Ashok Tiwari vs State Of U.P.
2012 Latest Caselaw 5073 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
COURT NO. 33
 
Criminal Appeal u/s 374 Cr.P.C. No. 2862 of 2003
 

 
Ashok Tiwari
 

 
Vs.
 

 
State of U.P.
 

 
Criminal Appeal u/s 374 Cr.P.C. No. 2860 of 2003
 

 
1.Kamlesh Tiwari
 
2.Vinod Tiwari
 
3.Pradip Tiwari
 
4.Ram Sewak @ Daddhu Dhimar
 

 
Vs.
 

 
State of U.P.
 

 
Counsel for the appellants : Rajrshi Gupta and Pankaj Tiwari
 
Counsel for the State:  Ms. Usha Kiran
 

 
HON. RAKESH TIWARI, J
 
HON. ANIL KUMAR SHARMA, J
 

 
		(By Justice Anil Kumar Sharma)
 

 
	In both the aforesaid appeals the appellants have challenged the judgment and order dated 3.6.2003 passed by Addl. Sessions Judge, FTC-II, Jalaun at Orai in S.T. no. 117 of 2002 whereby each of the appellant had been convicted for the offence punishable u/s 148, 452, 302/149 Indian Penal Code and sentenced as under:
 

 
i)u/s 148 IPC		One year's R.I. and fine of Rs. 1,000/-. 			In default of payment of fine two 				months' simple imprisonment;
 

 
ii)u/s 452 IPC		Three years' RI and fine of Rs. 	2,500/-. 			In default of payment of fine six 				months' simple imprisonment; and 
 

 
iii)u/s 302/149 IPC	Imprisonment for life and fine of Rs. 				20,000/-.
 
However, each appellant had been acquitted u/s 147 IPC and DBBL gun of accused Ashok Tiwari had been confiscated to the State.  Since both the appeals arise out of same incident, so they are being decided together.
 
2.	Facts

of the case in nutshell are that complainant Ashok Kumar Kopra resident of Mohalla Malviya Nagar, Qasba and P.S. Konch District Jalaun at Orai submitted a written report at P.S. Konch on 27.4.2002 at 5.45 p.m. wherein he stated that they have got cases registered against their neighbour Ashok Kumar Tiwari s/o Ram Prakash Tiwari in P.S. Konch and P.S. Quarsi District Aligarh and on account of this fact he and his family members bear enmity with them. Today he along with Tara Chandra, Ravish Chandra, Smt. Ram Kali, Smt. Nirmala Namdeo arrived home from Jhansi, then at about 4.45 p. m. Ashok Tiwari along with his DBBL gun, Kamlesh Tiwari @ Munna Tiwari, Vinod Tiwari and Pradip Tiwari sons of Ram Prakash Tiwari residents of Mohalla Malviya Nagar Qasba and P.S. Konch along with Ram Sewak @ Daddhu Dhimal s/o Ram Swarup r/o Gokhle Nagar, Konch armed with country made pistols barged into his house. His mother was sweeping the court-yard and then Ashok Kumar Tiwari in order to kill her fired shots and she succumbed to the injuries at the spot. The accused also fired shots on them with intention to kill but they bolted the room from inside and accused persons abusing them made their escape good. The complainant got this report scribed from B.K. Johri s/o Pyare Lal r/o Pilkhana House, Sarai Lavaria P.S. Banna Devi Aligarh and submitted the same at 5.45 p.m. on 27.4.2002. On the basis of this report a case at crime no. 142/2002 u/s 147, 148, 453, 302 IPC was registered at P.S. Konch, investigation whereof was entrusted to SI Dinesh Kumar Singh. He reached at the spot recorded statement of complainant, prepared site plan and recovered pellets, tickli, bullet, simple and blood stained earth from the spot and a curtain containing bullet mark in presence of public witnesses through recovery memo Ex. Ka-6. After interrogating the complainant and the scribe he prepared inquest of the dead body of the deceased and along with usual papers sent the same for post-mortem examination. On 29.4.2002 Dr. Mani Ram PW 2 the then Medical Officer of CHC, Konch conducted autopsy and prepared notes thereof. He found rigor mortis over whole body and post-mortem staining on both thighs and lower part of back. He found the following ante-mortem injuries on the person of 60-years' old deceased:

Ante mortem injuries:

1.Oval shaped fire arm wound of 13 cm x 5 cm present on dorsum of right hand laterally lateral part of right wrist joint and lower and later part of right fore-arm. Blackening seen near index finger and thumb. Metacarpal bone of thumb and lower end of radius found broken. Muscles are lacerated. Direction of wound is from below upward. Parts of (sic) found in wound.

2.Oval shaped 5 cm x 2 cm entrance wound present on right side of neck 1.5 cm behind the ear. Blackening seen around the wound. Edge of wound inverted. Wound is joining the exit wound.

3.Exit wound of fire arm 12 cm x 0.8 cm present on left side of neck. Margins inverted. Muscles lacerated and first and second cervical vertebra found broken.

4.Oval shaped entrance fire arm amount found on right side of chest 10 cm posterior to nipple in mid axillary line. Blackening seen at margins. Size of wound 4.5 cm x 4 cm . 4th and 5th ribs found broken. Direction of wound is from right to left.

5.Circular exit fire arm wound of 3 cm x 2 cm found on left of side of chest. 11 cm. posterior to left nipple and 7th rib was broken. Wound was joining the entrance wound.

On internal examination the doctor found that 5th to 7th ribs of the deceased were broken. Thoracic wall, pleura, lower part of right lung, both lobes of liver, upper part of stomach, and gall bladder were lacerated. The stomach was empty and semi-digested food was found in small intestines while large intestines contained fecal matter and gases. The larynx, trachea, left lung, upper membrane of heart, oesophagus, pancreas, and spleen were pale due to lack of blood. In the opinion of the doctor, the deceased suffered homicidal death 12-24 hours before due to hemorrhage and shock as result of ante-mortem fire arm injuries.

On 29.4.2002 the 1st investigating officer interrogated Smt. Nirmala Devi, Ravish Chandra, Smt. Archana Devi, Tara Chandra, Khem Chand, Sunita Devi, Virendra Vijay Kumar, Alkesh Kumar and Lal Bahadur. On 30.4.2002 the investigation of the case was taken over by Inspector Karan Singh. He made efforts to arrest the accused persons and tried to obtain police remand of Ashok Tiwari, which was refused. On 16.5.2002 he got the gun of Ashok Tiwari through Court which was sealed. Thereafter on his transfer the investigation was taken over by Inspector Ram Kripal singh PW 7 and on the basis of investigation carried out by earlier investigating officers, he submitted charge-sheet against the accused persons and also forwarded the report of Forensic Science Laboratory through supplementary case diary.

3. After committal of the case to the Court of Session, the Addl. Sessions Judge (FTC-II) on 5.10.2002 framed charges for the offences punishable u/s 147, 148, 302/149, 452 IPC against all the accused, who abjured their guilt and claimed trial.

4. In order to prove its case the prosecution had examined complainant Ashok Kumar Kopra PW 1, Dr. Mani Ram PW 2, Smt. Nirmala Namdeo PW 3, H.M. Ram Babu PW 4, 2nd I.O. Inspector Karan Singh PW 5, 1st I.O. SI Dinesh Kumar Singh PW 6, 3rd I.O. Inspector Ram Kirpal singh PW 7 and Constable Ram Hind Singh PW 8.

5. In their separate statements u/s 313 Cr.P.C. all the accused persons have again denied the entire prosecution story and the circumstances appearing against them. Accused ashok Tiwari has also stated that he had given Rs. One lac on loan to Nirmala Namdeo for purchasing house before registration of the sale deed in presence of Rakesh Tiwari and other witnesses and he is also witness of the sale deed. He is also guarantor for Khem Chand and Nirmala Deo as they have taken loan from Allahabad Bank Mandi branch and LIC respectively and in order to grab his money he has been falsely implicated in the case. His brothers reside separately from him. According to accused Pradip Kumar on 26.4.2002 he had attended the marriage of his friend Vishnu Kant Misra r/o Konch and remained there till 1 p.m. on 27.4.2002 he remained in Qasba Orai and after departure of barat he stayed in Orai and appeared in BTC entrance examination in Gandhi Inter College, Orai. Accused Kamlesh Kumar Tiwari had stated that on 27.4.2002 from 7 a. m. till 1 p. m. he had done teaching work in Sarswati Shishu Mandir, Bajaria, Konch. He and his brother reside separately from Ashok Tiwari

6. Satya Prakash Dwivedi DW 1 Acharya in Sarswati Shishu Mandir, Bajaria (Malviya Nagar), Konch had been examined to prove the alibi of accused Kamlesh Tiwari.

7. The learned trial Court after hearing parties counsel through impugned judgment and order had convicted and sentenced the accused persons as stated above. Aggrieved, these two appeals have been filed by accused-appellants.

8. We have heard the Sri Rajshri Gupta, counsel for the appellants and Ms. Usha Kiran, AGA for the State and have perused the original record of the case carefully.

9. Learned counsel for the appellants has assailed the judgment and order of the trial Court on following grounds:

i. the FIR is anti-timed and scribe of the written report has not been examined who is a non-existent person;

ii.that there was no motive for the accused to kill the deceased, rather the accused persons have been falsely implicated in the case as Smt. Nirmala Namdeo owed ` 1.0 lac towards Accused Ashok Tiwari;

iii.that the incident and manner of assault has not been proved through reliable evidence;

iv.that no independent witness has been examined and the witnesses produced by the prosecution to prove the guilt are highly interested and partisan witnesses;

v.that ocular evidence do not corroborate the medical evidence;

vi.that accused Kamlesh Tiwari was on duty on the alleged date and time of occurrence and the trial Court has wrongly discarded the evidence of DW 1.

Per contra learned AGA has argued that motive for the crime is fully proved through the evidence of PW 1 and PW 2 as accused Ashok Tiwari had illicit relations with PW 2 and was enraged due to her marriage; that it is a broad day light murder and the prosecution has examined the inmates of the house and presence of other witness was not possible because the incident took place inside the house; that there is no major contradiction in the testimony of PW 1 and PW 2 with regard to the real incident of murder of deceased and if some variation has come that is not significant to discard the otherwise wholly clear, cogent and reliable prosecution story which is also corroborated by medical evidence; and there is no variation in ocular account of the incident and the medical evidence rather they complement and support each other.

10. Before dealing with the arguments advanced at the Bar it would be appropriate to note the basic features of the case leading to the murder of the deceased as also the law relating to appreciation of evidence of witnesses in a criminal trial.

11. The entire story culminating in homicidal death of the deceased centers around accused Ashok Tiwari and Smt. Nirmala Nam Deo PW 2. The place of incident is the house of the complainant which is in Mohalla Malviya Nagar, Qasba Konch of Distt. Orai. It is not disputed that house of the accused Ashok Tiwari and his co-accused brothers are situated nearby. It has come in evidence in the statements of PW 1 and PW 2 that much prior to the incident, the family of the complainant was residing on rent in the house of Krishna Gopal uncle of Ashok Tiwari in the same mohalla and Ashok Tiwari was on visiting terms with the complainant's family. PW 2 has stated that she used to tie rakhi to accused Ashok Tiwari and once he forcibly raped her, but on account of fear she did not complain of this incident to anyone and since then he used to black mail her. In cross-examination she has stated that the incident of rape took place about 23-24 years ago. PW 2 has given her age 38 years at the time of deposition in Court on 29.1.2003 and accused Ashok Tiwari has disclosed his age in statement u/s 313 CrPC recorded on 24.4.2003 as 44 years. Thus at the time of alleged incident of rape PW 2 must be about 14-15 years and the age of Ashok Tiwari was about 20-21 years. Both of them are eldest among the siblings in their family. PW 2 was working as ANM in Govt. Hospital, Konch and was on leave from the time of her marriage. She had stated that accused used to black mail and extract money from her. She has further stated that accused Ashok Tiwari extended threat to kill her brothers if she marries and often proposed her although it has come in evidence that accused Ashok Tiwari is an Advocate and is married. The evidence on record shows that miseries of complainant's family began after PW 2 was married on 25.11.2001 at Aligarh. Due to fear and terror of accused Ashok Tiwari, PW 1 the real youngest brother of PW 2 did not attend her marriage in Aligarh. The following dates and events would be useful in understanding the state of affairs between the two families.

Sl.No.

Date

Event

25.11.2001

Marriage of PW 2 was solemnized in Aligarh with Narendra Kumar Saxena.

17.12.2001

Accused Ashok Tiwari attempted to kidnap the PW 2, who lodged a report against him in P.S. Quarsi of District Aligarh being case crime no. 33 u/s 363, 364, 511 IPC.

20.12.2001

Accused Ashok Tiwari took forcible possession over the plot purchased by PW 2 in Mohalla Malviya Nagar, Konch.

27.12.2001

Accused Ashok Tiwari entered into the house of PW 1 in Konch and demanded Rs. 1,00,000 and gave life threat.

17.2.2002

Accused Ashok Tiwari armed with gun entered in the room of PW 2 in her house and took away cooler, mixi, hot-pot, vaccine-carrier, golden chain, tops, Rs.8,000/- etc and set on fire some papers and clothes.

17.4.2002

PW 2 came to Orai from Aligarh and submitted application for safety of her person and property against accused Ashok Tiwari to District Magistrate and Chief Medical Officer

17.4.2002

Under the orders of SSP, Orai case was registered on the complaint of deceased against Ashok Tiwari at case crime no. 132 of 2002 u/s 387, 447, 380, 427, 504, 506, 452 IPC in P.S. Kotwali, Konch.

18.4.2002

Enraged with the registration of the case against him accused Ashok Tiwari along with 10-12 persons came in the night at the house of the complainant and threatened them to take back the report and out of fear the complainant's family left Konch for Jhansi in the night of 18.4.2012 itself.

27.4.2002

PW 1, PW 2, deceased, her brother-in-law B.K. Johri, brothers Ravish, Tara Chand, his wife and two children came to Konch from Jhansi via Orai for joining of PW 2 after long leave and at about 12 O'clock all the accused in order to kill them reached at the hospital, and their hue and cry staff and Doctor came to their rescue and doctor called the police. The accused made their escape good before arrival of police and they were escorted to their residence by the police.

27.4.2002

At about 4.45 p. m. all the accused armed with fire-arms barged into the house of the complainant and killed Smt. Ram Kali and also attempted to kill the other family members.

11. The above table clearly show that prior to the marriage of PW 2 no untoward incident happened or reported by the complainant or any body else from either side. PW 1 has admitted in cross-examination that other brothers of accused used to call his mother as 'mausi', which is usually called for mother's sister or mother of brother's wife or sister's husband. The suggestions given to PW 1 and PW 2 show that accused Ashok Tiwari was extending his help to the family on account of his close relations with PW 2. The nature of the suggestion given to PW 2 show that her relations with accused Ashok Tiwari were very close and they were having physical relations. She had been subjected to unnecessary lengthy cross-examination at the hands of the defence counsel. On page-39 of her deposition she had been asked about surgery of her vagina and the reason therefor. Such surgery to any unmarried woman is seldom known to any other person except her mother or sister. To quote the exact words noted in her examination -

" ;g dguk xyr gS fd lu~ 2001 es eSaus dkuiqj esa vfodflr ;ksfu ekxZ dk iw.kZ L=hRo izkIr djus ds fy, vkijs'ku djk;k gksA ;g dguk xyr gS fd bl dfFkr vkijs'ku ds igys 'kkjhfjd :i ls esjs vUnj fL=Ro dk vHkko FkkA "

The record of the case shows that PW 1 and PW 2 were subjected to grueling cross-examination for 4-5 days each and their deposition run in 58 and 47 pages respectively. They have been cross-examined on all points mentioned in the above table and period prior to it. When two persons are cross-examined in the Court asking questions right from their childhood for a span of more than twenty years, then inconsistencies and contradictions are quite natural. Since they were subjected to fatiguing, taxing and tiring cross-examination for days together, are bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a witness who is subjected to lengthy and unnecessary cross-examination not connected with the case in hand should not be blown out of proportion. To do so is to ignore hard realities of life and give undeserved benefit to the accused who have perpetrated heinous crime. The basic principle of appreciation of evidence of a witness is that his/her statement should be appreciated as a whole. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a witness in a criminal trial. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

12. The Apex Court has highlighted the law relating to material contradictions, inconsistencies, embellishment and reliability of witnesses in a criminal trial in the case of Kathi Bharat Vajsur & Anr Vs. State of Gujarat 2012 Cri.L.J. 2717 (Supreme Court) In para-18 and 19 of the report, the Hon'ble Court has noted as under:

"18. In the case of Leela Ram Vs. State of Haryana AIR 1999 SC 3717, this Court held (para 12 of the AIR, AIR SCW):

"12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."

19. This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra (2010) 13 SCC 657, summarized the law on material contradictions in evidence thus:

"Material contradictions-

30.While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in nits entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be jusitified in reviewing the same again without justificable reasons. (Vide State Vs. Saravanan AIR 2009 SC 152)

31.Whether the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also makes material improvements before the court in order to make th evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan Vs. Rajendra Singh AIR 1998 SC 2554)

32.The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh Vs. State of U.P.)

33.In case, the complainant in the FIR or the witness in his statement u/s 161 CrPC has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State Vs. Sait AIR 2009 SC (Supp) 284).

34.In State of Rajasthan V. Kalki, (AIR 1981 SC 1390) while dealing with this issue, this Court observed as under : (Para 6 of AIR)

"8....In the depositions of witnesses there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."

35.The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See Syed Ibrahim Vs. State of A. P. AIR 2006 SC 2908) and Arumugam Vs. State (AIR 2009 SC 331).

36.In Bihari Nath Goswami V. Shiv Kumar Singh this Court examined the issue and held (SCC p. 192, para 9)

"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

37.While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements 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 case, render the testimony of the witness liable to be discredited."

13. The learned trial Court in its elaborate judgment has appreciated the evidence of prosecution witnesses in correct perspective and has also dealt with the points raised by the parties' counsel. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal.

FIRST INFORMATION REPORT

14. The alleged incident as per the prosecution story took place on 27.4.2002 at about 4.45 p.m. in the house of the complainant situated in Mohalla Malviya Nagar, Konch and its written report was lodged by PW 1 at P.S. Konch the same evening at 5.45 p. m., the distance between the place of occurrence and the police station as per check report Ex. Ka-3 is 2 only furlongs. According to PW 1 after the incident he dictated the report to brother-in-law (devar) of PW 2 named B.K. Johri resident of Aligarh and submitted the same at the police station. Learned counsel for the appellants has submitted that the report is ante-timed and is the result of deliberations and concoctions. HC Ram Babu PW 4 has prepared the check report Ex.Ka-3 on the basis of written report of the complainant and he has testified about the time when the complainant reached at the police station for lodging the report. He has also been put to lengthy cross-examination, but nothing could be elicited therefrom to show that the report was not lodged at the time mentioned in Ex. Ka-3. The complainant has stated that after the incident he dictated the report to B.K.Johri brother-in-law of PW 2 and then went to police station along with brother Ravish and handed over at the police station. Question had been raised with regard to the identity of B.K. Johri. It was suggested to PW 1 that written report Ex.Ka-1 was prepared from husband of PW 2, which had been emphatically had been denied. The parentage of her husband's father and name of his brothers were asked from PW 2 in cross-examination, which do not match with the parentage of B.K. Johri given by him in Ex. Ka-1, but the defence did not dare to directly ask from PW 2 as what is the relationship of B.K. Johri with her husband. It may be possible that he may be cousin of B.K. Johri. It is noteworthy that the investigating officer has interrogated Sri Johri on the day of incident itself. What benefit the prosecution could derive from impersonating B.K. Johri, the scribe of Ex. Ka-1? It could not be explained by the appellant's counsel during the course of arguments. The trial Court has also repelled this argument of the defence in the judgment.

15. Learned counsel for the appellants then drew our attention to certain omissions in the written report taking us through the cross-examination of PW 1 to contend that it was ante-timed. We have carefully perused the statement of PW 1. There are certain facts which do not find place in the written report, although PW 1 stated that he dictated those facts to the scribe. It is quite natural. We can very well imagine the mental condition of PW 1 when he was dictating the report of the incident to the scribe. He must be under tremendous shock and trauma on account of brutal murder of his mother at his residence and before him. It is trite that written report of the crime is not the encyclopedia of the prosecution story. It requires only such facts to be noted which are sufficient for the police to initiate investigation of a cognizable offence. The instant written report is complete in itself. It contains the date, time and place of the incident. The names of accused, their role in the incident and motive for the crime as also the names of witnesses have been noted therein. Learned counsel for the defence has asked facts pertaining to the incidents which had taken place after the marriage of PW 2 and wanted explanation from PW 1 why they were not mentioned? The complainant has given plausible reply stating that they were not relevant for the incident and had already been mentioned in earlier reports made by PW 2 and her mother prior to the incident. Further, perusal of written report shows that only accused Ashok Tiwari had fired shots from his gun on the deceased, while in evidence it has come that other accused have also fired shots on her. Learned counsel for the appellants has argued that the improvement had been made to match the prosecution story with post-mortem report of the deceased wherein the doctor has noted four fire arm wound of entry and two of exit. Even the investigating officer has noted six injuries on the person of the deceased in the inquest report. Had the report was not in existence prior to inquest or post-mortem examination and was prepared later on then such an ambiguity would not crept in. It lends assurance that the FIR was lodged at the given time and it is not ante-timed at all. The instant FIR can safely be labeled as a prompt report. The importance of prompt report in a heinous crime like the present one is well known as it rules out all possibilities of deliberations, concoctions and embellishment.

MOTIVE

16. Learned AGA has argued that there was strong motive for accused Ashok Tiwari and his companions to commit the crime as after the marriage of PW 2 he was all out to see that she returns back and did not leave any stone unturned to achieve the goal. The motive finds place in the prompt written report of PW 1, which in our opinion is more than sufficient. The learned trial Court has also discussed this point and has observed as under:

" cpko i{k dh rjQ ls ;g Hkh dgk x;k fd ,Q-vkbZ-vkj- esa e`rdk dh gR;k djus dk dksbZ vk'; Li"V ugha fd;k x;k gS vkSj tks bl rF; dk izek.k gS fd vfHk;qDrx.k dks xyr rjhds ls Qalk fn;k x;k gSA ;g rdZ lrgh vkSj ,dkaxh gSA ?kVuk dh i`"BHkwfe esa vfHk;qDr v'kksd frokjh dh cnpyuh vkSj mlds vokafNr vkpj.k dks Li"V fd;k x;k gS rFkk miyC/k lk{; ls ;g Li"V gS fd vfHk;qDr v'kksd frokjh ds e`rdk ds ifjokj vkSj fueZyk ukenso ls izkjEHk ls laca/k FksA bu laca/kks dk ykHk mBkrs gq, fueZyk ukenso ls 'kkjhfjd laca/k tcfj;k LFkkfir djrs gq, mldk nSfgd ,oa vkfFkZd 'kks"k.k fd;k vkSj tc fueZyk ukenso us viuk fookg dj fy;k rks mlls {kqC/k gks djds vfHk;qDr us u dsoy mldk vyhx< ls vigj.k djus dk iz;kl fd;k cfYd viuh dqafBr bPNk ds vk/kkj ij vkokafNr vkpj.k djrs gq, bl t?kU; ?kVuk dks vatke fn;kA vfHk;qDr ds d`R; ds laca/k esa izR;{knf'kZ;ksa dk lk{; ekStwn gS vkSj tc izR;{knf'kZ;ksa dk lk{; miyC/k gks rc vk'k; egRoiw.kZ ,oa izeq[k rF; u jg djds ik'oZorhZ rF; gks tkrk gSA tSlk fd ekuuh; mPpre U;k;ky; us "HkxhjFk rFkk vU; gfj;k.kk jkT; 1996 ¼33½ ,-lh-lh- ist 654" ij m)fjr fd;k x;k gSA"

We are in agreement with the above findings of the trial Court in respect of motive. Except accused Ram Sewak all are real younger brothers of accused Ashok Tiwari and reside in the vicinity. All the accused have joined hands with Ashok Tiwari in his nefarious activity. Thus, alleged motive for the crime stands fully proved.

INTERESTED WITNESS AND NON-EXAMINATION OF INDEPENDENT WITNESSES

17. The topography of the house of complainant as depicted in the site plan shows that the house of complaint is not situated in dense population. The houses of accused persons are nearby, so there was no possibility of any other person to have witnessed the incident which had taken place inside the house of the complainant. Moreover, the house of the complainant was closed since the night of 18.4.2002, so the neighbours may not know that the complainant's family had in fact arrived. It has not in come in evidence of PW 1 and PW 2 that any body else except the family members of the complainant had seen the incident, thus there was no independent witness to be examined in the case. The prosecution has examined its important witnesses and there was no use to examine any more witness among the family members of the complainant. It is the quality and not the quantity of witnesses that is material in criminal in finding the guilt or otherwise of accused persons.

REAL INCIDENT

18. As regards the incident of 27.4.2002 we have the testimony of PW 1 and PW 2. Both of them have in unison stated that they i. e. PW 1, PW 2, deceased, B.K.Johri, Ravish, Tara Chand, his wife and two children (7 adult and two children) left Jhansi early in the morning for Orai and from there they came directly to Hospital in Konch as PW 2 was to join her duty after long leave. It has been stated that all the accused arrived there in the hospital in order to kill them at about 12 O'clock in the noon. Their hue and cry attracted the doctor and staff of the hospital. Dr. Amit Chaturvedi called the police and before their arrival, the accused left the hospital. Although HM Ram Babu PW 4 has denied that any such information from the hospital reached the police station on 27.4.2002 or whether any constable was sent to hospital, but it makes not difference because the statement of Ram Babu is based on GD entry. It may be possible that as information did not relate to any cognizable offence, so it was not entered in the GD. Considering the incidents which had taken place in previous few months, it is quite possible that PW 2 was scared to have come alone to resume her duties. It has also come in the evidence that owing to the night incident on 18.4.2002 the entire family of complainant left for Jhansi in the night itself and they jointly came to Konch on 27.4.2012. The PW 2 has proved the report, which she got scribed from her brother-in-law regarding noon incident of 27.4.2012. From the hospital the entire family reached home and then at about 4.45 p. m. all the accused armed with fire arms barged into the house of the complainant and fired shots on the deceased, who was sweeping the court-yard and was the first to meet them in the house. All other inmates of the house were frightened and hid themselves inside the rooms. Both the witnesses have vividly described the incident in their testimony. They have been extensively cross-examined by the defence counsel, but no material contradiction could extracted. The investigating officer has also proved the place of incident through site plan Ex.Ka-5. There is no inconsistency in the statements of both the witnesses of fact about their place of sitting in the house before and during the incident. The topography of the house and location of doors and windows is well proved through the statements of both the witnesses which finds corroboration from the site plan. A curtain having hole from bullet was also recovered by the investigating which on the eastern window of western room. The place and range of firing had been clearly shown by the investigating officer and the bullet was found in the eastern room. The sign of bullet mark was also found in the almirah of southern wall of eastern room. Apart from it, the articles recovered by the investigating officer from the scene of occurrence also corroborates the testimony of eye witnesses about the manner of assault. The PW 1 was asked many times during cross-examination as to who had fired shots on the deceased. He has denied the suggestions given by the defence in this regard. In an incident where five accused have used fire arms and fired many shots, it would be very difficult to count the total number of fires or as to how many shots were fired by each accused? The scene of occurrence as had been depicted by PW 1 and PW 2 in their deposition before the Court clearly show that they attempt was also made to kill them, but they some how managed to escape by hiding inside the room. PW 1 has categorically stated in cross-examination that through the door-leaves he witnessed the incident. Vain effort was made by the defence to show that in the night of 26/27 April, 2002 PW 1 had attended marriage ceremony in the house of Rajendra Singh Gurjar or Barhal. The complainant has denied suggestions put to him many times during cross-examination in this regard. Thus, we find that there is no inconsistency in the prosecution story with regard to manner of assault and place of occurrence etc.

MEDICAL EVIDENCE

19. Learned counsel for the appellants has argued that the medical evidence is not in consonance with the ocular evidence of the incident. He further submitted that the post-report has been fabricated by the doctor, as the daughter of the deceased (PW 2) was employed in the same hospital and in order to help her, the doctor had manipulated the report. It is true that at the time of incident PW 2 was posted in Govt. Hospital, Konch but was on leave for more than four months. She had joined her duty on the date of incident. PW 1 has stated in cross-examination that PW 2 did not visit the hospital on the day when autopsy on the dead body of his mother was conducted. The doctor has found four gun shot wounds of entry and two of exit on the persons of the deceased as ante-mortem injuries which is in consonance with the inquest report. No doubt considerable time was taken by the doctor in the post-mortem but he has given plausible reason for the delay during his cross-examination. In the facts and circumstances of the case there is no ground to reject the testimony of the doctor, which finds full support from the eye-witness account of the incident.

20. Learned counsel for the appellants has argued that the doctor has found semi-digested food in small intestines of the deceased and in cross-examination he has admitted that in 2½ -3 hours the food is semi-digested, but PW 1 has stated that his mother did not take food in his presence. However, he has admitted that before the incident food was not prepared at home and they ate the food which was brought from Jhansi. PW 2 has stated in cross-examination that she does not remember whether on 27.4.2002 any body had taken food in Orai or Konch hospital. However, she has categorically stated that nobody in the family had taken food in Malviya Nagar house after reaching there. This fact is not very much material. The complainant and family had left Jhansi for Konch on 27.4.2002 at about 5 a.m. and they had two children with them, then naturally they must have carried some food items with them because they knew that Malviya Nagar house was closed for many days and they had to undertake journey of about 4-5 hours. They were nine persons in all, who travelled together from Jhansi to Konch via Orai. Before reaching home they had stayed for few minutes in Orai and for some time in Konch hospital so it was not necessary that PW 1 and PW 2 had remained with other family members whole time and had parted for any moment. If in the absence of PW 1 and PW 2, the deceased had taken some food during journey, it may not be known by them. Moreover, the doctor has stated in cross-examination that on account fear, stress and worry the semi-digested food reaches the intestines. It is noteworthy that digestive system of every body is not same. The prosecution story cannot be doubted merely on the ground that some semi-digested was found by the doctor in small intestines of the deceased. Thus, we find that the medical evidence available in the case fully corroborates the ocular evidence of eye witnesses.

ALIBI OF ACCUSED KAMLESH TIWARI

21. The last point argued before us on behalf of the appellants is that on 27.4.2001 accused Kamlesh Tiwari had attended Sarswati Shishu Mandir, Bajaria (Malviya Nagar) from 7 a.m. to 1 p.m., so he has no occasion to be present at Konch hospital with other accused at about 12 O'clock. He has placed reliance on the testimony of Satya Prakash Dwivedi DW 1, a teacher of the aforesaid school. He had brought the attendance register of the school for 2001-2002 and 2002-2003 and on the basis thereof he had stated accused Kamlesh Tiwari did teaching work in the school on 27.4.2002 from 7.00 a.m. to 1.00 p.m. However, in cross-examination he had stated that from perusal of the attendance register it cannot be said that as to when Kamlesh Tiwari left the school on that day and he does not know as to what he did after leaving the school. The school in question and the house of the deceased both are situated in the same mohalla i. e. Malviya Nagar. Both the witnesses have specifically mentioned the presence and participation of accused Kamelsh Tiwari in both the incidents of 27.4.2002. Alibi is not an exception (special or general) envisaged in the IPC or any other law. It is only a rule of evidence recognized in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the incident took place. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. In such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. In view of the nature of evidence available on record, we find that the defence has miserably failed to prove the alibi plea of accused Kamlesh Tiwari.

22. In view of the above, we do not find any cogent reasons to interfere with the order of conviction of each appellant for the offences punishable u/s 148, 302/149 and 452 IPC. On point of quantum of sentence the trial Court has observed as under:

"bl dsl esa lcls nqHkkZX;iw.kZ igyw ;g gS fd bl dsl dh ?kVuk esa ewy esa vfHk;qDr v'kksd dqekj frokjh dh dk;Zo`fRr fufgr gSA v'kksd dqekj frokjh is'ks ls vfHkoDrk gS vkSj tulkekU; dh /kkj.k ds vuqlkj ,d vf/koDrk dk dk;Z vius dkuwu lEer Kku] foosd vkSj dk;Zo`fRr ls tulkekU; dks U;k; fnykuk mldh dk;Zo`fRr esa 'kkfey gksuk gS rFkk ,sls gh O;fDr us viuh nq"izo`fRr;ksa ls izsfjr gks djds ?kVuk dks u dsoy Loa; vatke fn;k cfYd mlus vius rhu Hkkb;ksa vkSj ,d fe= dks Hkh 'kkfey dj fy;kA vfHk;qDr v'kksd frokjh ds }kjk ml efgyk dh eka dh gR;k djus dk d`R; fd;k x;k gS ftldk mlus o"kksZ rd nSfgd vkSj vkfFkZd 'kks"k.k fd;k gS vkSj tc mlus viuk fookg djds ikfjokfjd thou O;ofLFkr djus dk iz;kl fd;k rks vfHk;qDr us igys mldks Mjkus&/kedkus o vigj.k tSls d`R;ksa dk lgkjk fy;k vkSj varr% grk'kk ;k fu"Qyrk dh fLFkfr esa igWqp dj Qk;fjax djds mls vkSj mlds ifjokj okyksa ds fy, ladV mRiUu fd;k vkSj bl Qk;fjax dh ?kVuk esa e`rdk Jherh jkedyh dh e`R;q dkfjr gqbZA---"

23. In the facts and circumstances of the case we find that the above findings recorded by the learned trial Judge are correct and the sentence awarded to each accused is appropriate. However, the learned trial Court has erred in not awarding fine in default of payment of Rs.20,000/- u/s 302/149 IPC imposed upon each accused. As such we direct that in default of payment of fine each accused would further undergo rigorous imprisonment for one year. Subject to this modification both the appeals are dismissed. All the accused are on bail. They should be taken into custody forthwith and sent to jail to serve out the sentence imposed on each of them.

24. Let a copy of the judgment be transmitted to the Court concerned forthwith for compliance, which should be reported within two months.

...................................Rakesh Tiwari, J

..........................Anil Kumar Sharma, J

Dated: October 12, 2012

Imroz/