, as stated by P.W.1.
29. Likewise, P.W.4 Prithi Singh has also stated that he had seen the accused-persons from hundred steps behind, who were running away. He was behind his brother Nepal and Malkhey was also with him. He had not seen the faces of the assailants, but had seen them from the back when they were fleeing away from the spot. They took Bijendra to Government Hospital, Dankaur where he was declared dead. This witness also states that the crime was committed on 21.3.2002 when he was having a conversation with Malkhey and Santi at his house. He also proves his signature over the inquest report Ex.Ka.-5 and the seizure memo of blood-stained and plain soil, one pair of sleeper, one blood-stained knife and cycle as Ex.Ka.-6. The aforesaid deposition of P.W.4 also corroborates the date and place of occurrence and fact regarding other incriminating materials taken into custody by the police.
30. Likewise P.W.6, though declared hostile, proves the time and other material aspect of the matter when he says that he had reached the spot following Prithi where Bijendra was lying dead in the lap of Nepal.
31. P.W.13 Malkhey in the same fashion states that when on noise he alongwith Prithi and Santi reached the spot, he saw Bijendra lying in the lap of Nepal in the injured condition. He had seen the assailants from behind.
32. The aforesaid depositions of P.W.2, P.W.4, P.W.6 and P.W.13 can be taken into account so far as they relate to the date, time and place of occurrence. It is true that they have not seen the faces of the assailants, but in material particulars their evidence supports the prosecution case. P.W.1 has clearly seen the assailants committing the crime. The learned trial court has taken into account the aforesaid legal position and has well appreciated and scrutinized the evidence of the hostile witnesses. We also find that up to some extent, but in significant manner, the prosecution version in this case is affirmed by the statements of hostile witnesses also. The ocular evidence of P.W.1 is also found cogent and reliable.
33. The legal theory, as denoted here-in-above, operating upon the appreciation of evidence of a hostile witness has been reproduced by the Hon'ble Supreme Court recently in Rajesh Yadav & Another vs. State of U.P. (2022) 119 ACC 978 which can also be taken note of.
Other Witnesses of Fact -
34. The deposition of P.W.7 and P.W.9 has also been assailed by the learned counsel for the appellants and argument has been advanced that they are the witnesses, who are said to be the eye-witness of the fact that the accused-persons were planning for the murder of the deceased at the house of Hari Singh but both of them have denied even to hear or see such incident of planning and they have also been declared hostile.
35. Learned A.G.A. for the State fairly admits that there is nothing in the statement of P.W.7 and P.W.9, which goes to help the prosecution in any way.
36. We are of the considered opinion that even if the depositions of P.W.7 and P.W.9 are completely washed off, it brings no harm to the prosecution case because the reliable and cogent occular evidence is available on record in the form of deposition of P.W.1.
Related / Interested witness - Evidentiary value -
37. The learned counsel for the appellants has forcefully submitted that P.W.1 is the sole eye-witness of the case and he, being the father of the deceased is highly interested witness, who has inimical terms with the accused-persons and in this way, his evidence should not be relied upon to convict the accused-persons for such a grave offence like murder. His deposition is always under the cloud of suspicion and is not acceptable.
38. As has been discussed here-in-above, the prosecution has produced as many as five witnesses as eye-witness of the occurrence including P.W.1, but except him, others have been declared hostile. The prosecution story is very natural in this way that on the fateful day the informant had sent his son to receive some money from the other village when he was sitting in his Gher along with other persons, but as soon as he saw the accused-persons moving near his Gher, who had a previous enmity with him, he had a suspicion for some mishappening and he went behind them and became the witness of the unfortunate incident. In these circumstances, how he can be said to be an unnatural witness and what makes his presence on the spot improbable. His evidence cannot be brushed aside only because of the fact that he is the father of the deceased.
39. Hence, we do not find ourselves in agreement with the aforesaid plea taken by the learned counsel for the appellant. The legal position in respect of a relative witness has been made clear in a catena of decisions by the Hon'ble Apex Court and by this Court also. It is well settled that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is relative or family member of the victim of the offence. In such a case the Court has to adopt a careful approach in analysing the evidence of such a witness and if after careful scrutiny, the testimony of the related witness is otherwise found credible the accused can be convicted on the basis of testimony of such related witness. Recently, in Surinder Kumar Vs. State of Punjab (2020) 2 SCC 563 Hon'ble Supreme Court has reiterated that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.
40. The Hon'ble Apex Court in Bhagwan JagannathMarkad Vs. State of Maharastra (2016) 10 SCC 537 has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness.
41. The same view has been taken in Dhari & Others Vs. State of U.P., AIR 2013 SC 308, Shyam Babu Vs. State of U.P., AIR 2012 SC 3311, Shyamal Ghosh Vs. State of WB, AIR 2012 SC 3539, Dayal Singh Vs. State of Uttaranchal, AIR 2012 SC 3046, Amit Vs. State of U.P., AIR 2012 SC 1433 and State of Haryana Vs. Shakuntala & Others, 2012 (77) ACC 942 (SC) and so on.
Motive -
42. In this sequence, it has also been vehemently argued that the motive assigned behind the crime has not been properly proved. It has also been argued that if there was an enmity between the parties the accused undoubtedly have been falsely implicated due to enmity.
43. From the careful scrutiny of the deposition of P.W.1, we find that in his examination-in-chief he has admitted the factum of previous enmity between the parties. He has been cross examined at length on this point wherein he has clarified that the parties have some land disputes and civil litigation is also pending between them. P.W.1 has fairly admitted that prior to this occurrence, Harveer, the brother of accused Devendar died by falling into a Well and he himself was suspected in his murder by the accused-persons, but if this story is taken as a cause for enmity between the parties, the informant had no reason to falsely implicate the accused-persons in this case, rather it was a strong reason for the appellants / accused-persons to commit the crime against the informant. In their statement under Section 313 Cr.P.C., the accused persons have admitted the factum of enmity between the parties.
44. In the aforesaid context, another plea has been raised by the appellants that since the parties are on inimical terms, as per statement of P.W.1 and also as per the version of F.I.R. itself, a possibility of false implication of the accused-persons cannot be thrown out completely.
45. In Anil Rai Vs. State of Bihar (2001) 7 SCC 318 it has been held that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons.
46. In Dalip Singh vs. State of Punjab, AIR 1953 SC 364 it was observed that -
"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".
47. The Hon'ble Supreme Court in Darya Singh Vs. State of Punjab, AIR 1965 SC 328 held that evidence of an eye-witness, who is a near relative of the victim should be closely scrutinized, but no corroboration is necessary for acceptance of his evidence.
48. The trial Court has also discussed the various aspects of motive and enmity existing between the parties in the present case particularly in the light of the evidence of P.W.1. Reliance has been placed upon Bikau Pandey Vs. State of Bihar (2003) 12 SCC 616 wherein it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance.
49. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma Vs. State of Himachal Pradesh (2011) 10 SCC 129 It has been held as under:
"...Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence."
Reliable Ocular Evidence -
50. In fact, P.W.1 has been cross-examined at length by the defence. His statement, which started in the year 2003 before the trial court, was concluded finally in 2005, as it appears from the perusal of the record, but despite the lengthy and thorough cross-examination conducted into a long span of time, his entire evidence is found cogent, trustworthy and innocent. The trial court has rightly relied upon his statement, no material contradiction is found wherein. The contradictions and discrepancies found in his deposition are minor in nature and are not such as to hit at the very root of the prosecution case and are as such, ignorable. He is the eye-witness of the crime of murder and the unfortunate father of the young deceased.
51. The Hon'ble Supreme Court in Rajesh Yadav & another (supra) has placed reliance upon the decision in C. Muniappan vs. State of Tamil Nadu, 2011 (72) ACC 988 wherein it was held that 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 through 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 root of the matter and shake the basic version of the prosecution's case. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses.
Medical Evidence -
52. In order to establish the guilt of the accused and to corroborate its story, the prosecution, apart from the eye-witness account, mainly relied on expert opinion of Dr. Yashwant Singh (P.W.17), who performed the autopsy of the body of the deceased and has proved the autopsy report (Ex.Ka.-21). From the perusal of the autopsy report, as also affirmed by P.W.17, we find that several incised wounds have been found on the face, neck, chest and abdomen of the deceased. He also found that the trachea muscles, internal carotid artery, internal jugular vein and esophagus were cut. The autopsy was performed on 22.03.2002 at 11:00 A.M. and according to the opinion of P.W.17, the deceased was died one day before the postmortem. The prosecution story also says that the murder was committed on 21.03.2002, one day before the postmortem. The learned counsel for the appellants has vehemently argued that P.W.17 in his cross-examination has categorically stated that the injuries over the person of the deceased are not probably to be inflicted by knife rather it might have been inflicted by some sharp-edged and heavy instrument e.g. spade, axe, tabal etc. He has made it a point that in such circumstances, the prosecution case is not corroborated with the medical evidence. The learned A.G.A., on the other hand, has contended that the offence of murder has been seen by the eye-witness P.W.1 in this case and he has categorically deposed that the murder was caused by use of knife.
53. The rival contentions of both the sides take us to go through the law relating to the evidentiary value of an expert particularly when it is contrary in some aspects to that of the occular version.
54. In Chennadi Jalapathi Reddy Versus Baddam Pratapa Reddy, (2019) 14 SCC 220 it was held that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence and the Court may seek independent and reliable corroboration in the facts of a given case, as a general rule of prudence. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it.
55. Likewise in Tomaso Bruno and Another Versus State of U.P., (2015) 7 SCC 178 it was held that Courts give due regard to expert testimony but are not bound by it. Report when read in conjunction with other evidence on record, renders it unacceptable. It was reiterated in State of Karnataka Versus J. Jailalittha (2017) 6 SCC 263 that an expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court with scientific test criteria to test accuracy of conclusions. Based on such expert opinion and appreciating facts of each case, court must give its independent judgment. Court should not subjugate its own judgment to that of expert or delegate its authority to third party but ought to access evidence of expert like any other evidence.
56. The legal position which emerges out from the study of several verdicts given by the Hon'ble Supreme Court is that expert evidence is only advisory in nature and the Court is never bound by the evidence of the experts.
57. Section 45 of the Evidence Act though provides the relevancy of the expert evidence or opinion, it nowhere discloses the evidentiary value of it.
58. In fact, the hazard in accepting the opinion of an expert is not because an expert may not be reliable as a witness, but because human judgment is fallible.
59. We should keep into mind that occular evidence is cogent and credible. Medical evidence to the contrary cannot corrode the evidentiary value of the former.
60. In the present case also, as discussed above, the evidence of P.W.1 is cogent, reliable and trustworthy and free of any kind of embellishment and that is why against the occular version of P.W.1, the opinion given by the Doctor (P.W.17) cannot be given weightage to so far as the instrument used in the crime is concerned. Hence, the prosecution case is supported with medical evidence also in the aforesaid fashion.
61. At this juncture, we cannot overlook the inquest report (Ex.Ka.-5) wherein the Panchas have also opined that the death seems to be caused due to the injuries inflicted by knives upon the body of the deceased and this report also favours the prosecution case.
Place of occurrence -
62. Finger has also also been raised by the learned counsel for the appellants towards the place of occurrence in this case. It has been argued that the place of occurrence is not established and at this juncture, the prosecution case fails. Reliance has been placed upon the decision of the Hon'ble Supreme Court in Syed Ibrahim Versus State of Andhra Pradesh, A.I.R. 2006 SC 2908 wherein it was held in clear terms that when the place of occurrence itself has not been established it would not be proper to accept the prosecution version.
63. In the light of the arguments advanced by the learned counsel for the appellants, it is desirable to have a glance upon the topography of the place of occurrence, which was performed by the investigating officer - P.W.15, who has deposed before the Court that on the pointing out of the informant, he had inspected the spot and recovered one bicycle, two sleepers and one blood-stained knife from there and had also taken the blood-stained and plain soil from the spot. A recovery memo was also prepared at the crime scene, which was Ex.Ka.-6 and the site plan was also prepared which was Ex.Ka.-12. P.W.1, the informant, in his testimony has stated that the incident occurred outside the village near Johar. He had seen the bicycle and one knife lying on spot. He has also stated in his cross-examination that the occurrence took place in the east of Johar. Ex.Ka.12, the site plan prepared by the investigating officer reflects the same topography. It is shown therein that the occurrence has been committed at place ''X', which is in the east of the Johar. The place from where the witnesses saw the occurrence of murder, the place of recovery of knife, bicycle and sleepers, the direction of the deceased coming to the spot, the way where the accused-persons ran away after the occurrence, all these relevant places have been specifically shown in the site plan Ex.Ka.-12.
64. On scrutiny of the testimony of P.W.1 and P.W.15 on the point of place of occurrence, we do not find anything to suggest that these witnesses were prevaricating. Hence, the prosecution case is innocent and firm so far as the place of occurrence is concerned.
F.I.R. / Written Report -
65. The F.I.R. and the written report of the case are the next submissions to hammer by the appellants. It is argued that the F.I.R. is ante-timed and afterthought. It has been lodged after due consultation and so is the case of written report Ex.Ka.-1, which is not the result of free will of the informant P.W.1. This contention was vehemently opposed by the learned A.G.A. This plea draws our attention to the F.I.R. of the case Ex.Ka.-3 and G.D. Ex.Ka.-4. It has been mentioned in Ex.Ka.-3 that the incident occurred on 21.3.2002 at 7:30 A.M. and the F.I.R. has been lodged on the same day at 9:05 A.M. The place of occurrence situates at a distance of 3 kilometers from the police station. The deceased was first taken to the hospital in injured condition where he was declared dead and then F.I.R. was lodged. In these circumstances since the F.I.R. has been lodged one and a half hours after the occurrence, it is not belated and is well within time. The prompt F.I.R. rules out any possibility to make any concocted or fanciful story. P.W.1, the informant has categorically stated that the report of the case was written by Chaman on his dictation and it was read over to him after being written and then he put his thumb impression over it. This written report has been proved as Ex.Ka.-1 by P.W.1 and in the light of the specific evidence of P.W.1 on this aspect, there was no need to examine the scribe of the written report - Chaman, as has been objected to by the learned counsel for the appellants. The registration of the F.I.R. (Ex.Ka.-3) on the basis of the written report given by the informant Nepal Singh and also the registration of G.D. (Ex.Ka.-4) has been proved by P.W.3 H.C. Ram Pal Singh and no adversity is found in the deposition of P.W.3. On the basis of the above evidence, we do not find any force in the contention of the learned counsel for the appellants so far as the veracity and genuineness of F.I.R. and written report is concerned and we find ourselves in disagreement with the arguments advanced on behalf of the appellants in this behalf.
Recovery of Murder Weapons -
66. The learned counsel for the appellants further submits that the alleged recovery of murder weapons has not been proved in the manner prescribed by the law and the witnesses thereof are also not reliable. It has been contended that P.W.10 and P.W.11 are the public witnesses of the alleged recovery, but they are hostile witnesses and do not support the prosecution version and recovery of knives in any manner. It has been submitted that the recovery has been proved only by the witnesses, who are the police personnel. Their evidence in respect of the alleged recovery is not trustworthy. Recovery has been made from an open place, which was accessible to any person.
67. With reference to the contentions aforesaid, the depositions of P.W.10 and P.W.11 were scrutinized by us. They have categorically denied the fact that accused Devendar and Sarjeet had made any recovery of knives to the police before them.
68. The law relating to hostile witness has been discussed here-in-above and it is settled position of law that up to that extent, the deposition of a hostile witness can be relied upon to which it supports the prosecution version. The evidence of P.W.10 and P.W.11 is a proof of the fact that they had made their signatures over the memo of recovery before the police.
69. P.W.12 Constable Shaukendra Singh has proved the fact of recovery of murder weapons - knives by both the accused-persons separately and a memo of recovery was prepared and the witnesses also made their signature over it. The recovery was made from bushes near milk pullia. He has identified his signature over Ex.Ka.-9 and also identified the two knives before the Court. However, he has made a significant statement that the place of recovery was an open place accessible to anyone.
70. P.W.5 Constable Jai Prakash Sharma is also a witness of recovery of murder weapons and in his examination-in-chief, he has identified both the knives and proved it as Material Exhibit-1 & 2, but he has also admitted that both the knives were lying on the ground in the bushes and the bushes were in an open place.
71. In the same manner, P.W.14, the second investigating officer of the case, has also proved the fact of recovery of murder weapons and the site plan of place of recovery, which he has proved as Ex.Ka.-10, but in his cross-examination, he states that the place of recovery of knives was an open place, which was at a distance of 25 steps from the kacchi patri where transportation go on continuously.
72. P.W.15, the first investigating officer of the case, has deposed that the accused-persons were taken on police custody remand and two murder weapons (knives) were recovered on their pointing out by the police.
73. P.W.16 is the investigating officer of the case registered under Section 25/4 Arms Act and he has proved the charge-sheets Ex.Ka.-19 & Ex.Ka.-20 submitted to the Court.
74. We have taken notice of the fact that the trial court has acquitted the present appellants under Section 25/4 Arms Act and has relied upon the fact that the independent witnesses of recovery have turned hostile and the evidence available in this regard is that of police personnel only. The learned trial judge taking cognizance of the fact that the independent public witnesses have become hostile, did not rely upon the evidence of the police personnel.
75. The F.S.L. Report has also been considered by the learned trial court and it has been opined that it also does not support the prosecution case. We have also made a perusal of the F.S.L. Report. The blood-stains have been found disintegrated over both the knives and as such it was not capable to ascertain its origin. On the basis of aforesaid observations, the learned trial court acquitted both the accused persons from the charge under Section 25/4 Arms Act.
76. We have also taken notice of the fact that the said recovery cannot be termed as recovery under Section 27 of Evidence Act due to the reason that there is no memo of disclosure statement on the part of the accused persons. This fact finds significance because the concealed place was accessible and ordinarily visible to anyone and it cannot be said that it was the accused-persons only who could reach the place of recovery or could see the articles.
77. It is also a point to be noted that the public witnesses of recovery are mere chance witnesses and their presence at the place of recovery is not natural and probable as they are not the resident of that locality. Hence, the trial court rightly acquitted the accused persons from the charge under Section 25/4 Arms Act. However, it is also to be borne in mind that acquittal of the appellants under Section 25/4 Arms Act has not been challenged by the prosecution. We have also considered this issue that if the recovery of so called murder weapon is not proved, whether it affects the prosecution case adversely. We have found earlier that the occurrence has been proved by the reliable ocular evidence supported with the medical evidence. We can take note of the view of Hon'ble Apex Court held in Gopal Singh Versus State of Uttrakhand, (2013) 7 SCC 545 (paragraphs 12 & 13) wherein the weapons of assault were not recovered, and the doctor's evidence was available to prove that the victim has sustained gunshot injuries and knife injuries, the Hon'ble Apex Court held that non-recovery of the said weapons was not fatal to the prosecution case, as the injuries sustained by the victim itself prove the nature of the weapon used.
78. However, the F.S.L. Report shows that human blood was found over the clothings of the deceased but it could not be ascertained that blood found on clothings belonged to that of the deceased. Whether this ambiguity affects the prosecution case adversely, the question finds its answer in negative in view of the proposition laid down in Keshavlal Versus State of Madhya Pradesh, (2002) 3 SCC 254.
79. From the testimonies of P.W.14, P.W.15 and P.W.16, the investigating officers of the case, we find no material lacuna or omission in the investigation of the case. It is also significant that all the incriminating evidence and circumstances have been put before the appellants in their statement under Section 313 Cr.P.C. Though they have denied the evidence and incriminating circumstances arising against them, no defence evidence has been adduced by them.
80. The upshot of the discussion is that the prosecution version based on trustworthy evidence inspires our confidence for the reasons aforesaid. The learned trial court has made a proper analysis and scrutiny of the evidence on record and has passed the reasoned order of conviction and we find no perversity as such in the same.
81. In such view of the matter, we are of the considered view that the learned trial court has taken a correct and legal view in convicting and sentencing the convicts / appellants, which does not require any interference by this Court by taking a different view. In the present case, the ocular evidence finds corroboration by medical evidence and the prosecution has successfully proved its case beyond reasonable doubt. After properly appreciating the evidence on record the learned Trial Court has drawn a conclusion which, in our view, is just and proper. The sentence imposed is also appropriate and the present Criminal Appeal is liable to be dismissed.
82. The Criminal Appeal is hereby dismissed. Conviction and sentence imposed upon the accused appellants Sarjeet and Devendar vide judgment and order dated 1.5.2010 for the offences under Sections 147, 148, 302 IPC is upheld. Accused appellants are in jail. They shall serve out the sentence imposed upon them by the Trial Court.
83. Copy of this judgment alongwith lower court record be sent forthwith to the Court concerned for compliance.
Order date :- 14.12.2022 ss