HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 633 of 2011 Appellant :- Surendra @ Chhotu (Jail Appeal) Respondent :- State Of U.P. Counsel for Appellant :- Jail Apeeal,K N Mishra Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Pratyush Kumar,J.
(Per Surendra Vikram Singh Rathore, J.)
1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the lower court record.
2. Under challenge in this appeal is the judgment and order dated 18.2.2011 passed by learned Additional Sessions Judge, Court No. 2, Gonda in Sessions Trial No. 15 of 2008, arising out of Case Crime No. 675 of 2007, Police Station Kotwali Nagar, District Gonda whereby appellant Surendra alias Chhotu was convicted for the offence under Sections 302 and 307 I.P.C. and he was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of six months additional imprisonment and further he was sentenced with rigorous imprisonment for a period of ten years and also with fine of Rs. 10,000/- with default stipulation of six months additional imprisonment respectively. Both the sentences were directed to run concurrently.
3. In brief the case of the prosecution was that Km. Puja, who happens to be the daughter of deceased Raja Ram, lodged an F.I.R. on 19.10.2007 at 4:30 a.m. at Police Station Kotwali Nagar alleging therein that his father Raja Ram was a teacher in Kendriya Vidyalaya, Gonda. She and her brother Manoj Kumar were studying in the Kendriya Vidyalaya, Gonda and were living on rent in Mohalla Badgaon in the house of Ram Pratap Singh for the last 4-5 years. In another house, which was situated across the road, appellant Surendra alias Chhotu son of Rajaram Kori lived with his family, who wanted to solemnize marriage with the complainant. The father of the complainant and her family members were against this marriage. Because of this enmity, in the intervening night of 18/19.10.2007 at about 2:00 a.m., appellant Chhotu armed with knife (Chhura) came to the house of the complainant and attacked her father with kinfe (Chhura). On the cries of her father, she and his brother, got up and made an effort for the rescue of their father Raja Ram. Then they were also attacked by knife and these they sustained injuries. Accused ran away from there. Hearing the cries, several persons of the vicinity reached there and with the help of these persons, Raja Ram was taken to District Hospital, Gonda where he was declared dead. Thereafter F.I.R. of this case was lodged. On the basis of this information, the case was registered. Inquest proceedings were conducted and the dead body of Raja Ram was sent for postmortem, which was conducted on 19.10.2007 and following ante mortem injuries were found on the body of the deceased:-
(i) Punctured wound 2 c.m. x 0.5 c.m. x cavity deep on left side upper abdomen 17 c.m. below left nipple.
(ii) Punctured wound 2 c.m. x 0.5 c.m. x cavity deep 18 c.m. below left nipple and 7 c.m. outer to injury no. (i)
(iii) Punctured wound 2 c.m. x 0.5 c.m. x cavity deep on left side abdomen 3 c.m. outer to injury no. (ii)
(iv) Punctured wound 2 c.m. x 0.5 c.m. x bone deep on back of left forearm, 10 c.m. below elbow.
(v) Punctured wound 2 c.m. x 0.5 c.m. on front of left knee.
(vi) Punctured wound 2 c.m. x 0.5 c.m. x cavity deep on left side back of chest 4 c.m. below left scapula.
(vii) Punctured wound 2 c.m. x 0.5 c.m. x cavity deep right side lower abdomen back near mid-line.
4. On opening abdomen multiple punctured wound in small intestine four in number were found. Arota was punctured and one litre blood was present in the abdominal cavity.
Cause of death was hemorrhage and shock as a result of ante mortem injuries on the body.
Injured Manoj Kumar was examined on 19.10.2007 at 3:55 a.m. and following injuries were reported by the doctor on his person:-
(i) Incised wound 8 c.m. x 1 c.m .x muscle deep on right shoulder joint.
(ii) Incised wound 4 c.m. x 1 c.m. x muscle deep on right side chest 6 c.m. below the right nipple.
(iii) Incised wound 20 c.m. x 0.5 c.m. x bone deep on the frontal of right forearm.
(iv) Incised wound 4 c.m. x 1 c.m. x bone deep on the frontal left forearm
(v) Incised wound 5 c.m. x 2 c.m. on left forearm just below elbow joint.
(vi) Incised wound 6 c.m. x 3 c.m. x muscle deep on left upper arm below the elbow.
(vii) Incised wound 6 c.m. x 1 c.m. x muscle deep on the outer aspect of left side chest.
(viii) Multiple incidsed wounds in an area of 8 c.m. x 5 c.m. x muscle deep on the lower back.
In the opinion of the doctor, injury nos. (iv) (v) and (iii) were kept under observation. X-ray was advised. The injuries were opined to be caused by sharp edged object and duration was fresh.
Km. Puja was medically examined on the same day at 3:50 a.m. and following injuries were found on her person:-
(i) Incised wound 4 c.m. x 1 c.m. x muscle deep left side of fact below earlobe.
(ii) Incised wound 7 c.m. x 6 c.m. x muscle deep on back of left shoulder joint.
(iii) Incised wound 4 c.m. x 3 c.m. x muscle deep on top of left shoulder joint.
(iv) Incised wound 3 c.m. x .5 c.m x muscle deep on right side palm, 3 c.m. below wrist joint.
In the opinion of doctor, injuries were caused by sharp edged weapon. Injury no. (i) was kept under observation.
5. During investigation, on the pointing out of the appellant, who was arrested on 26.10.2007, weapon of assault was recovered from his house. Perusal of the record shows that the same was sent to Forensic Science Laboratory. However, no forensic science laboratory report is on record.
6. After completing the investigation, charge sheet was filed.
7. The case of the defence was that some unknown thieves have committed this offence and because of the enmity of the landlord with the appellant, on the instigation of landlord, he had been falsely implicated. However, no such enmity has been pleaded by the appellant in his statement recorded under Section 313 Cr.P.C.
8. In order to prove its case, the prosecution has examined PW-1 complainant Puja, daughter of the deceased. PW-2 Manoj Kumar, son of the deceased. PW-3 Kolai, a formal witness of inquest. PW-4 Dr. Javed Hayat, who has medically examined PW-1 Km. Puja and PW-2 Manoj Kumar. This witness has also proved the postmortem report prepared by Dr. V.K. Kaushal as secondary evidence because of the death of doctor V.K. Kaushal. PW-5 S.I. Sanatan Upadhyay, Investigating Officer of this case and PW-6 Constable Mohd. Ali, who has prepared chik report and G.D. of this case.
9. Three court witnesses were examined on 4.6.2009 on the point of age of the appellant and the appellant was not held to be a juvenile, therefore, the evidence of these witnesses is not relevant, so far as the present appeal is concerned.
10. No evidence in defence was adduced on behalf of the appellant.
11. After appreciating the evidence on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.
12. Submission of learned counsel for the appellant is that in the instant case, the medical examination of the two injured persons, namely, PW-1 Km. Puja and PW-2 Manoj Kumar took place before registration of the case, so the origin of the F.I.R. becomes doubtful. The initial information, on which the police came into action, has been withheld by the prosecution. It has also been argued that prosecution could not succeed in proving the motive of the appellant to commit this offence. Both the witnesses are the related witnesses. The existence of light on the place of occurrence was also doubtful. The stair case where-from the appellant is alleged to have come to the place of occurrence and is alleged to have run away after committing the offence, was so narrow that it was not possible for him to go through it, while other persons were also coming from the said stair case. The Forensic Science Laboratory report of the recovered weapon of assault is not on record, which gives rise to an adverse inference against the prosecution. Learned counsel for the appellant has also drawn our attention towards certain contradictions, which have come in the evidence of two eyewitnesses and on the strength of these contradictions, it is submitted that the evidence of these two witnesses was not reliable and the trial court has committed illegality in recording the conviction of the appellant.
13. Learned A.G.A. has submitted that the judgment of the trial court is well reasoned. The appellant is the sole accused in this case and there is not even whisper of suggestion that the complainant side had any enmity with the appellant to justify his false implication. It is further submitted that on the telephonic information given by the landlord of the house, the police reached and had taken the injured to hospital. When Raja Ram died thereafter F.I.R. was lodged at 4:30 a.m. i.e. only after two hours and thirty minutes of the occurrence. The minor contradictions in the evidence of the witnesses are bound to occur. Both the witnesses were of tender age. PW-1 Km. Puja was aged about 15 years at the time of incident and PW-2 Manoj Kumar was aged about 16 years at the time of incident. Both the witnesses have specifically stated that they have witnessed the incident in the light of electric bulb. Learned trial court has considered all the submissions made by learned counsel for the appellant before this Court and on valid grounds, has rejected the same, hence the judgment of the trial court need not to be interfered with in the instant appeal.
14. In the light of the rival submissions of learned counsels for the parties, the evidence has to be appreciated. The first point to be considered is regarding the F.I.R. The incident of this case is alleged to have taken place at 2:00 a.m. and the F.I.R. was lodged in the same intervening night at 4:30 a.m. i.e. only after two hours and thirty minutes after the occurrence. The incident is alleged to have taken place on the second floor of the house. The father of the two witnesses had received several injuries. He was in serious condition. PW-2 Manoj Kumar had also received large number of injuries out of which, three injuries were reported by the doctor to be serious and PW-1 Km. Puja was also injured. So these persons with the help of other persons must have consumed some time in bringing their injured father on the ground floor and thereafter to manage vehicle to take him to hospital. It has come in the evidence that landlord of the house had informed the police on phone. So the police came into action. It is true that the information, which was given by landlord Ram Pratap Singh on phone is not on record neither it has been proved. But admittedly it was only a telephonic information. A telephonic information without furnishing the details of the incident cannot be categorized as F.I.R. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Tapinder Kumar vs. State of Punjab reported in 1970 2 SCC 113 and also on Damodar Vs. State of Rajasthan reported in 2004 (12) SCC 336. In the case of Damodar (supra), Hon'ble the Apex Court has observed in paragraph no. 10 as under:-
"10. Coming to the question whether the message received on telephone would be treated as the FIR, the D.D. entry (Ex. P.21) shows that unknown person had given an information about a vehicle hitting the deceased. In order to constitute the FIR, the information must reveal commission of an act which is a cognizable offence."
15. In the hospital, two injured persons were medically examined. After examining Raja Ram, father of these two witnesses he was declared dead and thereafter F.I.R. was lodged. If the complainant side had choosen to first go to hospital and to made effort to save the life of their father then such conduct cannot be said to be unreasonable. Rather it was most reasonable or rational. So the time consumed in the instant case in registration of the F.I.R. stands well explained and the F.I.R. cannot, by any stretch of imagination, be said to be delayed rather it is a prompt F.I.R.
16. Next submission of learned counsel for the appellant was that the prosecution has utterly failed to prove the motive of the appellant. In the F.I.R., it was alleged that the appellant wanted to marry PW-1 Km. Puja but his father was against this marriage so this offence was committed. While PW-1 Km. Puja has nowhere given such a statement and has only stated that the appellant used to pass comments on her. She has also stated that she had not told her father about such comments. PW-2 Manoj Kumar has stated that prior to the incident, the appellant had consumed some drugs and was challenging to marry PW-1 Km. Puja. It is submitted that these facts were not mentioned in the F.I.R. The evidence of both these two witnesses on this point shows that, the appellant used to pass comments on PW-1 Km. Puja and after taking some drugs under intoxication, he claimed to marry PW-1 Km. Puja. So the narration in the F.I.R. that the appellant wanted to marry PW-1 Km. Puja cannot be said to be baseless. Apart from it, this argument has no importance because it is a case of direct evidence. In the case of direct evidence, the motive pales into significance. Why the offence has been committed by the appellant is a fact that remains embedded in the heart of the appellant himself. The prosecution side can only guess motive on the basis of the circumstances. So in cases of direct evidence, the motive has no role to play. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Darbara Singh Vs. State of Punjab reported in 2012 (10) SCC 476, Sanjeev Vs. State of Haryana reported in 2015 4 SCC 387 and Birendra Das and another Vs. State of Assam reported in 2013 12 SCC 236. In the case of Darbara Singh (supra), Hon'ble the Apex Court has observed in paragraph no. 15 and 16 as under:-
"15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the Appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.
16. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ........................."
(Underlined by us) So this ground has no significance in our opinion as direct evidence of two injured witnesses is available.
17. It has also been argued that in the instant case, not even a single independent witness has been examined while it has come in the evidence of the witnesses that Ram Pratap Singh landlord and other persons of the vicinity had reached on the place of occurrence but none of them have been examined. It is true that PW-1 Km. Puja at one place had stated that Ram Pratap Singh and other persons had come on the spot. But at that place she has not stated that these persons reached the place of occurrence during the incident. It is settled principle of appreciation of evidence that the evidence of a witness has to be take as a whole. Only on the basis of one stray statement, the case of the prosecution cannot be thrown out. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal reported in 2012 (7) SCC 646 and also in the case of Rohtash Kumar Vs. State of Haryana reported in 2013 (14) SCC 434. In the case of Rohtash Kumar (supra), Hon'ble Apex Court has held in paragraph no. 24 as under:-
"24. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (See: State of U.P. v. M.K. Anthony AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan and Anr. AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P. (2010) 8 SCC 191)."
(Underlined by us)
18. Perusal of the evidence of PW-1 Km. Puja shows that subsequently she has stated that these persons reached after the appellant had made good his escape and this statement appears to be more logical and correct. There is virtually no contradiction in the two statements.
19. Next submission of learned counsel for the appellant was that the stair case through which the appellant had come to the place of occurrence was very narrow and there was a door on the ground floor in the said stair case and there was also a door in the room where these persons were sleeping. These doors were bolted from inside but it has come in the evidence that the door of the stair case could be opened from the outside also and it has also come in the evidence that the latch of the door of the room was defective and same stood opened by a simple push. It is submitted that from the narrow stair case a person cannot make good his escape quickly and he could have been apprehended by the other persons. PW-2 Manoj Kumar has stated that one fat man can go through it easily. Perusal of the record shows that the appellant in his bail application, which was moved on 4.3.2008, it was mentioned in paragraph no. 3 that the appellant is a lean and thin man. We cannot believe that a staircase can be so narrow as to restict the movement of a normal ma because in that condition it would not be of any use. Apart from it, the defence of the appellant was that the unknown thieves have committed this offence. Hence for unknown persons the staircase was capable of being used for going up and coming down without being apprehended by anyone. So the same would also be sufficient for the appellant to go to the room and to come back after the incident. It has also come in the evidence that other persons came after the appellant left the place. Thus the submission of learned counsel for the appellant on this point cannot be said to be detrimental to the prosecution in any manner.
20. Great emphasis has been led by learned counsel for the appellant that both the witnesses are the related witnesses and no independent witness has been examined in the instant case and it would not be safe to rely on the evidence of two related witness. It is true that both the witnesses of fact are the daughter and son of the deceased. We cannot forget the fact that the incident of this case has taken place in the dead of night at 2:00 a.m. Admittedly, at that relevant point of time only the deceased and these two witnesses were present in the room. So in such circumstances, these two witnesses were the most natural witnesses. Apart from it, they are also injured witness. PW-1 Km. Puja has received three incised wounds and PW-2 Manoj Kumar has received seven incised wounds. So their presence at the place of occurrence, cannot be doubted in any manner. Both of them have fully supported the case of the prosecution. Their evidence cannot be discarded simply on the ground that they are related witness. Law is settled on the point that a conviction can be recorded on the evidence of the related witnesses provided, the same appears to be wholly reliable. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court to the case of Manga alias Man Singh Vs. State of Uttarakhand reported in 2013 (7) SCC 629 wherein Hon'ble Apex Court has held in paragraph no. 31 as under:-
"31. With this, we come to the last of the questions as to whether there were any lacunae in the case of the prosecution based on the submissions of the Learned Counsel. Before dealing with the submissions, we wish to note that though PWs-1 to 4 were closely related to the deceased, they also suffered fire-arm injuries at the hands of the Appellants and the injuries sustained by them were duly supported by medical evidence, both documentary as well as oral, namely, through PWs-6, 7, 8 and 9. There was nothing pointed out in the evidence of the above witnesses, namely, PWs-1 to 4, except stating that since because they were closely related, their version about the occurrence was not true in order to discredit their version. Even before the Courts below the only argument made was that the said witnesses were related to the deceased and that they falsely implicated the Appellants. In our considered opinion, merely based on such a flimsy submission as regards the credibility of those witnesses, the evidence of those injured eye witnesses cannot be discarded."
Virtually, these two witnesses were the most natural witness and they are also injured witnesses. So their evidence stands on a much higher pedestal then the evidence of any other witness. Their evidence stands fully corroborated by the medical evidence.
21. It has also been argued that prosecution has withheld report of the forensic science laboratory. It is further submitted that perusal of the record shows that recovered weapon of offence was sent to forensic science laboratory for examination and the report of the forensic science laboratory is not on record. Now the question arise whether mere non filing of the report of forensic science laboratory would be sufficient, by itself, to discard the otherwise reliable evidence of the two most natural witnesses, who were injured. Our reply to the said query is in the negative. When the evidence of witness was wholly reliable then mere non-production of the report of the forensic science laboratory cannot be used as ground to discard their testimony. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Hema Vs. State thr. Inspector of Police, Madras reported in 2013 (10) SCC 192 and Gajoo Vs. State of Uttarakhand reported in 2012 (9) SCC 532. In the case of Hema (supra) Hon'ble the Apex Court in paragraph no. 29 has held as under:-
"29. Coming to the next contention, namely, the failure of the prosecution to exhibit the report of FSL, Chennai with regard to the impression of seals M.Os 1 to 3 is fatal to the prosecution, it is relevant to note that PWs 16, 26 and 29 DSPs and S.I. of Police have categorically denied the genuineness of the above seals since the same were recovered pursuant to the confessional statement of A-3 and the absence of expert opinion by itself does not absolve the liability of the Appellant."
So absence of the forensic science laboratory report by itself would also not render any support to the appellant in the facts of the instant case. The appellant in his statement under Section 313 Cr.P.C. has nowhere stated that he has been falsely implicated. He has only stated that all the witnesses are giving false evidence and he is innocent. Even his alleged enmity with the landlord was not pleaded by him. So in the statement under Section 313 Cr.P.C. the appellant has not come with any specific defence or any ground for his false implication. Law is settled on the point that statement given by the accused under Section 313 Cr.P.C. may be used for appreciation of evidence. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Ashok Debbarma alias Achak Debbarma Vs. State of Tripura reported in 2014 (4) SCC 747 wherein Hon'ble Apex court has observed in paragraph no. 25 and 26 as under:-
"25.This Court in Mohan Singh v. Prem Singh and Anr. (2002) 10 SCC 236 held that "27. The statement made in defence by accused under Section 313 Code of Criminal Procedure can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Code of Criminal Procedure cannot be made the sole basis of his conviction."
In this connection, reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15 and Bishnu Prasad Sinha and Anr. v. State of Assam (2007) 11 SCC 467. The above-mentioned decisions would indicate that the statement of the accused under Section 313 Code of Criminal Procedure for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.
26. We may, however, indicate that the answers given by the accused while examining him under Section 313, fully corroborate the evidence of PW10 and PW13 and hence the offences levelled against the Appellant stand proved and the trial Court and the High Court have rightly found him guilty for the offences under Sections 326, 436 and 302 read with Section 34 Indian Penal Code."
22. Now taking overall view of the matter, it is clear that two witnesses were most natural witnesses and both have received injuries. There is a evidence of the doctor that the said injuries could have been caused at the time as alleged by the prosecution. Learned counsel for the appellant has submitted that the injuries of the two injured were stated to be incised wound while injuries of the deceased were reported to be punctured wounds. So the same could not be caused by the same weapon. The medical examination of the two injured witnesses and the postmortem of the deceased were conducted by the two different doctors. The doctor has stated that injuries to these two injured persons could have been caused by the sharp edged weapon and Chhura is a sharp edged weapon. Since at the time of medical examination of injured persons, the doctors generally do not consider it safe to probe the wound to note its depth. So generally it is reported as incised wound. While in the postmortem, the doctor has occasioned to note the depth of injuries. So he has reported the same to be punctured wound. So in the peculiar facts of this case, this discrepancy in the description of the injuries by the two different doctors cannot be said to be a ground to disbelieve otherwise reliable evidence of the two eyewitnesses. Law is settled on the point that ocular testimony must prevail on medical evidence unless that medical evidence is of such nature that falsified the prosecution case. Hon'ble Apex Court in the case of Gajoo Vs. State of Uttarakhand reported in (2012) 9 SCC 532 has considered this point and has observed in paragraph no. 18 as under:-
"18. We have also noticed that there is no variation between the medical evidence and the ocular evidence, and once they are co-jointly read, it does not falsify either the statement of the witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka-10. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument we assume that there is some variation, still, it would be so immaterial and inconsequential that it would not give any benefit to the accused. It is a settled principle by a series of decisions of this Court that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. Reference can be made to the judgments of this Court in the case of Kapildeo Mandal and Ors. v. State of Bihar (208) 16 SCC 99, State of U.P. v. Kriskan Gopal (1988) 4 SCC 302, Bhajan Lal @Harbhajan Singh and Ors. v. State of Haryana (2011) 7 SCC 421."
(Underlined by us)
23. Insufficiency of light has also been pleaded on behalf of the defence. The evidence of the two eyewitnesses show that one electric bulb was lighting out side the rooms. It is nowhere the case of the appellant that at the relevant time there was no supply of electricity. Generally people, while sleeping, make sure that there is dim light so that in case they get up in the night then they may not feel it difficult to move or to go to the toilet. In this case it has come in evidence that the deceased had gone to toilet when he was attacked by the appellant. There is yet another ground to discard this ground. When there was sufficient light for the appellant to come to second floor, recognize his target correctly and to cause him injuries then the same light would also be sufficient for the witnesses to recognize the assailant.
24. It is unbelievable that any person would spare the real murderer of his father and the person who has caused him injuries and would falsely implicate an innocent person on the asking of his landlord soaring the real assailant. It does not appeal to reason. So keeping in view the overall aspects of the matter, in our considered opinion, the evidence of these two injured witnesses i.e. PW-1 Km. Puja and PW-2 Manoj Kumar was wholly reliable and the trial court has not committed any illegality in convicting the appellant.
25. In view of the discussion made above, this appeal lacks merits, deserves to be dismissed and is hereby dismissed. The judgment of the trial court is hereby affirmed. The appellant is in jail. He shall serve out the sentence as awarded by the trial court.
26. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.
Order Date :-20th Nov. 2015 (Pratyush Kumar, J.) (S.V.S. Rathore, J.) Virendra