Allahabad High Court
Pahalwan Nanai vs State Of U.P. on 7 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 1271
Bench: Bala Krishna Narayana, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No - 4 Case:-CRIMINAL APPEAL No.- 90 of 1986 Appellant:- Pahalwan Singh & others Respondent :- State of U.P. Counsel for Appellant :- Raghuvansh Mishra ,Arun Kumar Singh,Harish Chandra Tiwari A/C,Raghubir Saran Agrawal,Rahul Misra,Rahul Misra Amicus Counsel for Respondent :- A.G.A. Hon'ble Bala Krishna Narayana, J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J. )
1. This criminal appeal has been filed against the judgment dated 03.1.1986 in Sessions Trial No. 66 of 1984, State Vs. Pahalwan & others, passed by 1st Additional Sessions Judge, Jhansi by which the appellants Pahalwan Singh, Nathu Singh, Brij Kishore alias Pappu and Har Narain have been convicted and sentenced under Section 302/34 IPC for life imprisonment.
2. During pendency of appeal, appellant no. 3 Brij Kishore alias Pappu and appellant no. 4-Har Narain died and vide order dated 25.1.2018 of this Court, their appeal has been abated.
3. The appellant no. 2 Nathu Singh despite every process being issued did not appear nor he was arrested nor there was any trace of his sureties and hence vide order dated 04.7.2019 of this Court, Sri Rahul Mishra, Advocate has been appointed as Amicus Curiae to argue on behalf of appellant no. 2 Nathu Singh. Again by order dated 19.8.2019, Sri Harish Chandra Tiwari has been appointed as Amicus Curiae in place of Sri Rahul Mishra.
4. Brief facts of the case are that an FIR was lodge by Lakhan Lal Yadav at PS Prem Nagar on 03.2.1984 at 6.50 AM alleging that he resides in House No. 299, Nainagarh. On 03.2.1984 at about 5.30 AM his father Amrat Lal had gone to the latrine to ease himself, the informant was feeding his buffalo and thereafter, he also went to latrine to ease himself where he saw in the light of his torch that accused Pahalwan armed with a Sabbal (an iron rod used for digging), Har Narain, Brij Kishore and Nathu Singh armed with lathi in their hands were beating his father. The informant shouted for help whereupon, his younger brother Ram Sewak and several other persons reached there. Seeing them, the accused persons ran away from the place. All the accused persons were identified by the witnesses in the light of torch. They found that Amrat Lal was already died. The deceased Amrat Lal and accused Ram Charan are real brothers and accused Pahalwan is son-in-law of accused Ram Charan. Accused Pahalwan was dismissed from his railway service and he believed that on the complaint of Amrat Lal, the action was taken against him and because of that he was having enmity with Amrat Lal. Accused Ram Charan had hatched a conspiracy for his murder and after conspiracy in order to create defence of alibi, he got admitted himself in a hospital. The informant had seen the accused Ram Charan on 02.2.1984 at about 5.00 PM and he suspected that Ram Charan had conspired in murder of Amrat Lal. The accused persons are relatives and close associates of each other and they committed murder of Amrat Lal.
5. On the basis of this report, the offence was registered by the police. The inquest report was prepared and the postmortem of dead body was conducted. The accused persons were arrested and blood stained Tahmad of accused Brij Kishore alias Pappu was recovered from his possession at his instance, whereas when accused Pahalwan was arrested, he was wearing blood stained Bushirt and Pant. On his instance, the blood stained Sabbal was also recovered. All these articles were taken into possession by the police and were sent for chemical examination. The statements of witnesses were recorded by the Investigating Officer and after completion of investigation, charge sheet was submitted against accused Ram Charan, Brij Kishore alias Pappu, Pahalwan, Har Narain, Nathu and Veer Singh for the offence under section 302/120-B IPC.
6. The charges were framed against accused Pahalwan, Brij Kishore alias Pappu, Har Narain and Nathu for the offence under section 302 read with section 34 IPC and against accused Ram Charan and Veer Singh for the offence under section 120-B read with section 302 IPC. The accused persons denied the charges and claimed trial.
7. The prosecution examined PW-1 Lakhan Lal (informant) has proved written report as Ext. Ka-1 and as eye witness he gave statement with regard to the commission of offence. He has also proved the letter of Amrat Lal sent to S.P. Jhansi Ext. Ka-2 along with certificate of posting Ext. Ka-3, letter of Amrat Lal sent to Divisional Railway Manager dated 17.8.1982 Ext. Ka-4, letter of Amarat Lal sent to Divisional Railway Manager dated 11.11.1982 Ext. Ka-5, memo of torch Ext. Ka-6, Lota as material Ext. 1, two pants, two jarkins and one shirt of deceased as material Ext. 2 to 6, the Tahmad of Brij Kishore and the pant and shirt of Pahalwan as material Ex. 7, 9 and 10 and the Sabbal which was used by the accused Pahalwan as weapon for offence Ext.-8. PW-2 Ram Sewak Yadav is an eye witness. PW-3 Atar Singh is the witness of memo of Lota Ext. Ka-7, memo of blood stained and plain earth Ext. Ka-8, container of blood stained and plain earth material Ext. 12 & 13. PW-4 Sabarjeet Singh is the witness of recovery of Tahmad and has proved recovery memo Ext. Ka-9. PW-5 Jahangir is the witness of recovery of blood stained Sabbal who has also proved during cross-examination an application Ext. Kha-1, affidavit Ext. Kha-2, his signature on Ext. Kha-3 and signature and stamp of Stamp Reporter Ext. Kha-4. PW-6 Dr Dhirendra Saxena has proved the postmortem report as Ext. Ka-11. PW-7 Dr. R.C. Jain, Medical Officer, St. Jude's Hospital, Jhansi has proved the paper with regard to treatment of accused Ram Charan as Ext. Ka-12 and Ka-13. PW-8 Dr. P.C. Gupta, Medical Officer, District Hospital, Jhansi has similarly proved the bed head ticket of Ram Charan as Ext. Ka-14 and discharge slip as Ext. Ka-15. PW-9 SI Ram Awtar Chaturvedi PS Kotwali is the witness of arrest of accused persons, recovery memo Ext. Ka-16 and material Ext. 9 & 10. PW-10 SI Hari Shanker Sachan has proved the inquest report Ext. Ka-17, Naksha Lash Ext. Ka-18 and the Challan Lash Ext. Ka-19, letter to C.M.O. Ext. Ka-20, memo of clothes of deceased Ext. Ka-21. He has also proved the recovery memo of blood stained and plain earth, pant and shirt of accused Pahalwan. He has further proved GD Report Ext. Ka-23 and Ka-24. PW-11 SI Vaijnath Mishra has conducted the investigation, who has proved GD Ext. Ka-26, recovery memo of blood stained Tahmad of Brij Kishore Ext. Ka-9 and recovery memo of blood stained Sabbal Ext. Ka-.10 He has also proved site map Ext. Ka-27 as well as place of recovery of Tahmad Ext. Ka-28 and place of recovery of Sabbal Ext. Ka-29. He further proved memo Ext. Ka-32 and charge sheet Ex. Ka-33 and the GD Entry Ext. Ka-34, medical examination report Ext. Ka-35 along with other recovered articles from accused persons.
8. The statement of accused persons was recorded under section 313 Cr.P.C. and in their statement, they have admitted the relationship of accused Ram Charan with the deceased, but it has been denied that accused Pahalwan was residing with Ram Charan. Reovery of blood stained Tahmad, blood stained Sabbal, pant and shirt has also been denied. The accused persons have stated that they have been falsely implicated due to enmity. Accused Nathhu has stated that he has been falsely implicated because of enmity with one Dashrath, accused Har Narain stated that he was arrested from his house which is situated about 16-17 km away from the place of occurrence and he has been falsely implicated on account of relationship with Ram Charan. Accused Ram Charan has stated that he was ill on the date of incident and was admitted in a hospital and because of enmity, he has been falsely implicated. Accused Veer Singh has stated that he has been falsely implicated as there is no evidence against him. No defence evidence was given from the side of accused persons.
9. After hearing learned counsel for the accused persons and learned D.G.C. (Criminal) and after perusing the record, the learned trial court acquitted Ram Charan and Veer Singh from the charges and convicted the appellants.
10. Aggrieved by said judgement, this appeal has been filed on the ground that conviction is against the weight of evidence on record and against the law and the sentence awarded is too severe.
11. Heard Sri Rahul Mishra assisted by Sri Raghuvansh Mishra, learned counsel for appellant no. 1, Sri H.C. Tiwari, Amicus Curiae for appellant no. 2 and learned A.G.A. for the State.
12. The submission of the learned counsel/Amicus Curiae for the appellants is that both the eyewitnesses examined by the prosecution are real brothers and sons of the deceased and are partisan witnesses and because of inimical relations, they have given false evidence against accused-appellants. Their testimony is contradictory and they have made improvements. The place of occurrence is not proved and the presence of alleged eyewitnesses is highly doubtful on the place and at the time of occurrence. Two accused persons have been acquitted on the basis of same evidence and the incriminatory articles shown to have been recovered from the accused are planted and false.
13. On the contrary, the learned AGA has submitted that FIR has been lodged promptly naming the accused persons, two eyewitnesses have supported the prosecution version and the learned trial court has rightly convicted and sentenced the accused-appellants on the basis of evidence on record.
14. The only question which is required to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the learned trial court and the sentence awarded is legal and sustainable under law and suffers from no infirmity and perversity.
15. The prosecution examined PW-1 Lakhan Lal who proved written report as Ext. Ka-1 and as eye witness he gave statement with regard to the commission of offence. He has also proved the letter of Amrat Lal sent to S.P. Jhansi showing his apprehension that accused might cause harm to him which is Ext. Ka-2 along with certificate of posting Ext. Ka-3, letter of Amrat Lal sent to Divisional Railway Manager, dated 17.8.1982 Ext. Ka-4, letter of Amarat Lal sent to Divisional Railway Manager dated 11.11.1982 Ext. Ka-5 and memo of torch Ext. Ka-6. He has also identified Lota as material Ext. 1, two pants, two jarkins and one shirt of deceased as material Ext. 2 to 6, the Tahmad of Brij Kishore and the pant and shirt of Pahalwan as material Ext.- 7, 9 and 10 and the Sabbal which was used by the accused Pahalwan as weapon for offence material Ext.- 8. He has further stated that the accused Ramcharan is the brother of deceased Amratlal, accused Brij Kishore is son, accused Veer Singh is brother-in-law, Nathu is nephew (bhanja), accused Pahalwan is son-in-law of accused Ramcharan, whereas accused Har Narain is brother-in-law of accused Brij Kishore. PW-1 has stated that about one and three months before, at about 5-5.30 AM, his father Amrat Lal had gone to ease himself. After sometimes, he also went to ease himself. He heard some sound and in the light of torch, he saw that the accused persons Pahalwan having sabbal in hand, Nathu, Har Narain and Brij Kishore having lathi in their hands, were beating his father. He cried whereupon his younger brother Ramsewak and others reached there. The accused persons ran away from there. They went nearer and found Amrat Lal dead. He lodged FIR by giving a written report which was inscribed by one Dashrath on his dictation. The witness has further stated that about 3 years before accused Pahalwan committed marpeet with his father about which his father sent a complaint to SP and other authorities. His father also complained to the Railway Authorities about accused Pahalwan on the basis of which, he was removed from service. On account of this enmity, his father was killed by the accused persons.
16. PW-2 Ramsewak has also stated that on the shout of his brother, he reached there and saw the accused persons beating his father. Accused Pahalwan was having sabbal and others were having lathi in there hands. He saw this in the light of torch of his brother Lakhan. He found his father dead thereafter. He has also stated that accused Ramcharan had enmity with deceased and because of that and on his instigation the accused persons killed his father.
17. PW-3 Atar Singh is the witness of memo of Lota Ext. Ka-7, memo of blood stained and plain earth Ext. Ka-8, container of blood stained and plain earth material Ext. 12 & 13 and has stated that all these exhibits were taken into possession by police from the place of occurrence and memo was prepared on which he signed as witness.
18. PW-4 Sabarjeet Singh is the witness of recovery of Tahmad and has proved recovery memo Ext. Ka-9.
19. PW-5 Jahangir is the witness of recovery of blood stained Sabbal who has also proved during cross-examination an application Ext. Kha-1 and affidavit Ext. Kha-2, his signature on Ext. Kha-3 and signature and stamp of Stamp Reporter Ext. Kha-4.
20. PW-6 Dr Dhirendra Saxena has proved the postmortem report as Ext. Ka-11 and has stated that on 4.2.1984, while posted as Radiologist in the District Hospital, Jhansi, conducted postmortem of the dead body of Amrat Lal at 4 PM who was brought by the police constables Subhash Chandra and Shamim Ahamad. The deceased was aged about 44 years and his death took place one and half day before.
External Examination Following injuries were found on the dead body:
1. One lacerated wound 4 cm x 2 cm x brain deep on the left of forehead just above left eyebrow on its medial half, horizontal and clotted blood present.
2. Lacerated wound 3 cm x 1 cm x brain deep 3 cm above from injury no. 1 on the left side of forehead, oblique just above lateral half of left eyebrow. Clotted blood present.
3. Lacerated wound 6 cm x 3 cm x brain deep on left side of forehead 3 cm above injury no. 1, oblique, clotted blood.
4. Lacerated wound 9 cm x 6 cm x brain deep on the left side of head, oblique, 5 cm above left ear, brain matter coming out clotted blood adhere places.
5. Lacerated wound 4 cm x 1 cm x bone deep on the left on the left mastoid area, oblique 2 ½ cm behind left ear. Clotted blood present.
6. Lacerated wound 3 ½ cm x 1 cm x bone deep on the back of left ear, oblique, clotted blood present. 2 cm above injury no. 5.
7. Lacerated wound 3 cm x 1 cm x bone deep, oblique at the back of left ear, 2 cm above injury no. 6.
8. Lacerated wound 3 cm x ½ cm tearing left ear pinna, clotted blood present.
9. Lacerated wound 3 cm x ½ cm tearing left ear lobule, clotted blood present.
10. Abrasion 6 cm x 1 cm on the back Rt forearm 2 cm above wrist, oblique.
Rigor mortis was present in lower limb. Greenish discolouration on lower part of abdomen. Abdomen distended slightly and foul gas coming out on opening. Bones of left side of skull including frontol, parietal, temporal and occipital are fractured in multiple pieces, tearing the meninges and depressed and lodged in brain. Scalp hair walled with dry clotted blood.
Internal Examination Multiple fracture of left frontal, parietal, temporal and occipital bones depressed and in pieces. Membranes badly torn on left side. Brain crushed and coming out on left side. Left anterior middle and posterior and cranial fossae are fractured. About 50 gm yellow liquid present in abdomen. In small intestine, pasty material adhere to the walls. large intestine half full faecal matter. In the opinion of the doctor, death was caused due to injury to brain as a result of ante-mortem injuries. The doctor has stated that the deceased died on 3.2.1984 at about 5-5 ½ AM. Injury no 1 to 9 was possible by blunt object like lathi and sabbal, if used like lathi. Injury no 10 was possible by friction on hard surface. PW-6 has stated that the injuries to deceased was sufficient to cause death.
21. PW-7 Dr. R.C. Jain, Medical Officer, St. Judus Hospital, Jhansi has proved the paper with regard to treatment of accused Ram Charan as Ext. Ka-12 and Ka-13. He has stated that Ramcharan was admitted in the Hospital on 2.2.1984 because of fever, cough and headache from a week.
22. PW-8 Dr. P.C. Gupta, Medical Officer, District Hospital, Jhansi has similarly proved the bed head ticket of Ram Charan as Ext. Ka-14 and discharge slip as Ext. Ka-15.
23. PW-9 SI Ram Awtar Chaturvedi PS Kotwali is the witness of arrest of accused Pahalwan who has stated that the accused tried to run away. He was wearing blood stained shirt and pant and the same was taken into possession and sealed and memo was prepared. The witness has proved the recovery memo as Ext. Ka-16 and material Ext. 9 pant & 10 shirt.
24. PW-10 SI Hari Shanker Sachan has proved the inquest report Ext. Ka-17, Naksha Lash Ext. Ka-18 and the Challan Lash Ext. Ka-19, letter to C.M.O. Ext. Ka-20, memo of clothes of deceased Ext. Ka-21. He has also proved the recovery memo of blood stained and plain earth, pant and bushirt of accused Pahalwan. He has further proved GD Report Ext. Ka-23 and Ka-24. The witness has stated that on 3.2.1984, he reached on spot with SO and prepared inquest report. The place where the dead body was lying was very dirty and not appropriate, and therefore, the dead body was shifted in the open ground situated nearby in front of the house of Baldeo and Nanhe Khan. Five witnesses were appointed as panch and in their presence the inquest report was prepared and dead body was sealed. Necessary form and letters were prepared for postmortem and the same was handed over to constables. He has further stated that the lota of deceased (a kind of pot for carrying water) mat. Ext.1 was also found there which was taken into possession, sealed and memo was prepared. Blood stained and plain earth was lifted from the place of occurrence, sealed and memo was prepared. All these articles were deposited in the PS on the same day at 3.35 PM vide GD no. 27 Ext. Ka-22. The witness is also a witness of arrest of accused Pahalwan and the recovery of blood stained shirt and pant he was wearing which were sealed and memo prepared and broght and deposited in the PS on the same day on 4.50 PM vide GD report Ext. Ka-23. He has further stated that on the same day at about 6.30 PM accused Veersingh was arrested and brought to PS and an endorsement to that effect was made in the GD.
25. PW-11 SI Vaijnath Mishra has conducted the investigation, who has proved GD Ext. Ka-26, recovery memo of blood stained Tahmad of Brij Kishore Ext. Ka-9 and recovery memo of blood stained Sabbal material Ext. Ka-10. He has also proved site map Ext. Ka-27 as well as place of recovery of Tahmad Ext. Ka-28 and place of recovery of Sabbal Ext. Ka-29. He further proved memo Ext. Ka-32 and charge sheet Ex. Ka-33 and the GD Entry Ext. Ka-34, medical examination report Ext. Ka-35 along with other recovered articles from accused persons. The witness has also proved check FIR which was prepared on the basis of written report and the GD in which an endorsement to that effect was made. On his direction, inquest report was prepared. He arrested accused Brij Kishore on 10.30 AM from Hardol chabutara on 3.2.1984 and on the same day accused Ramcharan was admitted in St. Jude's Hospital, who on being inquired, said that he is not well and therefore, after getting him discharged, he was sent to Civil Hospital. On being asked, accused Brij Kishore said that he can get his tahamad recovered he was wearing at the time of incident. He took him to his house and got recovered the same which he had concealed below his bedding. The same was sealed and memo was prepared. He also took statements of witnesses Sarjeet, Ramsewak and other witnesses. He inspected place of occurrence and prepared site map. The torch of Lakhanlal was taken in possession and after preparing memo, the same was duly returned to him. The recovered articles and accused Brij Kishore was admitted in Police Station. He also examined accused Pahalwan in the Police Station who made statement that he has concealed the weapon which was used in commission of offence and on his instance, IO got the sabbal recovered from Raidas Temple chabutara from below the sand. The sabbal was sealed which is Ext.-8 and memo was prepared which is Ext. Ka-10. Of both recoveries, he prepared site map and sealed articles were deposited in Police Station. He also examined accused Veer Singh and other witnesses in the Police Station itself. Accused Nathu surrendered on 8.2.1984 in the court who was examined in jail. Treatment papers of accused Ramcharan was obtained and after completing investigation, charge-sheet was submitted by him. He has further stated that incriminating articles recovered from the place of occurrence and during investigation was sent for chemical examination.
26. The learned counsel for the appellants has submitted that the two witnesses of fact PW-1 Lakhan Lal Yadav and PW-2 Ramsewak Yadav have been wrongly relied upon by the learned trial court and they could not be believed as they are real sons of deceased and highly interested witnesses. There presence at the place of occurrence is doubtful at the time of incident as there is material contradiction, discrepancy and improvements in their statement. It has been stated by PW-1 that on his shout, his brother PW-2 and other 3-4 persons of the locality reached there, but none of such persons has been made witness nor any of them has been examined.
27. We have considered the above arguments in the light of evidence on record. Only PW-1 has stated that with PW-2, some persons of locality reached there. PW-2 has not stated as such. In the cross-examination, PW-1 has said that he did not recognize who were the persons reaching there. He has further said that he is not able to say whether they reached there when accused were beating his father or soon after the incident. He has further stated that after one or two hours, he saw some persons coming there. PW-2 has positively stated that except him, none reached there hearing the shout of his brother. It is pertinent to mention that in the charge-sheet, the IO has not shown any other eyewitness which means that either none came there at the time of incident or even if came, did not offer to be witness. It may be mentioned that people avoid becoming witness and giving evidence in such kind of cases. Life is complicated and none wants it to be more complicated. The submission with regards to non-examination or non-availability of independent witness is concerned, it is hardly relevant in view of unimpeachable testimony of PW-1 and PW-2 who have fully supported the prosecution version. In Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 and Mukesh v State of NCT of Delhi, AIR 2017 SC 2161, it has been held that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution.
28. The witnesses have been put to rigorous cross-examination on the point of deceased whether eased out or easing when killed, he got the opportunity to wear his pant and wash himself, where he eased out in the joint latrine or outside, whether his latrine was found there and his private part was found to have been washed, who pulled up his pant, whether the deceased was wearing underwear or LANGOT (a kind of underwear), whether his latrine got pasted on his clothes and the like, and on this basis, attempt has been made to show contradiction in the statement of witnesses. In a criminal incident like this, such contradiction or discrepancy is insignificant and meaningless, as it is not possible for witnesses to keep focus on such silly things while beholding a crime, particularly when the target of such crime is one's father himself.
29. The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 has laid down following principles to appreciate the testimony of eyewitnesses:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events, The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
The Supreme Court, therefore, held:
"Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
30. In Ugar Ahir v. State of Bihar, AIR 1965 SC 277, it held:
"The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
31. In State of UP v Anil Singh, 1988 (Supp.) SCC 686, it has been held by the Supreme Court that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape from punishment. One is as important as the other. Both are public duties which the judge has to perform.
Again, in Harijana Thirupala v. Public Prosecutor, High Court of AP, (2002) 6 SCC 470, it has been ruled as under:
"..In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."
32. In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81, the Supreme Court of India again laid emphasis on realistic approach to be adopted by the criminal courts while appreciating evidence in criminal trial and said:
"The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgement so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
33. Learned counsel for the appellants has submitted that the alleged witnesses produced by the prosecution are family members, as such, they are interested witnesses. The conviction of the appellants is primarily based on the statement of these witnesses, and therefore, is liable to be set-aside. On the contrary, learned counsel appearing for the State has argued that there was sufficient documentary and expert evidence on record. The natural witnesses who were present at the spot at the time of occurrence were examined by the prosecution. The version of the eyewitnesses cannot be doubted. Their presence on the place of occurrence was natural and they had no reason to falsely implicate all or any of the accused in the case. It is contended that the version of the eyewitnesses is fully supported by the medical/forensic evidence, recovery of incriminatory articles and the statement of the Investigating Officer.
34. So far as the issue of related and interested witnesses is concerned, it has been submitted that both the fact witnesses are related witnesses and because of enmity there is all possibility that in order to frame the accused persons for the charge they have given evidence against them. It is not disputed that both the eyewitnesses are real brothers and sons of the deceased. But this cannot be a reason to disbelieve their testimony. Both lived with the deceased in the same house and in the same locality where the criminal incident took place. Their presence at the scene of occurrence is natural. The submission of the learned counsel for the appellant is that both these witnesses are related and highly interested witnesses as they are the real brothers and the deceased was their father. The plea of defence of false implication on account of enmity and family dispute has been rightly disbelieved by the learned trial court in absence of any cogent evidence. Moreover, these accused persons were close relatives and family members, or closely associated with them, and there is no reason why they will be falsely implicated by complainant side.
35. So far as first part of the argument with regards to the testimony of interested witness is concerned, there is no hard and fast rule that family members can never be true witnesses of the occurrence and they will always depose falsely before the Court. It always depends upon the facts and circumstances of a given case. The law in this regard is well settled that the testimony of a witness cannot be discredited only on the ground that the witnesses are related or interested. The only requirement is that the testimony of such witness should be scrutinized cautiously and carefully. Thus, the only requirement regarding evidence of related witnesses, under law, is that their evidence should be scrutinized with extra care and caution. But their evidence cannot be discarded only on the ground of their relationship.
36. The appreciation of evidence of related witnesses has been discussed by the Supreme Court in its various judgements. In Dalip Singh v. State of Punjab (1954) SCR 145, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
37. In Masalti V. State of U.P. (AIR 1965 SC 202) Supreme Court Observed:
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."
38. The Supreme Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial. In Darya Singh v State of Punjab, AIR 1965 SC 328, followed by State of UP v Kishanpal (2008) 16 SCC 73, the Court held as under:
"On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
39. Again, in Appa v. State of Gujarat, AIR 1988 SC 698, the Court has observed:
"Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused."
40. Similar view was taken in State of AP v S. Rayappa (2006) 4 SCC 512, where the court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court stated the principle as follows:
" ....by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
41. Further, in Pulicherla Nagaraju @ Nagaraja Reddy v. State of AP (2007) 1 SCC (Cri) 500, the Supreme Court has held as under:
"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
42. Similarly, in Satbir Singh v State of UP, (2009) 13 SCC 790, the Court has held as under:-
"It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."
43. The aforementioned observation of Masalti (supra) has been affirmingly quoted in subsequent judgements. Thus, for instance, in M.C. Ali v. State of Kerala:: AIR 2010 SC 1639; and Himanshu v. State (NCT of Delhis, (2011) 2 SCC 36, Bhajan Singh and others Vs. State of Haryana; (2011) 7 SCC 421, it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before reaching to a conclusion on the conviction of the accused in a given case.
44. Again, in Jayabalan v U.T. of Pondicherry; 2010(68) ACC 308 (SC), the Supreme Court has made following observation:
"We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
45. Dharnidhar v State of UP, (2010) 7 SCC 759 referred the above observation of Jaya Balan (supra) and held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. Similar view was taken by this Court in Ram Bharosey v. State of UP AIR 2010 SC 917, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same. Thus the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court.
46. Again, in Balraje @ Trimbak v State of Maharashtra, (2010) 6 SCC 673, it has been held that when the eye-witnesses are stated to be interested and inimically deposed against the accused, it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
47. Subsequently, in Jalpat Rai v State of Haryana AIR 2011 SC 2719 and Waman v State of Maharashtra AIR 2011 SC 3327, it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. 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 analysing 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 testimony of such related witness. This view has been reiterated in Shyam Babu v State of UP, AIR 2012 SC 3311, Dhari & Others v State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad (supra). Recently, in Ganapathi v State of Tamilnadu, AIR 2018 SC 1635, the Court found no force in the argument that the conviction based on the evidence of family members in a murder trial is not sustainable. In Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been reiterated by the Supreme Court that relationship by itself will not render the witness untrustworthy. The Supreme Court laid down as below:
"Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ...... A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
48. Thus, in view of aforementioned decisions of the Supreme Court, it is now a settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.
49. Now applying the principles discussed above, we find it true that PW-1 and PW-2 are the real brothers and son of the deceased. But, there is nothing in their statements which can create any amount of doubt, although, both have been cross-examined at length on every point very minutely. Both sides are close relatives and there is no reason for the witnesses to falsely implicate the accused persons in the said incident if the crime was committed by someone else. On the contrary, the accused persons did have enmity with deceased as on his complaint, Pahalwan was removed from service and he was son in law of accused Ramcharan and other accused persons are his son or closely related or associated. Both the eye-witnesses knew the accused persons who were beating the deceased and they recognized them in the light of torch. The time of incident is the time when people go out for easing. The presence of the deceased and PW-1 is not unnatural. PW-2 reached there on hearing the shout of PW-1. Both identified the accused persons and have also stated that accused Pahalwan was assaulting by sabbal and others were assaulting by lathi. There is no unnatural variation in their testimony so far as commission of the offence by accused-appellants is concerned. Both the witnesses were hardly 19 and 17 years in age respectively and belong to a very humble background and in such an age, it is not possible for them to plant and frame falsely the accused-appellants in such a crime, who were close relatives and had no personal grudge against them individually, except that their father was not in good terms with the accused Pahalwan. On critical analysis of their statements, we find that their account as eyewitness cannot be disbelieved and the learned trial court has rightly found them reliable and trustworthy.
50. It has been further mentioned by the learned counsel to the appellant that the deceased and his family were living elsewhere and therefore the presence of deceased and particularly, PW-1 and PW-2 is unnatural as the incident has been alleged to have taken place early in the morning. In support of this argument, a reference has been taken of the statement of PW-1 where he has stated that they started living in Awas Vikas Colony. From the very statement of PW-1, it is clear that the witness has stated "aap kab ki baat kar rahe hai" (of when you are talking) and then he has stated that prior to the incident when Pahalwan beat his father, they all with his father shifted to Awas Vikas Colony. This witness has clearly stated during his examination-in-chief that about two years nine months before, Pahalwan committed marpeet with his father about which a complaint was given to SP, Jhansi which is Ext. Ka-2. The above referred statement by the learned counsel can be related to this incident. It has been specifically stated by both the eyewitnesses that both the sides lived in the same locality and both the sides had joint latrine. The defence should have clarified from PW-1 whether they shifted for ever or not in view of the qualifying sentence "aap kab ki baat kar rahe hai." In Mahavir Singh Vs. State of Haryana, (2014) 6 SCC 716, it has been laid down that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be questioned. Moreover, it has been never the case of either side that the deceased and his family lived elsewhere. PW-1 has stated in detail about the houses in that locality and has also said that his house and house of accused Ramcharan is attached and behind the houses, there is open land through which one has to go to the said latrine. Thus, we do not find any substance in this argument.
51. Next limb of argument is the time of death and it has been argued with reference to the post-mortem report and statement of doctor that the deceased must have died in the midnight, much prior to the incident alleged by the prosecution. In his statement during cross-examination, the doctor has stated that it was more probable that the death might have taken place in the midnight at 12-01 AM as his bladder was empty and rectum was half filled. He has stated that if the deceased had not urinated, the bladder should have been full and if not eased, rectum should be full. Yellowish liquid indicates that the deceased might have taken some liquid substance just before death.
52. The law on the point of alleged discrepancies between ocular testimony and medical/post-mortem report needs to be discussed in brief here to arrive at correct conclusion. In Suresh Chandra Bahri Vs. State of Bihar, JT 1994 (4) SC 309 the Supreme Court referred "Modis Medical Jurisprudence and Toxicology, 22nd Edition, pages 246, 247 which reads as under :
"Digestive conditions vary in individuals up to 2.5-6 hours depending upon healthy state of body, consistency of food motility of the stomach, osmotic pressure of the stomach contents, quantity of food in the duodenum, surroundings in which food is taken, emotional factors and residual variations and only very approximate time of death can be given."
53. In Solanki Chimanbhai Ukabhai vs State of Gujrat, AIR 1983 SC 484, it has been laid down:
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that injuries could possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
54. In Abdul Sayeed vs State of MP, 2010 (10) SCC 259 in which the above passage from Solanki (supra) has been quoted affirmingly to lay down:
"Thus, the position of law in cases where there is contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. However, where medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
55. In Krishnan Vs. State, AIR 2003 SC 2978, the supreme court considered the question how to reconcile where medical opinion suggesting alternative possibilities than ocular testimony? The court has observed:
" The ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently. It is trite that where the eye witnesses' account is found credible and trustworthy, medical opinion pointing two alternative possibilities is not accepted as conclusive. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."
56. Similarly, in Thamman Kumar v. State of Union Territory of Chandigarh, AIR 2003 SC 3975, the Supreme Court has explained the legal principle on the point by making following observation:
"There may be a case where there is total absence of injuries, which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type, which is possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second category and third category no such inference can straight-way be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of the ocular testimony."
57. The above view has been referred and quoted with approval in subsequent judgements. Thus, in Abdul Sayeed Vs. State of M.P, (2010) 10 SCC 259 Rakesh Vs. State of UP, 2012 (76) ACC 264 (SC) and Sadhu Saran Singh Vs. State of UP, (2016) 4 SCC 357, it has been held that if the direct testimony of eye witnesses is reliable, the same cannot be rejected on the basis of hypothetical medical evidence, and the ocular evidence, if reliable, should be preferred over medical evidence. Opinion given by a medical witness (doctor) need not be the last word on the subject. It is of only advisory character. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. If one doctor forms one opinion and another doctor forms a different opinion on the same fact, it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with the probability, the court has no liability to go by the opinion merely because it is said by the doctor. Of course, due weight must be given to the opinions given by persons who are experts in the particular subject. Ocular evidence would have primacy unless established to be totally irreconcilable with the medical evidence. Testimony of ocular witness has greater evidentiary value.
58. The Supreme Court, while dealing with the medical evidence vis-a-vis eye-witness testimony, in Dayal Singh Vs. State of Uttaranchal, AIR 2012 SC 3046, has made observation that courts normally look at expert evidence with a greater sense of acceptability but it is equally true that the courts are not absolutely guided by the report of the experts especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgement on those materials after giving due regard to the expert's opinion because once the expert opinion is accepted it is not the opinion of the Medical Officer but that of the court. The skill and experience of an expert is the ethos of his opinion which itself should be reasoned and convincing. If the view of the expert has to find due weightage in the mind of the court, it has to be well authored and convincing.
59. In view of above, we are of the view that semi digested food found during post-mortem of the deceased person cannot be a decisive factor in the circumstances of the case to create doubt with regards to timing of death. The deceased was a railway employee and the daily routine, eating and sleeping habit of such person is governed by what duty he was performing at the time of death. It may also be noticed that many persons usually take tea or some liquid before going to ease out. It may also be noticed that because of uncertainty in the daily routine and the eating habit, constipation etc, it is always possible that rectum may not be clear in one time. Only on the basis that the doctor found rectum half filled at the time of post-mortem, it is not sufficient to show that the incident took place at a time much before what has been alleged by the prosecution. Moreover, the settled principle is that if there is some difference of such nature between the ocular testimony and medical evidence, ocular testimony being direct evidence will be preferred over the medical evidence. Both the eye-witnesses have clearly proved the time of death as they have stated that when the accused persons ran away after committing the offence, they went closer to their father and found that he was dead. No reason has been advanced from the side of appellants to create doubt on the ocular version on this point.
60. Two eyewitnesses have supported the version of the prosecution so far as the time and date of the offence is concerned. the statement of the doctor that death might have occurred in the mid night appears to be a mistaken statement and if read as a whole no importance can be attached to it and the time of occurrence appears to have been established to be at about 5 to 5-½ AM on 03.02.1984. The medical evidence in this case is not of that nature which completely rules out all possibility of ocular evidence being true or renders it false.
61. This appears to be a strange statement given by the doctor that death of deceased might have occurred in mid night as in his examination-in-chief, he has clearly stated that the deceased must have died on the date of incident at about 5-5-½ AM as injury was sufficient to cause death. Moreover, the two eye-witnesses who have been examined by the prosecution have clearly stated that the incident took place on 03.02.1984 at about 5 to 5-½ AM. So far as the discrepancy in the statement of the doctor is concerned, it is well settled that doctor can never be absolutely certain on point of time of duration of injuries and death. In Ram Swaroop v State of U.P., 2000 (40) ACC 432 (SC), the Supreme Court has held that the doctor can never be absolutely certain on point of time so far as duration of injuries and death are concerned. In Ramjee Rai v State of Bihar, 2007 (57) ACC 385 (SC), it has been further held that the medical science has not reached such perfection so as to enable a medical expert to categorically indicate the exact timing of death.
62. Another submission is that the injuries to the deceased are on his left part of body and mostly on the upper side and the prosecution has alleged that the deceased was beaten by accused persons surrounding him at the place. Moreover, the place of occurrence is situated at a very narrow place and it is not possible to hit the deceased by lathi and sabbal as it may hit the accused-appellants themselves. Moreover, if four accused persons were beating the deceased, he must have sustained injuries all over the body and not on the left side of his head. It is noteworthy that nine out of ten injuries found on the body of deceased in post-mortem is on the left side of his head covering ear, scalp and forehead. This submission is neither significant nor relevant as it is clear from the testimony of both the witnesses that they saw accused persons beating the deceased by lathi and sabbal. PW-1 Lakhan Lal has stated that from the place he saw the incident, he found his father lying zig zag and two accused persons were beating from opposite side with their face towards the witness, third was standing on the side of his father's leg whereas the fourth was in the right side towards him. Meaning thereby, all the four were involved in beating and commission of crime. This is no argument that if all the injuries are on left side of head, some of the accused must have been falsely implicated. On the contrary, it shows that the accused persons hit on head rapidly and repeatedly to ensure the death of the deceased in all probability. The brain of the deceased coming out from his head due to injury also supports this fact.
63. The other aspect is of motive for the incident. Learned counsel for appellants has submitted that there was no motive behind causing injury while learned counsel for State has submitted that there was a dispute with regard to removal of accused Pahalwan from his railway service. This was the cause and motive for the commission of offence. It has further been submitted by learned counsel for state that there is direct evidence and in that case, motive loses its importance and the case has to be examined on the basis of evidence on record.
64. In a number of decisions, like Abu Thakir v State; AIR 2010 SC 2119, State of U.P. v Nawab Singh; AIR 2010 SC 3638, Bipin Kumar Mondal v State of West Bengal; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka; (2003) 6 SCC 392, Thaman Kumar v State of Union Territory of Chandigarh; (2003) 6 SCC 380, State of H.P. vs. Jeet Singh; (1999) 4 SCC370, it has been repeatedly held by the Supreme Court that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
65. In Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26, it has been remarked by the Court that, even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect, the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In any case, we find with reference to judgements in Sheo Shankar Singh v State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar v State of Punjab; 2001 (2) JIC (SC), State of H.P. v Jeet Singh; (1999) 4 SCC 370; Pannayar v State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85 that the legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, goes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence.
66. Though not necessarily required as the case in hand is based on direct evidence of eyewitnesses, it is pertinent to mention that there may be cases based on circumstantial evidence where absence of motive may become insignificant to establish guilt. In G. Prashwanath v State of Karnataka; AIR 2010 SC 2914, Jagdish v State of M.P.; 2009 (67) ACC 295 (SC) and Ujjagar Singh v State of Punjab; AIR 2008 SC (Supp) 190, it has been observed by the Supreme Court that it is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material. But absence of motive is not of much consequence when chain of proved circumstances is complete to exclusively lead to the hypothesis of guilt.
67. We find that the Supreme Court has clearly opined in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, State of UP v Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka; (2003) 6 SCC 392, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72 that the prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons.
68. It has been contended on behalf of the appellants that the prosecution has failed to prove any motive for the commission of the crime and in absence of clear and emphatic motive, the order of conviction is liable to be set-aside and the accused persons are entitled for acquittal. This submission is, firstly, based on misreading of the record and secondly it is devoid of any merits. The evidence on record indicates that the relation between the parties were quite strained on account of the termination of railway service of accused Pahalwan on the complaint of the deceased. At earlier occasion also, accused Pahalwan committed marpeet with deceased and the family shifted to some other place for sometimes. Be that as it may, it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non for holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi v State of UP (1987) 2 SCC 352, the Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance.
69. We are of the view that when there is sufficient direct evidence regarding the commission of offence, the question of motive should go away from the mind of the Court. Motive is a double edged weapon and the key question for consideration in cases based on direct evidence remains whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by adducing reliable and cogent evidence. As such, the proof of the existence of a motive is not necessary for a conviction for any offence. In the recent judgement of Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
70. It is pertinent to mention that where case is based on direct evidence it is not incumbent for the prosecution to allege or prove motive. It can, however, be pointed out that in this instant case, the motive was very much present with the accused persons. There was enmity as on the basis of complaint made by the deceased person accused Pahalwan was removed from service and earlier also accused Pahalwan committed marpeet with the deceased and the family was forced to shift to some other place. Moreover, from the perusal of the FIR, it is clear that motive has been alleged and the witnesses have proved it. It has been alleged in the FIR that there was enmity between deceased and accused Ramcharan and Pahalwan as Pahalwan lost his railway service on the complaint of deceased. In the statement, it has come that prior to incident also, Pahalwan committed marpeet with the deceased. Therefore, the learned trial court has rightly concluded that there was existing and immediate motive for the offence and it was not necessary for the prosecution to prove the service of Pahalwan and termination order by filing doccuments.
71. The ocular testimony finds further support from the recovery of sabbal on the instance of accused Pahalwan, recovery of blood stained tahmad on the instance of co-accused Brij Kishore, the blood stained shirt pant of accused Pahalwan and the blood stained earth recovered from the spot. The recovered articles were sent for chemical examination, the report thereof is Ext. Ka-35. The submission of the learned counsel is that the recovered items were planted and sabbal and tahamad was not recovered on their instance. The perusal of forensic report shows that 1. sabbal, 2. tahamad of accused Brijkishore, 3. pant & 4. shirt of accused Pahalwan and 5. jacket, 6. shirt, 7. jarsi, 8., 9. pants of deceased and 10. blood stained earth were sent for chemical examination. It is pertinent to mention that on item no. 1 to 8, human blood was found and on item no. 2 to 6 and 8, group A blood was found and it is noteworthy that the blood on above items tallied and it goes to establish that the blood stains on tahamad and pant shirt of accused tallied with the blood of the deceased. The defence has not given any explanation how the blood stains of deceased came on their tahamad, shirt and pants which they were wearing at the time of incident. It is also pertinent to mention that accused Brij Kishore and Pahalwan were arrested on the very date of incident and tahamad was recovered at the instance of Brij Kishore and accused Pahalwan was wearing the pant shirt at the time of arrest. The sabbal which was recovered at the instance of accused Pahalwan was blood stained but the blood was disintegrated and therefore, the blood group was not determined. The reason is understood as the same was recovered from below the sand.
72. The recovery was made by police before before PW-1 Lakhan Lal, PW-4 Sabarjeet and PW-5 Jahangir and these witnesses and police witness of recovery have proved recovery in their statements. The site map of place of recovery has been prepared and proved by police witnesses. The recovered articles have been produced and proved by witnesses during trial. There is no discrepancy on that point in their statements. The learned counsel has tried to discredit PW-4 on the basis that he is father of Dashrath who has been shown to be inscriber of FIR in the list of witnesses in the charge-sheet and was shown to have been present there at the time of incident. But, PW-4 has stated that Dashrath did not tell him about incident. He has also stated falsely about any criminal case pending against him. Even if it is so, it is not sufficient to discredit PW-4 and he has also stated that he lived separately from Dashrath. In respect of PW-5 before whom sabbal was recovered, it has been submitted by the learned counsel that he had given affidavit during investigation that no such recovery was made and as such PW-5 could not have been relied upon by the learned trial court. The learned trial court has taken the view that even if it was so, the police witnesses have proved the recovery and in view of the judgement of the Supreme Court in Nathu Singh v State of MP, 1974 Cri. L J 11, their testimony cannot be discarded for the reason that they are police witnesses and it has not been shown that the police had some enmity with accused. Further judgements such as Pramod Kumar Vs. State (GNCT) of Delhi, AIR 2013 SC 3344 and Govindaraju alias Govinda Vs. State of Shri Ramapuram P.S., AIR 2012 SC 1292 also affirm this view in which it has been held that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. As a rule it cannot be stated that Police Officer can or cannot be sole eye witness in criminal case. Statement of Police Officer can be relied upon and even form basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record.
73. We are of the view that there is no error or perversity in the approach of the learned trial court. This instant case is based on direct evidence and the eyewitnesses saw the accused using sabbal for assaulting the deceased and the recovery has been made from a public place on the date of incident itself. Moreover, blood stains on tahamad and pant shirt of the group of deceased provides additional support to the direct evidence. The recovery of sabbal has been also proved by PW-5 Jahangir who has stated that on the instance of accused, said sabbal was recovered before him and memo of recovery was prepared on which he signed. So far as his affidavit is concerned which was given by him during investigation denying such recovery is no evidence as the witness has denied the same and has stated that his statement before the court is correct, and also in view of judgement of the Supreme Court in Ayaaubkhan v State of Maharashtra, AIR 2013 SC 58, where it has been held that affidavits have got no evidentiary value as the affidavits are not included in the definition of "evidence" in S. 3 of the Evidence Act.
74. The defence has disputed the place of occurrence and some omission has been pointed out in the site map prepared by IO and it has been submitted that the lane where the incident has been alleged to have taken place is so narrow that it is not possible for four persons to hit the deceased by lathi and sabbal. With reference to inquest report, the learned counsel for the appellant has submitted that in the beginning of the inquest report the officer who has prepared inquest report has shown the dead body in front of the door of Baldeo Nanhe. From the perusal of the site map, it is clear that the IO has shown where the dead body was found and from where the witnesses saw the incident. From the place, lota of deceased was also taken in possession and blood stained and plain earth was lifted. The Supreme Court in Jagdish vs State of UP, 1996 (33) ACC 495, has held that the IO is expected to show in the map what he has observed on spot. Other details based on saying of some persons are not needed to be mentioned as per legal requirement. This view has been further affirmed by this court in State of UP vs Lakhan Singh, 2014 (86) ACC 82 (All) (DB). During investigation, PW-11 IO prepared site-map in the presence of informant on the same day. The incident took place close to the latrine which has been shown in the site map. The houses on both sides of lane has been shown. It was not possible for the IO to ascertain where the deceased eased out and the latrine near the dead body was of the deceased or not. All the fact witnesses have also stated that the incident took place out side the latrine in the lane. In the written report Ext. Ka-1, it has been stated that the informant saw the accused persons beating his father there. That apart, the officer who has prepared inquest report has found the dead body at the same place and the police shifted the dead body to the open ground as the place where the dead body was found was very dirty. Hence, the place of occurrence has been established by prosecution and the arguments of the defence has got no force on the point of place of occurrence.
75. Inquest report of deceased was prepared by PW-10 after taking the dead bodies into possession from the place of occurrence. From perusal of inquest reports, it appears that the police team reached there on 6.50 AM and by 9.00 AM the dead body was duly sealed and after preparing inquest reports the dead bodies were handed over to constables Subhash and Shamim as deposed by him along with papers, necessary for submitting the same for post-mortem. For preparing inquest report, 5 Panches were nominated by PW-10. The panches were Bhagwandas, Hariram Yadav, Jangi, Chotelal and Sushil. The dead body was lying in the lane and the place was very dirty and therefore, the dead body was shifted in the open ground situated nearby in front of the house of Baldeo and Nanhe. The dead body was lying flat with eyes closed mouth half opened. On face, blood was clotted and bleeding. The deceased was wearing woolen pant, woolen inner, woolen jacket and jarsi and white shirt. 7 injuries were found including 6 lacerated wound around head and ear in the left side. In respect of the dead body the authority preparing inquest report and Panches were of the opinion that the deceased died because of injuries. The dead body was sealed and after preparing necessary papers, was handed over to the constable to take the dead body to the district hospital for post-mortem. The inquest reports have been duly proved by PW-10. Thus, there is nothing in this regard which can create any doubt on prosecution version to the benefit of the defence.
76. It can also be pointed out that defect in investigation, if any, cannot give any advantage to the defence unless such defect goes to the very root of the prosecution version. In Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475, it has been remarked by the supreme court that even if there is lapse in investigation, the same cannot be used to give advantage to accused person in cases where prosecution has led credible evidence, as it is difficult to determine that the investigative defect occurred due to general inefficiency of system or deliberated to shield the accused. In our considered view, the defect pointed out on behalf of the defence appears to be very minor and insignificant in nature and no force can be attached to that part of the argument.
77. The learned counsel for the appellants has mentioned certain discrepancy and contradiction in the testimony of witnesses with regards to who reached first and other persons of the locality reached there or not. With regards to presence of other witnesses, discrepancy has been pointed out. From what distance, the witness saw the incident and whether there was enough light, from what angle accused persons assaulted the deceased and caused injury and the like. It needs to be pointed out that where own father of the two eyewitnesses was the victim, in such a horrendous situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident. Some sort of contradiction, improvement, embellishment is bound to occur in the statement. As laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
78. In Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion.
79. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068, Shivappa v. State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh Vs. State for NCT of Delhi, AIR 2017 SC 2161 and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the Prosecution Witness are bound to be there and in fact they go to support the truthfulness of the witnesses.
80. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. In Meharaj Singh v. State of UP, (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR, the Supreme Court observed as under:
"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."
81. Similarly in Kishan Singh through LRs v. Gurpal Singh (2010) 8 SCC 775, the Supreme Court held that prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained.
82. Law expects a prompt first information report because it eliminates all the chances of coming up of a coloured version. In this instant case, the first information report was lodged with utmost promptness naming the accused persons and virtually there was no delay in lodging the same. A prompt first information report eliminates the chances of false implication and the fact that there is no delay in lodging FIR in this case, gives additional support to the prosecution version.
83. It has been also argued that the FIR lodged by the informant does not mention that the informant heard some sound (khatar-patar), nor about joint latrine or the name of other persons who reached there, saw the incident and identified the accused persons. It has also not been mentioned that at the time of incident, the deceased was in the latrine or easing out side and there are other omissions also. We are of the view that an FIR is not required to provide every detail of prosecution version. Those facts and details which are discovered during investigation are not supposed to be visualised by the informant at the time of lodging of FIR. It is settled law that the FIR is not supposed to contain all details of prosecution version. It is spontaneously written what comes in the mind of informant. It is not supposed to be guided by any legal advice and it is required to provide the brief of criminal happening and error and omission makes it more natural and genuine. It has been held in Bhagwan Jagannath Markad (supra) and Jarnail Singh Vs. State of Punjab, 2009 (6) Supreme 526 that the FIR is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly.
84. In the statement under Section 313 Cr.P.C. the accused appellants had stated that they have been falsely implicated due to enmity. There is direct evidence of eye witnesses that all the appellants caused injury. Nothing has been stated in the statement as to under what circumstances the deceased died and why the eye witnesses are giving evidence against the appellants. It was also argued by the counsel to the appellants that in the facts and circumstances of the case, this is possible that the deceased was killed by someone else and the appellants were falsely implicated. We do not find any force in this argument. The learned trial court rightly concluded that there is direct evidence of the eye witnesses who had seen the occurrence which finds corroboration from the medical evidence and incriminatory articles. Thus imaginary theory propounded by the defence is not acceptable. There is no evidence nor any report that anybody else has caused injuries.
85. Learned trial court has examined the contentions of the appellant on the basis of evidence on record and with reference to relevant case law applicable to the facts and circumstances of this case and has found that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court, it is not probable to involve the accused on false ground. Further, it was also concluded by the learned trial court that the witnesses were knowing, both the victim and the accused, and there evidence would be material and could not be criticized on the ground that they were interested witnesses. It was also held that if witnesses examined in the Court are otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Learned trial court has assessed the prosecution witnesses and found that nothing came out from the examination-in-chief or cross examination which may discredit the testimony of the witnesses.
86. From the above discussion we are of the view that the learned trial court rightly concluded that the prosecution has been able to prove the charges beyond shadow of any doubt. Excluding the accused persons who have been acquitted, the number of the convicted accused persons/appellants has been four and two eyewitnesses have stated the whole incident in a very natural and spontaneous way. It is also clear that the FIR for the horrifying occurrence was lodged without any delay and even if for the sake of argument there was any delay, the same has been reasonably explained by the prosecution witnesses and circumstances of the case. The injuries found on the body of the deceased person find support from the medical evidence by which the date and time of causing the injuries is very much corroborated. Medical evidence clearly indicates that injuries were possible by lathi and sabbal which were assigned to the accused persons and because of injuries the deceased must have died immediately as the brain was coming out from the head. The place of occurrence has been fully established. There is no substantial contradiction or discrepancies in the evidence of the prosecution and some of the minor contradiction and discrepancies which have been discussed above goes to establish the reliability of the witnesses and that also shows that they are not tutored. Thus, the witnesses examined by prosecution are natural, credible and trustworthy.
87. As such, in view of the above discussion, the surviving accused-appellants namely Pahalwan and Nathu Singh have been rightly convicted for the offence under section 302/34 IPC. All these convicted persons have been awarded life imprisonment which is liberal option of punishment under section 302 IPC.
88. In our considered view, the judgement/finding of the learned trial court is sound and based on settled principles of law and the sentence awarded to the accused persons is adequate. There is no illegality or perversity in the judgement of the trial court, nor there is any misreading and wrong appreciation of the evidence on record. Therefore, we are of the view that the learned trial court has very rightly convicted the accused-appellants and adequately awarded sentence. The appeal has got no force and is liable to be dismissed.
89. The appeal is dismissed.
90. Appellants Pahalwan and Nathu Singh are directed to surrender before the learned trial court forthwith where from they will be sent to jail to undergo the sentence.
91. Amicus Curiae Sri Harish Chandra Tiwari, Advocate shall be paid Rs. Ten Thousands only for the assistance and legal service provided by him in conducting this appeal for the accused-appellant Nathu Singh.
92. Lower court record be transmitted back to the court below. Office is directed to send a copy of this order to the court below for communication and compliance.
Dated- 07.02.2020 RC/Bhanu (Justice Pradeep Kumar Srivastava) (Justice Bala Krishna Narayana)