Mathura Prasad vs State Of U.P.
2012 Latest Caselaw 2178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5461 of 2003
 
Appellant :- Mathura Prasad
 
Respondent :- State Of U.P.
 
Appellant Counsel :- Manish Joshi,Apul Misra,Apul Rai,K.K. Roy,S.K. Singh,S.N. Singh,Smt. Archana Singh
 
Respondent Counsel :- A.G.A.
 
And
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6472 of 2003
 

 
Appellant :- Jagdish Prasad
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- R.L. Verma,S.K. Vidyarthi
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Surendra Singh,J. 

Hon'ble Anil Kumar Agarwal,J.

(Delivered by Hon'ble Surendra Singh, J)

Challenge in this appeal is the judgement and order dated 23.10.2003 passed by Additional District and Sessions Judge (Fast Track Court No.1), Pilibhit in S.T. No. 553 of 2002 (State Vs. Mathura Prasad & others) convicting and sentencing the appellants under Section 302 read with section 34 IPC for the life imprisonment with the fine of Rs.10,000/- to each of the appellants and in default of payment of fine further one year's rigorous imprisonment and under Section 307 read with section 34 IPC for ten years' R.I. with the fine of Rs.5000/- to each of the appellants and in default of payment of fine further six months additional imprisonment with further direction that both the sentences shall run concurrently.

Since both these appeals are connected to each other, hence they are being decided together with common judgement.

THE FACTS

Abbreviated back ground facts are that the deceased Haripal Verma, husband of the informant Smt. Krishna Devi, was the sitting Pradhan of Village Aamkheda, police station Barkheda, District Pilibhit. On 14.12.2001 at about 4.30 pm he went for marketing to Adhkata along with Ram Kumar son of Bihari Lal (P.W-2) and Heera Lal son of Bholey Ram (P.W-3), both resident of same village Aamkheda, on a motorcycle. In the evening at about 7.30 pm on return for their village, when they reached near the field of Chhatrapal son of Roshan Lal, on the eastern side of the road accused appellant no.1 Mathura Prasad armed with banka, Jagdish Prasad, appellant no.2 with countrymade pistol and one, unknown person having armed with lathi were seen standing, in the light of motorcycle. It was alleged that motorcycle was driven by Heera Lal (P.W-3), Ram Kumar (P.W-2) was pillion rider while the deceased Haripal Verma, Pradhan was seated between them. As they reached near to them unknown assailant gave a lathi blow to Heera Lal, on account of which the motorcycle got disbalanced and had fallen in a ditch in the eastern side of the road. All the accused persons thereafter caught hold the deceased and started beating with lathi and banka. Both, Ram Kumar and the deceased, in order to save their lives, ran towards the eastern side. However, the deceased could not reach beyond the field of Nokhey Lal and he was surrounded by the assailants and was thereafter assassinated by firearm and banka. It was further alleged that at the same time Heera Lal son of Kadhey Ram along with Chhatrapal of the village have also arrived at the place of incident in another motorcycle and they have also witnessed the accused appellants lambasting the deceased in the source of light of the motorcycle. Thereafter Heera Lal (injured) went to the house of the deceased and informed his wife Smt. Krishna Devi about the incident. On being informed, informant Smt. Krishna Devi (P.W-1) went to the police station Barkheda along with Heera Lal (P.W-3) after covering a distance of four and half kilometres where she lodged written FIR (Ex Ka-1) on the same day at about 9.45 pm, which she got scribed through one, Bhagwan Das.

Head Moharrir, Shyam Lal (P.W-6) registered the written report at crime no.430 of 2001, under Sections 302/307 IPC, prepared the chik FIR (Ex Ka-2) and made relevant entry in G.D.

The investigation was entrusted to S.O., P.L. Vishwakarma (P.W-9), who recorded the statement of the witnesses under Section 161 Cr.P.C., copied chik FIR and G.D. entry and thereafter reaching on the spot, performed inquest on the dead body and got inquest memo (Ex Ka-22) and other relevant documents prepared. A chiththi majrubi was prepared and the injured, Heera Lal was sent to PHC, Barkheda, Pilibhit where he was medically examined. The dead body was dispatched for autopsy purposes. Thereafter I.O. conducted spot inspection and prepared site plan (Ex Ka-10), collected blood stained earth and plain earth and recovered an empty cartridge (Ex Ka-11 and Ex Ka-12). On 16.12.2001 I.O. arrested both the appellants, Mathura Prasad and Jagdish and on their pointing out a countrymade pistol and a banka (weapons of assault) were recovered, which were exhibited as Ex Ka-13 on the day of their arrest. However, another co-accused Om Prakash was arrested on 25.12.2001 and from his pointing out a danda (Ex Ka-15) was recovered. On the basis of the alleged recovery of the weapons of assault, separate chik FIR(Ex Ka-7) was registered against appellants, Mathura Prasad and Jagdish under Section 25 Arms Act vide crime nos.431 of 2001 and 432 of 2001 respectively on the next day at about 6.10 pm and G.D. (Ex Ka-8) was prepared. S.I. Genda Lal Pawar, P.W-12 investigated the crime under Section 25 Arms Act and submitted the charge sheet (Ex Ka-30 and Ex Ka-31) against the appellants.

Autopsy on the dead body of the deceased (Ex Ka-9) was performed on 15.12.2001 at 2.45 pm by Dr. Udai Veer Singh (P.W-10), Medical Officer, District Hospital Pilibhit. In the estimation of the Doctor, the deceased was aged about 35 years and half to one day had lapsed since his death. He was average built and rigor mortis was present on the upper and lower limbs. Following injuries were detected in the body of the deceased by P.W-10:

i.Incised wound 16cm x 3cm x bone cut brain matter coming out on the left back of skull;

ii.Incised wound 6cm x 1cm x Bone cut on left eye brow;

iii.Incised wound 5cm x 0.5cm x Bone cut across the nose;

iv.Incised wound 9cm x 2cm x cavity deep on the left angle of mouth to (R) angle of mouth tooth;

v.Incised wound 4cm x 0.5 cm x cavity deep on left moustache;

vi.Incised wound 7cm x 0.5 cm x bone deep on right side of face 2cm on front of right ear;

vii.Incised wound 3cm x 0.5 cm x muscle deep on right side of skull 7cm above right ear;

viii.Incised wound 3cm x 3cm x bone deep on the back of skull;

ix.Incised wound 5cm x 1cm x bone deep on the mid aspect of the left forearm joint just above wrist joint;

x.Incised wound 6cm x 0.5 cm x bone deep over the back bone at level of T-10;

xi.Abrasions two in numbers both measuring between 12 cm x 0.5 cm over the back bone from T1 to T7.

xii.Gun shot wound in the area of 4cm x 3cm x cavity deep on the back of right side of chest at level T9. Blackening and tattooing present.

xiii.Gun shot wound 2cm x 1cm x cavity deep on the left side of chest 12cm below left nipple. Blackening and tattooing present. On deeper dissection liver and stomach were found punctured and spleen lacerated and 9th rib fractured. Two pieces of bullet are recovered one from lever and one from spleen area.

On internal examination autopsy doctor found 9th rib of chest of the deceased fractured under gun shot wound. Stomach of the deceased contained 200 gms. of semi churned food grey colour, small intestine contained fluid and gas. Large intestine contained faecal and gas. In the estimation of the doctor cause of death was shock and haemorrhage due to ante mortem injuries.

Injured Heera Lal (P.W-3) son of Bholey Ram was medically examined on 15.12.2001 at about 2.40 am by Dr. R.S. Saran (PW-7) who prepared medical report (Ex Ka-6). On his person following injuries were detected by the doctor:

i.Incised wound 7cm x 0.5 cm x Bone deep on the left side head 4 cm above from left eyebrow. Bleeding present on cleaning the wound;

ii.Contusion with swelling 3cm x 2cm on the back of left hand 3.5 cm below from left wrist. Colour red.

The injuries were kept under observation and X-ray was advised. Injury no.1 was caused by sharp edged weapon and injury no.2 by hard blunt object and the duration was fresh.

The police investigated the crime and submitted the charge sheet (Ex Ka-18) against appellants under Sections 302/307 IPC.

The case was committed to the sessions' court for trial. It was registered as S.T. No.553 of 2002. Additional Sessions Judge (Fast Track Court No.1), Pilibhit charged them with offences under Sections 302 read with Section 34 IPC and 307 read with Section 34 IPC on 29.10.2002. Court had also framed charges under Section 25 Arms Act against appellant Mathura Prasad in S.T. No.554 of 2002 and against appellant no.2 Jagdish Prasad under Section 25 Arms Act in S.T. No.555 of 2002.

Since the appellants abjured the charges and claimed to be tried, hence their trial commenced.

In order to establish guilt of the appellants, prosecution examined in all 12 witnesses during the course of trial. Out of whom, Smt. Krishna Devi (PW-1), informant, Ram Kumar (PW-2), Heera Lal son of Bholey Ram, injured (PW-3), Heera Lal son of Kadhey Ram (PW-4), Chhatrapal (PW-5) were witnesses of fact. Rest of witnesses Shyam Lal, Head Moharrir (PW-6), Dr. R.S. Saran (PW-7), Ramesh Chandra Mishra (PW-8), S.I. P.L. Vishwakarma, S.O. (PW-9), Dr. Uday Veer Singh (PW-10), Surendra Kumar (PW-11) and S.I. Genda Lal Pawar (PW-12) were the formal witnesses.

In the deposition before the court P.W-1, informant narrated the same story, which was disclosed in her FIR (Ex Ka-1). She is not the eye witness of the incident. She had deposed whatever she was informed by P.W-2 and P.W-3 soon after the incident. She had deposed that her husband (deceased) was elected as village Pradhan two years' before and was sitting Pradhan on the date of incident. Appellant Mathura Prasad had also contested in the election and was defeated by the deceased by margin of single vote. Feeling aggrieved appellant Mathura Prasad had preferred election writ petition before this Hon'ble Court but he did not get any interim relief. This was the reason that accused appellant Mathura Prasad and his associates were having animosity with the deceased. She further testified that after the death of her husband Rampal son of Bhikhari Lal the brother of P.W-2 Ram Kumar became the officiating Pradhan of the village. It was further deposed that on the same day she got the written report scribed and she went to the police station along with Ram Kumar (P.W-2) and Heera Lal (P.W-3) where she got it registered. She has duly proved her written report (Ex Ka-1).

In his deposition Ram Kumar (P.W-2) testified the incident. However, he was declared hostile by the prosecution. Although he supported the prosecution story with regard to the date, time and place of incident, motorcycle in which he was pillion rider and the genesis of the incident. He resiled from his earlier stand with regards to the identity of the accused. He denied to have accompanied Heera Lal (P.W-3) to the house of informant (P.W-1) and had informed her about the incident. He deposed in his cross-examination that in the light of motorcycle vicinity was illuminating and things were visible up to the distance of 30 to 40 paces. He further affirmed that there was hot exchange of words between the deceased and appellant no.1 Mathura Prasad at the time of counting of votes. He also admitted that appellant no.1 Mathura Prasad was one of the contestant in the election and he expressed his annoyance on acquaintance of his defeat by one vote.

In order to prove the complicity of the accused appellants, the prosecution strongly relied upon the testimony of Heera Lal (P.W-3) son of Bholey Ram, who was the eye witness and had also sustained injuries on his person during the incident in question. Prosecution hinges upon the testimony of this witness.

Heera Lal (P.W-3) was medically examined at the P.H.C. Barkheda on 15.12.2001 in the early morning at about 2.40 am. He had sustained one incised wound allegedly caused by sharp edged weapon (banka) and another injury was on the back of left hand caused by hard blunt object. It has not been claimed by the defence that his injuries were superficial or manufactured. P.W-3 in his cross-examination had testified that several lathi blows were given to the deceased and two shots were fired upon him from the distance of about 8 paces. The deceased was done to death by use of lathi, banka and countrymade pistol. He has categorically stated that he had seen the incident in the light of motorcycle. Only this part of his deposition is at a variance with the medical evidence. However, he has supported the prosecution in all the material aspect of the case. From his cross-examination also defence has not been able to surface any damaging or destructive evidence. He has also categorically stated in his main testimony that he had identified the appellants in the light of motorcycle who were seen having armed with banka and countrymade pistol in their hands and the deceased who ran towards east was chased by them. Soon thereafter he was killed in the field of Nokehy Lal.

He had deposed that soon after the incident he went to the house of the deceased and informed the wife of Haripal Verma (deceased). He further testified that he was Harijan by cast and had no enmity with the appellants. He denied the suggestions that he had falsely deposed against the appellants under the influence of the deceased and any financial help was provided to him by the department of Harijan Kalyan.

P.W-4 Heera Lal son of Kadhey Ram and Chhatrapal (P.W-5) did not support the prosecution case. Chose to resile from their earlier stand. They were declared hostile by the prosecution.

P.W-6 Head Moharrir, Shyam Lal has deposed regarding registration of FIR (Ex Ka-1), preparation of chik FIR (Ex Ka-2) and G.D. entry and had denied the suggestion that the FIR was cooked up due to consultation.

P.W-7 R.S. Saran has claimed to have medically examined Heera Lal (P.W-3) son of Bholey Ram on 15.12.2001 at about 2.40 am. He deposed that injury no.1 could have been caused by some sharp edged weapon while injury no.2 was the result of use of hard blunt object. Both injuries were found fresh which are possibly caused within six hours. He further deposed that the injuries are possible to have have been caused at 8 pm but at any stretch of imagination, it was not possible to have been caused at about 7.30 pm. He has duly proved the injury report and had testified the same facts, which have already been mentioned hereinabove.

P.W-8 Ramesh Chandra Mishra was a Constable posted at police station Barkheda on the date of the incident. He had registered the FIR under Section 25 Arms Act against the appellant no.2 Jagdish Prasad and under Section 4/25 Arms Act against appellant no.1 Mathura Prasad on the basis of the arrest and recovery of the weapon of assault. Both the appellants have been acquitted of the charges under Sections 25 and 4/25 Arms Act as the recovery of the weapon of assault on the pointing out of the appellants was disbelieved. Hence it is needless to discuss about the evidence.

P.W-9 P.L. Vishwakarma was posted as S.O. Barkheda on the date of the incident. He had deposed that in his presence FIR under Sections 302/307 IPC was registered against the appellants and he had recorded the statement of Head Moharrir Shyam Lal, the writer of the FIR as well as the statement of the informant Smt. Krishna Devi (P.W-1) on the date of incident and had deputed S.I. Genda Lal Pawar to prepare the inquest report. He has testified that inquest of the deceased could not be conducted in the absence of sufficient source of light. He has categorically stated in his testimony that he had recorded the statements of P.W-2, the eyewitness and P.W-4 Heera Lal son of Kadhey Ram and P.W-5 Chhatrapal on 15.12.2001 and thereafter made spot inspection and prepared the site plan (Ex Ka-10) which has been duly proved by him, collected plain and blood stained earth (Ex Ka-11 and one empty cartridge (Ex Ka-12). He has further claimed that appellants were arrested by him on 16.12.2001. He has testified regarding various steps taken by him during investigation as has already been inked hereinbefore. He had denied the suggestion that FIR was cooked up after due consultation and was ante-timed and the statement of P.W-3 Heera Lal son of Bholey Ram was recorded by him on 14.12.2001 at about quarter to 10 pm under Section 161 Cr.P.C. in the night rather his statement was recorded on 15.12.2001 after 7.30 am. He has also testified that P.W-3 in his statement recorded under Section 161 Cr.P.C. did not point out that he was assaulted by banka.

P.W-10 Dr. Udai Veer Singh, Autopsy Doctor, has testified the same facts which have already been mentioned hereinbefore. He had deposed that the deceased sustained these injuries detected on his body by firearm and sharp edged weapon and the death may ensue at the time alleged by the prosecution i.e. on 14.12.2001 at about 7.30 pm. He further deposed that two bullet pieces were recovered from liver and spleen. The doctor has testified that injury no.12 could have been caused from back while injury no.13 is the result of firing from close range. He has testified those very facts which have already been recorded hereinbefore. During his cross-examination nothing material has come out to damage the prosecution case.

P.W-12 G.L. Pawar was posted as Sub Inspector at the police station Barkheda on the date of incident and he has claimed to have conducted inquest (Ex Ka-22) of the deceased and has testified regarding various steps taken by him after the inquest report was prepared and he had duly proved the inquest report (Ex Ka-22).

In their statements recorded under Section 313 Cr.P.C. both the accused appellants pleaded the defence of false implication by stating that the deceased was done to death by some unknown person and because of enmity they have been falsely implicated.

In their defence, appellants have not examined any witness.

The trial court placed reliance on the depositions of prosecution witnesses and reposing confidence in their testimonies, concluded that the prosecution has proved it's case to the hilt and, therefore, he convicted both the appellants for the charge of murdering the deceased and hurt to the witness P.W-3 and consequently convicted and sentenced them for those offences which have already been mentioned in the opening paragraph of this judgment. He, however, acquitted the accused Omprakash in the absence of any convincing evidence against them. Hence this appeal by two appellants.

POINTS FOR DETERMINATION

We have heard Sri P.N. Misra, Senior Counsel, assisted by Sri Rahul Misra as well as Sri R.L. Verma, counsel for the appellants and Sri K.N. Bajpayee, learned A.G.A.

The following points arise for determination:

i.Whether the appellants have any motive to commit this crime;

ii.Whether the testimony of the solitary injured witness Heera Lal (PW-3) is sufficient to prove the guilt of the appellants;

iii.Whether the evidence of hostile witness is liable to be completely discarded;

iv.Whether the oral testimony is inconsistent with the medical report;

v.Whether the prosecution has proved the guilt of the Accused appellants beyond all reasonable doubt.

1st Point: THE APPELLANTS HAD STRONG MOTIVE:

Some facts of the case in the trial were admitted as either they were not disputed or the accused have admitted their happening. These facts are that the informant, both the appellants and witnesses are resident of the same village Aamkheda and they must be knowing each other. The deceased Haripal Verma was the husband of the informant. Both, the deceased and the appellant no.1 Mathura Prasad, were rival in the election of the village Pradhan. This is also not disputed that the accused Mathura Prasad was defeated by the deceased by the margin of only one vote. Feeling aggrieved he had filed election writ petition before this Court but he did not get any interim relief. In his deposition Ram Kumar (P.W-2) has affirmed that there was hot exchange of words between the deceased and appellant no.1 Mathura Prasad at the time of counting of votes. He also admitted that accused appellant no.1 Mathura Prasad was not happy with the deceased and he expressed his distress on his defeat in the election. It has not been denied by the defence that accused Jagdish was the associate of Mathura Prasad.

In the backdrop of preceding facts and evidence, appellant no.1 Mathura Prasad might be having apprehension in his mind that unless the deceased is not removed from the way it will not be possible for him to be elected as Pradhan in future. Moreover, they wanted to cool their heels after committing the murder of the deceased. Informant Smt. Krishna Devi (P.W-1) and Hira Lal (P.W-3) would not have any motive to implicate the accused appellants in a false case rather the accused appellants have strong motive to commit the murder of Haripal Verma, Pradhan.

The fact that one person Haripal Verma met homicidal death and that Heera Lal (P.W-3) son of Bholey Ram received injuries in the occurrence is beyond dispute. When, once presence of Heera Lal (P.W-3), being gravely injured, at the scene of occurrence is not doubted then his evidence assumes great importance and unless there are strong grounds, the same cannot be rejected on the basis of some minor discrepancies.

2nd Point: TESTIMONY OF SOLITARY INJURED WITNESS IS SUFFICIENT TO PROVE THE GUILT:

Coming to the question whether on the basis of solitary evidence conviction can be maintained ? A bare reading of Section 134 of the Evidence Act, 1872 is suffice. The provision clearly envisages that no particular number of witness is required to establish a case. The quality of evidence is required and not the quantity of evidence.

We have under taken a very close and critical scrutiny of the evidence of PW-3 which is of such a quality that a conviction for the offence of the murder or attempt to murder can be safely rested on sole testimony. The Hon'ble Apex Court has repeatedly observed that on the basis of the testimony of the single witness a conviction may be recorded. It has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary witness is of such sterling quality that the Court finds it safe to pass a conviction solely on the basis of that witness. In doing so the Court must test the credibility of the witness by relying on the quality of evidence. The evidence must be free from any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of testimony of a single witness. So, tested, we find the evidence of PW-3 is to be of that quality, mentioned above.

In the absence of any enmity of the witness with the accused appellants provided an additional circumstance for placing reliance upon his testimony. There is only one witness of fact but nonetheless he is injured eyewitness. There is neither any such suggestion nor anything in the cross-examination to disbelieve him. There is no root that conviction cannot be made on the oral evidence of the sole witness. It depends on credibility of the evidence. So tested we find the evidence of P.W-3 is to be of that quality, mentioned above.

We are satisfied that his evidence is unblemished beyond all possible criticism. Thus on his evidence alone conviction can be based.

3rd POINT: EVIDENCE OF HOSTILE WITNESS NOT TO BE COMPLETELY DISCARDED:

Ram Kumar, the another eyewitness was produced by the prosecution. He was testified as P.W-2 but he was declared hostile by the prosecution. Although he supported the prosecution story with regard to the date, time and place of incident, motorcycle in which he was pillion rider and the genesis of the incident. However, he resiled from his earlier stand with regards to the identity of the accused. He deposed in his cross-examination that in the light of motorcycle vicinity was illuminating and things were visible up to the distance of 30 to 40 paces. He further affirmed that relationship between the deceased Haripal Verma and the appellant no.1 Mathura Prasad were strained. There is no general rule that the testimony of witness declared hostile is washed of the record altogether. This view has been taken by Hon'ble the Apex Court in Dhananjoy Chatterjee @ Dhanna Vs. State of West Bengal 1994 SCC (Cri.) 358 wherein it was held that the testimony of a hostile witness cannot be ignored totally and the court can scrutinize his testimony and accept that portion of the same which reviews corroboration from other evidence on record.

4th POINT: MINOR VARIANCE WITH THE MEDICAL EVIDENCE ARE NOT OF ANY CONSEQUENCE:

It is trite that where the eyewitness account is found credible and trustworthy, medical opinion pertaining to alternative possibilities is not accepted as conclusive. The evidence of Dr. R.S. Saran (P.W-7) and Autopsy Dr. Uday Veer Singh (P.W-10) does not in any way contrary to the ocular evidence. In any event the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence are not of any consequence.

5th POIINT: THE PROSECUTION HAS PROVED THE GUILT OF THE APPELLANTS:

Learned counsel for the appellants submits that the prosecution case is doubtful due to following reasons:

i.The FIR was false and fabricated and lodged in collusion with the police and was ante-timed;

ii.The statement of Heera Lal (P.W-3) suffers from material discrepancies and thus inspire no confidence;

iii.Prosecution has failed to produce any independent and uninterested witness;

iv.Presence of Heera Lal (P.W-3) on the spot was doubtful at the time of incident;

v.There was no source of light in the presence of which real assailants could have been identified;

vi.The medical evidence is at a variance with the prosecution version.

(i). THE FIR WAS NOT ANTE-TIMED:

One of the argument advanced by the learned counsel for the appellants is that the FIR was false and fabricated and lodged in collusion with the police concerned is wholly unappealing. We reject it out rightly as being wholly unmerited. Ex Ka-2 shows that the report was lodged at 9.45 pm on 14.12.2001 and that the occurrence had taken place at 7.30 pm on the same day. Ex Ka-2 discloses that the distance between the alleged place of occurrence and police station Barkheda was 4 and half Kilometres. It is not disputed that a person had lost his life during the alleged occurrence. Soon after the incident informant P.W-1, the wife of the deceased, was informed in the village by P.W-2 and P.W-3 and thereafter after covering the distance of four and half kilometres from the village, the FIR was lodged which was not delayed. Ex Ka-2 further shows that the informant Smt. Krishna Devi had gone to lodge the report, she was accompanied P.W-2 and P.W-3. This fact was noted in the G.D. The injury report of P.W-3 was prepared at 2.40 am on 15.12.2001 by the Dr. R.S. Saran (P.W-7) at PHC, Barkheda. The injury report was duly proved by the doctor. Vetting from above angle the FIR cannot be termed anti timed.

(ii). STATEMENT OF HEERA LAL (P.W-3) DOES NOT SUFFER FROM ANY MATERIAL DISCREPANCY

There are some minor contradictions between the statement of Heera Lal (P.W-3) and the medical evidence. One of the discrepancy pointed out was that the deceased does not sustain any injury which could be said to have been caused by blunt object/lathi while Heera Lal (P.W-3) was categorical in his cross-examination that several lathi blows were given to the deceased. Secondly, the shot was allegedly fired by the appellant no.2 Jagdish from more than 8 paces but the postmortem report does not support this theory rather it indicates that shots were fired from close range. It is suffice to say that this testimony of Heera Lal (P.W-3) is based on imagination or on the guess work, which does not effect his basic version. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused his conviction can be maintained. Therefore, it becomes the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be not wholly credible. In the present case at any rate any minor inconsistencies regarding details are not affecting the real matter in controversy thus would be of no avail.

Heera Lal (P.W-3) was a natural and most probable witness supported by P.W-2 Ram Kumar to the extent of place, date and time of the incident. Any omission or minor contradiction on any unimportant facts by him will not be fatal for the prosecution. It is established law that over much importance cannot be given to minor and normal 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.

(iii). NON PRODUCTION OF INDEPENDENT OR UNINTRESTED WITNESS-NO EFFECT

To the argument that independent and uninterested witnesses could have been produced but were not examined. We would like to point out that the case has to be decided on the evidence of witnesses examined only and the prosecution is free to produce any of the witnesses to whom he thinks fit and proper. It is not necessary for the prosecution to examine somebody as a witness even though the witness was not likely to support the prosecution version. Non examination of some persons per se does not corrode vitality of prosecution version, particularly when the witness examined have withstood incisive cross-examination and pointed to the appellants as the perpetrators of the crime. The law recognizes an injured as a competent witness provided he is not under influence or tutored. On the careful scrutiny of Heera Lal (P.W-3), we find that his evidence inspires full confidence. Apparently, he was cross- examined at great length at the evidence stage on all aspects of the matter but there is not a single circumstance to reject his testimony. His testimony is wholly consistent all through regarding the commission of the incident. Accused appellants are the resident of the same village and were known to him from before and there was no question of mistaking identity. There was hardly any reason to falsely implicate the accused appellants, thereby concealing the actual incident. He is natural and independent witness, his statement cannot be discarded on the ground that he being the associate of the deceased. His testimony is further corroborated by another independent witness Ram Kumar (P.W-2) to the some extent. The witness P.W-3 is the natural one and possible eyewitness of the incident and he cannot be said to be interested. In these circumstances, Heera Lal (P.W-3) cannot be said to be interested witness as he has no motive and interest in the conviction of the accused appellants and, therefore, there is hardly any reason to reject his testimony. As far as production of any other independent or uninterested witness is concerned, it cannot be accepted that in the winter evening, persons nearby villages to reach on the spot at the time of incident particularly when the firing was involved. This argument is, therefore, also not sustainable.

(iv). PRESENCE OF HEERA LAL (P.W-3) CANNOT BE DISBELIEVED

Regarding the submissions of the learned counsel for the appellants that the prosecution has produced forged and fabricated evidence to the effect that Heera Lal (P.W-3), the eye witness received injuries during the alleged incident. It is not disputed that Haripal Verma has lost his life in the incident and P.W-2 as well as P.W-3 were accompanied the deceased on a motorcycle. This fact has been supported by the P.W-2 Ram Kumar who has been declared hostile. The fact that Heera Lal (P.W-3) had sustained lathi and banka injuries has been admitted by the P.W-2 also. The injury sustained by the Heera Lal (P.W-3) cannot ordinarily be self inflicted. He was medically examined on the early winter morning at 2.40 am at the PHC Barkheda on 15.12.2011. There had been no delay in his medical examination. The witness informed Smt. Krishna Devi, the wife of the deceased in the village soon after the incident who went to the police station along with P.W-3 and lodged the FIR without loss of time at 9.45 pm. The FIR was lodged promptly without any consultation or fabrication. The presence of witness Heera Lal (P.W-3), therefore, on the spot at the time of incident cannot be disbelieved.

(v). LIGHT OF MOTORCYCLE WAS THE SOURCE OF LIGHT

It is not disputed that both the appellants and eye witness are the resident of village Barkheda. The appellants were known to the witness from before. The incident took place at about 7.30 pm. There is evidence on the record that vicinity was illuminating from the distance of 30 to 40 paces in the light of motorcycle. There was light of the motorcycle through which assailants could have been identified by the eye witnesses. Therefore, appellants could have been identified by the witnesses in all possibilities.

(vi). THE MEDICAL EVIDENCE IS NOT TO BE ACCEPTED AS CONCLUSIVE

The argument of the learned counsel for the appellants was that the medical evidence is at a variance with the prosecution version does not stand scrutiny. It was contended that the injured witness P.W-3 was alleged to have been medically examined on 15.12.2001 at about 2.40 am by the Dr. R.S. Saran (P.W-7). He in his cross-examination had testified that the injuries sustained by the witness P.W-3 could have been caused at 8 pm and the same was not possible at 7.30 pm.

It would be erroneous to accord undue primacy to the hypothetical answers of the medical witnesses. It is not possible for any doctor to give accurate time of incident. It is proposition of law that where the eye witness account is found credible and trustworthy, medical opinion pointing out to alternative possibilities is not accepted as conclusive.

THE DECISION

We have cogitated over rival submissions and in that light perused the entire record and our findings and conclusions are as follows:

On summation of evidence critically on contentious issues, we find that Heera Lal (P.W-3) is the independent and uninterested witness and had sustained injuries which is neither superficial nor manufactured. He was medically examined in the early winter morning at 2.40 am and has fully supported the prosecution version.

P.W-2 Ram Kumar though he has been declared hostile but had supported the prosecution story with regard to the incident. He further supported the prosecution in the cross-examination that in the light of the motorcycle vicinity was illuminating and things were visible up to the distance of 30 to 40 paces.

Time, place and date of the incident have been proved beyond shadow of doubt. Accused appellants have not been able to prove any enmity either with the informant or witness Heera Lal (P.W-3) and has failed to bring charge on record any material evidence which is indicative of the fact that the informant or the witness have any reason to falsely implicate them in the instant heinous crime. All the formal witnesses have given supporting evidence as has also been referred above. Dr. R.S. Saran (P.W-7) who has examined Heera Lal (P.W-3) and Dr. Udai Veer Singh (P.W-10) who had conducted the autopsy, testified the facts found by them and has proved the injury report as well as postmortem report respectively.

The prosecution has been able to prove and establish truthfulness and correctness of the fact and make out the guilt of the accused appellants to the hilt and bring home, against them beyond shadow of reasonable doubt.

On an over all consideration, the intrinsic merit of the evidence in the instant case, was clearly indicative of the guilt of the accused appellants. We find that the recorded conviction of the appellants does not call for any interference by us and, therefore, we affirm the Trial Court's judgment of conviction and sentence.

The appeal lacks merit. It is accordingly dismissed. Appellants Mathura Prasad and Jagdish Prasad shall remain in jail to serve out the sentence.

Order date:25.05.2012

Mt/