Allahabad High Court
Kalp Narain vs State Of U.P. on 2 May, 2016
Author: Surendra Vikram Singh Rathore
Bench: Surendra Vikram Singh Rathore
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment reserved on 18.04.2016 Delivered on 02.05.2016 Case :- CRIMINAL APPEAL No. - 97 of 2011 Appellant :- Kalp Narain Respondent :- State Of U.P. Counsel for Appellant :- R.N. Shukla,Maneesh Kumar Singh,Rishid Murtaza,Udai Pratap Singh Counsel for Respondent :- Govt. Advocate alongwith Case :- CRIMINAL APPEAL No. - 292 of 2011 Appellant :- Shivkaran Shukla Respondent :- State Of U.P. Counsel for Appellant :- Diwakar Singh,Farooq Ayoob,Mukesh Shukla,Ram Saran Awasthi Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL No. - 144 of 2011 Appellant :- Kalp Narain Respondent :- State Of U.P. Counsel for Appellant :- R.N. Shukla,Udai Pratap Singh Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Anil Kumar Srivastava-II,J.
(Per Anil Kumar Srivastava-II,J.)
1. Sri Maneesh Kumar Singh and Farooq Ayoob, learned counsel for the appellants and Mrs. Madhulika Yadav, learned Additional Government Advocate for the State were heard at length.
2. All the three criminal appeals i.e. [Criminal Appeal No.97 of 2011- Kalp Narain V. State of U.P.], [Criminal Appeal No.292 of 2011-Shivkaran Shukla V. State of U.P.] and [Criminal Appeal No.144 of 2011-Kalp Narain v. State of U.P.] arise out of the same judgment, therefore, the same are being disposed of together.
3. Criminal Appeal No.292 of 2011 has been preferred by appellant Shivkaran Shukla, Criminal Appeal No.97 of 2011 has been preferred by appellant Kalp Narain Sharma challenging their conviction under Section 302 IPC while Criminal Appeal No.144 of 2011 has been preferred by the appellant Kalp Narain Sharma challenging his conviction under Arms Act.
4. Under challenge in these criminal appeals is the judgment and order dated 24.12.2010 passed by learned Additional Session Judge, Court No.4, Barabanki in Session Trial No.456 of 2005 arising out of Case Crime No.104 of 2005 and Session Trial No.458 of 2005 arising out of Case Crime No.119 of 2005, Police Station Ram Sanehi Ghat, District Barabanki whereby the appellants Shivkaran Shukla and Kalp Narain Sharma have been convicted for the offence under Section 302 IPC and were sentenced with imprisonment for life and also with fine of Rs.20,000/- each, with default stipulation of one year's additional rigorous imprisonment.
5. Appellant Kalp Narain Sharma was further convicted for the offence under Section 25 of Arms Act and was sentenced to undergo rigorous imprisonment for a period of three years' and also with fine of Rs.5000/-, with default stipulation of three months' rigorous imprisonment.
6. All the sentences were directed to run concurrently.
7. In brief, the case of the prosecution was that the complainant Ram Abhilakh who happens to be the father of the deceased Raj Kumar lodged an FIR at Police Station Ram Sanehi Ghat, District Barabanki on 05.03.2005 at 20:45 hours alleging therein that on that day at about 7.30 p.m. he, his son Ram Kumar, Raj Kumar and Krishna Kumar alongwith one Mansha Ram, Sunil Kumar and Raj Kumar son of Nanhkau were sitting at their shop at Bhanupur crossing and were talking together. At that time, in the nearby liquor shop, Pawan Kumar Dubey, Shivkaran, resident of village Jarauli, Police Station Asandra, District Barabanki and Kalp Narain Sharma resident of Dhanauli, Police Station Asandra alongwith one unknown person came and purchased liquor from salesman Shiv Kumar Yadav. When salesman demanded the price of the said liquor then these persons started abusing him and threatened him with dire consequences. Son of the complainant Raj Kumar and other persons seeing such behaviour of the accused persons went there and intervened as to why they are behaving in such a manner. Feeling annoyed by this intervention, Pawan Kumar Dubey and Shivkaran with their countrymade pistols fired on Raj Kumar, Kalp Narain Sharma and the second unknown person forcibly took his son injured Raj Kumar on his motorcycle Suzuki Max 100 bearing Registration No.U.P. 41-C-6001 and Pawan Kumar Dubey and Shivkaran ran away from there on their motorcycle Hero Honda C.D. Dawn bearing Registration No.U.P. 41-E-4696 firing in the air and extending threats of dire consequences. This highhanded behaviour of these culprits continued for about 20 minutes and because of the firing the shopkeepers closed the shutters of their shops and the persons present in the market anyhow managed to run away towards their houses and an atmosphere of terror was created in the market and law and order situation disturbed badly. Thereafter the complainant side, after gathering courage, started search of Raj Kumar. When these persons reached the canal culvert then the body of his son Raj Kumar was found in the canal. Leaving the dead body there the complainant got the FIR of this case scribed by Raj Kumar son of Nanhkau and lodged the same at the police station.
8. After registration of the case, investigation proceeded and inquest proceedings were conducted on the body of the deceased which started at 6.30 a.m. on 06.03.2005 and concluded at 8.30 a.m. The place of occurrence where the incident had taken place and where the body was recovered, were inspected and separate site plans were prepared. On 06.03.2005 the police also recovered the two motorcycles which were used in the crime by the accused persons. Two empty cartridges were also recovered from the place where the dead body was found. Blood stained and plain earth were also taken into custody by the police and its memo was prepared. Blood stained shirt of accused Pawan Kumar Dubey was recovered from his house in the presence of his father Ram Kripal Dubey and a separate memo was prepared. During course of investigation, the accused persons Pawan Kumar Dubey (absconding) and Kalp Narain Sharma were taken on police remand and on their pointing out on 17.03.2005 during 1.00 p.m. to 1.15 p.m. the weapons of offence were recovered and separate memo was prepared. On the basis of which Case Crime No.118 and 119 of 2005 under Arms Act were registered against these two accused persons. The place of occurrence of recovery of motorcycle and recovery of weapon of offence was inspected and its site plans were prepared.
9. After the inquest proceedings the dead body was sent for postmortem which was conducted on 06.03.2005 at 3:00 p.m. and duration of death was reported to be about one day old. Following ante-mortem fire arm injuries were reported by the doctor:-
(1) Fire arm injuries 3 cm x 3 cm x abdominal cavity deep, lacerated wound with inverted margins and blackening around the wound on right side of abdomen 18 cm below right nipple.
(2) Multiple abrasions wounds on left side of chest in an area of 8 cm x 7 cm x skin deep below 3 cm from left nipple.
(3) Lacerated wound 7 cm x 3 cm x bone deep on occipital region of skull.
(4) Lacerated wound 3 cm x 3 cm x brain deep on top of head 5 cm interior and above injury no.3.
(5) On opening the echomoises was present and 101 metallic pellets and one wadding piece was also recovered which were sealed and sent to police. 1.5 liter of blood with fluid was found in the abdominal cavity.
In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of of ante-mortem fire arm injuries.
10. As per the postmortem report, the small intestine was having digested food and gases and in the large intestine fecal matter and gases were present. In the stomach pasty food was found.
11. During investigation the unknown appellant was identified as Dablu @ Siddh Narain Mishra and after completing the investigation police filed charge-sheet against four accused persons including the appellants.
12. One accused Pawan Kumar Dubey absconded during trial and did not appear before the court even after attachment, so his case was separated by the learned trial court vide order dated 19.08.2010 after exhausting the process to procure his presence in accordance with law.
13. The defence of the accused persons that emerges from the suggestion given to the witnesses and also from their statements under Section 313 Cr.P.C. was of total denial. Kalp Narain Sharma has stated that the witnesses of fact are giving false evidence and remaining witnesses have given evidence as they belong to the police department. It was stated by the appellant Shivkaran Shukla that he was having enmity with Chaitu Yadav of his village and they were not on talking terms. However, he could not say as to why he has been named in this offence. Accused Dablu @ Siddh Narain Mishra who was acquitted by the learned trial court had taken a defence that Ramesh Yadav of his village was the father-in-law of the brother of the deceased and he heard in his village that in the market during loot the brother of his son-in-law has been murdered. Thus it was suggested that murder was committed in the market by unknown culprits.
14. In order to prove its case, the prosecution has examined PW-1, the complainant Ram Abhilakh, PW-2 Ram Kumar Yadav son of complainant, PW-3 Krishna Kumar, another son of complainant, as witnesses of fact, PW-4 Panchu Prasad has been examined to prove the recovery memos of the motorcycles and the other articles taken into custody by the police, PW-5 Constable Sankata Prasad, who has prepared the chik report of offence under Section 25 of Arms Act, PW-6 S.I. Surendra Nath Tiwari was a witness of recovery under Section 27 of the Indian Evidence Act, PW-7 Tehzeeb Askari, Judicial Assistant he has proved the sanction given by District Magistrate for prosecution of appellant Kalp Narain Sharma under Arms Act, PW-8 Nanhkau is a witness of inquest proceedings, PW-9 Head Constable, Ram Chandra Arya who has prepared the chik report of this offence and in his presence G.D. of this case was prepared by Sankata Prasad which has also been proved by this witness, PW-10 Constable Bhupendra Singh, who has prepared the inquest report under the supervision of the Investigating Officer, PW-11 Dr. M.P. Tripathi, who has conducted the postmortem on the body of the deceased, PW-12 S.O. Surendra Nath Rai has investigated this case, PW-13 Constable Santosh Verma, the carrier of recovered property to Forensic Science Lab, PW-14 Shanker Saran Pathak the Investigating Officer of the case under Arms Act and PW-15 Dinesh Kumar Yadav an independent witness on the point of recovery under Section 25 Arms Act.
15. As CW-1 Komal Singh has been examined who has proved the attachment of property of accused Pawan Kumar Dubey so his evidence is not the least material for the purpose of this appeal.
16. In defence as DW-1 Shivkaran has been examined who has stated that he had heard that younger brother of Ram Kumar had gone to market for purchase where the culprits had committed loot and he was shot there. He heard this fact from other person. When he inquired about this fact from the father-in-law of Ram Kumar then he told him that such information is correct. He has also stated that about 5 months prior to this incident some quarrel had taken place between Ramesh Yadav and Siddh Narain Mishra because buffaloes of Ramesh Yadav had damaged the paddy crop of Siddh Narain due to which quarrel had taken place. When Siddh Narain was taking the buffaloes to the Kaanji house (a place where vagabond animals are kept) the quarrel started. The matter was informed to the police. Subsequently he says that such incident had taken place about 5-6 years prior to the incident. So his evidence is only hearsay and other part of the evidence of this witness shows that it relates to acquitted Siddh Narain Mishra, so it is not material for this appeal.
17. After appreciating the evidence on record, the trial court convicted the appellants as above, hence the instant appeal.
18. Submission of the learned counsel for the appellants was that the learned trial court has not properly appreciated the evidence on record. The origin of the FIR was doubtful. No blood was found on the shirt or on the motorcycle on which injured was taken by Kalp Narain. The deceased was forcibly taken away on motorcycle but none of the motorcycle rider sustained blood stains in their clothes while the clothes of Pawan Kumar Dubey were found to be blood stained who was sitting on another motorcycle and the blood was also found on the bank of canal. It is submitted that time of death also appears to be doubtful keeping in view the stomach contents as reported by the doctor. It has also been argued that the evidence of Nanhkau a witness of inquest by itself shows that the entire prosecution story was false but all these factors were not properly appreciated by the learned trial court which has rendered its judgment unsustainable under law. He has also argued that on the basis of the same evidence co-accused Dablu @ Siddh Narain has been acquitted and his acquittal has not been challenged. He has also argued that in this case all the three witnesses of fact are closely related to the deceased and they are chance witnesses. No independent witness of the vicinity could be examined by the prosecution in support of its case. On these grounds, it is argued that the prosecution has failed to prove its case beyond reasonable doubt and these factors were not properly considered by the learned trial court which has rendered its judgment unsustainable under law.
19. Learned Additional Government Advocate has submitted that the learned trial court, by a well reasoned judgment, has rightly convicted the appellants and he has considered all these points which have been pressed into service in the instant appeal. It has also been argued that in the present day world, people avoid to become a witness of a crime so the evidence of the witnesses of fact whose presence was natural on the place of occurrence cannot be discarded only on the ground that the independent witnesses have not been examined. He has further submitted that Nanhkau was only witness of inquest so his evidence can only adversely affect the preparation of the inquest proceedings and on the basis of his statement the otherwise reliable testimony of the three eyewitnesses, which stand fully corroborated by the medical evidence and also by the other recoveries made by the police, cannot be discarded. Hence the appeal has no force.
20. Perusal of the prosecution evidence shows that PW-1 the complainant, PW-2 Ram Kumar and PW-3 Krishna Kumar were present at the place of occurrence. It is an established fact that the deceased was running a petty grocery shop in the village market. The said shop also find mention in the site plan prepared by the Investigating Officer. The evidence of the three eyewitnesses has been criticized on the ground that they are natives village Mohilaura and the incident has taken place in the market at Bhanupur Chauraha. So their presence was not natural and they are chance witnesses.
21. Submission of the learned counsel for the appellants is that PW-1 Ram Abhilakh is the father of the deceased and the remaining two witnesses are the real brothers of the deceased and no independent person of the vicinity has comeforward to support the case of the prosecution. It is an admitted fact situation that three witnesses of fact are family members of the deceased and no independent person has been examined by the prosecution. It has also been argued that the salesman of the liquor shop from whose shop the appellants have taken the liquor and have not paid its price was the best witness but he has been withheld by the prosecution.
22. While appreciating the evidence the court cannot ignore the ground realities. In the present day world, people avoid to become a witness to a crime as they consider it as a civil dispute between the two parties. This apathy of the public is a great hurdle in the administration of criminal justice. The reasons for such apathy of the public are well known. No one wants to invite the enmity of the accused persons because still no effective mechanism exists to ensure safety of the witnesses of a crime.
23. On this point reference may be made to the pronouncement of Hon'ble Apex Court in the case of Jarnail Singh V. State of Punjab reported in 2011 Cr.L.J. 1738, Hon'ble Apex Court has observed that the reluctance on the part of the villagers is neither strange nor unbelievable. Generally people belonging to the small village would not unncessarily want to create bad relations or enmity.
24. In another case Appa v. State of Gujarat reported in AIR 1988 SC 698 Hon'ble Apex Court observed that "Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused".
25. Therefore, the evidence of the witnesses in the facts of the instant case cannot be discarded simply because of the reason that the independent witnesses have not come forward to support the case of the prosecution. At this stage, we would like to discuss legal position regarding evidentiary value of a related witness--
26. Reliance has also been placed on the pronouncement of Hon'ble the Apex Court in the case of Anil Phukan v. State of Assam reported in (1993) 3 SCC 282. In the said case, the legal point considered by Hon'ble the Apex Court was the evidentiary value of single eyewitness and has observed as under:-
".....Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in to and no amount of corroboration can cure that defect...."
In the aforesaid case, in the following paragraph Hon'ble the Apex Court has also observed as under:-
"........In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime."
(Underlined by us)
27. Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC pg 433 had held in paragraph no.34 as under:-
"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar V. State of Punjab, (2003) 11 SCC 367, Brathi v State of Punjab (1991) 1 SCC 519 and Alagupandi v State of T.N. (2012) 10 SCC 451."
17. In a recent judgment in the case of Gurjit Singh v State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative.
28. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under:-
"16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under:-
We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:-
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 relative 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." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness.
A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-
6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in [(2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under:-
"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."
Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
Hon'ble Apex Court in the case of Mano Dutt and Another Vs. State of Uttar Pradesh reported in (2012) 4 SCC 79 had again occasion to consider this aspect and has observed in para 32 as under:
"Another argument with regard to the appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in view of the discussion made above, we are of the considered view that the prosecution has been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten."
29. Hon'ble Apex Court because of such apathy of the public has repeatedly held that non-examination of independent witness would by itself be not a ground to discard the evidence of the witnesses on which the prosecution has placed reliance provided their testimony is found reliable.
30. Reference may be made on this point and the pronouncement of Hon'ble Apex Court in the case of case of Shiv Ram and Anr. vs State of U.P. reported in 1998 1 SCC Pg 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.
31. Thus the evidence of the witnesses of fact cannot be discarded on the ground that salesman has not been examined. The salesman of a liquor shop, was a petty employee. So his conduct not to come forward to support the case of the prosecution in the facts of the instant case would not give rise to any adverse inference against the prosecution.
32. The evidence of PW-1, PW-2 and PW-3 clearly shows that all of them have fully supported the case of the prosecution and they have stated that the dispute arose at the liquor shop and hearing the cries, first of all the deceased rushed towards the liquor shop and he was followed by the other witnesses and on the intervention of the deceased, accused Pawan Kumar Dubey and Shivkaran fired on the deceased and thereafter the accused persons forcibly took the deceased on one motorcycle and on another motorcycle others ran away from the place of occurrence. The registration numbers of the two motorcycles were also mentioned in the FIR and the same were recovered by the police from an Arhar field in the same night. PW-1 has stated that out of two fires, one fire hit the deceased at the place where the incident started and immediately thereafter he was taken on the motorcycle. The evidence has been criticized on the ground that the deceased has received several fire arm wounds while according to the evidence of witness only one fire arm wound has hit the deceased while two fires were shot at that place. It is true that prosecution has come with a definite case that two fires were shot at the place of incident but the complainant has stated that one fire has hit the deceased and thereafter the deceased in injured condition was taken away from the place of occurrence. The possibility that one fire might not have hit the deceased at that time, cannot be ruled out.
33. The evidence of these eyewitnesses is also criticized on the ground that PW-8 Nanhkau has stated that after getting the information of this incident he had gone to the place where the dead body was recovered. Admittedly this witness was only the witness of inquest proceedings and as per the documentary evidence the inquest proceedings were conducted on the place where the dead body was found but eyewitnesses have stated that from the place of occurrence the dead body was brought to the market where incident had taken place and from there it was taken to police station where the documents were prepared. Learned counsel for the appellants has laid great stress on the statements of this witness wherein he has stated that the complainant and the witnesses of this case had also reached the place where the dead body was lying, they started crying and on the strength of this sole sentence it has been urged that the evidence of all the three eyewitnesses must be discarded and learned trial court has committed illegality in relying upon the evidence of the three eyewitnesses. It is a settled principle of appreciation of evidence that the evidence of witnesses has to be appreciated keeping in view their own evidence. Simply because other persons were examined on other point and they say that eyewitnesses were not present at the scene of occurrence is no ground to disbelieve their evidence. Even otherwise these witnesses are not witness of any incident that took place at canal culvert where from dead body was recovered. The evidence of a witness of fact can be discarded only when he is found to be not reliable or when his presence on the scene of occurrence becomes doubtful on the basis of his own evidence or on the basis of other circumstances. In the instant case it is established that the deceased had a shop at the place of occurrence and PW-1 the complainant, Ram Abhilakh is the father of the deceased and the other two witnesses are his real brothers. It is alleged that they were sitting at their shop. The evidence has to be appreciated keeping in view the village life of our country. In rural areas as there is no other source of entertainment and it is a common practice that several persons assemble at one place and pass their time in conversation with each other. So if in the instant case the brothers and father of the deceased were sitting at their own shop in the market then their presence cannot be doubted. It is not an unnatural conduct. They had sufficient reason to be present there in the market as they were having their own shop. So in view of the evidence of PW-8 Nanhkau the evidence of all the three eyewitnesses cannot be discarded.
34. It has also been argued that according to the evidence of the complainant only one fire hit the deceased and no blood was found on the place of occurrence. It is true that no blood was recovered by the police from the place of occurrence where incident started and the witnesses have stated that they have not seen any blood on the place of occurrence. Postmortem shows that fire arm injury has caused internal damage. Such internal damage must have caused internal bleeding. This fact finds supports from the postmortem wherein 1.5 liters blood mixed fluid was found in the abdominal cavity. The prosecution has come with a definite case that the accused persons took Raj Kumar on motorcycle and because of the fear the complainant chased after some gap and during search of the deceased his dead body was found under the culvert. So what happened after disappearance of the appellants after initial incident, cannot be stated by any witness. The evidence of three eyewitnesses is to the effect that all three accused persons took the deceased with him and soon thereafter his dead body was recovered. So there is evidence of last seen and absolutely no explanation has come forward from the side of the appellants as to where they parted with the company of the deceased. It was burden on the accused persons in view of Section 106 of the Indian Evidence Act to explain as to where they parted with the deceased. On this point reference may be made on the pronouncement of the Hon'ble Apex Court in the case of Suresh and another Vs. State of Haryana reported in (2015) 2 SCC 227, Hon'ble Apex Court has observed in para 9 as under:-
9. Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan Vs. Jaggu Ram.
(emphasis added by us)
35. At this juncture, we would like to quote the pronouncement of Hon'ble the Apex Court in the case of State of Rajasthan Vs. Kashi Ram reported in [(2006) 12 SCC 254], Hon'ble Apex Court in paragraph-23 has held as under:--
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. (emphasis added)"
36. In the case of State of Rajsthan (supra) in paras 23 and 24 the Hon'ble Apex Court has held that on the basis of last seen if, reliable failure of the accused to offer reasonable explanation would be enough to complete the chain of circumstantial evidence, we can gainfully reproduce these paras, which read as under:
"There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. "
37. So what happened after the disappearance of the accused persons from the place of occurrence alongwith Raj Kumar in injured condition was only within the knowledge of the appellants themselves and complainant side had absolutely no knowledge of the same as to what happened thereafter. The complainant side has made no effort to become a witness of the subsequent event and they have come with clean hands that they found the dead body near the culvert. The police has also recovered two empty cartridges and also blood from the place where the dead body was recovered. So these facts shows that some more injuries were caused by firing on the deceased, therefore, blood and empty cartridges were found on that place.
38. Learned counsel for the appellants has vehemently argued that the manner in which the incident is alleged to have been taken place, there was absolutely no occasion for finding any blood on the shirt of Pawan Kumar Dubey because he was sitting on the other motorcycle but as stated earlier the complainant side was not aware of the happenings that took place after the disappearance of the accused persons with Raj Kumar. So how Pawan Kumar Dubey sustained blood stains on his shirt was known to him only and we cannot take any adverse inference against the prosecution for its failure to explain the reasons for such blood stains on the shirt of Pawan Kumar Dubey who has absconded during trial.
39. Learned counsel for the appellants has also argued that the witnesses have stated that the deceased had taken his last meal in the morning and there is evidence of the doctor that pasty material was found in the stomach. This argument, in our considered opinion has absolutely no force. Statement of the witness shows that he has stated that the deceased has taken his last meal in his house in the morning. It does not mean that the deceased while he was present at his shop during whole day he had not eaten anything in such a long period. So in the facts of the instant case, the opinion of the doctor was not of such nature which can give rise to any adverse inference against the case of the prosecution. It is settled view that the medical opinion of the doctor can be considered fatal to the prosecution only when it is of such a nature that it completely falsifies the case of the prosecution. While in the instant case, the evidence of the doctor is not of such nature. Apart from it, it has been held by the Hon'ble Apex Court that the contents of stomach of the deceased are not always determinative test and no absolute rule of useful application can be made out in this regard. On this point reference may be made on the pronouncement of Hon'ble Apex court in the case of Jitendra Kumar V. State of Haryana reported in (2012) 6 SCC 204 and reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Bhim Singh V. State of Haryana reported in (2002) 10 SCC 461.
40. Here we would also like to quote certain pronouncements of Hon'ble Apex Court regarding the value to be attached with the medical evidence. At this juncture, we would like to discuss the law on the point as to what value should be attached to the medical evidence when the same is contrary to the ocular testimony of the witnesses. In the case of Umesh Singh Vs. State of Bihar reported in (2013) 4 SCC 360, Hon'ble the Apex Court has occasioned to discuss the law on the aforesaid point. In the said judgment, Hon'ble the Apex Court has quoted the relevant part of its earlier judgment in the case of Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259, the relevant paragraphs read as under:-
"33. In State of Haryana v. Bhagirath reported in AIR 1999 SC 2005 it was held as follows:
15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.
34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'.
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent Assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
21. ...... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
36. In Solanki Chimanbhia Ukabhai v. State of Gujarat reported in 1983 (2) SCC 174 this Court observed:
13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
(emphasis added)
41. In the instant case, the prosecution has also proved with reliable evidence the recovery on the pointing out of the appellant. Appellant Kalp Narain Sharma was taken on police remand alongwith Pawan Kumar Dubey and on their pointing out recovery of weapon of offence was made which has been duly proved by the eyewitnesses and also by the police witnesses.
42. Learned counsel for the appellants has also drawn our attention towards some minor contradictions emerging in the evidence of the eyewitnesses but minor contradictions are bound to occur even in the evidence of most natural and reliable witnesses. Because power to observe a thing and to express the same in his own words, particularly in the rustic witnesses, differs from person to person. They have limited vocabulary to express the things in their own words. Apart from it, they describe the incident as it made impact on their mental canvas. So law considers minor contradictions as small pebbles on the road of justice which does not obstruct the prosecution to reach its goal. Only those contradictions are material and are obstruction to the success of prosecution which goes to the root of the case. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh and others reported in (2011) 4 SCC 324 wherein Hon'ble Apex Court 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 done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tehsildar Singh & 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.""
43. In view of the discussion made above, after careful scrutiny of the evidence, we are of the considered view that the argument of learned counsel for the appellants to disbelieve the evidence of all the three eyewitnesses has no substance. There is a voluminous evidence against the appellants that they have committed this offence. Their evidence stands corroborated by the medical evidence. The learned trial court has properly appreciated the evidence on record and has rightly convicted the appellants.
44. Accordingly these appeals have no force deserve to be dismissed and are hereby dismissed.
45. Office is directed to communicate this order forthwith to the court concerned to ensure compliance and to send back the lower court record.
Order date: 2nd MAY, 2016 PAL (Anil Kumar Srivastava-II, J.) (S.V.S. Rathore, J.)