Rajesh & 2 Ors. vs State Of U.P.
2015 Latest Caselaw 5551 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgment
 

 
Case :- CRIMINAL APPEAL No. - 1937 of 2008
 
Appellant :- Rajesh & 2 Ors.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Abid Ali,Alok Kumar Mishra,Atiya Abid,Mohd.Alam,Mohd.Rizwan,Rajendra Prasa Mishra,Rajesh Kumar,Safiya Abid,Subhas Pandey
 
Counsel for Respondent :- G.A.,Vijay Kumar Shukla
 

 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Pratyush Kumar, J.

(Per Surendra Vikram Singh Rathore, J.)

1.Mr. Rajendra Prasad Mishra, learned counsel for the appellants and Sri Mohd. Yusuf Ansari, learned A.G.A. for the State were heard at length.

2.Instant criminal appeal has been preferred by appellants-Rajesh, Rakesh and Brijesh challenging the judgment and order dated 14.08.2008 passed by learned Additional Sessions Judge (F.T.C. Court No.1), Ambedkar Nagar, in Sessions Trial No.18 of 2007, arising out of Case Crime No.355 of 2006, under Sections 302/34, IPC, Police Station Kotwali Tanda, District Ambedkar Nagar, whereby all the appellants were convicted for the offence under Section 302/34 IPC and were sentenced with imprisonment for life and also with fine of Rs.10,000/- with default stipulation of one year's additional rigorous imprisonment. Appellant Rakesh was further convicted for the offence under Section 4/25 of Arms Act and was sentenced to undergo one year's rigorous imprisonment and also with fine of Rs.1000/- with default stipulation of two months additional imprisonment.

3.In brief, the case of the prosecution was that the complainant Ram Saran Shukla lodged an FIR at the Police Station Kotwali Tanda, District Ambedkar Nagar on 27.09.2006 at 00.30 hours alleging therein that in the intervening night of 26/27-09.2006 at 9.30 p.m. he was coming back from Tanda to his house. He had gone to attend the 'Durga Pooja' at Hari Nagar crossing. His younger brother Radhey Saran Shukla was also present there. While they were coming back from Durga Pooja to their houses with torches in their hands and reached near railway crossing then they heard some unusual noise. On flashing their torches, they saw that in the paddy field of Jokhu Verma his brother Krishna Saran was being assaulted with axe, Gehdala ( a sharp heavy cutting weapon) and knife by appellants Rajesh, Rakesh and Brijesh who happens to be real brothers and sons of Shiv Pujan of his own village. When these persons raised alarm and ran towards the deceased then all the three accused persons turned towards them and challenged them that in case they come forward then they shall also be killed. Thereafter, the accused persons ran away in the west south direction. When these persons came near the deceased then they found that his brother had received serious injuries in his head and he was gasping. While these persons were planning, how to provide treatment in the meantime he succumbed to the injuries. Leaving the dead body on the spot the complainant went to lodge the FIR of this case and on the basis of same the case was registered.

4.After registration of the case Investigating Officer came to the place of occurrence and prepared its site plan. In the following morning the inquest proceedings were conducted and the dead body was sent for postmortem. The postmortem was conducted at 2:00 PM on 27.09.2006. As per the postmortem report the duration was half day old and following ante-mortem injuries were reported in the postmortem:-

(A) Multiple incised wound in an area of 9 cm x 5 cm present on left side of head 1 cm above left eye brow underlying frontal bone was fractured.

(B) Multiple incised wound of 7 cm x 4 cm x cavity deep present on right side. There was fracture on frontal bone of head 2 cm above right eye brow. Brain metal was exposed.

(C) Incised wound 2 cm x 1 cm x skin deep present on right side of face just anterior to right ear.

(D) Incised wound 3 cm x 1 cm x skin deep present on left eye lid brow.

(E) Incised wound 3 cm x 1 cm x skin deep present on chin 1 cm below right side of lower lip.

(F) Multiple incised wound present in an area of 9 cm x 5 cm present on left side of head. Size various 2 cm x 0.5 cm x 3.05 cm x skin deep on left side of head. 6 cm above left eye.

(G) Multiple incised wound present in an area of 17 cm x 8 cm on left side of face.

(H) Incised wound 4 cm x 2 cm x skin deep 9 cm above right ear.

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

5.During investigation the appellants were arrested on 28.09.2006 by the police on a secret information and thereafter on the pointing out of each appellants, separately the weapon used by them in the offence were recovered. A separate recovery memo was prepared and place of recovery was also inspected and its site plan was prepared. During investigation, the torches of both the witnesses were seen by the Investigating Officer and its memo was prepared. During course of investigation it came into light that the conspiracy of this murder was hatched by Radhey Shyam, uncle of the three appellants.

6.After completing the investigation, the charge-sheet was filed against all the three named accused appellants and also against Radhey Shyam.

7.The case of the defence was of their false implication because of the enmity and it was also pleaded that the incident has taken place in night at some unknown time and was not witnessed by any person. It was only because of the enmity that they have been falsely implicated.

8.In order to prove its case, the prosecution has examined PW-1, Ram Saran Shukla, the complainant, PW-2 Radhey Saran Shukla, as witnesses of fact, PW-3 Dr. S.C. Sinha, who has conducted postmortem, PW-4 Shiv Saran Shukla, is a witness regarding recovery under Section 27 of Evidence Act, PW-5 Ram Narayan Yadav the Investigating Officer of this case, was a witness to prove conspiracy hatched by Radhey Shyam. He has turned hostile. PW-6 Mahesh Prasad Verma, PW-7 Constable Rajkesh who has prepared the chik report and G.D. of this case, PW-8 Shyam Lal S.I. Investigating Officer of the case under Section 25 of Arms Act.

9.No oral evidence in defence was adduced on behalf of the appellants. However, six documents Exhibit Kha-1 to Kha-6 have been filed to establish enmity.

10.After appreciating the evidence on record, learned trial court convicted the appellants as above, hence the instant appeal. However, Radhey Shyam was acquitted.

11.Submission of the learned counsel for the appellants was that in the instant case learned trial court has not appreciated the evidence in correct perspective. He has placed implicit reliance on the evidence of the two eye witnesses who were not only real brothers of the deceased but also chance witnesses. Their presence on the scene of occurrence at the relevant time was highly improbable and doubtful. Learned trial court has committed error in placing implicit reliance on their evidence and apart from the evidence of the two eye witnesses there was no other evidence to connect the appellants with the instant offence. It has also been argued that the appellants Brijesh had lost three fingers of his right hand about one year prior to the incident. So it is unbelievable that such a person could hold a weapon like Gedahla and could give blows with force to the deceased. It has also been argued that on the basis of the same evidence appellant Radhey Shyam was acquitted though he was assigned the role of hatching conspiracy to commit this murder. On the strength of the above submissions it is argued that the appellants were entitled to acquittal and the conviction recorded by the trial court was not sustainable under law.

12.Learned Additional Government Advocate has submitted that in the instant case a prompt FIR was lodged and both the witnesses have explained the reasons of their presence that cannot be doubted. It has also been argued that the only role assigned to the co-accused Radhey Shyam was was of hatching conspiracy. Since the witnesses of conspiracy (PW-6) has turned hostile, therefore, his case was distinguishable from the present appellants and the learned trial court has neither committed any illegality in acquitting him nor the acquittal of co-accused Radhey Shyam would in any manner help the present appellants. It has also been argued that the appellants Brijesh is quite capable of performing his daily and agricultural work so it is wrong to say that he was not able to hold the weapon or to give blows. The trial court has properly appreciated the prosecution evidence and has rightly convicted the appellants. The judgment is well reasoned and needs no interference by this appellate court.

13.Before proceedings further we would like to mention inter-se relationship of the appellants and the witnesses. All the three appellants namely Rajesh, Rakesh and Brijesh are real brothers and they are sons of Shiv Poojan. All the three appellants are resident of Village Mamrejpur. The fourth accused who has been acquitted by the trial court namely Radhey Shyam happens to be real uncle of the deceased and as per the admitted case of both the parties there was enmity of the complainant with Radhey Shyam. Civil and criminal litigation were going on. The deceased Krishna Kumar Shukla was son of Awadh Raj Shukla resident of the same village Mamrejpur and the two eye witnesses namely Ram Saran Shukla and Radhey Saran Shukla are the real brothers of the deceased. Appellants and complainant come under the same family tree.

14.The first point to be considered is the FIR in this case. FIR in a criminal case is a valuable document as the entire prosecution case revolves around it. Though it is not a substantive piece of evidence but definitely it is the pivotal document on which the entire prosecution case rests. The incident of this case is alleged to have taken place at 9:30 p.m. on 26.09.2006 and the FIR of this case was lodged in the same intervening night at 00:30 hours i.e. only after three hours of the incident. The distance of place of occurrence from the police station, as per the chik report, was 5 kilometers. It has come in evidence that after the incident the witnesses made a planning for the treatment of the deceased but before they could finalize it the deceased succumbed to the injuries. During cross-examination learned defence counsel got the delay explained. PW-1 has stated in his cross-examination that after the incident he went to his house. He remained there for about an hour and thereafter he went to police station. Such conduct of the complainant cannot be said to be abnormal. Admittedly, in the instant case, the inquest proceedings were conducted in the morning because there was no sufficient light to conduct the proceedings and inquest proceedings started at 6:30 a.m. and concluded at 8:00 a.m. Thereafter the dead body of the deceased alongwith other papers was sent for postmortem. Perusal of all the papers which were sent alongwith the dead body shows that the same bears title and details of the case. The postmortem on the body of the deceased was also conducted on the same day at 2:00 p.m. and duration was reported to be only half day old. After perusal of all the documents we do not find any ground to hold that the FIR was not registered at the time as alleged by the prosecution. Hence in our considered opinion, in the instant case the FIR was lodged without any delay and the prompt FIR lends credence to the prosecution story because it eliminates the possibilities of coming up of a coloured version.

15.After going through the entire evidence and the documents relied upon by the prosecution we could not notice anything to hold that the FIR did not come into existence at the time as alleged by the prosecution. This prompt FIR not only lends credence to the case of the prosecution but also supports the prosecution story that the witnesses had seen the incident because the place of incident as shown in the site plan where the offence is alleged to have been committed is situated by the side of road in a paddy field of Jokhu Verma. So if none would have seen the incident then there was absolutely no question to notice the dead body lying in the paddy field by any person during the night. But in the instant case, as stated earlier, the FIR of this case was lodged in the same night at 00:30 hours so it cannot be presumed by any stretch of imagination that the incident was not witnessed by any person.

16.A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."

Hon'ble the Apex court in the case of Nanhey Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

17.Submission of the learned counsel for the appellants was that as per the case of the prosecution the incident has taken place in the night and no one has witnessed the occurrence and it was only in the morning when the dead body was seen then the information was given to the police due to which the inquest proceedings were conducted in the morning. But we find absolutely no substance in this submission. The FIR of this case was lodged in the midnight and inquest proceedings were conducted in the following day when the light became sufficient to conduct the said proceedings.

18.Great stress has been laid by the learned counsel for the appellants that in the instant case both the witnesses were related and they were chance witnesses. It is true that the witnesses are the real brothers of the deceased and at the time of the incident they, as per the prosecution story were coming back after attending 'Durga Puja' and were going back to their own houses. There is no dispute to the fact situation that the way, through which these witnesses were going was the only way to their own village. There is not even a suggestion to any witness that any other shorter way from Hari Nagar to their village was available.

19.Law is settled on the point that the evidence of a witness cannot be discarded only on the ground that he is a related witness. But it is only rule of prudence, rule of caution that evidence of such witnesses is to be scrutinized with some extra caution. Once the Court is satisfied that the witness was present at the scene of occurrence and his evidence inspires confidence then the same cannot be discarded on the sole ground of relationship with the deceased.

20.Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness. In a recent judgment in the case of Nagappan Vs. State (by Inspector of Police, Tamil Nadu) reported in (2014) 3 SCC (Cri) 660 Hon'ble the Apex Court in paragraph no. 10 has observed as under :-

"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab AIR 1953 SC 364 Guli Chand v. State of Rajasthan (1974) 3 SCC 698, Vadivelu Thevar v. State of Madras AIR 1957 SC 614, Masalti V. State of U.P. AIR 1965 SC 202, State of Punjab v. Jagir Singh (1974) 3 SCC 277, Lehna v. State of Haryana (2002) 3 SCC 76, Sucha Singh V. State of Punjab (2003) 7 SCC 643, Israr v. State of U.P. (2005) 9 SCC 616, S. Sudershan Reddy v. State of A.P. (2006) 10 SCC 163, Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra (2007) 9 SCC 1, Woman v. State of Maharashtra (2011) 7 SCC 295, State of Haryana v. Shakuntla (2012) 5 SCC 171, Raju v. State of T.N. (2012) 12 SCC 701, Subal Ghorai v. State of W.B. (2013) 4 SCC 607." (emphasis added)

21.On the point of chance witness reference may be made to the pronouncement of Hon'ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 wherein Hon'ble Apex Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Partap and Others V. State of Haryana reported in 1983 (3) SCC 327 which reads as under:-

"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

(emphasis added)

Reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in (2005) 9 SCC 650 and the Hon'ble Apex Court has observed in para 8 which is reproduced as under:-

"Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

(Emphasis added)

22.Submission of the learned counsel for the appellants was that the witnesses are chance witnesses. We have very cautiously considered their evidence. In the instant case both the witnesses have stated that they had gone to attend the 'Durga Puja' ceremony at Harinagar crossing Radhey Saran Shukla also reached there after completing his duty and after 'Durja Puja' both were coming back from the road and they were having torches in their hands. During 'Durga Puja' it is very common phenomena to go and attend 'Durga Puja' and it is absolutely natural that when two brothers who were coming from different directions and they met at the 'Durga Puja' then they will come back to their own houses together. This is the case of the prosecution that they were coming together to their house. As stated earlier, there is no dispute that the said road which passes by the side of the field of Jokhu Verma is not the way to their house rather that is the only way to their village. The murder is alleged to have been committed in the field of Jokhu Verma only at a distance of 8-10 paces from the road whereby these two witnesses were passing. In such religious ceremonies like 'Durga Puja' etc it is nowhere necessary that all the persons must leave the place of Puja at one time. It is only after offering prayers the visitors, as per their own circumstance, leaves the place at the time that suits them. So in the instant case, if these two brothers left the place littler prior to 9:30 p.m. then the same cannot be made a ground to discard their evidence. It has come in evidence that these witnesses left the Puja after Aarti and after taking Prasad.

23.In the instant case, admittedly the incident has taken place by the side of a way which is going from Tanda to Mamrejpur i.e. village of the deceased and the witnesses. The incident has taken place in a paddy field of Jokhu Verma adjacent to the said road on the southern side. Both the witnesses have stated that they had gone to see 'Durga puja' in Harinagar and they were coming back together to their houses, therefore, these two witnesses were using the public way while they became witness of this incident of the murder of their own brother. It has nowhere been challenged during cross examination of both these two witnesses of fact that no 'Durga puja' was organized in Harinagar and it is really strange to note that no such suggestion has been given to these two witnesses that they had not gone to attend the 'Durga puja' in Harinagar. So the fact that these two witnesses went to Harinagar to see 'Durga puja' remains unchallenged.

24.The case of the defence is that some unknown persons murdered the deceased at some unknown time but this suggestion does not inspire confidence because the FIR of this case was lodged at 00:30 hours i.e. only after three hours of the incident. This delay of 3 hours stands further explained by the cross examination of the witnesses on behalf of the appellants themselves. PW-1 has stated that after the incident he had gone to his house and about an hour time was spent there and thereafter he went to lodge the FIR. Spending of about one hour time at the house was very natural because it has come in evidence that all the three brothers have their separate houses so the complainant must have informed his family members and being the eldest in the family must have consoled them. The distance from the place of occurrence to the house of the complainant was about 400 meters as stated by PW-1 in his cross examination. So in this background, we are of the considered view that these two witnesses were natural witnesses. It has also come in evidence that at the relevant point of time there was no other person on the road and the other persons reached there only after hearing the alarm raised by these two persons.

25.So these two persons were the only witnesses of this incident and both of them have been examined by the prosecution as eye witnesses of this incident and both of them have supported the case of the prosecution.

26.The evidence of these two eye witnesses have been challenged also on the ground that there was strong enmity of these witnesses with the appellants. There is no dispute to the fact situation that there was enmity between the two sides. Every type of litigation civil, revenue and criminal was going on between two sides. Documentary evidence on the point of litigation have been filed from both the sides. So enmity between the two sides is an admitted fact. Enmity is a double edged weapon; on one side it may act as a motive to commit crime and on the other hand, it may be a ground for false implication. Since it is a case of direct evidence, therefore, the motive part loses its significance. The only point to be considered is whether the witnesses were present at the time of the occurrence as alleged by the prosecution and whether their evidence inspires full confidence. So the enmity, by itself, cannot be a ground to discard the entire case of the prosecution on this score alone.

27.It has also been challenged that in the FIR the respective weapons of each of the accused were not mentioned but it has come in cross-examination of PW-1 who was a retd. teacher that for the purpose of brevity he had not mentioned the respective weapons used by each accused. He has also stated that at that point of time he was in a disturbed state of mind. Perusal of the FIR shows that all the weapons were mentioned in the FIR. The object of the FIR is to bring the criminal law into motion. FIR cannot be treated to be encyclopedia of the entire prosecution case. The object of the FIR is to inform the police regarding the commission of an offence disclosing the names of the accused persons and the deceased/victim to enable the police to start investigation in accordance with law. Reference on this point may be made to the pronouncement of Hon'ble Apex Court in the case of Jitendra Kumar V. State of Haryana reported in (2012) 6 SCC 204.

28.The evidence of the two eye witnesses has also been challenged on the ground that the deceased used to work at diesel shop in Tanda but not even a single penny or any other belonging was recovered from his body after his death. Admittedly, nothing is alleged to have been recovered from the body of the deceased but this by itself cannot be a ground to discard the otherwise reliable evidence of the prosecution witnesses because it has nowhere come in evidence that the deceased was coming with certain goods in his hands or any bag on his cycle or he was having money in his pocket. So only on the basis of presumption that the deceased might be carrying some belongings and some money with him which was not found on his body, would not make the evidence of the witnesses unreliable. Apart from it, the possibility that the accused persons before giving blows might have snatched the money or the belongings cannot be ruled out because the witnesses have seen the incident when the accused persons were giving blows to the deceased, so what happened before the start of giving blows is a mystery and there is absolutely no evidence on that point. Therefore, in these circumstances, simply on the ground that nothing was recovered from the body of the deceased cannot be a ground to discard the evidence of eye witnesses.

29.Both the eye witnesses are the real brothers of the deceased hence it is unbelievable that sparing the real assailants they will falsely implicate the appellants only because of the enmity.

30.On behalf of the appellant Brijesh it has been argued that he has lost his three fingers about one year prior to the incident and he was not in a position to hold Gehdala as alleged by the prosecution. It has come in evidence that the appellant Brijesh Kumar has lost his three fingers prior to the incident but to hold Gehdala both the hands are required. Appellant Brijesh Kumar has thumb and one finger and his second hand was absolutely healthy so in this position he could very well hold the Gehdala and use it. Simply because he had lost his three fingers prior to the incident cannot be a ground to hold that he was not present at the place of occurrence or he was not capable to commit crime in the manner alleged by the prosecution.

31.The distance of 'Durga puja' from the place of occurrence has come in cross examination as 100 to 125 meters and from the railway crossing, the place of occurrence was 30-40 meters.

32.The recovery of the weapons has also been challenged on the ground that the said recovery has been made from a place that was near the field of Jokhu Verma towards southern side on the Jokhu Verma's field. It is true that the recovery was made on 28.09.2006 from the field of Ram Chain. As per the site plan (Exhibit Ka-13) the said field of Ram Chain is on the southern side of Jokhu Verma's paddy field. After the paddy field of Jokhu Verma there is another vacant field of Jokhu Verma. Thereafter field of Ram Chain is situated on the southern side of Jokhu Verma's vacant field. The recoveries of respective weapons were made on the pointing out of each of the accused separately from three different places situated near western boundary of Ram Chain's field. According to the version of the FIR, the accused persons ran away in that very direction. It has also come in evidence that the witnesses have seen the accused persons running upto a distance of 15-16 lathis. Admittedly, it was night and there was light of the torches only. So these witnesses after the accused persons started running away must have only seen the glimpses of the accused persons and they must have concentrated only towards their brother who was fighting for his life and he died within 2 or 3 minutes after the incident. Both the witnesses of fact have given the same statements regarding the manner of the incident regarding size of the paddy crop and the place of occurrence.

33.It has also been argued that according to the evidence of PW-1 and PW-2 there was mud in the field of paddy crop but no mud was found on the dead body. PW-1 has stated that the land of the paddy crop was wet and there was slight mud but it has also come in evidence of both the witnesses that the crop of the paddy's was about one and half feet tall and it was about to ripe. It has also come in evidence that the paddy crop in the area where the dead body was lying had fallen and apart from that paddy crop in an area of 4-5 paces was also damaged. So even if there was mud but the dead body was lying on the paddy crop above mud. The arguments of the learned counsel for the appellants was that in the dead body the doctor has not reported any mud so the place of occurrence was doubtful. PW-2 has stated that some mud on the dead body was present. These are such minor things that we cannot expect that each minor things must be observed by the witnesses. It is not expected that each and every minor things must be noted and must be explained and that too in the night. Settled principles of appreciation of evidence provides that the evidence of a witness must be taken as a whole and if it inspires confidence then the same must be acted upon. There is tendency of the witnesses that they tend to give reply of each and every questions put to them because they have an apprehension that their truthful story may not be believed by the court if they fail to reply the each questions put to them and this inspires witnesses to make certain replies only on the basis of their presumptions. Whether there was mud or not is of no consequence because the place of incident is established by the evidence of the Investigating Officer and by the direct testimony of the two eye witnesses. The blood stained and plain earth was also recovered from the palce of occurrence and as per the chemical examination report dated 30.03.2007 human blood was found on the said blood stained earth. On the Chhuri (knife) which is alleged to have been recovered on the pointing out of the appellant Rakesh human blood was found. So simply because no mud was found by the doctor on the body would not adversely affect the case of the prosecution in any manner.

34.It has also been argued regarding PW-2 that he is a bus conductor and his presence at the time of occurrence was doubtful. It has come in evidence of PW-2 that he is a conductor in roadways and he was on duty on Akbarpur Tanda road. His bus plies throughout day. In the evening at about 6:00 p.m., it reaches Tanda and after staying there for about 10 minutes he comes back to his village by another bus and come to his house. On the said day he reached his house at about 6:45 p.m. and after staying at his house for 10-15 minutes he went to see 'Durga puja' at Hari Nagar. This witness has stated that from his house no other member of his family accompanied him to 'Durga puja'. On the basis of this statement of PW-2 learned counsel for the appellants has tried to challenge the presence of PW-1. But the arguments advanced by the learned counsel for the appellants on this point could not impress us because it has come in evidence that all the brothers have their separate houses. According to the case of the prosecution these two brothers met each other in 'Durga puja'. It is nowhere the case of the prosecution that these two witnesses went together from their houses to 'Durga puja'. So the aforesaid statements of PW-2 does not adversely affect the case of the prosecution rather it supports the prosecution story that they met in Durga Puja only.

35.It has also been argued that PW-2 has admitted that there was also a 'Durga puja' near his house and on the basis of this submission it is argued that there was no occasion for the witnesses to go to Harinagar Tiraha for 'Durga puja'. But the Court cannot ignore the ground realities while appreciating the evidence. People often like to go to 'Durga puja' which is decorated in a better manner and is more attractive. So simply because these two witnesses went to offer their prayers in 'Durga puja' of Harinagar crossing cannot be a ground to doubt their presence. The 'Durga puja' of their village was near their houses so they were in a position to see it throughout the day. So if in the night they had gone to another 'Durga puja' then this by itself cannot be treated as an unnatural conduct to disbelieve their evidence. PW-2 has stated that Aarti started at 8:30 p.m. which continued for about 15 minutes thereafter 10-15 minutes was consumed in taking Aarti and Prasad and thereafter he alongwith his brother moved towards their houses and while they were on the way they have witnessed this incident.

36.Learned counsel for the appellants has also challenged the evidence of PW-2 on the ground that he has stated that his brother fell at a distance of 40-45 meters from the road which goes towards his village. But the questions put to this witness was a vague question because unless and until two points are fixed the exact or estimated distance between the two points cannot be explained. The distance from the road to the place where the deceased fell was asked to this witness. This road runs in the east west direction so from what point on the said road PW-2 stated the distance is not clear, whether this distance was from the railway crossing or from any other point of the road. He has nowhere stated that the dead body was lying at a distance of about 40-45 paces from the place wherefrom they had seen the incident. He has stated that his brother received injury at a distance of 50 paces from railway crossing. He has also stated that from the road his brother fell at about 40-45 meters towards west side. So this distance is given by this witness from the railway line and not from the place wherefrom he has seen the incident. Thus this statement does not adversely affect the evidence of PW-2.

37.Great emphasis has been laid on behalf of the appellants that the statement of PW-2 under Section 161 Cr.P.C. was recorded on 04.11.2006 while the incident of this case took place on 26.09.2006. It has also been argued that as per the case of the prosecution PW-2 was present during the night he met with the Investigating Officer but as to why his statement was not recorded by the Investigating Officer has not been explained and it was recorded only on 04.11.2006 and on the strength of this delayed recording of statement under Section 161 Cr.P.C. the evidence of this witness has been challenged. In the facts of this case, PW-2 was named in the FIR as a witness. Admittedly as per the prosecution evidence he was present on the date in the night of the incident but simply because on the said day his statement was not recorded his evidence cannot be discarded. Mere delay in recording the statement of a witness under Section 161 Cr.P.C. by itself cannot be a ground to discard his evidence.

38.Hon'ble Apex Court has considered this aspect in the case of Bodhraj @ Bodha and others V. State of Jammu and Kashmir reported in (2002) 8 SCC 45 and has observed in para 33 which is reproduced as under:-

"Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the Trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion."

39.Hon'ble Apex Court has again considered this aspect in the case of Sheo Shankar Singh V. State of Jharkhand and another reported in (2011) 3 SCC 654 and has observed in para 66 which is reproduced as under:-

"The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eye-witness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the Court to closely scrutinize and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eye-witness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version."

40.Hon'ble Apex Court has also considered this aspect in the case of Abuthagir and others V. State represented by Inspector of Police, Madurai reported in (2009) 17 SCC 208 and has observed in paras 28 and 29 which are reproduced as under:-

"28. Much emphasis has been led by learned Counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution's case.

29. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating officer specifically as to why there was delay in recording the statement. Unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the conclusion. (See Ranbir and Ors. v. State of Punjab reported in 1974]1SCR102, Bodhraj @ Bodha and Ors. V. State of Jammu and Kashmir reported in 2002CriLJ4664, Banti @ Guddu v. V. State of M.P. reported in 2004CriLJ372 and State of U.P. v. Satish reported in (2005) 3 SCC 114."

41.Keeping in mind the aforementioned legal position the facts of case have to be considered. In the instant case the delayed recording of the statement under Section 161 Cr.P.C. of PW-2 Radhey Saran Shukla cannot be taken as a ground to discard his otherwise reliable evidence because admittedly he was a conductor in the roadways. He remains on duty from the morning till evening. The Investigating Officer on this point was cross examined on behalf of the appellants wherein the Investigating Officer has stated that the reasons for the delayed examination of PW-2 Radhey Saran Shukla has not been mentioned in the case diary. In his statement the Investigating Officer PW-5 Ram Narayan Yadav has stated that the statement of this witness was recorded on 04.11.2006. The challenge of the learned counsel for the appellants that PW-2 was available to the Investigating Officer on the date of incident as he was present on the scene of occurrence, as per the prosecution case, so why his statement was not recorded on that very day. In the instant case, as stated earlier, PW-2 was named in the FIR as witness of fact. It is not a case where the name of the witness, came into light for the first time during investigation and the said statement was recorded with a considerable delay. On this point no question was put to the Investigating Officer as to why he had not recorded the statement of PW-2 on the date when he went to the place of occurrence. On the first day of start of investigation that too in a murder case there are so many formalities to be conducted by the Investigating Officer. He had to inspect the place of occurrence, he had to conduct the inquest proceedings, he had to make arrangements to send the dead body for postmortem and also to make other recoveries. Apart from it, when such an incident takes place within two groups of the same village then the atmosphere of the village gets charged. So the Investigating Officer who also performs the duties of a police officer comes under obligation to maintain law and order situation and also to trace out the accused persons. So keeping in view these circumstances if the statement of PW-2 could not be recorded on that very day then it would not adversely affect the case of the prosecution in the peculiar facts of this case.

42.So far as the acquittal of other accused Radhey Shyam is concerned it has absolutely no bearing on the case of the present appellant because the allegation against Radhey Shyam was only for hatching the conspiracy for the commission of this offence. There was no direct evidence against him and the witnesses who were produced by the prosecution to prove the conspiracy had not supported the case of the prosecution. Thus the acquittal of Radhey Shyam was on entirely different grounds. Hence the same will not adversely affect the case of the prosecution.

43.During course of arguments, learned counsel for the appellants has drawn our attention towards the certain minor contradictions but law is settled on the point that minor contradictions in the evidence of natural witnesses are bound to occur. Because Power to grasp the event and to express the same in his own words differs from person to person, therefore, the minor contradictions are bound to occur.

44.Law accepts only major contradictions which goes to the root of the case. That means which shakes the basic fabric of the prosecution case and make the case of the prosecution improbable. Reference on this point may be made to the pronouncement of Hon'ble Apex Court in the case of State of U.P. V. Naresh and others reported in (2011) 4 SCC 324. But in the instant case no such contradictions could be brought to our notice.

45.In view of the discussion made above, we are of the considered view that in the instant case the evidence of PW-1 and PW-2 was wholly reliable and they have explained their presence on the scene of occurrence and their testimony remained unshaken throughout their cross-examination both the witnesses have described the manner of assault in the same manner, their ocular testimony finds full corroboration with the medical evidence and therefore, the learned trial court has not committed any error in convicting the appellants. Judgment passed by the learned trial court is well reasoned and needs no interference. The appeal sans merits and deserves to be dismissed.

46.This appeal is hereby dismissed.

47.Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.

 
Order date: 18th December, 2015
 
PAL
 
Crl. Appeal No.1937 of 2008        (Pratyush Kumar, J.)   (S.V.S. Rathore, J.)