Allahabad High Court
Ranjit vs State Of U.P. on 16 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 41, 2020 (1) ADJ 30 NOC
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 10
Reserved on 11.11.2019
Delivered on 16.01. 2020
Case :- CRIMINAL APPEAL No. - 1517 of 2007
Appellant :- Ranjit
Respondent :- State of U.P.
Counsel for Appellant :- Virendra Mohan,Arvind Kumar,Brajendra Singh,Mahesh Chandra Verma,Maneesh Kumar Singh,Shrawan Kumar,Soniya Mishra
Counsel for Respondent :- G.A.
AND
Case :- CRIMINAL APPEAL No. - 1606 of 2007
Appellant :- Lallu @ Lala Ram
Respondent :- State of U.P.
Counsel for Appellant :- Shailesh Kumar Srivastava,Amrendra Singh Somvanshi,D.K.Singh Somvanshi,Diwakar Singh,Maneesh Kr. Singh,Nadeem Murtaza,Prem Singh,Satendra Nath Rai,Shubham Tripathi
Counsel for Respondent :- G.A
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Delivered by Hon'ble Mr. Justice Mohd. Faiz Alam Khan)
1. Heard Shri Shrawan Kumar, learned counsel for the appellant - Ranjit and Shri Diwakar Singh, Advocate, learned Amicus Curiae for the appellant - Lallu @ Lala Ram as well as learned AGA for the State and perused the record.
2. These criminal appeals have been preferred by appellants against the judgment and order dated 26.5.2007, passed by Additional Sessions Judge, Kheri in Sessions Trial No. 852 of 2005, arising out of Crime No. 387 of 2005, under Sections 302 IPC, 307/34 IPC and Section 3(2) (V) SC/ST Act, relating to Police Station Pasgawan, District Kheri, whereby appellant Ranjit has been convicted and sentenced under Section 302 IPC for Life imprisonment and fine of Rs. 1000/-, under Section 307 IPC read with Section 34 IPC for a period of ten yeas and fine of Rs. 5000/- and also in default of payment of fine the appellant is sentenced for six months imprisonment and appellant Lallu @ Lala Ram has been convicted and sentenced under Section 302 IPC for life imprisonment and fine of Rs. 1000/- and under Section 307 IPC read with Section 34 IPC for a period of ten yeas and fine of Rs. 5000/- and also in default of payment of fine the appellant is sentenced for six months imprisonment.
3. Brief facts necessary for disposal of these appeals are that informant Sher Singh son of Badri Yadav, R/o Village Kashipur, District Kheri submitted a written information on 4.4.2005 at 4.10 A.M. at Police Station Pasgawan, District Kheri stating therein that he is a resident of village Kashipur, Police Station Pasgawan and in the intervening night of 3/4.4.2005 his father Badri Yadav was sleeping in a ''Baggar'( A room usually situated in the outer portion of the house for multifarious activities) along with one Dal Chand Raidas. His two sons Pushpendra and Manoj were also sleeping in the same ''Baggar' at a short distance from Badri Yadav and he was sleeping on the roof of the house. It is further stated that his father, namely, Badri Yadav on 18-19 March had executed a sale deed in his favour pertaining to land admeasuring 7 Bighas and he was residing with him since long. His brothers Lallu @ Lala Ram (Appellant), Sarnam and Devi were angry with him on this score. It was further stated that litigation pertaining to the same land was also pending in between Dalchand and Ram Kali and appellant Ranjit was doing pairvi of that case on behalf of Ram Kali. His father also testified in favour of Dal Chand in that case and due to this reason appellant Ranjit was having enmity with his father. In the intervening night of 3/4.4.2005 at about 12.00 O' clock his brother Lallu @ Lala Ram, Ranjit and Gajram committed murder of his father Badri Yadav by assaulting him with 'Banka' and by firing from country made pistol. It was also stated that Dalchand also sustained fire-arm injuries in the incident and on hearing the sound of Gun shots he, his sons as well as Ram Autar had seen accused persons committing the crime and running away, in the light of torches. Ranjit was armed with 'Banka' and other accused persons were armed with 'country made pistols'.
4. On the basis of the aforementioned written information an FIR was registered at Police Station Pasgawan, District Kheri on 4.4.2005 at 4.10 A.M. against Lallu @ Lala Ram, Ranjit and Gajram under Sections 302/307 IPC at Case Crime No. 387 of 2005 and the investigation of the crime was entrusted to Shri Ram Pradeep Yadav, S.H.O., Police Station Pasgawan.
5. The Investigating Officer of the crime, namely, Ram Pradeep Yadav after taking over the investigation of the case proceeded to the place of occurrence and inspected the spot on the pointing of informant and prepared the site plan (Ext. Ka-20) of the scene of occurrence. He also got the inquest report (Ext. Ka-14) of the body of the deceased and other necessary papers prepared for the purpose of post mortem of the body of the deceased i.e. sample seal (Ext. Ka-15) Challan Lash (Ext. Ka-16), photo lash (Ext. Ka-17), Chitthi R.I. (Ext. Ka-18), Chitthi C.M.O. (Ext. Ka-19). He also collected the simple and blood stained soil, blood stained piece of quilt and cushion (Gadda) from the spot and prepared a memo of the same as (Ext. Ka-8). He also inspected the torch presented by informant Sher Singh and also prepared a seizure memo of the same (Ext. Ka-9). The Investigating Officer also inspected the ''ladder' which was stated to have been used by the informant for sleeping on the roof of the house and after inspecting the same he prepared a memo (Ext. Ka-10) of the same and placed the same in the custody of informant.
6. The postmortem on the body of deceased Badri Yadav was performed by P.W.6- Dr. Akhilesh Khare on 5.8.2005 at 3.00 P.M. at District Hospital, Kheri He found the body of deceased of about 65 years, a person of average built, rigor mortis had passed from both the upper and lower extremities and postmortem staining was present on the back. The skin was pealed off at places of abdomen and distended. On internal examination, 2nd and 3rd ribs of right side were found fractured. The small intestine was found containing gases while faecal matter and gases were found in large intestine. The gallbladder was half full and spleen and kidneys were found pale.
Following ante-mortem injuries were found on the body of the deceased:-
(i) Incised wound 8 cms. x 2 cms. x bone deep over left angle of mouth and face underlying muscles vessels upper and lower jaw found cut.
(ii) Incised wound 10 cms. x 1 cm. x bone deep over chin, 1cm. behind tooth cut underlying lower jaw found cut.
(iii) Incised wound 6 cms. x 1 cms. x bone deep over chin 1.5 cm. below Inj. No.2 underlying lower jaw found cut.
(iv) Multiple incised wound in an area of 10 cms. x 5 cms. vertebra deep over front and left side of neck 4 cms. below chin underlying muscles, vessels, trachea, occiphagus and 2nd central vertebra, spinal cord found cut.
(v) Incised wound 4 cms. x 1 cm. x bone deep over back of ring finger and little finger.
(vi) Fire-arm wound of entry 1 cm. x 1 cm. x chest cavity deep on left side back of chest 2 cms. below left angle of scapula, and 5 cms. away from mid-line on back, margins inverted, irregular, echymosed.
(vii) Fire-arm wound of exit 2 cms. x 2 cms. x chest cavity deep on upper part of right side of chest 8 cms. above right nipple at 12 O' clock position, margins inverted, irregular echymosed, on dissection underlying both pleura, both lung found lacerated and 1.5 Lt. Clotted and fluid blood present in chest cavity and injury no.7 communicating to Injury No. 6 through and through.
The cause of death of the deceased was found to be shock and hemorrhage which was the result of ante-mortem injuries.
7. The injuries sustained by injured Dal Chand were examined on 4.4.2005 at 5.45 A.M. by Dr. Ranjendra Prasad (P.W.7) who was posted as Medical Officer at District Hospital Kheri. Following injuries were found on the person of Dal Chand:-
(i) Fire-arm wound of entry 1.0 cm. x 0.8 cm. x depth not probed on upper part of chest just below medial end of right cervical, clotted blood present, margins inverted, echymosed. KUO advised x-ray.
(ii) Fire-arm wound of exit 2.00 cms. x 1.00 cm. x depth not probed on right side of chest 7 cms. away from right nipple, clotted blood present, margin everted, KUO advised x-ray.
X-Ray was advised for both the injuries. The injuries were stated to have been caused by fire-arm weapons and duration of both the injuries were described fresh. The x-ray report dated 4.4.2005 available on record as Ext. Ka-2 reveals that heterogeneous opacity was noticed in right lung (upper and middle zone) of the injured.
8. The investigation officer also caused the arrest of the appellant Lallu @ Lala Ram and recovered a country made pistol and cartridges on his pointing out, from his house which was allegedly used by him in the commission of offence and also prepared a recovery memo of the same.
9. The second Investigating Officer of the crime, Shri Shiv Ram Yadav recorded the statement of the witnesses and also took the police custody remand of accused Ranjit and a 'Banka' was recovered from his pointing, which was concealed by him in the southern room of his house. The 'Banka', so recovered was sealed and a recovery memo of the same (Ext. Ka-11) was prepared. The Investigating Officer after collecting sufficient evidence submitted charge sheet against accused Lallu @ Lala Ram, Ranjit and Gajram under Sections 302, 307/34 IPC and Section 3(2) 5 SC/ST Act.
10. The case being triable by the Sessions Court was committed to the Court of Session and charges under Sections 302, 307/34 IPC were framed against appellants. Both appellants denied the charges and claimed trial.
11. The prosecution in order to prove its case before the trial court produced following documentary evidence:-
(i) Written Information (Ext. Ka-1) (ii) X-ray report pertaining to injured Dal Chand (Ext. Ka-2). (iii) Site plan (Ext. Ka-3) (iv) Site plan (Ext. Ka-4) (v) Charge sheet (Ext. Ka-5) (vi) Postmortem report of deceased Badri (Ext. Ka-6) (vii) Chemical analysis report (Ext. Ka-7) (viii) Memo of seizure of plain and blood stained soil (Ext. Ka-8) (ix) Memo of seizure of chart (Ext. Ka-9) (x) Memo of seizure of ladder and Gobar Gas bulb (Ext. Ka-10) (xi) Memo of recovery of Banka (Ext. Ka-11) (xii) Chick FIR (Ext. Ka-12) (xiii) G.D. Kayami (Ext. Ka-13) (xiv) Inquest Report (Ext. Ka-14) (xv) Sample of seal (Ext. Ka-15) (xvi) Chalian Lash (Ext. Ka-16) (xvii) Photo Lash (Ext. Ka-17) (xviii) Chitthi R.I. (Ext. Ka-18) (xix) Chitthi CMO (Ext. Ka-19) (xx) Site plan of the place from where Banka is recovered(Ext. Ka- 20)
12. Apart from the above mentioned documentary evidence the prosecution also relied on the testimony of following witnesses:-
(i) P.W.1- Sher Singh (informant)
(ii) P.W.2- Pushpendra (Eye witness)
(iii) P.W.3-Dal Chand (injured witness)
(iv) P.W.4- Dr. V.K. Verma (radiologist)
(v) P.W.5- Shiv Ram Yadav (Investigating Officer)
(vi) P.W.6- Dr. Akhilesh Khare (who conducted postmortem)
(vii) P.W.7- Dr. Rajendra Prasad (who examined injuries of injured PW-3 Dal Chand)
(viii) P.W.8- Ram Autar (Eye witness)
(ix) P.W.9- Head Constable- Ram Prakash (Scribe of Chick FIR and G.D.)
(x) P.W.10- Ram Autar Singh- Sub Inspector (who prepared inquest report)
(xi) P.W.11- S.I. Ram Pradeep Yadav (Investigating Officer)
(xii) P.W.12- S.I. B.D. Arun (who caused recovery of Banka) After completion of evidence of prosecution the statement of appellants was recorded under Section 313 of Cr.P.C. wherein both appellants have stated that they have been falsely implicated in the case on the basis of enmity and false recoveries on their pointing have been shown by the police. They claimed that they are innocent and have been framed on the basis of enmity and party-bandi. The accused persons in their defence have placed before the trial court certified copy of a judgment (Ext. Kha-1) dated 12.2.2007 passed by Consolidation Officer Salya in Case No. 2869/31/04-05, under Section 9 Ka (2) of Consolidation Act, Pargana Pasgawan, Tehsil Mohammadi, District Kheri in Dal Chand Vs. State. Certified copy of objections (Ext. Kha-2) filed by Smt. Bitana w/o Bhikhari filed in the above mentioned case and certified copy of statement of witness Ram Autar s/o Chokhe Lal R/o Village Kashipur, P.S. Pasgawan, District Kheri recorded in Crl. Case No. 772/05 under Section 25(1)-B Arms Act, Police Station Mohammadi, District Kheri (Ext. Kha-3) were also submitted by them.
13 Trial court after considering the evidence tendered by the prosecution and accused persons and after appreciating the same came to the concussion that the prosecution has proved its case beyond reasonable doubt against appellants Lallu @ Lala Ram and Ranjit and thereby convicted both of them under Sections 302 IPC and 307 IPC read with Section 34 IPC in the manner recorded in the second paragraph of this judgment. The trial Court did not find accused Gajram guilty of any offence and therefore acquitted him of all the charges. The trial court also did not find the charges under Section 3(2) (V) of SC/ST Act proved against all accused persons.
14. Learned counsels for the appellants have submitted that the trial court in utter disregard to the evidence available on record has convicted the appellants for the offence which they have not committed and the findings of the trial court pertaining to the guilt of the appellants are not based on evidence available on record.
It is overwhelmingly submitted that the main eye witnesses of the crime, namely P.W.1- Sher Singh and P.W. 2- Pushpendra have not supported the case of the prosecution, but the trial Court, even in absence of any reliable evidence, has convicted the appellants on the basis of unreliable testimony of P.W.3- Dal Chand and P.W.8- Ram Autar, while it was evident on record that Dal Chand and Ram Autar are brothers and are interested in conviction of the appellants on the basis of enmity.
It is next submitted that FIR in the matter has been lodged ante-time and the trial court has ignored this glaring fact, which was itself sufficient to discard the prosecution case. P.W.3 Dal Chand is stated to be the prime witness of the incident and is stated to have sustained fire-arm injuries but even if the incident as narrated by P.W.3- Dal Chand is believed then it was impossible for P.W.3- Dal Chand to have recognized the real assailants in absence of any source of light. The theory of prosecution that gobar gas lamp was lighting in the baggar could not be believed in the back ground facts and evidence on record. The prosecution story pertaining to the presence of P.W.3 in the baggar owned by deceased Badri is also not believable as no quilt or cushion of P.W.3- Dal Chand was recovered by the Investigating Officer, while the quilt and ''Gadda' (Cushion) which at the time of incident was being used by the deceased Badri Yadav was recovered by the Investigating Officer. The above factual matrix completely rules out the presence of P.W.3- Dal Chand at the spot at the time of incident.
It is next submitted that the ocular evidence has also not been supported by the medical evidence and keeping in view that the informant of the case, namely, P.W.1- Sher Singh and eye witness P.W.2- Pushpendra have not supported the case of the prosecution the trial Court has materially erred in convicting the appellant. The recovery of Banka and country made pistol at the instance of appellant Ranjit and appellant Lallu @ Lala Ram is highly doubtful. The testimony of P.W.8- Ram Autar who is brother of P.W.3- Dal Chand is also not acceptable and there is no reason shown by the prosecution as to why he was shown to be the witness of both recoveries and therefore in absence of any independent witness of the above mentioned recoveries the evidence of P.W.-8 pertaining to the recovery could not be accepted.
Learned Amicus Curiae relied on following case laws in support of his contention.
(i) Smt. Gargi Vs. State of Haryana, AIR 2019 SC 1086.
(ii) Sudarshan and others Vs. State of Maharastra, 2014 (12) SCC 312.
(iii) Hira Lal Yadav Vs. State of Jharkhand, 2013 SCW 2278.
(iv) Shiv Lal and others Vs. State of Chhatisgarh, 2011 (9) SCC 561.
(v) Anand Mohan Vs. State of Bihar, 2012 (7) SCC 225.
(vi) A. Shankar Vs. State of Karnatka, 2011 (6) SCC 279.
15. Per contra learned AGA submits that the prosecution has been able to prove its case before the trial court beyond all reasonable doubts and the court below has appreciated the evidence of the prosecution witness keeping in view the established principles of appreciation of evidence. P.W.3- Dal Chand is an injured witness of the incident and he has sustained grievous fire-arm injuries, which could not be self inflicted. His presence on the spot is proved beyond all reasonable doubt as he was a close friend of deceased Badri. The role of firing with a country made pistol has been assigned by the injured witness P.W.3- Dal Chand to the appellant Lallu @ Lala Ram while the role of inflicting injuries to deceased Badri Yadav by a ''Banka' has been attributed to appellant Ranjit. The injuries of fire-arm has been found on the person of P.W.3- Dal Chand as well as on the person of deceased Badri Yadav. While injuires which can be sustained by ''Banka' has been found on the person of deceased Badri Yadav. The Investigating officer has also collected the piece of quilt and cushion and also the blood stained and plain soil from the baggar wherein the incident had happened.
It is next submitted that the instant case is based on direct evidence of eye witnesses and therefore though the motive is not of any significance but the prosecution has been able to successfully prove that the deceased Badri executed a sale deed of his agriculture land admeasuring 7-8 Bighas in favour of P.W.1- Sher Singh and due to this his other sons including appellant Lallu @ Lala Ram were angry with him. The aforesaid sale deed in favour of P.W.1- Sher Singh is stated to have been executed on 18-19 of March, 2005, while the incident had occurred in its close proximity on 4.4.2005. It has been also proved that P.W.3- Dal Chand and P.W.8- Ram Autar were having litigation with a woman, named, Ram Kali who was claiming herself to be the wife of their uncle Bhikhari and was also demanding share in his land. The said litigation was pending in the revenue court. Therefore, there was sufficient motive and opportunity available to the appellants to commit the crime.
It is further submitted that keeping in view the quality of evidence available on record, the trial court has rightly convicted the appellants and therefore, no interference is warranted in the same and the appeal is liable to be dismissed.
16. We have considered the submissions of learned counsels for the appellants as well as of learned AGA. Perusal of evidence available on record would reveal that P.W.1, namely, Sher Singh is the informant of the First Information Report. He has stated in his statement, recorded before the trial court, that in the night of the occurrence his father Badri Yadav was sleeping in the baggar(Room) along with Dal Chand and at some distance from him his sons Pushpendra and Manoj were sleeping on their cots, while he was sleeping on the roof of the house. He further stated that his father some days before the incident had executed a sale-deed of his land in his favour . He denied to have seen appellants committing the crime in the light of torch and the bulb lighting in the baggar. He stated that when he reached in the baggar, he did not see any one. He acknowledged to have lodged the FIR but in the same breath has stated that the FIR was lodged by him on the information provided by the villagers and he only put his signatures on the application which was not read over to him. After being declared hostile this witness denied to have given any statement to the Investigating Officer under Section 161 of the Cr.P.C.. However, he has admitted that accused Gajram is a witness of sale deed executed in his favour and he is having very good relations with him.
17. P.W.2- Pushpendra, who is the son of P.W.1- Sher Singh has stated that on the fateful night he was sleeping in the baggar at some distance from the deceased. He denied to have any knowledge with regard to any litigation pending in between P.W.3- Dal Chand and Ram Kali and also that in this case parivi on behalf of Ram Kali was being done by the appellant- Ranjit. He also denied to have witnessed the crime being committed by the appellants as according to him there was complete darkness. He admitted that the incident occurred at about 12.00 O' clock in the night and P.W.3- Dal Chand as well as his brother Manoj was also lying in the ''baggar' along with deceased Badri Yadav. This witness after being declared hostile has denied to have given any statement under Section 161 of the Cr.P.C to the Investigating Officer.
18. P.W.3- Dal Chand is the injured witness of the case. He stated that on the night of the occurrence he was sleeping in the baggar with deceased Badri as they were very close friends. He after taking his dinner used to come to the house of Badri and used to have a talk with him about the village. This witness has further stated that some days before the incident, deceased Badri Yadav had executed a sale deed of his 7 bighas agricultural land in favour of P.W.2- Sher Singh and due to this other sons of Badri Yadav, namely, Lallu @ Lala Ram, Sarnam and Devi were angry with him. A litigation with Ram Kali, pertaining to the land of his uncle Bhikhari, was also pending in a revenue Court and appellant Ranjit was doing pairvi in that case on behalf of Ram Kali and he was also annoyed with him.
Narrating the incident he has stated that at the time of incident a gobar gas bulb was lighting in the ''baggar' and two grand sons of Badri Yadav, namely, Pushpendra and Manoj were lying in the baggar at some distance from him. Sher Singh was sleeping on the roof of the house and he and Badri were lying on the ground of baggar. At about 12.00 O, clock in the night a gun shot was fired. He made an attempt to stand up, however, at the same time second Gun shot was fired which hit him in his chest. At the same time Sher Singh put on his ''Torch' from the roof and he in that light as well as in the light of the bulb of the Gobar gas saw Lallu @ Lala Ram as the person who was firing. He also saw that Ranjit of his village was assaulting Badri Yadav with a Banka and Lala Ram was having a country made pistol in his hand by which he fired at him and Badri Yadav. On a hue and cry made by them many villagers assembled at the scene of crime and the accused persons fled away from there.
19. P.W.4- Dr. V.K. Verma, who at the time of incident was posted as radiologist in District Hospital, Lakhimpur Kheri and had performed x-ray of the injured Dal Chand and prepared x-ray report on the basis of x-ray plates has proved X-ray report as Ext. Ka-2 and x-ray plates as material Ext. 1&2 and stated that in the x-ray of injured Dal Chand, heterogeneous opacity was found in the right lung.
20. P.W.5-Shri Shiv Ram Yadav was posted as Circle Officer, Police at the relevant point of time and stated to have recorded the statement of accused Gajram, Scribe of FIR Ganesh Chandra Pandey, Mahesh Chandra, S.I. Ram Autar Singh, Pushpendra. Manoj and Ram Autar. He also inspected the place of recovery of country made pistol and also prepared the site plan, Ext. Ka-3. He also stated to have recorded the statement of witness of inquest report and also of injured Dal Chand. He after recording statement of appellant Ranjit took him on Police custody remand and a ''Banka' has been recovered on his pointing out from a room of his house. This witness has proved the recovery memo of Banka as also the site plan of the place of recovery of Banka as Ext. Ka-4.
21. P.W.6- Dr. Akhilesh Khare, who was posted as a Medical Officer in District Hospital on 5.8.2005 is stated to have performed the postmortem on the same day at 3.00 P.M. on the body of the deceased Badri Yadav. He proved the postmortem report (Ext. Ka-6) to have been prepared in his hand writing and signatures . The details of the postmortem report has been elaborately given in paragraph 6 this judgment. He opined that death of the deceased Badri Yadav had occured due to excessive bleeding and shock due to ante-mortem injures and also that the injuries caused to Badri Yadav were caused by fire-arm and sharp-edged weapon like ''Banka'.
22. P.W.7- Dr. Rajendra Prasad has stated to have medically examined P.W.3- Dal Chand on 4.4.2005 at 5.45 A.M. who was brought to him by police constable Rajendra Prasad Yadav. He noticed one fire-arm injury of entry and one fire-arm wound of exit on his person and has proved the injury report (Ext. Ka-7) under his signatures and writing . According to him the above injuries were caused by fire-arm (country made pistol). Both the doctors, namely, P.W.6- Dr. Akhilesh Khare and P.W.7- Dr. Rajendra Prasad have stated that injuries on the person of deceased and injured might have been inflicted at 12.00 O' clock in the intervening night of 3-4.4.2005. Injury report of P.W.3-Dal Chand has been dealt with elaborately in para 7 of this judgment.
23. P.W.8- Ram Autar is stated to have heard a sound of gun shot fired at about 12.00 O' clock in the intervening night of 3-4.4.2005 and stated to have come out of his house and saw that appellant Lallu @ Lala Ram armed with country made pistol of .315 bore and appellant Ranjit armed with Banka were emerging out from the baggar of Badri Yadav. He claimed to have seen the appellants in the light of bulb which was lighting in the baggar. When he went in side he saw that Badri Yadav was lying dead after sustaining fire-arm and Banka injuries while his brother Dal Chand was lying in injured condition. He brought Dal Chand to the Police Station from a tractor-trolley along with Sher Singh and Tule Ram and the FIR of the incident was lodged by P.W.1- Sher Singh . He also stated that Badri Yadav had executed a sale deed of his land in favour of his son Sher Singh and other sons of Badri Yadav including Lallu @ Lala Ram were angry with Badri Yadav on this score and a revenue case was also pending between Dal Chand and his aunt Ram Kali wherein appellant Ranjit was doing pairvi on behalf of Ram Kali. He also stated that one Sub-Inspector of Police came to the place of occurrence after the incident and collected plain and blood stained soil and also inspected torch, ladder, Gobar gas apparatus from which a bulb was lighting and also that a memo of the above proceedings was prepared as Ext. Ka-8, Ka-9 and Ka-10. He also stated to be a witness of the recovery of a country made pistol of .315 bore and one empty and 2 live cartridges on the pointing out of appellant Lallu @ Lala Ram. He further stated to be a witness of the recovery of a Banka from the house of Ranjit at his pointing out and proved the recovery memo (Ext. Ka-11) prepared with regard to this recovery.
24. P.W.9- Head Constable Ram Prakash has proved the chick FIR and G.D. Kayami to be written in his hand writing as (Ext. Ka-12) and (Ext. Ka-13).
25. P.W.10- S.I. Ram Autar Singh has stated to have prepared the inquest report (Ext. Ka-14) of the body of Badri Yadav on the direction of the Station House Officer and also the necessary papers i.e. specimen seal (Ext. Ka-15), Chalan lash (Ext. Ka-16), photo lash (Ext. Ka-17), letter R.I. (Ext. Ka-118), letter C.M.O. (Ext. Ka-19) in his signatures and hand writing and also to have prepared the memo (Ext. Ka-8) of seizing blood stained and plain soil and piece of quilt and cushion. He also stated to have inspected the torch of Sher Singh, ladder, Gobar gas bulb and also to have prepared memo Ext. Ka-9 and Ext. Ka-10 in this respect. On being re-examined he proved material Ext, blood stained and plain soil, blood stained cushion and blood stained quilt as material Ext. No.s 3,4,5 and 6, respectively.
26. P.W.11- S.I. Ram Pradeep Yadav has stated that he prepared site plan of the place of occurrence on the pointing out of Sher Singh and proved the same as Exit. Ka-20 and also that the inquest report was prepared under his direction. He stated to have arrested the appellant Lallu @ Lala Ram and to have recovered one country made pistol, one empty and two live cartridges on his pointing. He also claimed to have prepared the recovery memo of country made pistol and cartridges.
27. P.W. 12- S.I. B.D. Arun has stated to have taken appellant Ranjit on police custody remand and a Banka is stated to have recovered on his pointing from a room of his house pertaining to which a recovery memo (Ext. Ka-11) was prepared by him. The ''Banka' has also been exhibited as material Ext. 7.
28. Having perused evidence available on record we are of the considered view that there cannot be any doubt in the proposition that Section 134 of Evidence Act does not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent,. It is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614, wherein it is held by Hon,ble Apex Court that "On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
"The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated."
"The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."
29. In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held in Para 10 of the report, that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
30. In AIR 2003 SUPREME COURT 3617, Sucha singh v/s State of Punjab Honble Apex Court after considering Masalti and others vs. State of U.P. MANU/SC/0074/1964, State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76), opined as under:- "Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that, it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751) and Ugar Ahir and others v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186)."
31. A perusal of the evidence in the background of the legal position mentioned herein-above would reveal that P.W. 1- Sher Singh who is the informant of the case and his son P.W.2- Pushpendra who claimed to be eye witness of the crime have not supported the case of the prosecution in the court. Both these witnesses have only supported a part of the prosecution version with regard to the fact that few days before the incident Badri Yadav had executed a sale deed of 7-8 Bighas of his land in favour of P.W. 1- Sher Singh. It is also admitted by these witnesses that the incident had actually occurred in the intervening night of 3-4.4.2005 and at that point of time P.W.3- Dal Chand was inside the ''baggar' with deceased Badri Yadav and two sons of P.W.1- Sher Singh, namely, Pushpendra and Manoj were also inside the baggar. It is to be recalled at this juncture that it is a peculiar case where a son ( Lala Ram @ Lallu) has been charged with committing the murder of his father Badri Yadav and the informant of the crime is also another son of the deceased Sher Singh, meaning thereby that informant P.W.1- Sher Singh is the real brother of appellant Lallu @ Lala Ram and P.W.-2 Pushpendra is the real nephew of the appellant Lallu @ Lala Ram. Therefore it is evident on record that these two witnesses, namely, P.W. 1- Sher Singh and P.W. 2- Pushpendra have resiled from their statements given under Section 161 of Cr.P.C. only to save appellant Lallu @ Lala Ram.
A three Judges Bench Of Hon'ble Supreme Court in Molu and others v. State of Haryana AIR 1976 SUPREME COURT 2499 has opined as under :-
"11. Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes. however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with the High Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt."
32. Keeping in view the above mentioned legal position as well as the statement of P.W.1- Sher Singh and P.W.2- Pushpendra this much portion of their evidence is reliable that in the intervening night of 3-4.4.2005 at 12.00 O' clock deceased Badri Yadav, P.W.3- Dal Chand, Pushpendra and Manoj were sleeping inside the baggar and P.W.1- Sher Singh was sleeping on the roof of the house and at that time Gun shots were fired and Badri Yadav died of Banka and fire-arm injuries while Dal Chand sustained fire-arm injuries and few days before incident deceased Badri Yadav had executed sale deed of his agricultural land in favour of Sher Singh.
33. It is also apparent on record that appellant Lallu @ Lala Ram is the son of deceased Badri Yadav. In the FIR it has been stated that on 18-19 March Badri yadav executed a sale deed of 7 Bighas of land in favour of P.W.1- Sher Singh, due to which appellant Lalla ram@ Lallu was angry with him along with his two other brothers- Sarnam and Devi. It is also stated in the FIR that litigation pertaining to some agricultural land was also pending in a revenue court in between Dal Chand and Ram Kali. The appellant Ranjit was allegedly doing pairvi in that case on behalf of Ramn Kali and the father of Sher Singh namely Badri Yadav had also testified in favour of Dal Chand and on this score Ranjit was having enmity with Badri Yadav also. It is also mentioned in the FIR that due to the aforesaid reasons deceased Badri was living with informant - Sher Singh. We have already discussed the testimony of P.W.1- Sher Singh, P.W.2- Pushpendra, who are hostile witness and we have also reached to a conclusion as to which part of their testimony is reliable and can be acted upon.
So far as the necessity of prosecution to prove motive of crime is concerned, in Praful Sudhakar Parab v. State of Maharashtra, AIR 2016 SUPREME COURT 3107 Hon'ble Supreme Court has held as under :-
"16. .........Motive for committing a crime is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another v. State of Punjab, 2001 (7) SCC 690 : (AIR 2001 SC 3570), has laid down following in paragraph 18:
"18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh v. Jeet Singh {1999 (4) SCC 370 : (AIR 1999 SC 1293)}:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Keeping in view the above legal position we are of considered opinion that the prosecution is not obliged to prove those facts which are either impossible for the prosecution to prove or which are locked up in the mind of the accused person(s) i.e. as to what tempted them to commit the crime. Therefore, the cases which are based on direct evidence of the eye witnesses should be decided on the basis of the quality and probative value of the evidence of such eye witnesses.
34. Coming to the testimony of P.W.3- Dal Chand, who is stated to be a close friend of deceased Badri Yadav , it is evident that he has supported the version of the First Information Report in his testimony and has also stated about the execution of the sale deed by Badri Yadav pertaining to 7-8 Bighas in favour of P.W.1- Sher Singh and also that his other sons including appellant Lallu @ Lala Ram were having enmity with him on this score. This witness is also stated about the pendency of a litigation with regard to the agricultural land between him and Ram Kali and also that appellant Ranjit was doing pairvi on behalf of Ram Kali in that case. P.W.3- Dal Chand has also stated in his cross- examination that Ram Kali was claiming herself to be the wife of his uncle Bhikhari and this litigation was pertaining to the agricultural land of Bhikhari. It is further stated by him that he was claiming the said land on the basis of a Will. However, their Will was not upheld by Revenue Court. It is also stated by him that whereabouts of his uncle Bhikhari was not known for 10-12 years prior to the incident and also that the appellant Ranjit is nephew of his uncle Bhikhari on the basis of village relations.
It is further stated by P.W.3- Dal Chand that the deceased Badri Yadav was his close friend and villagers used to ask Badri Yadav as to why he had given more than half share of his land to his one son Sher Singh.
35. P.W.8- Ram Autar has also corroborated the version of FIR pertaining to the execution of sale deed of his agriculture land by the deceased Badri in favour of his son Sher Singh with regard to 7-8 Bighas of land and also that his other sons, namely, Sarnam, Lallu @ Lala Ram and Devi were angry with him. He also corroborated the fact of pendency of a litigation between Dal Chand and Ram Kali wherein the appellant Ranjit was doing pairvi on behalf of Ram Kali. In his cross examination he maintained that he was also a party in that litigation and Ranjit was procuring the witnesses in that case for Ram Kali.
36. Perusal of record would further reveal that the appellants have also filed documentary evidence in the shape of a certified copy of the judgment of Consolidation Officer, dated 15.10.2004 (Ext. Kha-17) passed in Case No. 2869/31/04-05 Dal Chand and others Vs. State. This case was started on an application moved by one Smt. Bitana, who claimed herself to be the wife of Bhikhari. P.W.3- Dal Chand and P.W. 8- Ram Autar were also parties in this case. Ext. Kha-2 is a certified copy of the objections filed by Smt. Bitana, wife of Bhikhari and Ext. Kha-3 is a certified copy of the statement of Ram Autar recorded in Criminal Case No. 77205 under Section 25 Arms Act. Though it is not clear whether Smt. Bitana and Smt. Ram Kali are one and same person or whether Smt. Bitana was also known as Smt. Ram Kali, but the evidence available on record sufficiently proves this fact that the appellant Lallu @ Lala Ram was annoyed by the execution of the sale deed of 7-8 Bighas of agricultural land by his father (deceased Badri yadav) in favour of his real brother P.W.1- Sher Singh and also that Ranjit was also keeping enmity with Dal Chand. Moreover instant case is based on the testimony of the eye witnesses who have seen the crime being committed by the appellants. Therefore the motive in this case is not of much importance. Nevertheless, the prosecution has been successful in proving that there was sufficient motive with the appellants to commit offence.
37. Coming to the next submission of learned counsel pertaining to the non availability of any source of light at the spot and that in absence of any source of light it was not possible for any one to witness the real assailants, it it may be noticed that the case of the prosecution is consistent on the point that the incident occurred at about 12.00 O' clock in the mid night and the witnesses have seen the occurrence in the light of torch and the light which was emanating from a bulb lighted from the Gobar gas/ cell, which was lighting at the time of incident in the baggar. P.W.3- Dal Chand and P.W.8- Ram Autar (who was residing adjacent to the scene of occurrence) have stated that at the time of occurrence a Gobar gas bulb was lighting in the baggar and the same was fitted with the Gobar gas apparatus. Investigating Officer, who arrived at the spot after the incident has also found a bulb fitted with Gobar gas apparatus in side the baggar where the deceased and Dal Chand were sleeping. The Investigating Officer has also prepared a memo Ext. Ka-10 pertaining to the seizure of the bulb and apparatus and also a memo of torch of Sher Singh. The place where the bulb was lighting has also been shown by the Investigating Officer in the site plan (Ext. Ka-3) by the word "E". Therefore it is evident and proved on record that though the incident had occurred in the night but there was sufficient light in and around the place of occurrence and P.W.1- Sher Singh was also having a torch with him, in the light of which appellants could easily be identified. Moreover, appellant Lallu @ Lala Ram is the son of the deceased Badri Yadav and Ranjit was doing the pairvi in a case against Dal Chand and both these persons were well known to the witnesses, therefore there is no possibility of any error so far as identification of the appellants as the perpetrators of the crime is concerned. Hence, we do not find any force in this submission of learned counsel for the appellants.
38. It is further argued by learned counsel for the appellants that P.W.3- Dal Chand was not in a position to see as to who had committed the crime. He could only see with his one eye and on this score his evidence could not be relied on.
In Krishna Mochi and Ors. vs. State of Bihar, MANU/SC/0327/2002 Hon,ble Supreme Court held as under :-
"As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : 1981CriLJ1012 , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand."
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. Reported in MANU/SC/0897/2013 it has been held as under:-
"In State of U.P. v. Naresh MANU/SC/0228/2011 : (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: 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. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, 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.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. MANU/SC/0053/1959 : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police MANU/SC/0761/2012 : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) MANU/SC/0333/2013 : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
39. Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 in para-5, observed and settled following principles for appreciation of evidence without entering into re-appraisal or re-appreciation of the evidence in the context of minor discrepancies. The principles laid down are as under:
(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."
40. Perusal, of the evidence on record in the back ground of submissions of Ld. Counsel for appellants if tested on the touchstone of the above mentioned legal position, would reveal that P.W.1- Sher Singh in his statement has stated that he after hearing the sound of a gun shot did not see the appellants running away from the scene and when he reached the spot no assailant was present there. As has been observed herein before that P.W.1- Sher Singh has chosen not to support the prosecution case due to the fact that appellant Lallu Ram @ Lala Ram is his real brother but his malafide is apparent on the face of his evidence when he has stated that he could not see the assailants and he lodged the First Information Report against the appellants on the basis of information provided by the villagers and he only put his signatures on the written application without having any knowledge of the contents of the same. He has also stated that he only know to make signatures and he is an illiterate person. A perusal of FIR would reveal that P.W.1- Sher Singh has claimed himself to be an eye witness of the incident. In his cross examination he has stated that co-accused Gajram was a witness of the sale deed executed by Badri in his favour and he is having very cordial relations with him. P.W.2- Pushpendra is the son of Sher Singh, therefore there is no doubt that both these witnesses have turned hostile only to sheild their brother and uncle Lallu @ Lala Ram and they have been actually won over.
41. In Paramjeet Singh alias Pamma vs. State of Uttarakhand (2010) 10 SCC 439, it was held as under:-
"16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani (2003) 7 SCC 291.)
17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 observed as under: (SCC p. 457, para 7) "7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."
18. In Mahesh v. State of Maharashtra (2008) 13 SCC 271, this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) "49. ... If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution."
19. In Rajendra v. State of U.P. (2009) 13 SCC 480, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka (2010) 6 SCC 533 observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.
20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
Both P.W.1- Sher Singh and P.W.2- Pushpendra have stated that Dal Chand at the time of incident was in baggar with deceased Badri Yadav and the incident had occurred at about 12.00 O'clock in the night. Perusal of the testimony of P.W.1- Sher Singh would further reveal that he has admitted the presence of sufficient light and he was also holding a torch in his hand at the time of incident. P.W.3- Dal Chand had also stated that at the fateful night he talked with Badri till late in the night and two sons of Badri, namely, Pushpendra and Manoj were also sleeping in the same room while Sher Singh was sleeping on the roof of the house. According to him Badri and he were lying on the ground and at midnight a gun shot was fired where-after he tried to get up but at the same time second gun shot was fired which hit him on his chest and P.W.1- Sher Singh put on his torch and in the light of his torch and of gobar gas bulb he saw the assailants as Lallu @ Lal Ram who fired at them and Ranjit who was assaulting deceased Badri Yadav with Banka. He further stated that at the time of incident he was not sleeping and his eyes had blinked for a moment.
42. Referring to a portion of his evidence, it has been submitted that this witness could not see with his one eye and therefore he could not have witnessed the incident. We are unable to concur with this submission of learned counsel for the appellants on the ground that the evidence of a witness could not be read in piecemeal and the same has to be perused in totality. We have very carefully gone through the testimony of this witness and have found that he has stated that he could see only with his one eye. However, in the same breath he has stated that he could read and write without the aid of spectacles. The fact that he, during his cross examination, could not tell the details of a tree standing about 100 meters away from the place where his statement was being recorded is of no consequence to doubt the authenticity and reliability of his otherwise truthful evidence. It is to be remembered that P.W.3- Dal Chand is an injured witness, his presence at the time of incident has even been admitted by the hostile witness P.W.2- Pushpendra who was also sleeping in the same baggar (room) and his friendship with the deceased Badri Yadav is a proved fact and he (Dal Chand) used to sleep in the baggar of Badri Yadav and used to talk with him till late in the night, as a matter of routine. Having perused the entire evidence of this witness we do not find any material contradictions or embellishments in his testimony which may brand him as unreliable. Contrary to this, having examined his testimony with utmost care and caution, we find his evidence unblemished and trustworthy. He was injured in the incident and the nature of injuries sustained by him has added a flavor of acceptability to his otherwise trustworthy evidence. We are, therefore, see no reason as to why he will falsely implicate Lallu @ Lala Ram i.e. son of his close friend for committing the murder of his father i.e. Badri Yadav.
In Ramesh Bhagwan Manjrekar and Ors. Vs. State of Maharashtra reported in MANU/MH/0161/1996 Hon'ble Supreme Court held as under :-
"21. It is well settled that the evidence of an injured witness can be the sole basis; in fact the best basis, for either recording or sustaining a conviction. This is because injuries ensure the presence of a witness. And once that is ensured the limited question which remains is that of his credibility and truthfulness. After going through the evidence of Shaikh Jalaluddin we not only find it to be truthful but also in consonance with probabilities and medical evidence."
In Mohar and Ors. Vs. State of U.P. reported in MANU/SC/0808/2002 it was held that "The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself. Convincing evidence would require to discredit an injured witness. Similarly, every discrepancy in the statement of witness cannot be treated as fatal. the discrepancy which do not affect the prosecution case materially cannot create any infirmity."
In the case of Akhtar and Ors. Vs. State of Uttaranchal, MANU/SC/0556/2009 Hon'ble Supreme Court held as under :-
"13. In the case of Krishan v. State of Haryana 2006 (12) SCC 459, this Court has taken the view that if the prosecution case supported by two injured eye-witnesses Similarly, in the case of Surender Singh v. State of Haryana MANU/SC/0393/2006 : (2006)9SCC247 , this Court has opined that the testimony of an injured witness has its own relevancy and efficacy. The fact that the witness was injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes.
14 . This Court has taken the view in State of M.P. v. Mansingh MANU/SC/0596/2003 : (2003)10SCC414 that the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. It was contended by the appellant that the testimony of Jamil Ahmed (PW-2) and Mobin (PW- 3) cannot be relied on as these two eye witnesses were allegedly highly interested witnesses and were related to the deceased. In our considered view, merely because the witnesses in question were related to the deceased cannot be a ground for non-acceptance of their evidence, which otherwise was found to be trustworthy. It is true that these two witnesses are related to the deceased but at the same time one cannot lose sight of the fact that these two witnesses were also injured witnesses. It is extremely difficult to believe that the injured witnesses who themselves got injured and whose close relatives lost their lives would shield the real culprits and name somebody else only due to some enmity. The defence had ample opportunity to cross-examine these two injured eye witnesses but records show that no suggestions were put to them as to how they received the injuries, mentioned in the medical reports. In fact, various documents filed by the defence with respect to litigation among themselves itself give the unmistakable impression that there was indeed motive to attack the deceased and the injured witnesses. and if their (injured eye-witnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded."
Hon'ble Supreme Court in Jarnail Singh and Ors. Vs. State of Punjab reported in MANU/SC/1584/2009 held as under :-
"19. Darshan Singh (PW-4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well.
20. In Shivalingappa Kallayanappa v. State of Karnataka MANU/SC/0053/1995 : 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident.
21. I n State of U.P. v. Kishan Chand and Ors. MANU/SC/0652/2004 : (2004) 7 SCC 629, a similar view has been re-iterated observing that the Testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon vide Krishan and Ors. v. State of Haryana (2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon by the courts below."
In Abdul Sayeed Vs. State of Madhya Pradesh reported in MANU/SC/0702/2010, Hon'ble Supreme Court while discussing about the weight to be attached to an injured witness was pleased to held as under :-
"26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh and Ors. v. State of Bihar MANU/SC/0216/1972 : AIR 1972 SC 2593; Malkhan Singh and Anr. v. State of Uttar Pradesh MANU/SC/0164/1974 : AIR 1975 SC 12; Machhi Singh and Ors. v. State of Punjab MANU/SC/0211/1983 : AIR 1983 SC 957; Appabhai and Anr. v. State of Gujarat MANU/SC/0028/1988 : AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane and Ors. v. State of Maharashtra MANU/SC/0066/1996 : (1995) 6 SCC 447; Bhag Singh and Ors. (supra); Mohar and Anr. v. State of Uttar Pradesh MANU/SC/0808/2002 : (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan MANU/SC/7910/2008 : (2008) 8 SCC 270; Vishnu andOrs. v. State of Rajasthan (2009) 10 SCC 477; Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra MANU/SC/0352/2010 : (2010) 6 SCC 673).
27. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab MANU/SC/1584/2009 : (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:
"Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka MANU/SC/0053/1995 : 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P. v. Kishan Chand MANU/SC/0652/2004 : (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
28. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
In Manjit Singh vs. The State of Punjab, MANU/SC/1195/2019 it was held in para 13.2. of the report that there is no Rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witness(es). When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors.
Having considered the entire evidence of PW-3 Dal Chand with care and caution we are of the considered view that the trial court does not appear to have committed any illegality or to say any irregularity in accepting the reliable and trustworthy evidence of PW-3 Dal Chand. P.W.8- Ram Autar has also seen both appellants running away from the scene of crime with Country made pistol and Banka in their hands. Having considered the evidence of this witness with care and caution, the same also appears to be reliable and trustworthy in the facts and circumstances of the case. Therefore in our considered opinion no illegality has been committed by trial court in accepting his testimony.
43. It is also submitted by learned counsel for the appellants that the nature of fire-arm injuries found on the person of deceased Badri Yadav and injured P.W.3- Dal Chand could not be inflicted by the gun shots fired from the place situated outside a four feet boundary wall and even if the evidence of prosecution is taken on its face value if the gun shots were fired from beyond the 3-4 ft high boundary wall trajectory of the fire arm injuries should be downwards.
44. We have perused the postmortem report of deceased Badri Yadav which is available on record as Ext. Ka-6 as well as injury report of Dal Chand (Ext. Ka-7). Perusal of both these reports would reveal that the deceased Badri Yadav had received incised wound at 5 places of his person including multiple incised wounds over front and left side of his neck, while Dal Chand received one fire-arm wound of entry and also one fire-arm wound of exit corresponding to the fire-arm wound of entry on the left side of his chest. According to P.W.6- Dr. Akhilesh Khare who has conducted postmortem on the dead body of Badri Yadav the death of the deceased Badri Yadav had occurred due to shock and hemorrhage caused by ante-mortem injuries. He has further stated the time of death of deceased Badri Yadav at about 12.00 O' clock in the intervening night of 3-4.4.2005. P.W.7- Dr. Rajendra, who examined the injuries of P.W.3- Dal Chand, has also proved the injury report (Ext. Ka-7) and has stated that the injuries sustained by Dal Chand were fresh and were caused by fire-arm like country made pistol and these injuries might have been sustained at about 12.00 O' clock in the intervening night of 3-4.4.2005. P.W. 1, Sher Singh has stated to have heard sound of gun shots while P.W.3- Dal Chand and P.W. 8- Ram Autar, who is a neighbour, have also stated to have heard the sound of Gun shots. P.W.3- Dal Chand who has sustained fire-arm injuries in the incident has seen the appellant Lallu @ Lal Ram firing from country made pistol and Ranjit assaulting Badri Yadav with Banka. P.W.8- Ram Autar has seen the appellants running away after committing crime with weapons in their hands and after entering the ''baggar' found Badri Yadav dead and Dal Chand in seriously injured condition. Therefore consistent case of the prosecution is that deceased Badri Yadav and P.W.3- Dal Chand were assaulted by Lallu @ Lala Ram by firing gun shots from country made pistol while appellant Ranjit assaulted Badri Yadav alone by Banka. The injuries sustained on the body of the deceased Badri Yadav could have been inflicted by firearm and Banka while the injuries found on the person of Dal Chand could have been caused by fire-arm, therefore in our considered opinion there is no difference between ocular and medical evidence and in fact medical evidence fully supports the ocular evidence in material particulars. The submission that injuries of a particular trajectory or dimension have not been sustained by the deceased and injured person is of no consequence. More over the testimony of an injured witness can not be brushed aside on the basis of minor contradictions and improvements. To discard the testimony of injured person very strong and cogent reasons are required and no such major contradictions are present in the evidence of injured witness P.W.-3 Dal Chand.
In Ramkant Rai v. Madan Rai and Ors. as reported inMANU/SC/0780/2003 : 2004CriLJ36 , the Apex Court observed in ParaNo. 22 as under:
"22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' 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. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance In the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
Appreciation of evidence of P.W.-3 Dal Chand, in the back drop of above mentioned law would reveal that the testimony of this witness is reliable and trustworthy and his presence at the spot is proved beyond all reasonable doubt. He is an injured witness and his testimony has also been corroborated by medical evidence, therefore we do not have any reason to doubt the trustworthiness and acceptability of the evidence of this witness.
45. It is also pertinent to mention here that though the trial court has disbelieved the recovery of country made pistol at the instance of appellant Lallu @ Lala Ram on the pretext that neither the recovery memo pertaining to the recovery of country made pistol nor the pistol itself was produced in the court, perusal of record would reveal that the trial court in its judgment has mentioned that a criminal case under Section 25 Arms Act with regard to this recovery is pending before the Judicial Magistrate, Mohammadi and the appellants have filed a document Ext. Kha-3 which is the statement of P.W.8- Ram Autar recorded in that case. It is strange that the trial court despite being aware of the pendency of that case before the judicial magistrate did not bother to try that case along with instant case while it was the duty of the trial court to try that case together with the instant case. Therefore, the trial court has extended the benefit of its own wrong to the appellant Lallu @ Lala Ram and has recorded that the recovery of country made pistol from Lallu @ Lala Ram has not been proved. We do not want to disturb such finding of the trial court but would like to clarify that the recovery of any weapon on the pointing of accused, allegedly used in the crime, is a piece of evidence amongst many pieces of evidence on which the prosecution rely in seeking conviction of accused person(s) and if this one piece of evidence is not proved, it does not mean that the entire case of prosecution would be discarded on that point alone. If the remaining pieces of evidence available on record achieve the requisite standard i.e. proof beyond reasonable doubt against appellant/ accused, they can safely be convicted.
46. The recovery of Banka from appellant- Ranjit on his pointing out has been proved by the reliable testimony of P.W.8- Ram Autar and P.W.12- Sub Inspector B.D. Arun who have proved the fact of recovery of ''Banka' on the pointing of appellant Ranjit from his house.
47. We are also not inclined to appreciate the submission of learned counsel for the appellants with regard to the fact that the FIR in the case is ante timed. We have carefully scanned the oral as well as documentary evidence available on record and have found that the FIR of the incident was lodged at 4.10 A.M. while the incident has occurred at about 12.00 O' clock in the mid-night and the distance of Police Station from the spot is 7 Km. P.W.9- Head Constable Ram Bux has proved the fact of lodging the FIR and also that substance of this information was entered in the G.D. (Ext. Ka-13). Inquest of the dead body of Badri Yadav has begun at 6.30 A.M. On 4.4.2005 which is evident from inquest report Ext. Ka-14 and it contains all necessary details. P.W.1- Sher Singh though has not supported the prosecution story in full, but has supported this much of the prosecution story that he lodged the FIR (Ext. Ka-1) . However, he claimed that the contents of FIR were not read over to him and he only put his signature on it. We are not inclined to accept this explanation of this witness, as it is evident on record that he has turned hostile only to support his real brother Appellant Lallu @ Lalaram. P.W. 3- Dal Chand who had gone with P.W.1- Sher Singh to lodge the FIR has also stated to have accompanied Sher Singh along with his brother to Police Station for the purpose of lodging of FIR. The fact that at one place of his statement he stated that Ext. Ka-1 was written in front of him in the after-noon is of no consequence because it is probable that he may be confused by the fact that he is also a witness of the recovery memo of country made pistol recovered at the instance of appellant Lallu @ Lala Ram and a recovery memo pertaining to that recovery was also written in his presence. Therefore We do not find any substance in this argument of the learned counsels for the appellants.
48. In Gangadhar Behera and others v State of Orissa, reported in MANU/SC/0875/2002 it is held in para 18 and 19 of the report as under :-
"18. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Ors. MANU/SC/0034/1990 : 1990CriLJ562 ]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava MANU/SC/0161/1992 : [1992]1SCR37 ]. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admin.). MANU/SC/0093/1978 : 1978CriLJ766 ]. Vague hunches cannot take place of judicial evaluation. "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. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh AIR 1988 SC 1988. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
19. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 :
".....The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt....."
".....The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltiness....."
".....a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....."
49. In view of the reasons given herein above, we do not find any force in this appeal and the same is liable to be dismissed.
50. The appeals filed by the appellants, namely, Ranjit and Lallu @ Lala Ram are, thus, dismissed and the judgment and order of the court below dated 26.5.2007 is affirmed.
51. As per record of this Court and report of office dated 18.12.2019, the appellants- Ranjit and Lallu @ Lala Ram are in jail. They will serve out the sentence as ordered by the trial court.
Shri Diwakar Singh learned Amicus Curiae will get Rs. 10,000/- as his fee/ honorarium for his assistance rendered in this case.
A copy of this judgment be immediately sent to the trial court for compliance.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyaya,J.)
Order Date :- 16.01.2020
Muk