Allahabad High Court
Indrapal Singh & Another vs State Of U.P. on 31 July, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 03.07.2018 Delivered on 31.07.2018 Court No. - 34 (1) Case :- CRIMINAL APPEAL No. - 2095 of 1998 Appellant :- Indrapal Singh and another Respondent :- State of U.P. Counsel for Appellant :- Gopal S. Chaturvedi, A.K. Mishra, Apul Misra, D.P. Singh, P.N.Misra, R.K. Misra, Samit Gopal, Santosh Tripathi, Udai Karan Saxena, V.K. Verma, Vishram Tiwari, Yashpal Chaturvedi Counsel for Respondent :- A.G.A. (2) Case :- CRIMINAL APPEAL No. - 2177 of 1998 Appellant :- Raj Bahadur Singh and another Respondent :- State of U.P. Counsel for Appellant :- Gopal S. Chaturvedi, Samit Gopal, Santosh Tripathi, Yashpal Chaturvedi, D.P. Singh Counsel for Respondent :- Govt. Advocate, A.K. Tewari Hon'ble Sudhir Agarwal, J.
Hon'ble Mrs. Vijay Lakshmi, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Both these appeals have been preferred against the judgment and order dated 28.09.1998 passed by Sri Ram Kishore-I, Second Additional District and Sessions Judge, Jalaun at Orai.
2. Criminal Appeal No. 2095 of 1998 has been filed by accused-appellants, Indrapal Singh and Rampal Singh @ Raja Beta, who have been convicted under Section 302 I.P.C. for committing murder of Atar Singh and sentenced to undergo life imprisonment. They have also been convicted under Section 302 read with Section 34 I.P.C. and sentenced to undergo life imprisonment for committing murder of Shivpal Singh. They have further been convicted and sentenced under section 302 read with 34 IPC to undergo life imprisonment for committing murder of Keshbhan Singh.
3. Criminal Appeal No. 2177 of 1998 has been preferred by accused-appellants Raj Bahadur Singh and Surendra Pal Singh, who have been convicted and sentenced under section 302 IPC read with section 34 IPC to undergo life imprisonment for committing murder of Atar Singh. They have also been convicted and sentenced under section 302 IPC read with 34 IPC to undergo life imprisonment for committing murder of Shivpal Singh. They have further been convicted and sentenced under section 302 read with 34 IPC to undergo life imprisonment for committing murder of Keshbhan Singh.
4. We have heard Sri Dharampal Singh, learned Senior Advocate assisted by Sri S. Niranjan, Advocate for appellants and Sri Syed Ali Murtza, learned AGA for State.
5. Broad essentials of prosecution case, as emerges from First Information Report (hereinafter referred to as 'FIR') and evidence, may be put forth. The incident took place on 22.10.1995 at about 11:00 AM in village Laharua when informant Yashwant Singh (deceased) was present near the drain (gul) below Babool Tree, adjacent to his field, known as '7 Bighas Khet' along with others. All of sudden all the accused appellants reached there. On exhortation of accused appellant Raj Bahadur Singh, accused appellants Indrapal Singh by his licensed rifle and Surendra Pal Singh by his gun, fired, and murdered Atar Singh and Shivpal Singh. When Keshbhan Singh came over there, accused-appellant Rampal Singh @ Raja Beta fired at him by his gun and murdered. Thereafter, accused appellants fled away from the spot threatening the persons present at the spot. Incident was witnessed by informant Yashwant Singh, his nephews Narendra Pal Singh and Shivpal Singh, servant Jawaharlal and Babu Singh who were standing near pumping set and tractor.
6. Report of the incident, exhibit Ka-1, was lodged at PS Kotwali, Orai, District Jalaun as Case Crime no. 817 of 1995, under section 302, 302/34 IPC. SHO Sri C.B. Singh, PW-8, was entrusted investigation who proceeded to spot along with constables Avdhesh and Ram Prasad. On the spot, he prepared Punchnama of dead bodies of three deceased i.e. Exhibits Ka-37, Ka-38 and Ka-39. After completing necessary formalities including sealing of blood stained soil, empty cartridges, preparing Phard etc, Investigating Officer (hereinafter referred to as "I.O.") sent all the three dead bodies to District Hospital for post-mortem. Thereafter usual investigation followed.
7. Autopsy on the dead bodies of three deceased was conducted by PW-4, Dr. M.C. Mittal, on 23.10.1995. Deceased Atar Singh was attended at 10.30 A.M. According to PW-4, Atar Singh was aged about 60-70 years, and about one day had passed since the death of deceased. Following ante-mortem injuries were found on his person:
(1) Gunshot wound of entry 1 cm X 1.25 X Cranial cavity deep on the back, 9 cm behind left ear near occi. Blackening, tattooing, charring are not present. Margins are inverted, abraded .
(2) Gunshot wound of exit 18x10 cm on the top and front of forehead, fracture are bones in way and margins and brain matter, right eye top of head, margins are everted.
(3) Gunshot wound of entry 1x1 cm chest cavity deep on the right side front of chest, 8 cm above right nipple at 11:00 'O clock position. Fracture of 3rd and 4th ribs, protruding right lung, lacerating Rt. Scapula joint. Absence of blackening, tattooing and charring.
(4) Gunshot wound of exit 6 x 3 cm x coin to injury no.3. on the back of right shoulder. Margins are everted.
(5) Gunshot wound of entry 1 cm x 1.25 cm x chest cavity deep on the right font of chest, 7 cm below right nipple at 6' O clock position. Margins are inverted. Absence of blackening, charring and tattooing, going towards left side penetrating medi-sternum and heart and left going to exit.
(6) Gunshot wound of exit 8 cm x 6 cm on the left side front of chest from nipple to axilla. Margins are everted. Fracture of second, third and forth rib below wound.
(7) Gutter-shaped gunshot injury on the front of medial aspect of left forearm, six cm above left wrist. Post margins sides 1/3 are inverted, rest 2/3 are everted. Size of wound 12 x 10 cm x cortex deep.
8. In internal examination, doctor found multiple fractures of left occipital, right parietal and frontal bones. Membranes were badly lacerated. Brain was missing. 200 gms of semi digested food was found in stomach. In the opinion of doctor, death was caused due to shock and haemorrhage.
9. PW 4 conducted autopsy of Deceased Shivpal Singh on 23.10.1995 at 11.15 PM and found him to be aged about 27-28 years. About one day had passed since the death of the deceased. On external examination, deceased was found to be young with good physique, his right eye was half open while left eye was invisible due to injury. Rigor mortis passed through neck and present in the body. PW 4 found following ante mortem injuries on his person:
(1) Gunshot wound of entry 1 cm x 1.25 x Cranial cavity deep on the back of head, 3 cm above and behind right ear. Margins are inverted, abraded. Absence of blackening, tattooing and charring, tracking right temporal region, parietal bone fractured.
(2) Gunshot wound of exit 10 cm. x 12 cm on the left side of face and head. Margins are everted. Loss of all bones, brain below wound. Loss of left eye; fracture of left side maxilla and frontal, orbital and parietal bones.
(3) Gunshot wound of entry 1 x 1 x chest cavity deep on the front of right side chest just below mid of right clavicle. Margins are inverted, abraded collars. Absence of blackening, tattooing and charring. Fracture of 2nd rib below wound.
(4) Gunshot wound of exit 3 x 3 cm on the back of chest, right near midline, 2 cm below neck. Margins are everted. Wound (sic) (related to) injury no.3. Fracture of 1st and 2nd rib .
(5) Gutter wound of gunshot on the front of left little finger 3 cm x 1 cm x muscle deep. Absence of blackening, charring and tattooing. Medial 1/3rd inverted and left 2/3rd are everted. Fracture of proxy meta-phalanx of little finger.
10. On internal examination doctor found brain and membranes missing due to gunshot injuries. Right lung alongwith membrane was perforated. Heart was found empty and there was about 200 gm of semi digested food in stomach. According to doctor, death was caused due to shock and haemorrhage.
11. PW-4 conducted autopsy on the dead body of Keshbhan Singh the same day at 12.05 PM. He found deceased to be aged about 37-38 years and about one day had passed since the death of the deceased. Regor mortis was passing through neck and present in the entire body. Following ante-mortem injuries were found on his person:
(1) Gunshot wound of entry 2 cm x 2.5 cm x chest cavity deep on the front of left side of chest below mid clavicle area. Margins are inverted, abraded collar. Absence of blackening, tattooing and charring. Second rib below would is fractured, piercing pleura and upper lobe of left lung going towards post side of left side chest. One deform material recovered from muscle area. Right side back near mid line and fracture of left side scapula. About 2 liter of fr. blood in left side chest casting on opposite side of trachea, fracture of 2nd and 3rd rib.
12. On internal examination, heart was found empty, left lung was perforated and cavity contained about two ltrs. of fr. blood. About 200 gms. of semi digested fixed food was found in the stomach. According to Doctor, death occurred due to shock and haemorrhage caused by ante-mortem injury on chest.
13. After receiving post-mortem report of all the three deceased, Forensic Report and recording statements of witnesses and collecting evidence etc., I.O. (PW-8, Sri C.B. Singh), submitted charge-sheet against accused-appellants under Section 302 and 302 read with Section 34 I.P.C. in the Court of Chief Judicial Magistrate, Jalaun at Orai. The case was committed to Court of Sessions on 19.01.1996.
14. All accused appeared before Sessions Court. Accused-appellants Ram Bahadur and Surendra Pal Singh were charged under Section 302/34 I.P.C. for committing murder of Atar Singh, Shivpal Singh and Keshbhan Singh. Accused-appellant Rampal Singh alias Raja Beta was charged under Section 302 I.P.C. for committing murder of Keshbhan Singh. He was further charged under Section 302/34 I.P.C. for murder of Atar Singh and Shivpal Singh. Accused-appellant Indrapal Singh was charged under Section 302 I.P.C. for committing murder of Atar Singh and Shiv Pal Singh. Further, for murdering Keshbhan Singh, he was charged under Section 302/34 I.P.C.
15. All the accused appellants pleaded not guilty and claimed to be tried.
16. Prosecution examined Informant, PW-1, Yashwant Singh (deceased); and PW-2, Narendra Pal Singh as eye-witnesses of the incident. Scribe of FIR, Shyam Babu, was examined as PW-3. PW-4, Dr. S.C. Mittal conducted autopsy of deceased. PW-5, Constable Sughar Singh and PW-6 Constable Awadhesh Kumar are formal witnesses who carried rifle, clothes of deceased, cartridges, bloodstained earth etc. to Forensic Laboratory and dead bodies of deceased to District Hospital for post-mortem. PW-7 is Constable Santosh Kumar, who registered case on the basis of FIR against accused appellants and PW-8 is Investigating Officer, C.B. Singh.
17. In his statement under Section 313 Cr.P.C. accused-appellant Raj Bahadur Singh claimed that entire prosecution story is false and he has been implicated falsely due to enmity since father of informant Yashwant Singh had deprived Yashwant Singh of his property by making a 'Will' in favour of deceased Atar Singh and the accused (Raj Bahadur Singh) was a witness against Yashwant Singh in the case filed by him.
18. Likewise accused-appellants Surendra Pal Singh, Chandra Pal Singh and Ram Pal Singh alias Raja Beta also stated prosecution story to be false and claimed to have been implicated falsely due to deposing against Informant in the matter of 'Will'.
19. After recording oral testimony and perusing material on record, Trial Court convicted and sentenced accused-appellants, as stated above.
20. Trial Court has found that there was no substantial difference in the handwriting of Scribe of FIR and that of 'Will' and FIR contains substantial information with respect to crime. Mere fact that some minor aspects are missing would not be fatal to doubt prosecution version. Similarly date, time and place of incident, the manner in which incident took place and implication of accused persons in respect of charge levelled against them have been duly proved by prosecution. Accordingly it has held accused-appellants guilty and sentence has been awarded.
21. Learned Senior Counsel argued that incident took place at 11.00 AM on 22.10.1995 and FIR was registered at 12.40 PM on the same date on the information given by Yashwant Singh, PW-1, who himself was not present at the place of occurrence and not an eye-witness. It was admitted by informant in cross examination that several aspects he has told to Sri Shyam Babu, who penned FIR which was subsequently registered, but Shyam Babu did not mention those facts and no reason could be given for the same. There are lot of variations in the statements of witnesses of facts; accused appellants were implicated due to enmity since Virendra, son of Babu Singh and Indrapal Singh were both candidates in an election and enmity developed between them on account whereof appellants were falsely implicated; witnesses named in FIR were not examined and prosecution did not prove its case beyond doubt, therefore, judgment of Court below is liable to be set aside. He further argued that there is no overt act assigned to accused-3, Surendra Pal; it is not mentioned in FIR how many fires were shot; there is a contradiction in the statements of witnesses and injuries found on the body of deceased. He heavily endeavoured to demonstrate that FIR was registered subsequently; it was not scribed by Shyam Babu and Expert Opinion adduced by appellants in defence has been disbelieved by Court below illegally and arbitrarily.
22. Learned A.G.A., on the contrary, argued that accused appellants opened fire and have been convicted with aid of Section 34 IPC, therefore individual role not assigned to accused appellants has no relevance and cannot be treated to be a vital omission to doubt prosecution version, in view of presence of accused persons on the site; ocular version is corroborated by other versions; there is no delay in FIR; all details are mentioned in G.D., Post-mortem report corroborates ocular testimony, hence accused appellants have been rightly convicted and punished.
23. Before proceeding to examine rival submissions, it would be necessary to examine relationship of appellants PW-1, PW-2 vis-a-vis three deceased and that of accused family. This relationship has been detailed by Yashwant Singh, PW-1, in his oral testimony also. Informant, Yashwant Singh, is grandson of Layak Singh. Deceased Atar Singh was real brother of Yashwant Singh and two other deceased, Keshbhan and Shivpal were nephews of Informant. PW-2, Narendra Pal is real brother of deceased Keshbhan and Shivpal and Shivpal is son of deceased Atar Singh. Family tree of eye-witnesses PW-1 and PW-2 is given as under:
Layak Singh _______________I_________________ I I Mukut Singh Raghubir Singh I I I I I I Shiv Raj Balwan Lallo I @Babu Singh Singh Singh I I I I Yashwant Singh Atar Singh (PW-1) (D-1) I I I I I I Sukh Pal Vishambhar Kushpal I @ Raja Bhaiya @ Mantoo Singh I I
1) Kesh Bhan (D-3)
2) Shiv Pal (D-2)
3) Narendra Pal (PW-2)
4) Shiv Sagar Singh
24. All the four accused comes from common ancestor, Ajgar Singh. Accused Raj Bahadur Singh (A-1) is son of Azgar Singh. Indrapal Singh (A-2) and Surendra Pal Singh (A-3) are sons of accused Raj Bahadur Singh (A-1). Fourth accused Ram Pal Singh alias Raja Beta is grandson of Budh Singh, who is real brother of Raj Bahadur Singh (A-1). Family tree of accused appellants is as under:
Ajgar Singh I I I Raj Bahadur Singh (A-1) Budh Singh I I
1) Indra Pal Singh (A-2) I I I
2) Surendra Pal (A-3) Lalji Girendra Balbir
3) Pappu I I I I I I I Munna Kallo 1) Raja Beta Raja @ Ram Pal Singh (A-4)
2) Krishna Pal
25. Learned Senior Counsel pointed out that as per FIR version, on the exhortation of Raj Bahadur, Indra Pal Singh fired at Atar Singh and Shivpal Singh causing their death. Keshbhan Singh died when Ram Pal Singh alias Raja Beta fired on him. Keshbhan Singh received injuries, fell in the field filled with water of Rameshwar Sudharwale and died. He said that Raj Bahadur's role is only that of exhortation and no role has been assigned to Surendra Pal Singh. Only presence of Surendra Pal Singh has been mentioned in FIR along with a 315 bore gun. He pointed out that PW-1 made improvement in oral testimony by stating that Raj Bahadur (A-1) was carrying a Danda in his hand; further that on exhortation by Raj Bahadur, both Indrapal Singh and Surendra Pal Singh opened fire on Atar Singh and Shivpal Singh resulting in their death. Medical report shows that there are more than one firearm injuries on the person of deceased Atar Singh and Shivpal Singh but in FIR it is not mentioned that Surendra Pal Singh also opened fire on deceased Atar Singh and Shivpal Singh. Therefore, case was improved by PW-1 in oral testimony to implicate Surendra Pal Singh, only on account of enmity between the parties on account of election. In order to show enmity between the parties and to demonstrate that FIR, as alleged by informant that on his oral version it was scribed by Shyam Babu though it was not, detailed argument was advanced to prove that Shyam Babu had not written FIR since writing did not match. In this regard, 'Will' scribed by Shyam Babu and report of Handwriting Expert was relied on.
26. In our view, enormous reliance placed by learned Senior Counsel on the fact that in FIR there is no mention that Surendra Pal Singh also opened fire and therefore ocular testimony of PW-1 and PW-2 should be taken as a subsequent improvement on the case is thoroughly misconceived. FIR is not an Encyclopedia of entire incident and is not expected to contain a minute by minute and step by step version.
27. In V.K. Mishra and others Vs. State of Uttarakhand and others (2015) 9 SCC 588, Court has observed that FIR is not meant to be an encyclopedia nor it is expected to contain all the details of the prosecution case. If the broad facts of the prosecution case are stated in the FIR, it is sufficient. With regard to conditions of mind of Informant, who is admittedly close relative of deceased, Court observed that while lodging report, such Informant must have been in great shock and mentally disturbed. Because of death of his close relative, in the present case real brother and the two sons of brother, Informant cannot be expected to keep every detail in mind while writing report being grief stricken. Many of the facts may not have occurred to him while lodging report. Unless there are indications of fabrication, prosecution version cannot be doubted, merely on the ground that FIR does not contain the details.
28. I.O. has clearly said that he recorded statement of witnesses including PW-1 under Section 161 Cr.P.C. but the same aspect were not mentioned therein. It is not a case of contradiction or omission but non mention in the statement under Section 161 but when in Court, oral testimony is given, all details are furnished and in absence of any contradiction, it cannot be said that oral ocular testimony recorded in Court is not credible enough since some information was not given in the statement under Section 161 Cr.P.C.
29. In Latesh Vs. State of Maharashtra (2018) 3 SCC 66, Court observed that value to be attached to FIR depends upon facts and circumstances of each case. When a person makes a statement to Police Officer, on the basis whereof FIR is registered, capacity of reproducing the things differs from person to person. Some people may have the ability to reproduce the things as it is, some may lack such ability. Some times in the state of shock, they may miss important details, because people tend to react differently when they come across a violent act. Merely because names of accused are not stated or their names are not specified in FIR, it may not be a ground to doubt the contents of FIR and the case of prosecution cannot be thrown out on this ground.
30. In the present case, FIR clearly mentions that Raj Bahadur Singh accompanied with other three appellants, who were carrying firearms, came to the field of informant. Surendra Pal Singh was carrying 315 bore gun. On the exhortation of Raj Bahadur Singh, firing started. Though in FIR, name of only Indrapal Singh is mentioned that he fired from his rifle upon Atar Singh and Shivpal Singh, who died immediately but medical reports verify gunshot injuries on the two persons coming from different cartridges, meaning thereby more than one weapons were used and it corroborated ocular testimony of PW-1 and PW-2 that Indrapal Singh and Surendra Pal Singh both fired on Atar Singh and Shivpal Singh and murdered them. Mere fact that name of Surendra Pal Singh is missing in FIR in respect of firing on Atar Singh and Shivpal Singh, in our view, cannot help, appellant Surendra Pal Singh. Date, time, place and the manner of death of three deceased persons is well established. As per FIR version and that of statements of PW-1 and PW-2, incident took place around 11.00 A.M. on 22.10.1995 in Village Laharua near '7 Bigha field', where Babool Tree was standing in village Laharua. The place of incident is about 7 kilometers, on west, from Police Station Jalaun. In the said incident, three persons died, namely, Atar Singh, Shivpal Singh and Keshbhan Singh. Their Autopsy reports confirmed their death on account of injuries sustained due to gunshot wounds, multiple in number so far as Atar Singh and Shivpal Singh are concerned, and a single gunshot injury so far as Keshbhan Singh is concerned. Post-mortem was conducted on 23.10.1995 at 10.30 A.M. on the body of Atar Singh, 11.15 AM on Shivpal Singh and 12.05 PM Keshbhan Singh. The possible time of death in all the three cases is mentioned about a day back, that comes to 22.10.1995.
31. None of appellants has taken any defence that they were not present at the place of incident at the time and date when the said incident is said to have taken place, but were present elsewhere. In the statement recorded under Section 313 Cr.P.C., all accused-appellants have denied every question except the one relating to witnesses as to why they have given evidence against them and why trial has been initiated and in that regard they have said that witnesses are making false deposition and proceedings are on account of enmity. They have also specified that reason behind enmity is that there was a succession dispute in respect of property of Reghubir Singh, father of Informant, who through a 'Will' gave entire property to deceased Atar Singh and in that case evidence was given against informant Yashwant Singh therefore accused appellants have been implicated falsely. This statement was given by Raj Bahadur (A-1). In other aspects, statements are similar.
32. Though statement under Section 313 Cr.P.C. is not a substantive piece of evidence, but it is also true that purpose of examining accused persons under Section 313 Cr.P.C. is to meet the requirements of principles of natural justice. Accused may be asked to furnish some explanation as regards incriminating circumstances associated with him, and Court must take note of such explanation.
33. In Dehal Singh v. State of H.P. (2010) 9 SCC 85, Court said that statement under Section 313 of Code of Criminal Procedure is taken into consideration to appreciate truthfulness or otherwise of the case of prosecution and it is not an evidence. The aforesaid statement is recorded without administering oath and, therefore cannot be treated as evidence within the meaning of Section 3 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872").
34. Similar observations were made in State of M.P. Vs. Ramesh and another (2011) 4 SCC 786 and Court further said:
"Section 315 Code of Criminal Procedure enables an accused to give evidence on his own behalf to disprove the charges made against him." (emphasis added)
35. In Rafiq Ahmed @ Rafi Vs. State of U.P. (2011) 8 SCC 300 Court said:
"It is true that the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events."
(emphasis added)
36. In Munish Mubar v. State of Haryana (2012) 10 SCC 464, Court said that accused has a duty to furnish an explanation in his statement under Section 313 Code of Criminal Procedure as regards any incriminating material that has been produced against him.
37. In the present case, we are not being solely guided by statement of appellants recorded under Section 313 Cr.P.C. but evidence on record, particularly, ocular testimony of PW-1 and PW-2 made it clear that three persons were murdered sustaining firearm injuries caused by three appellants on exhortation by fourth accused, Raj Bahadur and hence no defence by appellants on those aspects is a relevant consideration to test the veracity of prosecution case. If Surendra Pal Singh had any defence, it was always open to him to plead it but he has not pleaded, therefore this is a relevant factor to test the veracity of prosecution story with regard to Surendra Pal Singh also.
38. PW-1 and PW-2 are consistent in their ocular testimony that Raj Bahadur exhorted and thereupon Indrapal Singh and Surendra Pal Singh opened fire on Atar Singh and Shivpal Singh and both died. Hearing the firing, Keshbhan Singh, who was near water line, came to site and Raja Beta alias Rampal Singh opened fire on him causing his death. All the four assailants came together. Three of them possessed firearms and Raj Bahadur had a Danda with him. This consistent ocular version is sought to be contradicted with FIR version wherein it is not stated that Surendra Pal Singh also opened fire on Atar Singh and Shivpal Singh. Learned Senior Counsel argued that this shows that neither FIR version is correct nor the alleged oral testimony is reliable and story has been framed subsequently.
39. Informant's real brother Atar Singh and two nephews Keshbhan Singh and Shivpal Singh were murdered in broad day light. Within two hours of incident, PW-1 reached Police Station for lodging FIR. At that point of time his mental condition could not have been such so as to expect an inch by inch and step by step version in FIR. He has mentioned names of all four persons. Three of them were having firearms in their hands, i.e., Surendra Pal Singh, Indrapal Singh and Raja Beta. Individual role in a matter where more than one person have opened fire as to who killed whom is not required. Minor discrepancies in FIR version and oral testimony cannot be treated vital so as to demolish prosecution case. Therefore, we find no substance in the above argument.
40. It is also argued that both witnesses are relatives and not independent witnesses therefore their testimony is not credible. In our view, the submission is thoroughly misconceived. Law in this regard is that mere relationship of a witness with the deceased or complainant cannot be enough to discredit his defence.
41. In Dalip Singh Vs. State of Punjab AIR 1953 SC 364 in para 26 of the judgment, Court said:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." (emphasis added)
42. The above decision has been followed in Guli Chand V. State of Rajasthan (1974) 3 SCC 698.
43. In Masalti vs. State of U.P. AIR 1965 SC 202, Court held:
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses...... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
44. In Israr Vs. State of U.P. (2005) 9 SCC 616, rejecting the concept of discarding a witness on the ground of relationship, Court in para 12 of the judgment, held as under:
"...... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible." (emphasis added)
45. As said by Bentham, the witnesses are eyes and ears of justice. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility and must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness box; their power of observation.
46. Thus, mere relationship of PW-1 and PW-2 cannot be a reason to discredit their otherwise well corroborated and credible evidence merely on the the ground of relationship.
47. Moreover, when a relative gives evidence, his endeavor would be to get the real culprit punished and not to unnecessary involve a person, who is not guilty of any offence.
48. We are conscious of the fact that in a case of criminal liability, an accused cannot be punished unless his guilt is proved beyond reasonable doubt. An accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. Law does not permit a Court to convict an accused merely on suspicion or on the basis of preponderance of probability. However, the principle of proof beyond doubt cannot be stretched to improbability or impossibility. Whenever it is held that evidence is sufficient to prove the guilt beyond doubt, any individual person with ingenious mind can always question and there is nothing which can convince everybody. Here requirement is that reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt.
49. We may also reiterate hereat that in every Trial, normal discrepancies are bound to occur due to gap of time between the date of incident and depositions of witnesses in the Court. It is only when contradictions are so serious and create doubt in the mind of Court about truthfulness of statement, such evidence is not safe to rely upon but mere contradictions or some omissions despite otherwise weighty evidence duly corroborated cannot be allowed to prevail, so as to give an undue benefit to an accused by relying on the proposition of proof beyond doubt.
50. It is then contended that there are certain lapses on the part of I.O., but suffice is to mention that minor lapses on the part of I.O. will not help accused-appellants in any manner, unless such lapses affect core of prosecution. Even the factum whether FIR was actually scribed by Shyam Babu or not, in our view, per se will not render prosecution case, incredible or unbelievable, for the reason that an ghastly and henious act causing death of three persons at the particular point of time would have affected mental condition of persons present there. Even the normal functioning of persons get effected and it may cover even handwriting also. So long as we do not find any material defect in FIR version, which is substantially corroborated by eye-witnesses and other material on record, merely for the reason that there was some lapses on the part of I.O., prosecution story cannot be thrown away.
51. In State of Karnataka Vs. K. Yarappa Reddy (1999) 8 SCC 715, Court said:
"... investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
52. In the later part of judgment, Court said:
"The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions."
53. Following the above dictum, in V.K. Mishra and others Vs. State of Uttarakhand and others (supra), Court said:
"The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions."
54. In Krishnegowda and others Vs. State of Karnataka (2017)13 SCC 98, Court said:
"It is settled law that mere laches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record."
55. As per G.D., I.O. along with other Police personnel and staff proceeded for site of incident from Police Station at 12.40 PM. He could come back at around 9.30 in Police Lines. Panchayat-Nama was prepared on spot, i.e. Ex. Ka-37, Ka-38 and Ka-39. From the site itself, blood stained clothes, empty cartridges were also recovered. On these aspects learned Senior Counsel could not point out any discrepancy and therefore date, time and place of incident, we find, are duly proved by evidence on record. All the accused were arrested on 25.10.1995. A licensed Rifle and five live cartridges were also recovered from the possession of Indrapal Singh.
56. In respect of all those aspects, despite opportunity, accused-appellants also offered no evidence in support of their statements under Section 313 Cr.P.C. and this aspect is relevant to test the truth of prosecution case, which is overwhelmingly supported by ocular version and other evidences like medical examination report etc. Hence, it cannot be said that conviction of appellants by Court below is erroneous or that appellants have been punished without proving the case beyond reasonable doubt.
57. In view of above discussion and finding no material discrepancy in the prosecution story, we are clearly of the view that Court below has rightly held appellants guilty of committing offence under Section 302 and 302/34 I.P.C., as already detailed above. We find no reason to take a different view in the matter.
58. Both the appeals lack merit. Dismissed.
59. The appellants in both these appeals are on bail. They shall be taken into custody forthwith and shall be lodged in jail to serve out their sentence of life imprisonment.
60. A copy of this judgment be sent to Trial Court by Fax for immediate compliance. The Lower Court's record be also sent back alongwith a copy of this judgment.
Dt. 31.07.2018 PS