Allahabad High Court
Sukhlal vs State Of U.P. on 29 May, 2014
Bench: Amar Saran, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- CAPITAL CASES No. - 2533 of 2011 Appellant :- Sukhlal Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Zafar Abbas Counsel for Respondent :- A. G. A. Hon'ble Amar Saran,J.
Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Mrs. Sunita Agarwal,J.) In this capital appeal the appellant has challenged the judgment and order dated 25.3.2011/30.3.2011 in the Sessions Trial No. 46 of 2002 passed by the ADJ-II, Kaushambi. The appellant was convicted and sentenced to death under Section 302 IPC with the fine of Rs.10,000/-. The death reference no. 7 of 2011 was also sent by the trial Court for confirmation.
The prosecution case is that the FIR dated 18.9.2001 was lodged by Natthu Lal son of Sarju Prasad at about 20:30 hours. Averments in the FIR are that on 18.9.2001 at about 6:20 P.M. the informant with his two sons namely, Subhash and Suresh were returning after easing themselves near the pond, when they reached near the shop of one Rajendra Gupta, the appellant Sukhlal opened fire on them by his DBBL licenced gun. The fire struck his son Subhash and they ran towards the house of one Nanku Yadav to save their lives. They raised an alarm as a result of which the villagers reached the spot and challenged appellant Sukhlal. He ran away carrying his gun. After a few minutes, the informant alongwith Ram Bhawan, Ram Naresh, Sukesh, Mittal Singh Yadav and Suresh Yadav left for the hospital for treatment of injured Subhash. The informant and Ram Bhawan were on one cycle, Ram Naresh and Sukesh were on another and injured Subhash and Suresh Yadav were on pillion of the motorcycle of Mittal Singh Yadav. When they reached near the first 'Pulia', the appellant Sukhlal stopped them and opened indiscriminate firing with his DBBL gun threatening them that he would not allow them to lodge the report. The fire struck Sukesh and Ram Naresh who died on the spot. Hearing the noise of gunshots and screams of the deceased, some villagers reached the spot. They challenged Sukhlal who ran away firing. At the time of second incident near 'Pulia', the informant and others witnessed the incident in the torch light and head light of the motorcycle. The informant reached the police station to lodge the FIR leaving the dead bodies of Sukesh and Ram Naresh at the place of incident.
The prosecution case is that three murders were committed by the appellant and he opened indiscriminate firing upon the informant and his two sons near the shop of Rajendra Gupta with an intention to eliminate them. However, the fire struck one of them namely Subhash. Dissatisfied, he again trapped them and killed two persons on another spot near the village. The prosecution has examined the witnesses of fact PW-1 Natthu Lal, informant and PW-2 Ram Bhawan father of deceased Ram Naresh. The formal witnesses are PW-3 Constable V.D. Mishra, the witness of the inquest; PW-4 Dr.S.M.M. Naqvi is the doctor who conducted the post mortem on the dead body of Ram Naresh; PW-5 Ram Kumar is the scribe of the check FIR lodged on the basis of written report given by Natthu Lal and made entries in the G.D; PW-6 is Dr. R.P. Shukla who conducted the post mortem on the dead bodies of Sukesh and Subhash; PW-7 Narendra Kumar Singh. is the investigating officer.
The defence has examined two witnesses in support of their case namely Mittal Singh Yadav as DW-1 and Rajendra Prasad as DW-2. The statement under Section 313 Cr.P.C. of the appellant was recorded on 30.10.2007. The appellant in his statement under Section 313 Cr.P.C. took the plea of alibi and stated that on the date of the incident he was on duty at the Electric Crematorium, Shankarghat, Nagar Nigam, Allahabad.
The recovery memo of blood stained and plain earth from the spot of second incident near the dead body of Sukesh was prepared and marked as Exhibit Ka-25. Twelve 'Khokhas' (empty cartridges), out of which 11 "Shaktiman" and one of Indian Ordinance Factory, were recovered from the place of second incident scattered at the link road kept in one bundle was marked as Exhibit Ka-26. The bloodstained and plain earth from the second place of incident near the dead body of Ram Naresh was recovered and marked as Exhibit Ka-27. An old Atlas bicycle 24 inch bearing no. BJ 94-2348 on which Ram Naresh and Sukesh deceased were going, belonged to Sukesh was recovered from the place of second incident. One torch of Natthu with three cells was also taken into custody. Both the articles were exhibited as Ext. K-28. One damaged torch "Geep" by bullets with 5 Eveready cells was found near the dead body of deceased Ram Naresh and exhibited as Exhibit Ka-29. The appellant was arrested on 26.9.2001 carrying murder weapon DBBL Gun No. 19538-94 loaded with two red cartridges of Indian Ordinary factory by the Investigating Officer Narendra Kumar Singh and his team. The licence of the gun was recovered from the possession of the appellant. The licence was valid upto 31.12.2002. The murder weapon and cartridges were sealed and marked as exhibit Ka-32.
Ante mortem injuries on the body of Ram Naresh are as follows:-
1) Firearm wound of entrance 1"x1" over and anteriort to right nipple. Blackening and tattooing present on wound.
2) Firearm wound of entrance 1"x1" x muscle deep left side of right shoulder. Blackening and tattooing present.
3) Firearm wound of entrance 2"x2"x cavity deep over on abdomen 6" to umlicus right side. Blackening and tattooing present.
4) Firearm wound of entry on right limb muscle deep outer lateral 4" below antero-superio illiac spine. Blackening and tattooing present.
5) Firearm wound of entry 1"x1" on right thumb and index finger was ruptured. Blackening and tattooing present.
6) Firearm wound of entry 1" x'1" over back side of left palm in which blackening and tattooing were present, wound of exit 1-1/2" x 1-1/2" over left palm, wadding found at wound of exit.
7) Wound of exit 1"x1"x cavity deep 6" above left ante upper illiac spine.
8) Wound of exit margins inverted 1"x 1" over 2 cm posterio illiac crest.
Ante mortem injuries on the body of Sukesh are as follows:-
1) Firearm wound of entrance 2"x1" oval shaped over anterior region left elbow joint and wound of exit 1" x 1" over inner side of left lower arm 2" above from left elbow joint. Blackening and tattooing present around wound of entry.
2) Firearm wound of entry 1"x1"x cavity deep resent over left mid axillary 6" below from left axillary. Blackening and tattooing present.
3) Firearm would of entry 1-1/2"x 1-1/2"x cavity deep on epigastrium(front) 6" above umbilicus. Blackening and tattooing present.
4) Firearm wound of entry 1-1/2"x1-1/2" x cavity deep on left side of abdomen laterally 4" above pubic symphysis(left side).Blackening and tattooing present.
5) Firearm wound of entry 1-1/2" x 1-1/2" x cavity deep 2" above from injury no. 4. Blackening and tattooing present.
6) Firearm wound of entry 1-1/2" x 1-1/2"x cavity deep present in between two scapula nearer to left upper middle interio scapula. Blackening and tattooing present.
7) Firearm wound of exit 1"x1" superior upper medially end of right scapula, margins everted.
8) Firearm wound of exit 1"x1" right scapula lateral upper side 2" distance from injury No. 7 margins everted.
9) Contused abrasion with blackening of size 1" x1" over left gluteal region.
Ante mortem injuries on the body of Subhash are as follows:-
1) Multiple wound of entry of pellets of firearm at the area of 18"x16" over back side of chest extends from upper scapula(left) to lumber-2 region-left posterior axillary line to interior dorsal of right scapula (collar of abrasion) present around wound of entrance.
2) Wound of entrance of 2 pellets and firearm over left supera clavicular region at the area of 3"x1" collar of abrasion present.
3) Lacerated wound over first and second distell phalanx over dorsal side of toe of left foot covering whole dorsal surface clotted blood presnet.
4) Lacerated wound of sixe 0.5"x0.5" over middle side of first phalanx of toe(right) clotted blood present.
The cause of death of the three deceased given in the post mortem reports was Shock and Hemorrhage as a result of ante-mortem firearm injuries.
The Ballistic report dated 22.5.2002 of Ballistic Laboratory, U.P. Mahanagar, Lucknow shows that the 12 Bore cartridges marked as E.C.7 and E.C.-11 were fired from the murder weapon. The 12 bore cartridges marked as E.C.-4, E.C.-6, E.C.-8 and E.C.-9 did not tally with the murder weapon. With respect to the 12 Bore Cartridges marked as E.C.-1, E.C.-2, E.C.-3, E.C.-5 and E.C.-10 and E.C.-12, no definite opinion could be formed.
Sri Zafar Abbas, learned counsel appearing on behalf of the appellant submits that the prosecution version is improbable as per their own case. His first argument is that there was no source of light at both the places of incidents. Regarding the place of first incident, the statement of PW-2 Ram Bhawan is that he had witnessed the incident in the light of the bulb. However, no source of light has been mentioned either in the site plan or in the report of the Investigating Officer. Regarding second place of incident the statements of PW-1 and PW2 were that they had seen the incident in the torch light and head light of motorcycle is unbelievable in view of the prosecution case that the appellant had fired indiscriminately. In the case of indiscriminate firing, there was no chance of having any eye witness. Thus, it can be safely concluded that no one had seen the incident and the statements of PW-1 and PW-2 claiming themselves to be eye witnesses, are not truthful & trustworthy.
He further submits that the presence of PW-1 and PW-2 at both the place of occurrence is doubtful. There are contradictions in the statement of both the witnesses. PW-1 Natthu Lal stated in his cross-examination that he was the first one to enter in the house of Nanku Yadav and Suresh and Subhash entered after him. Whereas as PW-2 Ram Bhawan stated that Subhash did not enter in the house of Nanku Yadav. Further the statement of PW-1 that the motorcycle was being driven with the same speed as of the bicycle is unbelievable, and there was no reason for driving the motorcycle with such a speed as Subhash was injured badly.
He laid much emphasis on the statement of the owner and driver of the motorcycle Mittal Singh Yadav who was examined as DW-1. He has stated that DW-1 denied having witnessed both the incidents of firing. DW-1 though admitted that he took the injured Subhash on his motorcycle to the Police Station Karari. However, he has stated that he went via a short cut route near 'Nahar' and reached the Police Station Karari, where, a letter was given by the police for the treatment of injured Subhash. He accompanied Subhash to Manjhanpur Hospital in a tempo and the doctor declared Subhash dead. Suresh, the elder son of Natthu Lal informant was with him when he went to Manjhanpur Hospital from the police station. DW-1 brought the dead body of Subhash back to the police station from the hospital where he was informed by the Station Officer that two murders took place in the village.
DW-1 is the scribe of the FIR. This fact is also submitted by the informant in his statement.
Further submission of the learned counsel for the appellant is that from a perusal of the expert report, the statements of witnesses of facts i.e. PW-1 and PW-2 and the formal witness i.e. Investigating Officer PW-7, it is evident that no one had seen the actual assailant. The statements of the witnesses are not corroborated with the expert's report. The expert report shows that the cartridges found on the spot do not tally with the alleged murder weapon which belonged to the appellant. There is no material evidence available on record to connect the appellant with the alleged crime. The appellant has been falsely implicated on account of enmity by the informant. Regarding the murder of the father of the appellant the Session trial was pending at the relevant point of time in which the informant and his sons were named accused. There was no motive of the appellant to commit the crime as his father was murdered about ten years ago prior to the date of the incident and no quarrel or any other incident occurred between the parties for a period of ten years. In view of the same, it cannot be inferred that the appellant had committed the crime to take revenge. The Court below had illegally convicted and sentenced the appellant being swayed away by the fact that three persons were brutally murdered in the village. The appellant in his statement recorded under Section 313 Cr.P.C. stated that he was on duty at the Electric Crematorium, Shanker Ghat, Allahabad. The prosecution has failed to produce any record to fortify the said fact and the Court has also not examined the same. No independent witness was examined, though it has come in the statement of PW-1 and PW-2 that several villagers reached the spot of the incidents.
He further submits that there are contradictions in the medical evidence and the statement of the witnesses, as blackening and tattooing were found on the person of the three deceased. Learned counsel for the appellant submits that in the opinion of the doctor blackening and tattooing can occur in the case of firing from a distance of about 3 ft., but the statement of PW-1 is that the appellant fired at deceased Subhash from a distance of 7-8 paces and Sukesh and Ram Naresh from 3-4 'Latha'. One 'Latha" is about 8 ft. Therefore, it is clear that the distance was about 24-32 ft. Thus the postmortem report and the statement of doctor do not support the prosecution case.
Lastly, it was contended by the learned counsel for the appellant that no blood stained earth was collected by the Investigating Officer from the first place of incident. The statement of PW-1 and PW-2 are contradictory to each other and their presence is highly doubtful. In view thereof, the appellant is entitled for the benefit of doubt, as the evidences produced by the prosecution are not cogent and reliable.
Learned AGA, on the other hand, submits that in the present case, there was a prompt FIR as it was lodged on the same day soon after the incident had occurred. Apart from the eye witness account, circumstantial evidences are also there to connect the appellant with the crime. The presence of eye witnesses at the time and place of incident is natural. There is no reason to disbelieve the version of these witnesses only on account of the fact that they are related witnesses. Certain discrepancies in the statement of the witnesses infact inspire confidence that they are not tutored rather their version is true and reliable. The statement of PW-1 is fully corroborated from the averment in the FIR lodged on the date of incident. As the weapon recovered from the possession of the appellant is a licenced weapon, therefore, it cannot be said that the said weapon has been planted by the police and has not been recovered at the time and date given by the prosecution. The ballistic report supports the prosecution case that two empty cartridges recovered from the place of incident were fired from the murder weapon which belongs to the appellant. The recovery memo has been signed by the appellant and copy of the same has also been given to him. In the present case, four pieces of wadding, two metal pieces were found from the body of Ram Naresh whereas four pieces of wadding and two metal pieces were found from the chest of Sukesh and 15 small metallic pallets were found from the body of Subhash in the post mortem. The injuries sustained by the deceased are typical gun-shot injuries. The presence of wadding, metal pieces and pallets on the body of deceased clearly shows that DBBL gun was used in the commission of the crime.
He further submits that so far as blackening and tattooing are concerned, injuries noted in the post mortem report and the evidences of doctors are clearly consistent with the version of eye witnesses. Some inconsistencies relating to distance from which the gun shot was fired,are there in the medical report and the statement of eye witnesses but that would be of no significance in view of the fact that the use of DBBL is fortified from the ballistic report and further from the evidence of two witnesses. So far as injury no. 3 and 4, i.e. lacerated wound of the deceased Subhash is concerned, it is submitted that it has come in the evidence of the eye witnesses that after sustaining the gun shot injuries the deceased Subhash while running away fell down on the ground before entering in the house of Nanku Yadav. It is quite possible that the lacerated wound were sustained by the deceased Subhash for the above reason.
Learned AGA further submits that the conduct of the accused in the present case is to be seen. The accused had absconded after the incident and was arrested only on 26.9.2001 i.e. nine days after the incident and the murder weapon was recovered from his possession. The motive of the crime is well established. The same could not be disputed by the appellant.
So far as plea of alibi taken by the appellant in his statement recorded under Section 313 Cr.P.C. is concerned, the burden was upon the appellant to prove the same. He has failed to produce evidence in support of his version. It is well settled that the plea of alibi is to be proved by the person who has taken the same and not by the prosecution. The appellant had ample opportunity to prove the same but failed to do so.
On the question of sentence, learned AGA submits that three gruesome murders were committed by the appellant in deliberate and diabolic manner. There was no suspicion at all. It was a pre-planned murder of three persons. The appellant left no stone unturned and chased the victims. The said fact is proved from the circumstances that he opened fire at the informant and his two sons when they were coming back after easing themselves. They ran away and the appellant thought that they were saved, then he again stopped them, opened indiscriminate firing in which two persons namely Sukesh and Ram Naresh died on the spot. The death reference is to be confirmed by this Court.
Having heard learned counsel for the parties and after perusal of the record, it may be seen that PW-1, the informant was an eye witness to the incident. His statement- in-chief was recorded on 7.1.2005 and he was cross-examined by the defence for a sufficient period i.e. on 7.1.2005, 24.1.2005,15.2.2005 and 1.3.2005. His cross-examination continued on 1.3.2005, 9.9.2005 and 30.9.2005.Lastly, this witness was again recalled on 11.9.2009 and was cross-examined by the defence.
On several suggestions given by the defence, the statement of this witness was consistent with regard to the place and manner in which the incident had occurred. PW-1 in his cross-examination stated that on the date of incident he alongwith Subhash left his house at 7:00 A.M. and had gone to the District Court, Allahabad for doing pairvi in the case of murder of the father of appellant Sukhlal. They attended the Court and were there till 2:30 P.M. After that, they left the Court and reached the bus stand. They boarded the bus at about 3 P.M. and reached Pipra Jamalpur crossing around 4:30 p.m. which is one and a half kms. away from their house. It took about 20 minutes to reach the house. After an hour, they went to ease themselves near the pond. By the time they went to ease themselves the sun was set and it was dusk. He further stated that the shop of Rajendra Gupta lies between his house and the pond where he had gone to ease himself alongwith his two sons. Narrating the incident, PW-1 stated that while they were returning, Suresh and Subhash were behind him. As they were crossing the shop of Rajendra Gupta, the appellant fired at them, which struck at the back of Subhash. The appellant was at a distance of 6-7 paces. They raised alarm and entered the house of Nanku Yadav to save themselves. By that time, Nanku, Mittal Yadav, Shiv Mohan, Ram Bhawan and other villagers reached the spot. The appellant immediately ran away. They came out of the house of Nanku Yadav. Then Subhash was helped to sit on the motorcycle of Mittal Yadav and Suresh held injured Subhash. When they reached near first 'Pulia', he saw the appellant firing at Sukesh and Ram Naresh who were on bicycle, and by that time the deceased Sukesh and Ram Naresh had reached second 'Pulia'. The appellant opened indiscriminate firing at the informant and other persons. They hid themselves in the paddy fields alongwith three persons who were on motorcycle. After the villagers reached the spot of second incident, the accused ran away. He had seen empty shells lying on the spot. From the place of second incident he reached the police station and stayed there for about 10-15 minutes. It took about half an hour to reach the Police Station Karari. Thereafter he went to the hospital for the treatment of Subhash. As soon as he reached the hospital, the doctor declared Subhash dead.He stayed in the hospital for about five minutes and returned back to the police station around 10-11 P.M. He stayed in the police station for the whole night. He was investigated around 8:00 A.M. on 19.9.2001. PW-1 has refused the suggestion of defence that the appellant did not commit the murder.
A perusal of the statement of this witness shows that he was consistent throughout his examination-in-chief and in cross-examination held on several dates. There is no reason to doubt the statement of this witness PW-1.
PW-2 Ram Bhawan, father of the deceased Ram Naresh was examined on 18.11.2005. He was cross-examined on various dates by the defence and lastly on 23.9.2009, when he was recalled he stated on fresh oath that the appellant Sukhlal was alone at the time of first and second incidents. The murder was committed by Sukhlal with his gun. There is no inconsistency about the two places of incidents in the statement of PW-1 and PW-2 who were eye witnesses of both the incidents of firing. The statement of PW-2 is also consistent regarding the fact that they reached the police station soon after the second incident. He also stated that he remained at the police station for the entire night.
Thus, having examined the statement of PW-1 and PW-2, witnesses of fact, we find that though there are minor discrepancies in the statement of these witnesses of facts, however, there is no reason to disbelieve them.
Now coming to the submission of the learned counsel for the appellant that two witnesses of fact are related witnesses and therefore, their statements are not reliable and trustworthy. This apart, as the deceased Subhash was accused in the murder of father of the appellant and therefore, the informant having enmity with the appellant has falsely implicated him.
Dealing with the said submission, it may be seen that PW-2 Ram Bhawan, father of Ram Naresh had no concern with the murder case in which the informant and his sons were accused for murder of father of the appellant at the relevant point of time.
In our opinion, it would be difficult to accept that the informant and PW-2 whose sons have been murdered would leave the real assailant and involve some other person. In so far as the related witness is concerned, in Dayal Singh and others vs. State of Uttaranchal reported in (2012) 8 SCC 263, the Apex Court in paragraph 14 and 15 has observed that law relating to the interested witness is well settled, according to which the version of an interested witness cannot be thrown. The Court has to examine it carefully before accepting the same. Paragraph 14 and 15 of Dayal Singh (supra) are quoted below:-
14. This Court has repeatedly held that an eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness.
15. The Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7 SCC 759] took the following view :
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23- 24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
In view of the said proposition of law, this Court proceeds to examine the evidence of PW-1 and PW-2 who have been termed as related and interested witnesses. From a careful perusal of the testimony of PW-1 and PW-2, we find that the evidence of PW-1 and PW-2 is clear and categorical in respect of their presence at the scene of two incidents. Their presence is found to be natural and their testimony remain unshaken throughout lengthy cross-examination. There is no discrepancy in so far as the manner in which both the incidents had occurred. Their version also find corroboration from the statement in the FIR. There is no reason to disbelieve these two witnesses. We may also record that it is not necessary for the prosecution to examine all the witnesses. The prosecution is under obligation to examine only those witnesses who can unfold the prosecution story and who can throw light on the prosecution case. PW-1 and PW-2 are witnesses of fact and have been cross-examined by the defence at length as has been discussed above.
We may also note that the appellant accused also belongs to the same village. In view thereof, other witnesses who were present at the scene of occurrence might not have come forward to give their testimony. It is of common knowledge that in many cases independent witnesses do not come forward. But the same cannot be a factor to discard the testimony of witnesses who were present at the scene of occurrence.
In so far as submission of the learned counsel for the appellant that there was no source of light and the appellant could not have been identified by the prosecution witnesses PW-1 and PW-2 and the name of the appellant has come on account of enmity between the parties. It may be seen that there is no discrepancy in the statement of witnesses of fact regarding place, time and the manner in which both the incidents of murder had occurred. PW-2 Ram Bhawan while narrating the first incident categorically stated that he had witnessed the incident in the bulb light. There were bulb fitting on the eucalyptus tree and an electric pole was on 'Kharanja'. He saw the informant and Sukesh entering in the house of Nanku. He was at the distance of 10-15 paces when the accused fired at Subhash. PW-2 also stated that Sukhlal, the appellant had fired at Subhash from a distance of 6-7 paces and only one bullet had struck Subhash. Though the source of light is not shown in the site plan, yet the testimony of PW-2 that there was sufficient source of light, cannot be said to be unworthy of credence. Regarding the source of light at the second place of incident both the witnesses Natthu and Ram Bhawan had stated that they were going on one bicycle while Ram Naresh and Sukesh were on another bicycle. The bicycle on which Ram Naresh and Sukesh were going was 20-22 paces ahead of them and was being pedalled by Sukesh. The appellant opened indiscriminate firing when Ram Naresh and Sukesh had crossed second 'Pulia'. The appellant and other persons who were on the spot, they hid themselves in the field taking side of motorcycle and cycle which was at a distance of about 8 paces. They witnessed the incident in the torch light and headlight of the motorcycle. When the appellant was firing they raised alarm and villagers had reached. The appellant ran away with his gun. PW-1 had categorically stated in the cross-examination that the appellant Sukhlal was alone at both the place of incidents and only he had fired. Thus, the contention of learned counsel for the applicant that there was no source of light at the two places of incidents is not worthy of acceptance.
Further, submission of learned counsel for the appellant is that there are variations in the oral testimony of both the witnesses. Having examined the statement of both the witnesses, we find that there are only minor variations in the statements of PW-1 and PW-2. Infact, these variations inspire confidence of the Court as they show that these witnesses are natural and not tutored witnesses. As discussed above, these two witnesses were subjected to cross-examination for over a long period of time. In such cases, there is possibility of witnesses committing mistakes but the same cannot be termed as omission.
A reference may be made to the judgment of the Apex Court in State of Rajasthan Vs. Teja Ram and others (1999) 3 SCC 507 wherein discrepancy in the evidence as between two sets of witnesses was considered. The Apex Court in paragraph 18 of the judgment has held that there was little justification for the High Court for blowing up such a mote discrepancy to the size of a mountain and then to reject the whole evidence by depicting it as a material discrepancy. In the said case, the discrepancy in the evidence of two sets was that two witnesses said that assailants were seen going out from the western gate of the house while other two witnesses said that assailants went out through the eastern gate. It was held that in the circumstances of the case, no adverse inference can be drawn against such witnesses.
In the case of Appabhai and another Vs. State of Gujarat, 1988 (Supp.) SCC, 241, the Apex Court in paragraphs 13 and 14 of the judgement has held that minor discrepancies to the testimony should not be given undue importance. The injured victim, the victim assaulted must be considered as the best eye-witness. Paragraphs no. 13 and 14 of the judgement are quoted as under :-
"13.On the second contention, the learned Counsel highlighted many of the contradictions in the evidence of Devji (PW-4) as against his previous statement ; one recorded by the Executive Magistrate (Exh. 66) and another by the police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed :
This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
"14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, M.P. Thakkar, J. observed :
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.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
There is no discrepancy in the statement of two injured witnesses and even if there are minor discrepancies between the narrations of the witnesses when they speak on details, unless contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety."
After careful examination of statement of both witnesses, we do not find that there is discrepancy in the statements of witnesses on the basis of which their testimony can be discarded.
Further submission of the learned counsel for the appellant is that as per the report of FSL, 12 Bore cartridges found on the spot do not tally with the murder weapon i.e. the licenced DBBL gun of the appellant. As far as the expert evidence is concerned, it is well settled that expert's evidence prevail over the ocular evidence, if the same is trustworthy. Possibility of some variations in the expert and ocular evidence cannot be ruled out. In case, there are minor variations and where the eye witness account is found credible and trustworthy, the expert's opinion pointing to alternative possibility may not be accepted as conclusive. The Court is rather not absolutely guided by the expert. The Apex Court in Dayal Singh (supra) observed in paragraph 37 that:-
"37.Profitably, reference to the value of an expert in the eye of the law can be assimilated as follows:
"The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence."
In Madan Gopal Kakkad vs. Naval Dubey and another reproted in 1992(3) SCC 204 in paragraph 34, the Apex Court had observed that a medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
Thus, having discussed the law laid down by the Apex Court, we find that the Courts are not absolutely guided by the report of the experts, especially when the report is not conclusive.
In the present case, we find that as per the report of FSL, 12 empty cartridges were sent for examination, out of which two cartridges namely, E.C.-7 and E.C.-11 tallied with the DBBL gun of the accused. Regarding four cartridges, the report is that they were not fired from the murder weapon. For the remaining cartridges, report is that no definite opinion could be formed.
In view thereof, we find that no definite opinion could be formed by the Ballistic Expert with regard the cartridges found on the spot. The eye-witness version is that the appellant was alone and he had fired at both the place of incidents. The testimony of both the eye witnesses remained consistent during the lengthy cross-examination by the defence. There is no reason to disbelieve. The testimony is reliable and credit worthy.
In view thereof, we find that from the expert's report that it cannot be inspired that some other person has committed the crime.
In so far as motive is concerned, the same is clear and established from the facts brought on record. PW-1 categorically stated that on the date of incident, he went to the District Court in the morning as that was the date fixed in the District Court in the case of murder of father of the accused. In the said case, deceased Subhash was named accused. PW-1 alongwith Subhash returned to the village just few hours before the first incident. It is also noteworthy that the accused opened fire at Subhash which struck him and he hid himself to save his life. When Subhash was being taken to the hospital on the motorcycle alongwith the informant and other persons, the accused appellant stopped them on the way and started indiscriminate firing to eliminate them. The circumstances clearly point out strong motive for commission of the crime.
After having extensively, critically and minutely gone through the evidence adduced in this case, we have no doubt in our mind that it was the accused who had committed the crime. The standard of proof required to convict a person on the circumstance is well established by a series of judgments of the Apex Court. The circumstances relied upon in support of conviction must be fully established and the chain of evidence furnished by those circumstances must be complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. We fully concur with the judgment of the Sessions court which has correctly appreciated the evidence and documents adduced in this case and found that the guilt of the accused is proved beyond doubt.
Sentence Now on the question of sentence it remains to be decided as to whether this case falls in the category of rarest of the rare cases, justifying capital punishment.
In the case of Shankar Kisan Rao Khade Vs. State of Maharashtra reported in (2013) 5 SCC 546, the Apex court has considered its earlier judgements and observed that after striking the balance between aggravating and mitigating circumstances and other factors like the young age of the accused, possibility of reformation, lack of intention to murder consequence to rape etc. have gone into the judicial mind for converting the death penalty to that of imprisonment for life. In paragraph 106 of the said judgement, the Apex Court observed that-:
"A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include:
(1) the young age of the accused (Amit v. State of Maharashtra aged 20 years, Rahul aged 24 years, Santosh Kumar Singh aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit v. State of Uttar Pradesh aged 28 years);
(2) the possibility of reforming and rehabilitating the accused ( in Santosh Kumar Singh and Amit v. State of U.P. the accused, incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.);
(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of U.P.);
(5) a few other reasons need to be mentioned such as the accused having been acquitted by one the Courts (State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and Santosh Kumar Singh);
(6)the crime was not premeditated (Kumudi Lal, Akhtar, Raju and Amrit Singh);
(7) the case was one of circumstantial evidence (Mansingh and Bishnu Prasad Sinha).
In one case, commutation was ordered since there was apparently no "exceptional" feature warranting a death penalty (Kumudi Lal) and in another case because the Trial Court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput)."
In paragraph 142 it has been observed that the decisions of the Apex Court clearly suggest that the Apex Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying the formula laid down in Bachan Singh Vs. State of Punjab reported in 1980 (2) SCC 684.
In Bantu Vs. State of M.P. reported in 2001(9) SCC 615 the Apex court commuted death sentence awarded to the accused to that of imprisonment for life. The accused was 22 year old man who had committed rape and murder of six years old child. It was acknowledged that the rape and murder was heinous but the Apex Court took into account that the accused had no previous criminal record and that he would not be a grave danger to society at large. On this basis, the death penalty was converted to life imprisonment. In Amit Vs. State of Maharastra reported in 2003 (8) SCC 93 the death penalty awarded to the accused for the rape and murder of an eleven year old child was converted to imprisonment for life for the reason that he was young man of 20 years when the incident occurred. He had no previous record of any heinous crime and there was no evidence that he would be danger to the society. Similar view has been taken by the Apex Court in Surendra Pal Shivbalakpal Vs. State of Gujarat reported in 2005(3) SCC 127; Rahul Vs. State of Maharastra reported in 2005 (10) SCC 322; Amrit Singh Vs. State of Punjab reported in (2006) 12 SCC 79.
In the instant case, there is nothing on record to suggest that the accused had previous history of any heinous offence and he would be danger to the society.
There is every likelihood of the appellant being reformed. Thus, we modify the death sentence awarded by the trial court to imprisonment of life. The accused would be considered for remission or premature release under the guidelines for all purposes i.e. under the Jail Manual etc. or even under Section 433-A Cr.P.C.
On the above discussion, we uphold the judgment of the trial court dated 25.3.2011 convicting the appellant Sukhlal. The reference for confirmation of death sentence is rejected.
With the above modification, the appeal is dismissed.
Order Date :- 29.5.2014 P.P.