Allahabad High Court
Krishna Pal Singh And Others vs State Of U.P. on 4 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 208
Bench: Anjani Kumar Mishra, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Case :- CRIMINAL APPEAL No. - 261 of 2006 Appellant :- Krishna Pal Singh And Others Respondent :- State of U.P. Counsel for Appellant :- K.K. Tripathi,Adarsh Kumar,B.K.Solanki,Bansh Narain Rai,Hardeo Singh,K S Yadav,Kamlesh Kumar Tripathi,Rajesh Dwivedi,Rajive Ratn Singh Counsel for Respondent :- Govt. Advocate Hon'ble Anjani Kumar Mishra,J.
Hon'ble Shekhar Kumar Yadav,J.
1. Instant appeal arises out of a judgment of conviction and order of sentence dated 12.01.2006 passed by learned Addl. District and Sessions Judge, Court No. 6, District Kanpur Dehat in Sessions Trial No. 255 of 2001 (arising out of Case Crime No. 345 of 2000) (State Vs Krishna Pal Singh and Others) and Sessions Trial No. 417 of 2001 (arising out of Case Crime No. 357 of 200) (State Vs Amar Singh), whereby the accused Kaptan Singh, Mohan Trivedi, Vimal Singh and Anirudh Singh were acquitted of the charge under Sections 148, 323/149, 324/149,302/149, 504 IPC. Further, the appellants Kamal Singh (Appellant No. 2), Amar Singh (Appellant No. 4), Narendra Singh (Appellant No. 5) and Jai Karan Singh (Appellant No. 6) were convicted under Sections 148, 323/149, 324/149, 302/149, 504 IPC and further appellants Krishna Pal Singh and Nirmal Singh were convicted under Section 147, 323/149, 324/149, 302/149, 504 IPC. Further the appellant Amar Singh in Sessions Trial No. 417 of 2001 was convicted under Section 25/27 of Arms Act.
2. By the said judgement the appellants Kamal Singh (Appellant No. 2), Amar Singh (Appelant No. 4), Narendra Singh (Appellant No. 5) and Jai Karan Singh (Appellant No. 6) were convicted under Section 148 IPC and sentenced to three years RI and fine of Rs. 1000/- each, under Section 323/149 IPC and sentenced to one year R.I. and fine of Rs. 500/- each, under Section 324/149 IPC and sentenced to under go three years R.I. and fine of Rs. 1000/- each, under Section 302/149 IPC and sentenced to life imprisonment and fine of Rs. 5000/- each, under Section 504 IPC sentenced to six months R.I. and fine of Rs. 500/- each along with default stipulation.
3. The appellants Krishnapal Singh (Appellant No. 1) and Nirmal Singh (Appellant No. 3) were convicted under Section 147 IPC and sentenced to undergo two years R.I. and fine of Rs. 500/- each, under Section 323/149 IPC sentenced to one year RI and fine of Rs. 500 each, under Section 324/149 IPC sentenced to three years R.I. and fine of Rs. 1000/- each and under Section 302/149 IPC sentenced to life imprisonment and fine of Rs. 5000/- each, under Section 504 IPC sentenced to six months R.I. and fine of Rs. 500/- each along with default stipulation.
4. The appellant Amar Singh in Sessions Trial No. 417 of 2001 was convicted under Section 25/27 Arms Act and sentenced to three years R.I. and fine of Rs. 2000/- with default stipulation.
5. All the aforesaid sentences were directed to run concurrently.
6. The appeal against Krishna Pal Singh (Appellant No. 1) has already been dismissed as abated vide order dated 28.09.2018 passed by another Co-ordinate Bench of this Court.
7. Adumbrated facts, as per the prosecution version are that the Informant Vinod Singh (P.W.-1) submitted a written report (Ex-Ka-1) on 30.11.2000 at P.S. Shivli, District Kanpur Dehat alleging therein that he used to tie the cattle in front of his house. It is alleged that the cow dung was forcibly taken away by the sons of accused Krishna Pal Singh. On 30.11.2000 at 6.00 a.m. the informant was standing outside his door and at that time accused Kamal Singh and Nirmal Singh both sons of Krishna Pal Singh (Village Pradhan) started taking away the cow dung, which was objected by the informant. At this, both the accused stated that since this Government Kharanja pertains to society, they would lift the cow dung forcibly. After abusing and threatening the informant they went away. Thereafter, on the same day at 8.00 a.m. when the informant was standing at his door, accused Krishna Pal Singh (village Pradhan) and both his sons namely Kamal Singh and Vimal Singh armed with Pharsa and Barchhi and accused Anirudh Singh and his brothers Kaptan Singh and Amar Singh and accused Narendra Singh armed with country made pistol, Addhi, Pharsa, Barchhi and Lathi advanced towards his door. Accused Kamal Singh assaulted the informant with Barchhi on his temple. In order to save his life, he raised alarm. Thereafter, his family members namely, Hari Shankar, Anil Singh, Randhir Singh reached there. On the exhortation of accused Krishna Pal Singh and Anirudh Singh, other accused persons started firing and assaulted with lathi, danda. In the incident, informant Vinod Singh (P.W.-1), Hari Shankar (P.W.-2) and Anil sustained injuries. At this, deceased Yogendra Singh arrived on the spot to rescue them and addressed his maternal uncle (Mama) Amar Singh why he was assaulting his uncle? At this accused Amar Singh retorted derisively that who is his Mama and fired shot upon Yogendra Singh with his country made pistol, who died instantaneously on the spot. The incident was witnessed by Randhir Singh, Amit son of the informant and several other villagers and they identified the assailants. Informant also stated that there were several other persons who had come with the assailants.
8. On the basis of said written report, the FIR (Ex-Ka-7) was lodged on 30.11.2000 at 9.30 a.m. same day vide Case Crime No. 345 of 2000, under Sections 147, 148, 149, 302, 324, 323, 504 IPC. A Check report was carved out. Relevant entries were made in the General Diary (Ex-Ka-8) of the police station and the investigation was entrusted to Sub Inspector Sri Radhey Shyam Upadhyay (P.W.-5), who is said to have recorded the statements of the injured as the S.H.O. P.S. Shivli Sri Rajul Garg (P.W.-6) was not available at the Police Station at that time.
9. The injured Vinod Singh (P.W.-1), Hari Shankar, Anil and one Randheer Singh were taken to PHC, Shivli, District Kanpur Dehat, where they were examined by P.W.-4 Dr A. C. Dixit on 30.11.2000. The injured Anil received following injuries on his person:-
(i) Lacerated wound on right side head, 3 cm X 1 cm, bleeding present.
(ii) Abrasion on left leg in middle 2 cm X 2 cm.
(iii) Abrasion on right side of forehead 4 cm X 3 cm, 1 cm above right eyebrow.
Injuries are simple. Injury no. 1 is caused by hard and blunt object, Injury no. (ii) & (iii) are caused by friction. Duration fresh.
10. The injured Vinod Singh, received the following injuries:-
(i) pointed deep injury on the left side of face 0.5 cm X 0.5 cm ...............of left ear. Bleeding present.
Injury kept under observation. Injury is said to have been caused by pointed object. Duration is fresh.
11. The injured Hari Shanker received the following injuries:-
(i) Lacerated wound on back of the head of 2 cm X 0.5 cm scale deep. Bleeding present.
(ii) Contusion on left shoulder 4cm X 3 cm,
(iii) Abraded contusion on right side of back of chest 3 cm X 2 cm .5 cm below back border of right scapula.
(iv) Contusion right hip joint front 2 cm X 2 cm red in colour.
All injuries are simple and caused by hard and blunt object. Duration fresh.
12. The injured Randheer Singh received the following injuries on his person:-
(I) Contusion over head 2 cm X 2 cm
(ii) Contusion over front of chest right side 4 cm X 3 cm red.
Injuries are simple and caused by hard and blunt object. Their injury reports of all the injurds are available on record and marked as Ex-ka-3 to Ex-ka-6.
13. The subsequent Investigating Officer P.W.-6 Sri Rajul Garg, took over the investigation and prepared inquest (Ex-Ka-13), site plan (Ex-ka-23) and obtained the samples of blood stained earth and simple earth from the place of incident and prepared recovery memo, which is available on record as Ex-Ka-11. The recovery memo of four empty cartridges from the place of incident was also prepared, which is available on record as Ex-Ka-10.
14. The dead body of deceased was sent for postmortem through constables Awadhesh Kumar Tiwari and Arvind. The postmortem was conduced by P.W.-3 Dr Akhilesh Shukla on 1.12.2000 at 1.00 p.m. The postmortem report (Ex-ka-2) was prepared and following anti mortem injuries were reported on the person of deceased Yogendra Singh (16 years), which is reproduced as under:-
(i) Fire arm wound of entry-1 cm X 1 cm on the left lateral side of abdomen, 14 cm lateral to mid line and 5 cm above left abdominal cavity deep, margins inverted, charring present around the wound.
(ii) Fire arm wound of exit-2 cm X 2 cm on the right lateral side of abdomen 11 cm lateral to left line and 8 cm above the right iliac crust. Margins inverted, abdominal cavity deep.
15. As per opinion of the Dr Akhilesh Shukla, (P.W.-3) death was caused by haemorrhage and shock due to anti-mortem fire arm injury.
16. The assault weapon Barchhi, country made pistol and cartridges stated to have been used in the murder of deceased was recovered at the instance of appellant Amar Singh on his arrest on 17.12.2000. This memo of recovery is available on record as Ex-Ka-20. Thereafter, an FIR vide Case Crime No. 357 of 2000, under Sections 25/27 Arms Act was registered against the appellant Amar Singh on 17.12.2000, copy of which is available on record as Ex-Ka-21. The accused Mohan Trivedi, Kaptan Singh and Shyam Baran Singh are said to have been arrested on 1.12.2000 and on their arrest, recovery memo of one S.B.B.L. Gun, Ten live cartridges recovered from accused Mohan Trivedi and one country made pistol 12 bore with two cartridges said to have been recovered from accused Shyam Baran and a farsa recovered from accused Mohan Trivedi, was prepared. The empty cartridges, recovered Gun and other materials e.g., blood soaked soil and the clothes etc. of the deceased were sent to the Forensic Science Laboratory, Agra for chemical analysis.
17. After completing the investigation, the Investigating Officer (P.W-6) Sri Rajul Garg filed charge sheet (Ex Ka-19) against the accused persons namely Krishna Pal Singh, Kamal Singh, Vimal Singh, Nirmal Singh, Anirudh Singh, Kaptan Singh, Amar Singh, Narendra Singh, Jai Karan Singh, Mohan Trivedi and Shyam Baran Singh under Sections 147, 148, 149, 302, 323, 504, 324 IPC on 19.2.2001 in Case Crime No. 345 of 2000. Another Investigating Officer Sri Satya Prakash Yadav (P.W.-7) filed charge sheet against appellant Amar Singh under Section 25/27 Arms Act (Ex-Ka-25). Accused Shyam Baran Singh died before commencement of trial.
18. The Addl. Sessions Judge framed charges against rest of the appellants, namely, Krishna Pal Singh, Kamal Singh, Vimal Singh, Nirmal Singh, Anirudh Singh, Kaptan Singh, Amar Singh, Narendra Singh, Jai Karan Singh, Mohan Trivedi under Sections 147, 148, 149, 302, 323, 324, 504 IPC on 9.8.2001. Again, Addl. Sessions Judge, Room No. 1, Kanpur Dehat framed charge against accused appellants namely Kamal Singh, Vimal Singh, Anirudh Singh, Kaptan Singh, Amar Singh, Narendra Singh, Jai Karan Singh, Mohan Trivedi under Section 148, 323/149, 324/149, 302/149, 504 IPC on 1.2.2003. The Addl. Sessions Judge, framed charge against appellant Krishna Pal Singh and Nirmal Singh under Section 147, 323/149, 324/149, 302/149, 504 IPC on 1.2.2003.
19. The charge against accused Amar Singh in Sessions Trial No. 417 of 2001, under Sections 25/27 Arms Act was framed on 21.09.2001 by Addl. Sessions Judge, FTC No. 1, Kanpur Dehat. All the appellants denied the charge and claimed to be tried.
20. Prosecution has adduced evidence of informant Vinod Singh (P.W.-1), Hari Shanker (P.W.-2), Dr Akhilesh Shukla (P.W.3), Dr. A. C. Dixit (P.W.-4), S.I. Radhey Shyam Upadhyay (P.W.-5), Sub Inspector Rajul Garg (P.W.-6), S.I. Satya Prakash Yadav (P.W.-7) in support of its case.
21. Statements of the accused were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, and pleaded innocence and false implication on account of enmity. However, they have not produced any evidence in their defence.
22. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellants herein as mentioned above. Hence present Criminal Appeal.
23. We have heard Heard Sri Adarsh Kumar, learned counsel for appellant no.4, Sri Hardeo Singh, learned counsel assisted by Sri Kamlesh Kumar Tripathi, learned counsel for appellants nos.2, 3, 5 & 6 and Sri A.N. Mulla, Sri L.D. Rajbhar and Sri Prem Shankar Mishra, learned A.G.A. for the State and perused the entire material on record.
24. Attacking the prosecution case and the verdict of conviction, it is mainly contended that by not explaining the injuries on the person of the accused, the prosecution has suppressed the real occurrence, therefore, the accused would be entitled to be given the benefit of doubt. Further the prosecution did not examine the independent witnesses who were actually present at the time of occurrence of the incident, which casts a doubt on the prosecution case. According to the prosecution, PW-1 and PW-2 both injured eye-witnesses are interested witnesses and, therefore, their depositions cannot be relied upon by the Court. It is further submitted that even if the entire prosecution story is assumed to be correct, even then it does not constitute an offence under Section 302 IPC. In the facts and circumstances of the case, at the worst, the accused could be held guilty of an offence punishable under Section 304, Part-I, IPC. It is further submitted that the deceased had only one gun shot injury, therefore, the story that several accused armed with several weapons took part in the assault is not physically possible. Thus, it creates a specific doubt in the story of the prosecution.
25. It is further submitted that accused Kaptan Singh, Mohan Trivedi, Vimal Singh and Anirudh Singh against whom similar evidence was tendered have been acquitted. Therefore, it would not be proper and legal to convict rest of accused persons on the same set of evidence. Benefit of doubt should be given on account of co-accused's acquittal. It is further submitted that the evidence is inadequate to fasten guilt, and, therefore, prosecution cannot be said to have established its case beyond all reasonable doubt.
26. Learned A.G.A. has submitted that case of prosecution revolves around the injured witnesses P.W.1 & P.W.-2, whose testimony stands on a higher footing. He has submitted that these injured witnesses had no reason to falsely implicate the accused persons or to shield the real culprit. Learned A.G.A. argued that non explanation of injuries sustained by accused person is also not a ground to outrightly reject the evidence of the prosecution witnesses.
27. The undisputed facts are that in the alleged incident a lad of 16 years has been done to death and two persons from informants' side allegedly sustained injuries.
28. The prosecution case primarily depends upon the testimony of two injured witnesses namely P.W.-1 & P.W-2. It is not in dispute that P.W.-1 an P.W.-2 have sustained injuries in the alleged incident, which is well corroborated by the medical evidence on record and the doctor P.W.-6, who has stated that all injuries sustained by them are simple and caused by hard and blunt object could also probabilise the occurrence of incident as alleged by the prosecution. Very cogent and convincing grounds would be required to discard the testimony of the injured Witnesses.
29. Vinod Singh, who has been examined in the instant case as P.W.-1 is the first informant and is one of the injured. He in his examination in chief has deposed that incident is of 30.11.2000 at 8.00 a.m. It is deposed that at about 6.00 a.m., sons of accused Kishanpal Singh, namely, Kamal Singh and Vimal Singh were taking away forcibly the cow dung and at that time informant was standing outside his door and when objected, accused started abusing and went out and again at 8.00 a.m. accused Kishanpal, Kamal, Vishal, Aniruddh Singh, Kaptan Singh, Amar Singh, Narendra Singh and some others came there and attacked the informant. Accused Kamal Singh assaulted the informant with Barchhi at his left temporal region and on an alarm being raised by him, Hari Shanker, Randheer Singh, Anil Singh reached there and on the exhortation of accused Kishanpal Singh and Anirudh Singh, all the accused persons started firing and abusing them and also made assault upon Hari Shanker, Randheer Singh and Anil Singh. In the incident, informant Vinod Singh (P.W.-1), Hari Shankar (P.W.-2) and Anil sustained injuries. Accused Amar Singh shot at deceased with firearm which hit him in his abdomen as a result of which he fell down and thereafter succumbed to his injury. Anil was beaten by accused Kaptan Singh and Vimal. Harishanker was beaten by accused Narendra Singh and Randheer Singh was beaten by accused Kishanpal Singh.
30. In his deposition, he has specifically mentioned that accused Kishanpal was wielding Lathi, accused Kamal was wielding Barchhi, Vimal, Aniruddh, Kaptan Singh were having Farsa and accused Amar Singh and Narendra Singh were having country made pistols.
31. In the same way, P. W. 2 Hari Shanker, the second injured witness also supported the prosecution case. Both the witnesses have clearly delineated the genesis and manner of attacks. In our considered opinion, the evidence of P.Ws. 1 and 2, is credible and there is no major deviation or discrepancy.
32. A detailed and searching cross-examination has been conducted with both P.W.- 1 and P.W.- 2 yet nothing material could be extracted from them. We believe that testimony of both these witnesses is natural, consistent with normal human conduct and trustworthy.
33. Trial court has also noted that the testimony of injured witnesses is reliable and worthy of credence. It is pertinent to point out that P.W.-1 & P.W-2 both sustained injuries in the incident, therefore, their testimony cannot be rejected outrightly, especially in the light of facts that they have narrated the entire prosecution version in a trustworthy manner. If the evidence of a witness is trustworthy, reliable and worthy of credence then the court can act upon such evidence.
34. Moreover, further perusal of the evidence of these two prosecution witnesses indicates that in their testimony they have completely denied to have seen the accused having received the injuries during the course of occurrence, which as per defence are material discrepancy and renders their version doubtful. We are afraid that such discrepancies by themselves do not necessarily create doubt about the prosecution story in all eventualities. It is the nature and circumstances of the discrepancies which has to be taken into account. If there are minor discrepancies in the depositions of the witnesses, they have to be ignored for the simple reason that all witnesses cannot be expected to give depositions without minor and normal discrepancies. If the discrepancies are minor and do not affect the core of prosecution story adversely than they have to be ignored. In the case in hand where the assailants are in large numbers and the fight took place like a melee attack, then in such eventualities it could not possible for any member of either side to see as to how many persons received what nature of injuries.
35. Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh reported in JT 2011 (3) SC 508 has held as under:-
"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."
36. A similar view has been reiterated by this Court in Tehsildar Singh & Anr V. State of U.P., [AIR 1959 SC 1012]; Pudhu Raja & Anr. V. State, Rep. By Inspector of Police, [JT 2012 (9) SC 252]; and Lal Bahadur v. State (NCT of Delhi), [(2013) 4 SCC 557)]. 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.
37. Hon'ble the Apex Court in the case of Sardul Singh v. State of Haryana reported in (2002) 8 SCC 372 has observed as under:
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
38. It is, therefore, clear that the argument of the learned counsel for the appellants that the discrepancies in the depositions of witnesses indicate improvements and, therefore, testimonies of these witnesses should be discarded, cannot be accepted. In any case, no material discrepancies or contradictions have been shown by the learned counsel for the appellants.
39. So for as the another argument that the prosecution has also not explained the injuries caused to the two accused persons to say that the attack was in exercise of self-defence and the failure of the prosecution to explain injuries on the person of two accused persons is a circumstance which creates a serious doubt in the story of the prosecution.
40. It is not a case where the circumstances, even remotely, can be construed to have satisfied the ingredients of self-defence. From the record, it appears that the alleged incident took place in the early morning, when the informant was standing outside his door and at that time accused Kamal Singh and Nirmal Singh both sons of Krishna Pal Singh (village Pradhan) started taking away the cow dung forcibly, which he had forbade. There was verbal altercation between the parties, and as a result some assault took place between the parties in which a person from informant side sustained fire arm injury and died instantaneously, and some received injuries and in the said scuffle two persons from the accused side also received injuries. But the persons received injuries from defence side did not examine a single witness in their defence to prove that they were attacked by the informant side and no doubt, two accused persons were subjected to medical examination by the Medical Officer vide paper application 88 Kha-1 & 2, which has not been exhibited. This would show that two accused persons namely Kamal singh and Vimal Singh had suffered some injuries but where and how these injuries were suffered, was for them to establish, particularly when they had taken a specific stand that the complainants' side were at fault and were aggressors in their defence statement and have admitted the occurrence. It is a settled canon of evidence jurisprudence that one who alleges a fact must prove the same. It is also their case that the prosecution has not explained the injuries on their person or the same being not exhibited at the most can be said to be lapses on the part of the prosecution, and, therefore, the argument impressed upon the Court is that the failure of the prosecution to explain injuries on the person of accused is a circumstance which creates a serious doubt in the story of the prosecution. We are not impressed with this contention primarily for the reasons that when a person claims exercise of private self-defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established by the accused. Just because one circumstance exists amongst the various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of a person. Even the right of self-defence has to be exercised directly in proportion to the extent of aggression.
41. As per the medical report, which is available as paper application 88 Kha-1 & Kha-2, the injuries on the body of two accused persons were found to be `simple in nature'. On the other hand, we have a complete version of the prosecution, duly supported by two injured eye witnesses to the occurrence. The bone of contention between the parties was the lifting of cow dung forcefully by the accused persons and the verbal altercations that had taken violent turn. The prosecution story, as has been disclosed by the eye-witnesses, is trustworthy, reliable and entirely plausible in the facts and circumstances of the case. The mere fact that there is no specific explanation on record as to how two accused persons suffered injuries, would not vitiate the trial or the case of the prosecution in its entirety. Normal rule is that whenever the accused sustained injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. There is no dispute on the occurrence, time and place. Therefore, it can be said with certainty that the occurrence took place in the manner as alleged by the prosecution, which is supported with the testimony of two injured witnesses.
42. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be a sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard may be had to Rajender Singh & Ors. v. State of Bihar, [(2000) 4 SCC 298].
43. The other argument raised on behalf of the appellants is that P.W.-1 & P.W.-2 are the interested witnesses, and, their testimony cannot be relied upon in absence of corroboration of their version with any independent witnesses, and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without any substance.
44. Normally, an injured witness enjoys greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit.
45. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no longer res-integra, as has been consistently stated by Apex Court in its various pronouncements.
46. In the case of Abdul Sayeed Vs State of Madhya Pradesh [(2010) 10 SCC 259], wherein it has been held by Hon'ble Supreme Court as under:
"28. 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."
29. While deciding this issue, a similar view was taken in Jarnail Singh Vs State of Punjab, 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: (SCC pp. 726-27, paras 28-29) "28. 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. In Shivalingappa Kallayanappa Vs State of Karnataka 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.
29. In State of UP Vs Kishan Chand, 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). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised 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 inbuilt 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."
47. So far as the argument that no independent witnesses were examined despite their presence on the spot and the entire prosecution story being based upon the statements of PW1 and PW2, who are the interested witnesses, makes the entire prosecution story doubtful.
48. Again, we are not impressed by this contention, primarily for the reason that non-examination of any independent witness is not fatal to the case of the prosecution because in this case there are two injured witnesses, whose testimony is trustworthy and cogent, therefore, there is no need of examination of any independent witnesses.
49. During the course of argument, the learned counsel for the appellants also tried to take advantage of the fact that the deceased ought to have suffered a number of injuries, if seven accused along with others all armed with different weapons participated in the incident but the deceased had actually received only one fire arm injury. Thus, the story of the prosecution is highly improbabilise.
50. We have no hesitation in rejecting this argument, primarily for the reason that because besides the deceased, injured witnesses also received injuries, which are said to have been authored by the accused side.
51. At last, learned counsel for the appellants has contended that this was a fight at the spur of the moment and the conviction of the appellants could be converted into that under Section 304-I of the IPC. This argument of the appellants also cannot be accepted to the facts of the present case. In the present case, dispute did not arise at the spur of the moment as the evidence clearly shows that the accused had gone after abusing the complainant and again returned to the site in question with the preparedness to assault on the informant and others in which a young lad of 16 years has been done to death and two persons from complainant side received injuries and their injuries cannot be disputed. Even their injuries are fully corroborated by the medical evidence. Thus, on the basis of the medical and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond reasonable doubt. It is also not a case where injured witnesses can be said to be planted one.
52. We have carefully perused all the evidence on record. We are convinced that prosecution evidence is trustworthy and prosecution has brought home the guilt of all the appellants by cogent, credible and trustworthy evidence.
53. In the light of the aforesaid discussion, we do not feel that any interference is warranted. Impugned judgment of conviction is hereby affirmed. Accordingly, the instant criminal appeal is dismissed. Appellants, who are on bail, are directed to surrender immediately. Their bail is cancelled and sureties are discharged. Trial court is also directed to get them arrested and send them to jail to serve out the sentence awarded by trial court and affirmed by this judgment.
54. Let a copy of the judgment be sent to the court concerned through Sessions Judge, within fifteen days. The trial court shall thereafter report compliance within one month.
Order Date :- 04.03.2021
RavindraKSingh
[Justice Shekhar Kumar Yadav] [Justice Anjani Kumar Mishra]