Vijay Pal & Another vs State Of U.P.
2012 Latest Caselaw 4451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
COURT NO. 33
 

 
Criminal Appeal No. 14 of 2001
 

 
1.Vijay Pal
 
2.Brij Mohan
 

 
Vs.
 

 
State of U.P.
 

 
With
 

 
Criminal Appeal no. 80 of 2001
 

 
Annaiya
 

 
Vs.
 

 
State of U.P.
 

 
Counsel for the appellants : 	Tej Pal, A. K. Srivastava, B. D. Maurya, 
 
				     	N.I. Jafri,  Amicus Curiae, Sukhendu 						Pal Singh and Apoorva  Misra
 

 
Counsel for the respondent: 	Sri Ram Yash Pandey, Addl. Govt. 						Advocate

CORAM:

HON. RAKESH TIWARI, J

HON. ANIL KUMAR SHARMA, J

(Delivered by Hon. Anil Kumar Sharma, J)

In aforesaid appeals the appellants have challenged the judgment and order dated 15.12.2000 passed by 5th Addl. Sessions Judge, Firozabad in S.T. no. 269 of 1998 whereby they have been convicted for the offences punishable u/s 147, 148, 302/149 and 506 and sentenced to imprisonment for life and fine of Rs. 5,000/- each with default stipulation u/s 302 read with section 149 IPC. They have been further sentenced to undergo six months R.I u/s 147 IPC , One year RI each u/s 148 and 506 IPC. All the sentences were directed to run concurrently.

2. The prosecution story in nutshell is that on 12.9.1997 at 10.30 a.m. Bateshwari Prasad s/o Gopi Ram Yadav r/o Village Zafrabad P.S. Makhhanpur submitted a written report at P.S. Makhhanpur, Firozabad stating that his son Ajendra along with Kishan Lal s/o Janak Singh r/o Chandrai P.S. Sirsaganj District Firozabad were taking Smt. Baikunthi Devi (mother-in-law of Kishan Lal) from the village to consult a doctor. When they reached outside the village near the bajra fields of Sobran and Kitab Singh at about 9 a. m., they were intercepted and surrounded by accused Vijay Pal, Mahipal and Brij Mohan sons of Raghu Nath Yadav r/o Village Zafrabad, Annaiya s/o Kali Charan r/o Village Tikamai P.S. Jasrana District Firozabad, Shyam Singh @ Shyama s/o Rameshwar r/o Village Badanpur Karkha P.S. Makhanpur. and two unknown persons. All the miscreants were armed with fire arms of different kinds and they opened indiscriminate firing on Ajendra @ Lalu and his companion Kishan Lal who was driving the motor cycle. At the same time the grand-father and father of Ajendra @ Lalu were going to see off Janak Singh father of Kishan Lal and they also arrived at the scene of occurrence and saw the incident. Ajendra and Kishan Lal sustained several fire arm injuries and died instantaneously at the spot. Bateshwari Prasad father of deceased Ajendra @ Lalu submitted written report scribed by his brother Balbir Singh at the police station Makkhanpur and accordingly case at crime no. 121/97 u/s 147, 148, 149, 302 IPC was registered, investigation whereof was taken up by S.O. Vishwa Nath Singh himself. He reached at the spot soon after the registration of the case and prepared inquest of the cadaver of both the deceased. He prepared site plan and seized simple and blood stained earth from the spot as also 3 empties of 12 bore and brass each as also three wooden pieces of butt through recovery memo. The dead bodies of the deceased were sent for post mortem examination in sealed cover. Dr. S.C. Gupta conducted autopsy on 12.9.1997 from 10 p. m. onwards. He found following ante mortem injuries on the person of 25-years' old Kishan Lal:

1.Gun shot wound of entry on left side upper lateral surface of chest 2.5 cm x 1.5 cm x chest cavity deep. Margins inverted and lacerated.

2.Gun shot wound of entry on left middle and index finger of hand dorsal surface 3.0 cm x 2.0 cm x bone deep blackening present with fracture.

3.Gun shot wound of entry on left forearm 2.0 cm. x 2.0 cm x muscle deep. Margins inverted and abraded 3.0 cm away from wrist joint.

4.Gun shot wound of exit of injury no. 3 on left upper arm. Margins everted through and through 3.5 cm x. 2.5 cm x bone deep.

A long metallic bullet was recovered from right side chest cavity wall.

The same night Dr. Gupta performed post-mortem examination on the body of 22-years' old Ajendra at 10.30 p. m. and found following ante mortem injuries:

1.Gun shot wound of entry on dorsal surface of left forearm 4.0 cm. x 3.5 cm bone deep through and through. Blackening and scorching present. Margins inverted.

2.Gun shot wound of exit of injury no. 1 on ventral surface of left forearm 6 cm x 3.0 cm x through and through. Margins everted.

3.Multiple gun shot wounds of entry on upper part of chest and face 0.75 cm x 0.75 cm x skin deep. Margins inverted. Blackening present on surface.

4.Gun shot wound of entry on lower part of back of chest near mid line 4 cm x 4 cm abdominal cavity deep. Scorching present. Margins inverted.

Wadding piece and six pellets were recovered from abdominal cavity of the deceased. In the opinion of the doctor both the deceased suffered death due to shock and haemohrrage on account of ante-mortem injuries. The investigating officer recorded statements of witnesses and prepared site plan. The investigation ended in charge-sheet against the accused persons.

3. After committal of the case to the Court of Session, learned Sessions Judge framed charges under section 147, 148, 302/149 and 506 IPC against all the accused, who abjured the guilt and claimed trial.

4. In order to prove its case, the prosecution has examined complainant Bateshwari Prasad PW 1, Gopi Ram PW 2, Janak Singh PW 3, Dr. S. C. Gupta PW 4, Prahlad Singh PW 5, Constable Prahlad Singh PW 6, Constable Prem Singh PW 7, S. I. Vishwa Nath Singh PW 8 and SI Y.K.Ponia PW 9. All the accused persons in their separate statements u/s 313 Cr.P.C. have again denied the prosecution story and stated that false evidence had been given by the prosecution witnesses. However, they have not adduced any evidence in defence. The learned Addl. Sessions Judge after hearing parties' counsel had convicted and sentenced the accused-appellants as mentioned in para-1 of the judgment.

5. We have heard Sarva Sri Sukhendu Pal Singh and Apul Misra, Advocates for the appellants and Sri Ram Yash Pandey, AGA for the State at length and perused the original record of the case carefully.

6. Learned counsel for the appellants criticizing the prosecution story have argued:

that the FIR is ante-timed and certain important facts have not been mentioned therein;

that there was no motive for the accused-persons to eliminate both the deceased;

that there material contradictions and discrepancies in the testimony of alleged eye witnesses, which are highly improbable and there presence on the spot at the time of alleged occurrence is doubtful;

that the place of occurrence is not proved;

that manner of assault does not fit in medical evidence which is contrary to ocular testimony of eye witnesses; and

the prosecution has not examined the scribe of written report and other material witnesses so the prosecution has failed to bring home the guilt to the appellants and they are liable to be acquitted.

Per contra learned AGA supporting the impugned judgment has submitted that the written report about the incident was promptly lodged with the police; that the FIR is not ante-timed and it contains all material particulars required by the police to investigate the case; that the eye witnesses examined in the case are natural witnesses and their presence on the spot at the time of incident is duly proved; that there is no variance in ocular version of the incident with the medical evidence rather it fully supports the prosecution story.

7.In order to examine the merit of these contentions, it will be necessary and important for us to notice the case of the prosecution in brief.

8.It has come in evidence adduced during trial that Bateshwari PW 1, along with family resides in village Zafrabad. Bateshwari PW 1 is father of deceased Ajendra @ Lalu while Gopi Ram PW 2 is his grand father. Janak Singh PW 3 is father of other deceased Kishan Lal and they are residents of village Chandrai P.S. Sirsaganj. Kishan Lal is married to the daughter of late Bhanwar Singh, who is also resident of village Zafrabad. About three years' prior to the incident Bhanwar Singh was murdered and in that case accused Vijay Pal was indicted. Kishan Lal in order to look after family of his father-in-law used to frequently visit Zafrabad as there was no adult member in the family and he was also doing pairvi in the murder case. Smt. Baikunthi Devi widow of Bhanwar Singh is mother-in-law of Kishan Lal. It has also been alleged that Kishan Lal used to meet the family of Ajendra whenever he visited village Zafrabad but it was not liked by accused Vijay Pal and his family. A fortnight prior to the incident, he has threatened Bateshwari PW 1 not to entertain Kishan Lal, else they would have to face dire consequences. Few days before the incident Kishan Lal had come to village Zafrabad to see his ailing mother-in-law and his father had also visited the village a day prior to the occurrence. The prosecution story further stated that in the morning of 12.9.1997 Kishan Lal and Ajendra were going on motor cycle, which was being driven by deceased Kishan Lal, with Smt. Baikunthi Devi to see a doctor. Complainant and his father Gopi Ram at about the same time were going to see off Janak Singh at tempo stand. When both the deceased reached near bajra fields of Sobran Singh and Kitab Singh, all the accused-appellants along with others armed with fire arms intercepted the motor-cycle of the deceased and opened fire on them. They fell from the motor cycle and after sustaining fatal injuries died at the spot. In the mean time complainant, Gopi Ram and Janak Singh also reached at the spot and witnessed the entire incident. Complainant Bateshwari PW 1 along with others reached the police station, met the police officer who instructed him to submit written report. Then he got the written report scribed from his brother Balbir and submitted at the police station at 10.30 a.m. The report was registered and investigation of the case was taken up by S.O. Vishwa Nath Singh, who after interrogating the complainant reached at the spot, prepared inquest of corpses of both the deceased from 11.45 a.m. onwards and seized plain and blood stained earth as also 3 empties of 12 bore and brass each as also three wooden pieces of butt through recovery memo. The investigating officer also found the motor cycle on which deceased were going along with Smt. Baikunthi Devi at the spot.

FIRST INFORMATION REPORT

9.The distance between place of occurrence and police station Makhhanpur, where the case was registered is about 8 kilometers. The report has been submitted 1½ hour after the incident. The complainant PW 1 has stated that he left for the police station an hour after the incident. At the police station the police officer met him and he informed him about the incident, whereupon he instructed him to give the report in writing, thereafter he got the report scribed from his brother Balbir Singh and handed over to him. Head Moharrir Prem Singh PW 7 has deposed about registration of the case at 10.30 a.m. on 12.9.1997. He has proved the check report Ex. Ka-9 and copy of G.D. Report no. 20 as Ex. Ka-10 as also the copy of GD report Ex. Ka-11, through which the S.O. PW 8 has deposited the sealed bundles containing the articles seized by him from the spot. This witness had brought the original GD of police station dated 12.9.1997 at the time of his deposition, but no question about registration of any cognizable offence at the police station on the day of incident was asked. He has emphatically denied the suggestion that the report is ante-timed. In cross-examination he has further stated that the police personnel who had taken the special report to the headquarter returned back the same day at 19.40 hrs vide GD report no. 29. Constable Prahlad Singh PW 5 has is carrier of the sealed cadaver of the both the deceased for autopsy along with Constable Tej Singh. He has stated in cross-examination that he reached the police headquarter along with papers at about 8 p.m. This statement finds corroboration from challan lash Ex. Ka-15 and Ka-20 wherein time 7.00 p. m. had been noted under the signatures of Reserve Inspector, Police Lines, Firozabad. There is variation of one hour, but it is insignificant because the deposition of PW 5 had been recorded in the trial Court on 31.1.2000 i. e. more than two years after the incident and it is difficult for the police officials to remember exact timings because it is their routine work. It is true that copy of GD report was not sent by PW 8 along with inquest report etc. He has admitted this fact in cross-examination stating that when he left the police station copy of GD report was given to him which had been annexed with the case diary. The case was registered in his presence and he has denied the suggestion in cross-examination that the FIR was was later on prepared after inquest. Public witness Ratan Singh PW 6 had been examined to prove the recovery memo and the inquest proceedings. He has proved his signatures on inquest reports of both the deceased and has also testified the seizure of simple and blood stained earth from the spot as also the recovery of three empty cartridges 12 bore, three brass empties and three pieces of wooden butt from the spot. In cross-examination this witness has stated that the police arrived at the spot at about 10.30-11 a.m. and inquest of Kishan Lal was prepared from 11.40 a.m. to 1.00 p.m. and that of Ajendra from 1-1.15 p.m. onwards. These timings tally with the inquest reports. Significantly the time of preparation of inquest reports have not been asked from investigating officer PW 8. Thus the external checks available on record, clearly indicate that the report is not ante-timed rather it is a prompt report. It is trite that prompt reporting of the crime particularly pertaining to heinous one like the present case is of great importance as in such report narration of incident and nomination of accused etc. rule out any possibility of concoction or deliberations. The instant written report Ex. Ka-1 is complete in itself to ignite the police to start investigation of the crime, but the complainant forgot to mention therein that at the time of incident the deceased were travelling on a motor cycle along with ailing Baikunthi Devi. Learned counsel for the appellants has attacked the prosecution case on the ground that the motor cycle has been subsequently introduced to give colour to the story, but it is fallacious. Except Baikunthi Lal PW 1 all other witnesses of fact have stated to the investigating officer in their statements u/s 161 CrPC about the motor cycle and it has also been shown in the site plan Ex. Ka-12. FIR is not the encyclopedia of the prosecution story. We can very well imagine the mental condition of the complainant when he dictated the report to his brother. His young son was killed by his co-villagers and their companion before him. Naturally he would be under great shock and trauma, so he could not mention the motor cycle in the written report, it does not affect the prosecution case. Thus it is prover that the FIR is not anti-timed. It is a prompt report and can be safely considered in support of prosecution case.

MOTIVE

10.Learned counsel for the appellants has contended that there was no motive for the accused to kill both the deceased and whatever motive has been alleged by the prosecution is not sufficient at all. In reply the learned AGA has submitted that motive finds place in the promptly lodged written report by the complainant, as accused Vijay Pal had killed the Bhanwar Singh father-in-law of Kishan Lal three years ago. After this incident Kishan Lal used to support family of his father-in-law and became friendly with Ajendra and his family, which was not liked by Vijay Pal accused. It has come in cross-examination of complainant PW 1 that 15-days prior to the incident, Vijay Pal warned him not to entertain Kishan Lal, else he would face dire consequences. Gopi Ram PW 2 has stated in cross-examination that Bhanwar Singh was also distantly related with them and whenever he visited their village he also used to come to his house. Further this case is based on direct evidence, so motive pales into insignificance. Motive is locked in the mind of the accused and often the prosecution finds it difficult to unearth the motive behind the crime. Nowadays murders are being committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature such as the instant case, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:

"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is .....need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered"

In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:

"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a find of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."

In the instant case we have seen above that accused Vijay Pal and his family were inimical with the family of late Bhanwar Singh, which included deceased Krishna Lal, a resident of other village who was friendly with Ajendra @ Lalu, so the aforesaid accused bore enmity with them also. It is also apparent from the fact that a fortnight before the incident accused Vijay Pal has extended threat to Bateshwari PW 1 to face dire consequences if they continue their support to deceased Kishan Lal. Friend of enemy is also enemy, so Vijay Pal and his family members bore enmity with Bateshwari and his family. Thus, we find that the alleged motive for the accused stands fully established and it was sufficient for them to commit the crime. We are aware that motive is a double edged weapon, because it also acts as a catalyst to falsely rope in the accused in a criminal case, but the fact that the incident had taken place in the vicinity of village Zafrabad in broad day light, so if the accused have been falsely implicated in this case, then number of persons of the village would have come forward to depose for the accused. However, no witness has been examined by the defence to say that these murders have been committed by some one else other than the accused persons and they are innocent. Thus, we find that alleged motive for the accused is amply proved and it is sufficient to commit the murders of Kishan and Ajendra @ Lalu.

RELATED WITNESS/INTERESTED WITNESS

11.Learned counsel for the accused has vehemently argued that the alleged eye witnesses examined in the case, being fathers and grand father of the deceased are closely related to them, so they are partisan and interested witnesses, hence their testimony should not be relied upon. In the case of, Dalip Singh and others vs. State of Punjab (AIR 1953 SC 364 it has been laid down as under by the Hon'ble Apex Court:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts."

Observations of the Hon'ble Apex Cour in Masalti and others V. State of U.P., AIR 1965 SC 202, are worth mentioning:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses............. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

The above decision has been followed in Guli Chand and others v. State of Rajasthan 1974(3) SCC 698, in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in Israr vs. State of U.P. (2005 (51) ACC 113) in para 12 of the judgment are also worth mentioning:-

".........Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. In this context, we may refer to the case of Sucha Singh and another V. State of Punjab (2003) 7 SCC 643 wherein their Lordships of the Hon'ble Apex Court observed as under:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judge on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

They further observed:-

"Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."

In the case of Ravi Vs. State of U.P. 2004 (11) SCC 266, the following observations have been made by the Apex Court:

"It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others".

The Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. S. Rayappa and others 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses has observed as under:

".......By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."

In para-8 their Lordships have further observed:

".....The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..."

We can usefully refer to the latest decision of the Apex Court rendered in the case of Mahesh Vs. State of M.P. 2012 Cri LJ 2710. In para-17 of the report, following observations have been made:

"17. The prosecution has examined at least three eye-witnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the different and various roles played by the accused persons. Since eye-witnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."

12.In the backdrop of the legal position enumerated above, in instant case also, it cannot be said that Bateshwari Prasad PW 1, Gopi Ram PW 2 and Janak Singh PW 3 are not independent witnesses and their testimony be discarded merely on the ground that they are near relatives of the deceased, rather considering the time and place of the incident they are the most natural witnesses, as there was no time or possibility for any one to have witnessed the incident, however, their testimony would be closely and carefully scrutinized. As regards non-examination of Baikunthi Devi (mother-in-law) of deceased Kishan Lal is concerned, no doubt she must have seen the occurrence from the beginning, but as already pointed out she was ill at that time and it has also come in evidence of PW 2 and PW 3 that she became unconscious during the incident and had also been beaten by the accused persons, so if she has not been produced during trial it would not adversely affect the prosecution case. Had there been no other eye witness of the incident, then her examination would have become imperative for the prosecution. Moreover, she is also closely related with deceased Kishan Lal, so same tag of being partisan would have been labeled on her as well. In a criminal trial, unless serious prejudice is caused to the accused persons, the Court is required to evaluate the evidence adduced by the prosecution in order to find the guilt or otherwise of the culprits. Thus, the contention put forward by the learned counsel for the appellants on this score has no legs to stand.

13.Now as regards testimony of the eye witnesses with regard to actual incident, before we dwell into its evaluation, it would be useful to have a look on the relevant law. The Apex Court in a very recent case reported in Kathi Bharat Vajsur & Anr Vs. State of Gujarat 2012 Cri. L. J. 2717 (S.C.) has observed that inconsistencies or contradictions in oral evidence do not rule out oral evidence when medical evidence is in consonance with principal part of oral/ocular evidence. It has been further held that reaction of eye witness in unusual manner after incident does not affect prosecution case and witnesses cannot be disbelieved on this ground. In paras-18, and 19 of the report (CrLJ) following observations have been made:

"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."

The above observations have also been given by the Apex Court in the case of Sunil Kumar Sambhudayal Gupta and others State of Maharshtra 2011 (72) ACC 699, on which reliance has been placed on behalf of the appellants as well. There cannot be any dispute with the legal position enumerated above. Learned counsel for the appellants has submitted that presence of alleged eye witnesses is highly doubtful because there was no occasion for Janak Singh PW 3 to have visited village Zafrabad and then PW 1 and PW 2 would not have gone to see him off, when his son Kishan Lal was already there. All the three eye witnesses have been cross-examined at length on these points and they have successfully withstood the test of cross-examination. They have consistently stated that Kishan Lal was already in the village and Janak Singh was told by his wife about ailment of Smt. Baikunthi Devi, so he had also come to village Zafrabad to see her. There is nothing unnatural in it. As already pointed out earlier, Kishan Lal was helping the family of his in-laws after murder of Bhanwar Singh as there was no adult male member in their family. There is slight variation in the testimony of PW 1 and PW 2 with regard to the name of doctor from whom Baikunthi Devi was taking treatment, but it is quite insignificant and does not shake the prosecution story. PW 1 to PW 3 have given eye witness account of the incident and it has come in their testimony that at the time of incident Kishan Lal was driving the motor cycle, Baikunthi Devi was sitting in the middle and Ajendra was behind her on pillion seat. These witnesses have vividly spoken about the firing on both the deceased and whatever variation has come in their statement is due to different perception of the incident which is based on their age, observation, shock, memory and capacity to reproduce the same after so many years in the Court. If they had narrated the entire story of firing in the same manner without any variation, then it could have easily been said that they have given parrot-like version of the story which is result of active tutoring. These witnesses have given natural evidence and we do not find any infirmity therein. Moreover all the three eye witnesses are closely related to the deceased, then why they would falsely nominate the accused persons leaving out the real offenders.

14.Learned counsel for the appellants has listed certain alleged omissions and contradictions in the statements of PW 1 to PW 3 alleging that they are material contradictions and so no reliance should be placed on the testimony of these witnesses. In the cross-examination of PW 1 he has been asked with respect to certain facts which are not contained in the FIR, to which he has replied in affirmative. He has not given any incorrect statement in this regard. The alleged omissions/contradictions in the FIR and statement u/s 161 CrPC are:

F.I.R.

Statement u/s 161 CrPC

It is not mentioned that the deceased were coming on motor cycle. Has given plausible explanation regarding shock on account of the incident.

Told to I.O. About motor cycle lying on spot. Does not know whether he has written it or not?

Did not mention that the deceased ran after getting down from the motor cycle

Scuffle of accused with Lalu and hitting his shoulder with butt.

Lalu was caught by accused Shyama s/o Rameshwar

Did not note down the place where he had hidden during the incident.

Did not mention that accused Shyama caught hold his son.

Did not tell the I.O. about the place where he had hidden during the incident.

Does not mention to the I.O. that the deceased ran after getting down from the motor cycle.

Does not remember as to whether he told the I.O. About the scuffle of accused with Kishan Lal and hitting butt on deceased Lalu.

Does not remember whether he told the place to the I.O. where he had hidden during the incident.

As we have already mentioned that the FIR in a criminal case is not an encyclopedia of the prosecution case. Only such facts need be mentioned therein which are sufficient for the police to conclude that an incident of cognizable offence has taken place, so that it may start investigation. In the instant case the complainant has mentioned all the relevant facts including the date, time and place of incident, name of accused, witnesses and victims, as also the weapons used by the accused persons as also motive for the crime. He was not required to note down each and every minute detail of the incident, nor it was expected from any complainant, who has witnessed day light murder of his son by co-villagers and is lodging report promptly after the occurrence. It is very easy to find fault in any thing. It is not all required that whatever is asked from a witness during cross-examination in Court, it should be mentioned in the FIR, so if the above facts do not find place in the written report Ex. Ka-1, it does not affect the prosecution story. Now as regards contradictions with regard to statement of PW 1 u/s 161 Cr.P.C., it is important to note that the investigating officer PW 6 has not been cross-examined on any of them on behalf of the defence. The proper and legal way of proving a contradiction or omission is to ask the investigating officer about non-existence or read over the entire statement to the witness and to draw his attention to omission, so the alleged contradiction/omission are not duly proved. Furthermore, the statement of PW 1 was recorded by the I.O. at the police station soon after the registration of the case. Naturally, at that moment his mental position would not have been normal but he must be under tremendous shock on account of murder of his young son, so if he did not certain relevant facts to the investigating officer, it does not any shadow of doubt on the prosecution story.

15.All the three eye witnesses have given consistent statement on material points with regard to the manner of incident. There is no material contradiction, which may adversely affect the prosecution story. No doubt minor contradictions have come in their statement, but they are quite natural considering the age of PW 2 and PW 3 and time elapsed between the incident and recording to their deposition before the trial Court. Examining the minor contradictions on the touchstone of the legal principles enumerated above, we find that the testimony of PW 1 to 3 is cogent, clear and reliable. They have duly proved the entire incident including the role of accused persons and the place of occurrence.

16.The learned AGA has submitted that the ocular evidence adduced in the case is fully supported by the medical evidence i. e. the autopsy report of both the deceased. They have suffered many gun shot injuries, few of them are result of close-range firing. No doubt, it has come in the statement of PW 1 that there was scuffle of accused with Lalu and the later was hit on shoulder with butt, but no such injury has been found on the person of the deceased, but it is insignificant. During a melee it is always not necessary that every blow given by accused may cause injury to victim, because at that time he would also react and try to save him from the assault. He will not become a statue. Thus, if deceased Ajendra @ Lalu has not received injury caused by butt of fire arm it does not affect the otherwise reliable prosecution story. Further deceased Kishan Lal has sustained blackening on injury no. 2 while blackening on injuries no. 1 and 2, scorching on injuries no. 1 and 4 of Ajendra @ Lalu were found by the doctor. Injury no. 2 of Ajendra @ Lalu is an exit wound corresponding to injury no. 1. These injuries clearly show that all injuries found on the person of Ajendra @ Lalu were result of close range firing, while only injury no. 2 was caused from very little distance and others were causes from some distance. As we have already observed that during the incident number of shots were fired by accused persons. It is not necessary that all short fired would have caused injuries to injured, because they must have tried to save themselves and that's why in only one injury blackening was found. A witness howsoever vigilant may be can never accurately narrate the distance of the firing in the case of indiscriminate firing with mathematical precision. However, the fact remains that the medical evidence available on record fully supports the eye witness account of the incident as given by PW 1 and PW 3 and there is no inconsistency therein.

NON-EXAMINATION OF SCRIBE AND OTHER MATERIAL WITNESS

17. Learned counsel for the appellants has submitted that the prosecution has not examined the scribe of the written report, which creates doubt about authenticity of the FIR and the prosecution has not examined any other independent witness. To buttress his argument reliance has been placed on the following cases:

a) State of Rajasthan Vs. Teja Singh AIR 2001 SC 990;

b) Rang Bahadur singh Vs. State of U. P. AIR 2009 SC 129;

c) Brij Lal Prasad Sinha Vs. State of Bihar AIR 1998 SC 2443;

d) Malempati Pallati Narendra Vs. Ghattamaneu Maruti Prasad AIR 2000 SC 2195;

e)     Surendra Pratap Chauhan Vs. Ram Naik & others AIR 2001 	SC 164;
 

 
f)      Om Prakash Vs. State of U.P. AIR 2009 SC 944.
 

We have carefully perused all these reports, but on account of material difference in facts and circumstances, under which the observations have been given by the Apex Court, the same are not applicable to fact situation of the instant case. In the instant case the scribe of the FIR is the real brother of complainant, who resides in the same village and the written report was not pre-prepared before the complainant reached the police station, rather on the direction of the police officer, the complainant got the report scribed from his brother. The incident had taken place in broad day light and there was no difficulty in identifying the accused persons, who were co-villagers of the complainant. With regard to Baikunthi Devi, we have already observed earlier that the prosecution case is not affected from her non-examination. As regards precedents, we can usefully refer to the following observations of the Apex Court given in the case of Megh Singh vs. State of Punjab 2003 CAR 543 (SC), where the Hon'ble Court has observed:

"Circumstantial flexibility, one additional ground or different fact may make a word of difference between two conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is pronounced in criminal cases where the backbone of adjudication is fact based."

We have already held that the testimony of PW 1 to PW 3 does not suffer from any infirmity and there are no material contradictions therein; that it fully corroborates the medical evidence adduced in the case, and that their evidence is clear, cogent and reliable so the ratio of the cases cited on behalf of the appellants do not apply to the fact situation of the instant case. In these circumstances, the prosecution story is not adversely affected by non-examination of scribe of written report or any other witness in the case.

18. Before parting with the case, we would like to observe that the trial Court has convicted and sentenced the appellants both u/s 147 and 148 IPC, which is absolutely illegal. Both these sections operate in different fields. No doubt formation of unlawful assembly to commit an offence in prosecution of the common object of such assembly is required to be established under both the sections, but a person cannot be held guilty on both counts. If an accused as a member of unlawful assembly is armed with a deadly weapon, then he is liable to be convicted u/s 148 IPC, while the one did not possess any dangerous weapon would be convicted u/s 147 IPC. In the instant the evidence has proved that all the accused-appellants were having fire-arms, which have also been used by them in the incident, so they would be convicted u/s 148 IPC and not u/s 147 IPC. To this extent the impugned judgment deserves modification.

19. For the reasons stated above, we find that the prosecution has been able to bring home the guilt to accused-appellants beyond all reasonable doubt and they were liable to convicted for the offences punishable u/s 148, 302/149 and 506 IPC. We, therefore, confirm the conviction and sentence of the appellants under these sections and acquit them for the offence punishable u/s 147 IPC. The sentences would run concurrently as directed by the trial Court. Subject to this modification, both the aforesaid appeals are dismissed.

The office is directed to immediately transmit the certified copy of the judgment to the trial Court for compliance, which should be reported in two months.

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

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

Dated 25.9.2012

CPP/-