Allahabad High Court
Makkhan & Others vs State Of U.P. on 18 December, 2017
Author: Arun Tandon
Bench: Arun Tandon, Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Case :- CRIMINAL APPEAL No. - 5892 of 2006
Appellant :- Makkhan & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Abhitab Kumar Tiwari,Ajay Kumar Pandey,D.K. Mishra,Dharmendra Singh, M.N. Singh, Manoj Singh, Satish Trivedi
Counsel for Respondent :- Govt. Advocate
And
Case :- CRIMINAL APPEAL No. - 5408 of 2006
Appellant :- Satpal And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Abhitab Kumar Tiwari,Ajay Kumar Pandey,Anubhav Trivedi,Dhananjay Mishra,Dharmendra Singh,V P Mishra
Counsel for Respondent :- Govt. Advocate
Hon'ble Arun Tandon,J.
Hon'ble Rajul Bhargava,J.
(Delivered by Hon'ble Rajul Bhargava, J.)
1. Heard Sri Rakesh Pande and Sri Dharmendra Singh, learned counsels for the appellants and Sri Ali Murtaza, learned counsel for the State.
2. Since both these appeals arise out of same judgement and order dated 31.08.2006, therefore, they are being decided by a common judgement and order.
3. Instant appeals have been preferred against impugned judgement and order dated 31.08.2006 passed by Additional District and Sessions Judge/Fast Track Court No.04,Meerut in Sessions Trial No.77 of 2005 (State Versus Makkhan and others) under Sections 302/149, 323, 323/149, 148 and 147 I.P.C., Police Station Mundali, District Meerut and they were sentenced as under:-
i) Accused appellants, Satpal, Makkhan, Veermati alias Veero, Kiranpal, Jaipal, Smt. Ballo, Veer Singh, Satvir and Gajendra alias Gaje Singh to undergo life imprisonment along with fine of Rs.5,000/- each and in default of payment of fine, they were to undergo six months' simple imprisonment under Sections 302/149 I.P.C.
ii) Accused-appellants-Satpal, Veermati alias Veero, Kiranpal, Smt.Ballo to undergo one year's simple imprisonment under Section 323 I.P.C.
iii) Accused-appellants-Makkhan, Jaipal, Gajendra alias Gaje Singh, Veer Singh and Satvir to undergo one year's simple imprisonment under Section 323/149 I.P.C.
iv) Accused-appellants, Makkhan, Jaipal, Gajendra alias Gaje Singh, Veer Singh and Satvir to undergo two years' simple imprisonment under Section 148 I.P.C.
v) Accused-appellants, Satpal, Veermati alias Veero, Kiranpal and Smt. Ballo to undergo one year's simple imprisonment under Section 147 I.P.C.
All the sentences of the appellants were ordered to run concurrently.
4. In brief, the prosecution version as contained in the First Information Report lodged by PW 2, Nepal Singh on 9.6.2006 at 5.30 A.M. at Police Station Mundali, District Meerut is that he along with his wife, PW 3,Smt. Surekha were sleeping on the terrace of their house and his grand mother, Smt. Bansho, father-Vijay Pal Singh, mother-Santosh and sister-Km. Sangeeta were sleeping on Chabutara near the place where buffalos were tied. It is stated that at about 4.15 a.m. informant's real uncle, Makkhan, his sons, Jaipal and Satpal, his wife-Veero and other accused, Kiranpal, his wife, Smt. Ballo who were staying with accused-Makkan for past several days along with Veer Singh,maternal uncle of Veer Singh, namely Satvir and Chandrapal resident of Vidyawati, Police Station Bhulana and one Gaje, all armed with Katta, Farsa, knife, lathi and danda launched assault on his parents when his grandmother and sister attempted to rescue them, they were also assaulted by the accused. He and his wife witnessed the incident from the roof top. The incident was also witnesses by several persons of the locality. The F.I.R. was scribed by one Omvir and was registered by the police as noted above.
5. After registration of F.I.R., investigation was taken up by Station House Officer,Kunwar Pal Singh, PW 8. He proceeded to the spot after taking the requisite documents for conducting inquest and reached on the place of incident and started preparing inquest on the deadbody of Vijay Pal Singh at 6 a.m. on 9.6.2004 and concluded the same at 7 a.m. and thereafter inquest on the dead body of Smt. Santosh was taken up on 9.6.2004 from 7.15 a.m. to 8.30 a.m. Along with the inquest reports, he had dispatched copy of the Chik report, the General Diary relating to registration of case and other relevant documents mentioning therein the crime number and the relevant sections under which the F.I.R. was registered.
6. According to the prosecution both the injured, Smt. Bansho and Km. Sangeeta had also gone along with the first informant to the police station when the F.I.R. was lodged by PW 2. The injuries sustained by them were noted in the said G.D. and was sent along with Chitthi Majrubi with constables to District Hospital, Meerut for medical examination.
7. The injuries of Smt. Bansho wife of Sukhram aged about 70 years was examined by Dr. Raj Kumar, PW 5 at P.L. Sharma, District Hospital, Meerut on 9.6.2004 at 9.40 a.m. and following injuries were found on her person:
i) Lacerated wound 7.5 cm x 1 cm, bone deep, left side head, 9.5 cm above left ear, anterioposterily placed. Fresh blood clots, dried is present. Bleeds in cleaning the wound.
ii) Reddish contusion 4 cm x 2 cm on the outer aspect of left upper arm lower part.
The doctor opined that duration is about fresh and all the injuries were caused by blunt and hard object.
8. The injuries of Km. Sangita daughter of Vijay Pal aged about 18 years was also examined by the same Dr. Raj Kumar, PW 5 at P.L. Sharma, District Hospital, Meerut on 9.6.2004 at 10.55 a.m. and following injuries were found on her person:
i) Reddish contused swelling 3cm x 2 cm left side of head, 5.5cm above left eyebrow.
ii) Reddish contused swelling 4.5 cm x 1 cm in back side left middle finger.
The doctor opined that duration is about fresh and both the injuries were caused by blunt and hard object.
9. The post mortem on the dead body of Vijay Pal Singh son of Sukhram aged about 45 years was conducted on 9.6.2004 at 3.30 p.m. by Dr. M.C. Gulecha, PW 7, the then Medical Officer, P.L. Sharma, District Hospital, Meerut and following ante mortem injuries were found on his person:
i) Firearm wound of entry 1.2 cm x 1.4 cm x cavity deep on left side face on left cheek, margins inverted and lacerated. Blackening present in area 4 cm x 5 cm around he wound.
ii) Firearm wound of exit, 3 cm x 3.5 cm x cavity deep through and through with injury no.1 on right side head, 5 cm above right ear. Margins inverted and lacerated.
iii) Incised wound 4 cm x 2 cm x bone deep on left side face 1.5 cm left eye, eleptical in shape.
iv) Incised wound 4 cm x 2 cm x bone deep eleptical in shape on left side of face, 2 cm away from left angle of mouth.
v) Incised wound 2 cm x 1 cmx muscle deep of left side face, just below the angle of mandible.
vi) Incised wound 5 cm x 4 cm x cavity deep on right side chest front, 6 cm below middle of right collarbone ribs under injury cut.
vii) Incised wound 3 cm x 1 cm x cavity deep on right side chest front 3.5 cm below injury no.6, rib under injury cut.
viii) Incised wound 9 cm x 5 cm x cavity deep L shaped on right side chest 2 cm below injury no.7.
ix) Multiple (five in numbers) incised wounds of average size 2.5 cm x 1.5 cm x cavity deep on left side, chest front in area 12 cm x 8 cm on middle of chest ribs under injury cut, rib nos. 3, 4, 5 and 6 of left side.
x) Incised wound 5 cm x 3 cm x cavity deep on lefr side chest in axillary line.
xi) Incised wound 2 cm x 1 cm x cavity deep on right side chest, 7 cms below axilla.
xii) Incised wound 7 cm x 3 cm x cavity deep on right side of abdomen 7 cms away from umbilicus at 7.30 O'clock position. Loops of intestine coming out from the wound.
xiii) Incised wound 3 cm x 2 cm x muscle deep on outer aspect of left forearm middle.
xiv) Incised wound 4 cm x 1.5 cm x muscle deep on outer aspect of left forearm, 3 cm below injury no.13.
xv) Incised wound 8 cm x 5 cm x bone deep on left hand between thumb and index finger.
xvi) Incised wound 4 cm x 2 cm x bone deep on left hand palmer side between and below middle and ring finger.
xvii) Incised wound 4 cm x 1 cm x muscle deep on left thigh, 6 cms above left knee joint.
xviii) Abrasion 4 cm x 2cm on back of right elbow joint.
10. The post mortem on the dead body of Smt. Santosh wife of Vijay Pal Singh aged about 40 years was conducted on 9.6.2004 at 4 p.m. by the same Dr. M.C. Gulecha, PW 7, Medical Officer, P.L. Sharma, District Hospital, Meerut and following ante mortem injuries were found on her person:
i) Incised wound 15 cms x 3 cms x bone deep eleptical in shape on right side forehead, 3 cm above, eyebrow to neck 40 cms below ear. The wound is deep to bone of skull.
ii) Incised wound 11 cms x 2.5 cms x bone deep on right side face, extending from left nostril to right side neck L shape of wound. Maxilla under the injury cut.
iii) Incised wound 4 cmx x 2 cms x bone deep on right side face, 3 cm away from right ear lower part.
iv) Incised wound 10 cms x 2 cm x bone deep on right side neck 4 cms below mandible,middle right carotid vessels cut under the injury.
v) Incised wound 9 cms x 2.5 cms x bone deep L shaped on right side head and back of head 8cms behind right ear. Parietal and occipital bones under the injury fracture.
vi) Incised wound, 3 cm x 1 cm x muscle deep on left side face, just medial to left eyebrow.
vii) Incised wound 2 cm x 1 cm x cavity deep on right side abdomen, 6 cms above hip bone.
The cause of death of both the deceased was due to shock and haemorrhage as a result of ante mortem injuries. The said doctor had also opined the duration of death of both deceased to be half day old. Rigor mortis was present all over the dead body. The stomach and small intestine were found empty.
11. The Investigating Officer inspected the spot and prepared site-plan at the instance of first informant and has shown the place at which the deceased were murdered and place where Smt. Santosh was sleeping along with Smt. Bansho and Km. Sangeeta on the Chabutara. He also noted place where blood of deceased was found on the Chabutara and shown the house towards west side of Chabutara where PW 2 and PW 3 were sleeping. It has been proved as Ext.Ka-24 by him. The Investigating Officer after conducting the thorough investigation laid charge-sheet against present appellants. Though one Chandrapal was also named in the First Information but he was not charge-sheeted. It may be noted that on 9.6.2004 itself, the appellants, Makkhan, Satvir, Smt. Veermati alias Veero, Veer Singh, Gajendra alias Gaje Singh were arrested by the Investigation Officer, PW 8 and from the possession of appellant, Makkhan, one knife, Farsa from Satvir, knife from Gajendra alias Gaje Singh and 12 bore Katta from Veer Singh were recovered. No recovery was effected from other co-accused, Satpal and Smt. Veero. Recovery memo has been proved as Ext.Ka-28 by PW 8. It is mentioned that copy of Fard is said to have been given to accused-appellant, Makkhan only with the consent of other accused. Appellant, Jaipal was arrested on 20.6.2004 at 2.30 p.m. by the Investigating Officer, PW 8 and at his instance a countrymade pistol was recovered. The Investigating officer also recovered plain and blood-stained earth from the place of incident. He also took in his possession the empty cartridge of 315 bore which was found lying 5 steps away from the dead body of deceased, Vijay Pal Singh.
12. After committal of the case all the appellants were put to trial and charges were framed against the appellants. Defence of all the appellants was of denial and they claimed trial.
13. In the trial court, the prosecution in order to establish its case examined 10 witnesses in all. Out of whom, PW 2, PW 3 and PW 4, namely, Nepal Singh, Smt. Surekha and Smt. Bansho are witnesses of fact and rest are formal witnesses. A short description of witnesses examined by the prosecution is as follows:-
PW 1, constable Raj Kumar proved registration of the case who recorded the same in the General Diary No.5 at 5.20 a.m. on 9.6.2004. He has also proved the check report.
PW 2, Nepal Singh is the first informant and son of both the deceased and an eye-witness of the incident. PW 3, Smt.Surekha is wife of first informant and eye-witness of present case. PW 4, Smt. Bansho is the mother of deceased, Vijay Pal Singh and appellant, Makkhan and grandmother of first informant Nepal Singh and appellants Satpal and Jaipal sons of Makkhan. She has received injuries in the incident. PW 5 Dr. Raj Kumar has proved injury reports of PW 4, Smt. Bansho and Km. Sangeeta. PW 6, constable, Om Beer Singh has proved registration of F.I.R. of recovery of weapons and PW 7, Dr. M. C. Gulecha conducted post mortem on the dead body of both deceased whose details have come earlier. PW 8, S.H.O. Kunwar Pal Singh is the then Investigating Officer. PW 9, Head Constable of Police, Srikrishna Sharma investigated the case of recovery of Katta from the possession of accused, Jaipal who after obtaining sanction submitted charge sheet against accused, Jaipal. PW 10, Sub Inspector, Vinod Kumar Sharma conducted the investigation of recovery of weapon of accused arrested on 9.6.2004.
14. After closer of the prosecution evidence, statements of the appellants under Section 313 Cr.P.C. were recorded in which they have categorically denied prosecution evidence and the facts stated by the prosecution witnesses. It is also pertinent to mention here that none of the appellants have stated in the their statements under Section 313 Cr.P.C. regarding their false implication by the injured, Smt. Bansho, PW 4 who also happens to be mother of appellant, Makkhan and grandmother of appellants, Satpal and Jaipal. In defence Smt. Poonam wife of appellant, Gajendra alias Gaje Singh was examined as DW 1 and DW2, Omvir Singh had proved relationship of the appellants and accused inter se.
15. Learned Trial Judge after hearing counsel for both sides and discussing the evidence on record held the appellants of murdering both deceased and causing injuries to Smt. Bansho PW 4 and Km. Sangeeta, convicted and sentenced all the appellants by the judgement and order which is impugned in these appeals.
16. We have heard learned counsels for the appellants as well as learned A.G.A. appearing of the State at length and carefully perused the record. Briefly summarised the arguments as advanced by learned counsels of the appellants, assailing the reliability, credibility and truthfulness of prosecution are mainly on the following grounds:
1) The F.I.R. in the present case has been made ante timed and the same has come into existence much later after deliberation and consultations. In the First Information Report no specific weapon was assigned to any of the accused.
a) The incident is said to have occurred at 4.15 a.m. and the F.I.R. is alleged to have been registered at 5.20 a.m. on 9.6.2004. The distance of police station from the place of incident is 4 kms. Promptitude with which the F.I.R. was lodged by the first informant specially after the brutal murder of his parents after covering of distance of four kilometres, creates doubt on it being lodged at 5.20 a.m.
b) The scribe of the F.I.R. has not been examined by the prosecution.
c) Non-compliance of mandatory provisions of Section 157 Cr.P.C. inasmuch as there is no evidence on record led by the prosecution as to when special report as envisaged under aforesaid section reached the higher authorities.
d) F.I.R. is also under cloud of suspicion for the reason that informant PW 2 who is the real son of deceased, Santosh did not accompany her for medical treatment, who according to the prosecution succumbed to the injuries on the way to hospital, rather he allegedly rushed to lodge the F.I.R.
e) In the Chitthi Majrubi of both injured, only Section 302 read with Section 307 I.P.C. was initially mentioned and later on Sections 147, 148, 149, 323, 506 and 324 I.P.C. have been manipulated.
2. The deposition of PW 2 and PW 3 unworthy of credence and they cannot be treated to be eye-witnesses of the incident as admittedly they were sleeping on the second floor of the house which is at some distance from the place of incident and thus they had no occasion to have identified all the accused-persons and the weapons assigned to them. Testimony of injured witness, PW 4, Smt. Bansho is also not credible and reliable. Admittedly she was aged about 70 years and there are several inherent weaknesses and shortcomings in her statement.
3) There is no motive for the appellants to commit murder of the deceased. The prosecution has also not led any reliable evidence in this behalf.
4) Presence and participation of the appellants in the incident, however, is not established beyond shadow of reasonable doubt.
5) The Trial Court has acquitted all the appellants for the charge of recovery of weapons effected from the possession of appellants, Jaipal, Satvir, Gajendra alias Gaje Singh, Makkhan and Veer Singh. The weapons and cartridges recovered from the spot were not sent for the examination by the Ballistic Expert.
17. Before dealing with the submissions made by learned counsels for the appellants, we would like to discuss, in brief, the deposition of witnesses on record.
18. PW 1, Constable, Raj Kumar has proved the General Diary of registration of F.I.R. and the check report of Case Crime No.75 of 2004 on 9.6.2004 as Ext. Ka-1 and Ka-2. He has stated in his cross-examination the first informant, accompanied by his grandmother, Smt. Bansho and sister, Km. Sangeeta along with a written report had come to the police station. We may record that said witness was not cross-examined by the defence on the material point of sending of special report to the higher authorities or have sought any explanation from him as to the delay in receipt of chick report in the court of Chief Judicial Magistrate concerned on 14.6.2004. The suggestion of the defence that F.I.R. has been made ante timed, has been denied by him. The defence has not elicited anything very material regarding registration of the F.I.R. at 5.20 a.m. from him.
19. PW 2, Nepal Singh is the first informant and eye-witness of the incident. He deposed that on 9.6.2004 at about 4.15 a.m. accused, Makkhan armed with knife, Satpal, Veermati alias Veero, Kiranpal were armed with Dandas, Jaipal and Veer Singh with Tamancha, Satvir, Chandrapal with Farsa and Gajendra alias Gaje Singh armed with Chhura. All the said accused reached on the Chabutara where his parents were sleeping and all of them assaulted his parents when injured Sangeeta and her grandmother, Smt. Bansho attempted to save them, they were also beaten by the accused. When he tried to come down to save his parents, accused Veer Singh fired in order to kill him but luckily he escaped unhurt. All the accused, brutally assaulted his parents on account of which his father Vijay Pal Singh died on the spot and mother, Smt. Santosh succumbed to the injuries on the way to hospital. He has also stated that few days before the incident the son of appellant, Makkhan had died and Makkhan was under an impression that his parents were instrumental in getting him killed. He has proved the F.I.R. scribed by Omvir and lodged by him as Ext. Ka-3. In his cross-examination, PW 2 has detailed the relationship of the accused and informant and the same is also stated by DW 2, Om Beer Singh and from reading of conjoint statements of both these witnesses, we may record relationship as under:-
Pedigree Smt. Bansho wife of Sukhram (injured) Makkhan h/o Smt. Veermati alias Veero (accused) (accused) Smt. Santosh w/o Vijay Pal Singh (deceased) (deceased) Jaipal Satpal (accused) (accused) Nepal Singh h/o Smt. Surekha Km. Sangeeta (informant-PW2) (PW3) (injured) Chiranjee Lal --------------------------- Tej Ram Kiran Pal Veer Singh Gajendra Veero Daya Ballo (accused) (accused) (accused) (accused)
20. In his cross-examination PW 2 has admitted that prior to this incident there was neither any dispute with the family of Makkhan over any immovable property nor any litigation was pending between them. He further admitted that no F.I.R. was lodged against any of his family members on the death of son of Makkhan, namely, Pramod. We may record that the said witness was examined at length by the defence but could not elicit anything material to discard the testimony of said witness. The defence has only suggested that on account of personal grudge, the accused have been nominated in the F.I.R. In fact he did not witness any incident to which he categorically denied.
21. PW 3, Smt. Surekha in her deposition fully corroborated the version of F.I.R. and statement given by her husband, PW 2, Nepal Singh on oath. We find that defence in cross-examination has not been able to shake credibility and reliability of the said witness which, in our opinion, appears to be a natural witness. Her presence along with her husband on the second flour of the house cannot be doubted. She has also denied that it was pitch dark at the time of incident and distance and place where she was sleeping along with her husband was quite far and thus she had no occasion to witness the incident, it was also emphatically denied by her. Site-plan prepared by PW 8, proved as Ext. Ka-24 indicates that the house where the first informant and his wife were sleeping on the second floor of terrace is quite adjacent to the Chabutara which is intercepted by a very narrow lane. The defence, except making vague suggestion that PW 2 and PW 3 were sleeping at a distance of one furlong, did not cross-examine the witnesses in respect of specific distance between the house where they (PW2 and PW3) were sleeping and the Chabutara where the murder took place either from PW 2 and PW 3 or from the Investigating Officer.
22. PW 4,Smt. Bansho is an aged lady and mother of the deceased Vijay Pal Singh and accused, Makkhan. She has also supported the prosecution story and has specifically assigned weapons as stated by PW 2 and PW 3. In the cross-examination she admitted that in the murder of her grandson, Pramod son of Makkan no report was lodged against her son Vijay Pal Singh (deceased) and the first informant and his wife. She has also admitted that there was no quarrel between his son Vijay Pal Singh (deceased)and Makkhan Singh (accused).
23. PW 5, Dr Raj Kumar examined injured, Smt.Bansho and Km. Sangeeta on 9.6.2004 has proved injuries as noted above.
24. PW 8, Kunwar Pal Singh is the Investigating Officer of the case. He has proved inquest reports, site-plan and recovery memos of plain and blood-stained earth and empty cartridges recovered from the spot. He has also proved recovery of weapons from the accused arrested on 9.6.2004 and 20.6.2004.
25. We may record that said witness has also not been cross-examined by the defence on the point of compliance of Section 157 Cr.P.C. of sending special report to the higher authorities. The defence has also not confronted the said witness about alleged addition of Sections 147, 148, 149, 323, 506 and 324 I.P.C. in the Chitthi Majrubi of both injured. On being questioned as to whether in the Chitthi Majrubi, the crime number and other sections of offence are mentioned, he has stated that at times the details are mentioned in the Chitthi Majrubi and on some occasions the same is also left out to be mentioned. The defence has not cross-examined the Investigating Officer on this point of which they want to take advantage that when the Chitthi Majrubis were prepared of both the injured, till then the F.I.R. had not come into existence on account of which initially Section 302/307 I.P.C. was mentioned and later on after drawing line other sections were interpolated. Since no explanation has been sought by the defence from Investigating Officer, they cannot draw any mileage from the same. We may record that this may be remissness or negligence on the part of Head Constable who has prepared Chitthi Majrubi of the injured after registration of F.I.R. at 5.20 a.m. PW 1 has also not been cross-examined on the point of subsequent addition of sections.
26 Defence examined two witnesses. DW 1, Smt. Poonam is the wife accused-Gajendra alias Gaje Singh. She has stated that Veer Singh is the brother of her husband. Name of her father-in-law is Chiranji Lal who died on 5th June, 2004, his Teeja ceremony and other rituals took place on 8th June, 2004. She also stated that her husband is teacher in Government school at Laxmi Nagar, Delhi. She has filed original copy of identity card of her husband, photostat copy of death certificate of her father-in-law and has stated that her husband and other family members participated in Teeja and other rituals relating to death of her father-in-law.
27. DW 2, Om Beer Singh is son of Data Ram who is brother Chiranjee Lal i.e. real uncle of appellant, Gajendra alias Gaje Singh, Veer Singh and other accused who are related to each other descendants of Charanjee Lal. He has given details of relationship inter se of the accused, Veer Singh, Gajendra alias Gaje Singh, Veermati alias Veero and Smt. Ballu accused. He has also stated that the appellant, Ballo was married to accused, Kiran Pal. The family tree has been noted above. He has deposed that his uncle (Tau),Chiranjee Lal died on 5.6.2004. His cremation took place on 6.6.2004. Teeja ceremony was held on 8.6.2004. Rasam Pagadi / Terahwi was held on 9.6.2004, though Terahwi is held on the 13th day of demise of a person but it was organized on 9.6.2004 on account of reason that most of the persons were living outside village and they had to return early. He has further stated that on the intervening night of 8/9.6.2004, appellants, Gajendra alias Gaje Singh, Makkhan, Satpal were present in Village Aichi, Police Station Parikshitgarh, District Meerut. He was also sleeping along with them. Most of the guests had remained throughout the night at his house. The prosecution has suggested in cross-examination that no Terahwi ritual had taken on 9.6.2004 and also that accused,Makkhan, Satvir, Gajendra alias Gaje Singh, Veer Singh were not present in that village, to which, his reply was in negative.
28. Learned A.G.A. appearing for the State-respondent has submitted that prosecution has proved its case beyond shadow of reasonable doubt against all the appellants. The F.I.R. in the present case has been lodged promptly and defence has not been able to establish that the F.I.R. was made ante-timed. The presence of eye-witnesses is very natural and probable and finds support and corroboration from the statement of injured witness, Smt. Bansho who happens to be the mother of appellant, Makkhan and grandmother of Satpal and Jaipal. Her presence at the spot cannot be doubted and she had no earthly reason to falsely depose against her son, grandsons and daughter-in-law and the persons who are closely related to her daughter-in-law. He further argued that prosecution witnesses have certainly stated about motive for the appellants to commit an offence. Since it is a case of direct evidence of eyewitnesses including injured witness, the motive for the accused to commit this offence takes a backseat. Lastly he contended that alleged contradictions as alleged by the defence are minor which do not shake the credibility of eye-witnesses. The findings recorded by the trial judge in the impugned judgement and order are well substantiated from record.
29. Now, we will examine the submissions of learned counsels for the appellants assailing the prosecution version. One of the main arguments of defence counsel is that F.I.R. in the present case though stated to have been lodged promptly but in fact it was made ante-timed which would make entire prosecution case suspicious and implication of the appellants doubtful. It has been submitted that according to the prosecution the alleged incident is said to have taken place on 9.6.2004 at 4.15 a.m. and registration of F.I.R. within one hour and five minutes by the informant after covering a distance of four kilometres after scribing it in village is unbelievable. Being so prompt, the only inference which could be drawn is that it was registered much later after deliberations and consultations.
30. Now, first of all, we would deal with the first limb of the argument of learned counsels for the appellants regarding time taken in lodging of F.I.R. We may observe that it is not expected from a rustic villager before whose eyes brutal murder of his parents had taken place and other close relatives received injuries to indicate and describe the time spent in scribing of F.I.R. or the time taken by him to reach the police station with precision. We may record that the prosecution has not cross-examined PW 2 on this aspect of the matter and without any cross-examination on this point the defence wants to take advantage out of it. PW 2, the informant was not even cross-examined as to by what mode he went to the police station to lodge F.I.R. We find that the trial court has dealt with aforesaid argument of defence about the time of registration of F.I.R. within one hour and five minutes of the incident in extenso at page 188 of the paper book. We find from the record and the spot papers prepared by Investigating Officer that after registration of F.I.R. PW 8 reached at the spot immediately on 9.6.2004 and conducted inquest of deceased, Vijay Pal Singh from 6 a.m. to 7 a.m. Soon thereafter from 7.15 a.m. to 8.30 a.m., inquest of dead body of Smt. Santosh was completed. The dead bodies were handed over to concerned constables for post mortem. As per the challan lash Ext. Ka-13 and 22 of both the deceased, distance of headquarter from place of incident is 22 kms. Post mortems were conducted at 3.30 p.m. and 4 p.m. respectively. It is pertinent to mention here that inquest reports contain all the relevant indicators, namely, crime number, time and date of lodging of F.I.R. and sections under which the case was registered, the name of the informant, list of necessary documents including chick report, General Diary of registration of case and other documents sent along with inquest reports from which only inference which could be drawn is that the F.I.R. has not been made ante-timed in the present case. There is no manipulation or cutting in the inquest reports to suggest that the F.I.R. was not in existence when the inquest reports were prepared. The aforesaid arguments of the defence counsel have no legs to stand on. So far as the argument of defence that in Chitthi Majrubi initially Section 302/307 I.P.C. was mentioned and after drawing line other sections under which the F.I.R. was registered, has been manipulated. We are not impressed with the argument of the learned defence counsel as neither PW 1, constable who had drawn the Chitthi Majrubi nor the Investigating Officer. PW 8, was cross-examined nor any explanation was sought from them with regard to the alleged discrepancy. Merely on the so-called manipulation in Chitthi Majrubi, as observed earlier, all other relevant external checks of mentioning necessary particulars in the inquest report and other spot papers sent along with Chitthi Majrubi, the authenticity and value of prompt F.I.R. cannot be doubted. It was also argued that prosecution has not complied with mandatory provisions of Section 157 Cr.P.C. and has not led any evidence with regard to the the sending special report to the higher authorities. It is well settled that mere delay in reaching the special report before the concerned Magistrate per se would not make the prosecution version doubtful unless the defence seeks an explanation by cross-examining either constable who registered the F.I.R. or the Investigating Officer. We have also observed that no such cross-examination was done by the defence in this behalf. It has also been argued that the F.I.R. also is under cloud of suspicion on account of the conduct of the first informant. As per the deposition of PW 2, his father died on the spot and condition of his mother was very precarious and serious, however, he did not accompany her for treatment. We find from evidence of PW 2 that he was not cross-examined by defence and no explanation was sought from him.
31. It is also strenuously argued by the learned defence counsels that there was no motive or immediate motive for the appellant, Makkhan, his sons and relatives of his wife to commit this ghastly crime. In the F.I.R. no motive has been disclosed. Later on during investigation and trial it was developed and the prosecution witnesses have stated the genesis and immediate cause of murder was suspicion of murder son of accused, Makkhan. It is also contended that PW 2 in his cross-examination has candidly admitted that prior to this incident, there was no enmity with Makkhan and his family members over any property dispute and no litigation between the accused-appellants and the first informant had ever taken place. It is further admitted that with regard to death of son of Makkhan no F.I.R. was lodged against him or family members. It is also argued by the defence that though the prosecution has come out with motive for the appellants to commit the offence but neither any specific or categorical allegations with regard to the date and time about murder of Pramod has been spelt out during investigation or during trial. Therefore, as the motive set up by the prosecution is too weak and has not been cogently and credibly established, the entire prosecution case becomes suspicious and doubtful and no reliance can be placed on the testimony of witnesses. We may record that it is well settled by the catena of decisions that proof of motive is not as absolute requirement of law in a case which rests on eye-witness account i.e. direct evidence, specially as in the present case. The prosecution version is supported by injured witness, Smt. Bansho, an aged lady of 70 years and mother of accused, Makkhan who had no axe to grind to depose against her son and other accused. She has given a graphic description of manner of assault and weapons used by the accused. We may also record that ocular version of prosecution witnesses is amply and fully corroborated by the ante mortem injuries of both the deceased and the injuries of injured. It is mentioned in the judgement that other injured, Km. Sangeeta who is the real sister of Makkhan could not be examined as she died a natural death during trial.
32. Next submission of learned counsel for the appellants is that PW 2, Nepal Singh and PW 3 his wife Smt. Surekha are alleged to have witnessed the incident from the terrace and perusal of the site-plan, Ext. Ka-24 shows that the house of PW 2 is situated towards the west of the Chabutara after Gali and it was not possible for the said witnesses to have witnessed the incident and to identify accused specially when the incident is said to have taken place in the early hours of the morning. We have already observed above that the defence did not cross-examine PW 2 and PW 3 or the Investigating Officer regarding the argument raised by defence. All the accused were well known to both the eye-witnesses who are closely related to them. It has also come into evidence that brothers and other accused, Smt. Veermati alias Veero used to come and stay in the village of the incident. We do not find any force in the defence argument that possibility of Nepal Singh and Surekha having witnessed the incident from the terrace is improbable or uncreditworthy. The defence counsel has submitted that testimony of PW 4, Smt. Bansho who was aged about 70 years' old appears to be highly suspicious and tutored and her testimony is to be viewed with a pinch of salt and suspicion. So far as possibility of her recognizing all the accused and weapon of each of the accused specially when 10 accused were named in the F.I.R. but only nine were charge-sheeted is highly doubtful. Her testimony was also assailed that at 4.15 a.m. it would still be dark and visibility would be low and she has also admitted in her deposition that she was sleeping at the time of occurrence at page 80 of paper book, while at page 81 she has tried to make an improvement by stating that she was awake when the accused arrived together. We have carefully perused the statement of PW 4 and find that defence has not been able to elicit in cross-examination that she had a weak eye-sight and has also not suggested any plausible reason for her to depose against her son, Makkhan and his family members. In our opinion, the presence of PW 4, being injured witness at the time of incident cannot be doubted and her testimony on the credibility, reliability and trustworthiness could not be shaken by the defence. Her testimony is wholly reliable.
33. It is further argued that presence of accused, specially real brothers, sister, her husband and other relatives to join hands with Makkhan and his sons is highly doubtful. In the F.I.R. 10 accused persons were named out of whom one Chandrapal was neither charge-sheeted nor his identity could be fixed. There was no occasion for the relatives to assemble at the place of incident as it has come in the oral testimony that there was no function in the village of Makkhan, specially as it transpires from the testimony of defence witnesses that after death of Chiranji Lal, father of Smt. Veermati alias Veero, there was Teeja and Terahwi functions in their village and their sons are naturally expected to remain present in the house to participate and perform last rituals of Chiranji Lal. In this behalf, we may record that defence witnesses have not placed any material supported by any document regarding death of Chiranji Lal and apart from testimony of defence witnesses that Terahawi had taken place on 9.6.2004. The same also appears to be palpably false as the Hindus and especially in villages, Terahwi is held on the 13th day of death, is one of the most essential ceremony which is religiously followed by the villagers after death of a person, specially an elderly man. The reason given by PW 2 that as the relatives had assembled from far of places, therefore, Terahwi had taken place on 9th June, 2004 cannot be accepted. We have already recorded that testimony of eyewitnesses regarding participation of the accused is fully established by the eyewitnesses and the injured witness PW 4,Smt. Bansho who would be the last person to depose against her son, grandsons and other relatives and spare real culprits who could be sent to gallows merely on her statement. There is no suggestion of the defence that injuries sustained by Smt. Bansho could be self-inflicted or self-suffered. Her medical examination was conducted on the same day and duration of her injuries were noted by the doctor to be fresh.
34. The defence counsel has drawn attention of this Court towards some discrepancies and contradictions between the statements of the eye-witnesses. We may record that some minor and normal discrepancies are bound to occur in the statements of the truthful witnesses which would not effect their credibility and reliability. It is also contended that no independent witness was examined by the prosecution though in the F.I.R. it is stated that incident was witnessed by several persons of the locality without disclosing their names in the F.I.R. In the present case, non-examination of any independent witness by the prosecution will not effect the credibility of eye-witnesses whose presence is natural and specially when the prosecution case is fully supported by an injured witness, Smt. Bansho, PW 4. Law in this behalf is well settled that if the testimony of interested and related witnesses is intact and reliable after thorough and careful scrutiny, non-examination of any independent witness will not have an effect of discarding entire prosecution case.
35. We also do not find any force in the defence argument regarding alibi plea stated by the defence witnesses as the same is not supported by any documentary or reliable evidence.
36. There was one more ground raised by defence that investigation was not fairly conducted. All the accused have been acquitted of the charge made under the provisions of Arms Act. From perusal of the judgement, we find that trial judge has recorded acquittal of accused for recovery of weapons on the ground that there was negligence and remissness on the part of the Investigating Officer in preparing recovery memos and other technical points of sanction, etc. The learned trial judge has not disbelieved the prosecution version of recovery of weapons but have simply given benefit of doubt for acquitting them from offence punishable under the provisions of Arms Act. Thus it cannot be form basis for discarding entire prosecution case.
37. No other point has been highlighted before us nor mentioned during the course of argument.
38. While concluding our judgement, we may record that;
i) The presence of the injured witness is accorded a special status in law and such a witness comes in a built-in guarantee of his presence on the scene of crime and is unlikely to spare his assailant(s) in order to falsely implicate someone. Thus the evidence of an injured witness should be relied unless there are grounds of rejection of his evidence on the basis of major contradictions and discrepancies therein. In the present case testimony of Smt. Bansho, PW4, does not suffer from any such discrepancy and she is wholly reliable witness.
ii) Non-mentioning of motive in the F.I.R. lodged by PW 2 cannot be regarded as omission to state important and material fact as the F.I.R. is never treated as substantive piece of evidence. Law requires the F.I.R. to contain basic prosecution case and non-mentioning of specific weapons as argued by the defence counsel also will not affect the prosecution case.
iii) Further evidence in this case indicates that F.I.R. regarding gruesome murder of two persons and causing injuries to two others was lodged promptly without any avoidable delay and, therefore, false implication of any of the appellants in such a grievous case stands ruled out. The evidence adduced by the prosecution is trustworthy and unimpeachable and does not suffer from any major contradiction/and or improvements nor noticeable embellishment have been made by them. The prosecution has made acceptable eye-witness account of incident.
iv) The ocular version is fully corroborated by the medical evidence on record.
39. We may record that the findings recorded by the trial court for convicting and sentencing the appellants are well substantiated from record and supported by the cogent reasons.
40. The conscience of the Court is convinced of the commission of the crime by the culprits before us and the judgement of the trial court is perfectly correct and the appeal is bereft of merit.
41. The appeals of the appellants, namely, Satpal, Makkhan, Veermati alias Veero, Kiranpal, Jaipal, Smt. Ballo, Veer Singh, Satvir and Gajendra alias Gaje Singh deserve to be dismissed and is hereby dismissed. The conviction and sentence awarded by the trial Court against all the appellants/ accused is confirmed.
42. So far as the appellants /accused Satpal, Smt. Virmati alias Veero, Kiranpal, Smt. Ballo and Veer Singh are concerned, they are on bail. Their bail bonds and surety bonds are hereby cancelled. They shall surrender before the trial court immediately and be taken into custody forthwith and sent to jail to serve out their remaining part of sentence awarded to them.
43. The appellants, namely, Makkhan, Jaipal, Satvir and Gajendra alias Gaje Singh who are languishing in jail since their date of conviction, shall serve out the remaining part of their sentences as awarded by the trial court.
44. The copy of the judgement and entire record be transmitted back to the learned trial court for compliance.
Dated:18.12.2017
MN/- (Rajul Bhargava,J.) (Arun Tandon,J.)