Jagannath & Another vs State Of U.P.
2015 Latest Caselaw 1294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
(1)	Case :- CRIMINAL APPEAL No. - 4201 of 2013
 
	Appellant :- Jagannath & Another
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- K. Kumar Tripathi,Dileep Kumar
 
	Counsel for Respondent :- Govt. Advocate
 

 
(2)	Case :- CRIMINAL APPEAL No. - 1904 of 2000
 
	Appellant :- Brij Bihari
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- R.S.Tiwari,A.Ks.Solanki,Deepak 	Kumar Srivastava,Dileep Kumar,K. Kumar Tripathi,M.C. 	Chaturvedi,S.C. Dwivedi
 
	Counsel for Respondent :- D.G.A.,V.S. Singh
 
(3)	Case :- CRIMINAL APPEAL No. - 3117 of 2002
 
	Appellant :- Deen Dayal & Others
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- R.S. Tiwari,Ajit Kumar Singh 	Solanki,D.K. Srivastava,Dileep Kumar,Dilip Kumar,K. Kumar 	Tripathi,Lav Srivastava,M.C. Chaturvedi,S.C. Dwivedi
 
	Counsel for Respondent :- Govt. Advocate,V.S. Singh
 
And
 
(4)	Case :- CRIMINAL APPEAL No. - 3118 of 2002
 
	Appellant :- Binda & Others
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- R.S. Tiwari,Ajit Kumar Singh 	Solanki,B.S. Srinet,B.S. Sripat,D.K. Srivastava,Dileep 	Kumar,J.S. Lodh,K. Kumar Tripathi,Kameshwar Singh,M.C. 	Chaturvedi,R.K. Singh,S.C. Dwivedi,S.N. Singh
 
	Counsel for Respondent :- Govt. Advocate,V.S. Singh
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1.Criminal Appeal No. 4201 of 2013 has been filed by appellants Jagannath and Chhavi Lal, Criminal Appeal No. 1904 of 2000 has been filed by appellant Brij Behari, Criminal Appeal No. 3117 of 2002 has been filed by appellant Deen Dayal, Madan Pal and Dayaram and Criminal Appeal No. 3118 of 2002 Binda, Bala Deen, Ram Pyare, Harpal, Raja Bhaiya and Baboo alias Babu Ram.

2.Since all the aforesaid four criminal appeals arise out of a common sessions trial number, as such, the same are being disposed of by a common judgment.

3.Aforesaid four criminal appeals arise out of a common judgment dated 2.8.2000 passed by learned Sessions Judge, Mahoba in Sessions Trial No. 382 of 1991, arising out of Case Crime No. 228/90, Police Station Kabrai, District Hamirpur (the then District Mahoba), under Sections 147, 148, 149, 307 and 302 I.PC. whereby the present appellants were convicted for the offence under Sections 147 I.P.C. and were sentenced to undergo rigorous imprisonment for a period of one year. The appellants were further convicted for the offence under Sections 148 I.PC. and were sentenced with rigorous imprisonment for a period of three years. All the appellants were convicted for the offence under Section 302 read with Section 149 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of two years additional rigorous imprisonment. Appellants Deen Dayal, Madan Pal and Dayaram were further convicted for the offence under Section 25 of the Arms Act and were sentenced to undergo rigorous imprisonment for a period of one year each and also with fine of Rs. 1,000/- with default stipulation of six months additional rigorous imprisonment.

4.By the same judgment, other two accused persons who also faced trial along with present appellants namely, Ram Lal and Tijwa were acquitted of the charges levelled against them. There was one more accused Sahdev named in the F.I.R. but because of his death during trial, trial against him was abated. Appellant Binda died during pendency of the instant appeal and Criminal Appeal No.3118 of 2002 was abated, so far as it related to appellant Binda, vide order dated 2.7.2015.

5.In brief, the case of the prosecution was that on 29.12.1990, complainant Parma lodged an F.I.R. at 8:10 p.m. at Police Station Kabrai alleging therein that there was enmity with Sahdev regarding agricultural land. On 29.12.1990 at about 4:00 p.m., Maiya Deen (uncle of the complainant), his brother Hari Chand and complainant were collecting Hariyali for cattles in the field of Ram Manohar, PW-2 Randheer (cousin of the complainant) was harvesting Karvi, Rati Chand, brother of the complainant and his daughter Chaina were grazing their cattles near the field of Harihar. In the meantime, accused Sahdev (since dead), Ram Pyare and Binda armed with SBBL gun, Jagannath, Chhabi Lal, Bala and Raja Bhaiya armed with Farsa, Brij Bihari Deen Dayal, Madan Pal and Daya Ram armed with country made pistols. Ram Lal and Tejwa armed with lathis, Harpal armed with DBBL gun, Bablu alias Babu Ram armed with axe came near Maiyadeen and all the accused persons, who were armed with firearms, are alleged to have fired on him and thereafter remaining accused persons started giving blows with lathi, axe and Farsa to Maiyadeen. Complainant, his mother Beti and wife of Rati Chand, namely, Prema and his uncle raised alarm and tried to run towards Maiyadeen for his rescue but in the meantime accused persons caused the death of Harichand also. Complainant, Baldu and Randheer, in order to save their lives, ran towards Kali Pahadi. All the accused persons also murdered Rati Chand in the field of Harihar and thereafter they challenged that Ghapole must be coming back from Mahoba after selling milk and they challenged that they shall also kill him. At about 6:00 P.M. one Halke Singh, who was the resident of the same village, came to the house of complainant and told him that Ghapole alias Ram Gopal, who was coming with him, has been killed by the aforementioned accused persons near the Kilwadi culvert of Terha Pul. After getting the information of murder of Ghapole, the complainant went to lodge the F.I.R. of this case, which was registered at 8:10 p.m. and the investigation proceeded. The inquest of the body of Ghapole was conducted by PW-8 S.O. R.P. Tewari as the area where the death of Ghapole was caused fell within the territorial jurisdiction of Police Station Mahoba. However, the other three murder took place within the circle of Police Station Kabrai. After getting the information, inquest proceedings were conducted, thereafter all the dead bodies were sent for postmortem. The postmortem on the body of the deceased was conducted on 31.12.1990 by PW-5 Dr. S.M. Kaunskar. According to the postmortem report of Maiyadeen following injuries were found on his body:-

(i) Firearm wound of entry on right side chest 2 c.m. medial to right nipple, cavity deep, margins were inverted tattooing present. Direction was downwards, backwards and laterally.

(ii) Firearm wound of exit on right lateral aspect of chest 7 c.m. x 4 c.m. cavity deep oval, margins everted direction upper-ward, forward and medially.

(iii) Firearm wound of entry on left side chest 5 c.m. x 2.5 c.m. x cavity deep, oval, margins inverted, tattooing and scorching were present. Direction was downwards to the right laterally.

(iv) Incised wound on back side of left elbow 12 c.m.x 8 c.m. x bone deep. Underlying bone was cut.

(v) Incised wound of middle aspect of right thigh 6 c.m. x 3 c.m., x muscle deep 20 c.m. below the joint of bone of thigh.

(vi) Incised wound middle side of right thigh 8 c.m. x 3 c.m., 10 c.m. below injury no. 5.

(vii) Incised wound on lateral side of right knee 14 c.m. x 8 c.m. x bone deep on upper end. Both the bones were cut.

(viii) Incised wound 16 c.m. x 6 c.m. x muscle deep on back of right foot.

In the internal examination, 5, 6, 7, 8 and 9 right ribs were fractured. Left 5th and 6th ribs were fractured. Three pallets ad none plastic tickli were recovered. Lungs were lacerated.

6.According to the postmortem report of Harichand, following injuries were found on his body:-

(i) Incised wound on left forehead 3 c.m. x 1 c.m. x muscle deep, 1 c.m. above left eye brow.

(ii) Incised wound on left side of head 3 c.m. x 1 c.m. x muscle deep 1 c.m. above injury no. 1.

(iii) Incised wound on left side of face 3 c.m. x 1 c.m. near left eye.

(iv) Incised wound on left side of face 2 c.m. x 1 c.m. x muscle deep, 2 c.m. below injury no. 2.

(v) Incised wound on right side head 2.5 c.m. x 2 c.m on occipital bone, which was fractured, 15 c.m. above bone of ear.

(vi) Firearm wound of entry on right side chest 2 c.m. below above the right nipple, oval in shape 2.5 c.m. 2 c.m. Blackening and tattooing was present. Direction was upwards backwards. Right 4th rib was fractured. One tickli plastic and one cork was also recovered under the wound.

(vii) Firearm wound of entry on right side of chest oval, margins inverted, blackening and tattooing present. Direction of wound was downwards left and backwards.

(viii) Firearm wound of entry on right side of chest oval, margin inverted. Blackening and Tattooing present. Ribs were fractured. Liver and spleen were cut. One pallet, cork and plastic tickli were recovered from the wound.

7.According to postmortem report of deceased Rati Chand, following injuries were found on his body:-

(i) Incised wound on left side pinna 2 c.m. x 1 c.m. x muscle deep.

(ii) Incised wound 7 c.m. x 3 c.m. x muscled deep on left side of neck 3 c.m. below ear bone.

(iii) Firearm wound of entry on interior aspect of right jaw 3.5 c.m. x 2 c.m. x muscle deep oval. Margins inverted. 2 corks were recovered.

(iv) Firearm wound of exist on right upper arm 4.5 c.m. x 4 c.m. x muscle deep. Margins everted. Oval in shape. 7 c.m. below injury no. 3.

(v) Firearm wound of entry on left side chest, oval in shape, margins inverted. 5th rib and sternum was fractured. The cavity was full of blood. Two plastic tickli and one cork was recovered. Lungs were lacerated.

8.According to postmortem report of Ghapole alias Ram Gopal, following injuries were found on his body:-

(i) Incised wound 8 c.m. x 4 c.m. on left side of face head bone deep, 1 c.m. above left eyebrow. Underlying bone was fractured.

(ii) Incised wound 6 c.m. x 2 c.m. on left side of head scalp deep. 3 c.m. below injury no. 1.

(iii) Incised wound 9 c.m x 4 c.m. x bone deep on left side of head 5 c.m. behind injury no. 2.

(iv) Incised wound on left side of head 4 c.m. x 1.5 c.m. x scalp deep. 4 c.m. behind injury no. 3.

(v) Incised wound on left side of face 5 .c.m. x 3 c.m.x bone deep underline bone was fractured. 15 c.m. below left eye.

(vi) Incised wound 2 c.m. x 1 c.m. x one deep on nose.

(vii) Incised wound on chin left side 5 c.m. x 2.5 c.m. x bone deep. Underlying bone was fractured.

(viii) Incised wound on front side of neck 8 c.m. x4 c.m. x muscle deep transverse. Fracture of left clavicle one, trachea was also cut.

(ix) Firearm wound of entry on back in the middle of 5th and 6th vertebra, 5 c.m. x 3 c.m. x cavity deep. 8 c.m. below 7th cervical vertebrae. Oval in shape. One plastic tickli and one pallet was found under the wound.

In the opinion of the doctor, all the deceased died due to shock and hemorrhage as a result of ante-mortem injuries and duration of injuries were about two days. The doctor has also opined that these injuries could have been caused by firearms, farsa and axe, at the time alleged by the prosecution.

9.The Investigating Officer inspected the place of occurrence and from the place of occurrence, bloodstained and plain earth were collected. Empty cartridges and missed cartridges were also recovered. During investigation, accused Sahdev was arrested by the police and from his possession one country made gun and four live cartridges were recovered. Along with Sahdev, appellant Deen Dayal was also arrested. From the possession of Deen Dayal, one country made pistol 12 bore and two live cartridges were recovered. The third accused, who was arrested along with above two accused persons was Madanpal. From his possession one country made pistol 12 bore and two live cartridges were recovered and from the possession of fourth accused Daya Ram one country made pistol and two live cartridges were recovered.

10.After completing the investigation, charge sheet was filed against all the named 15 accused persons. Charge sheet under Section 25 of the Arms Act were also filed against all the four accused persons referred to above.

11.In order to prove its case, the prosecution has examined PW-1 Parma, the complainant of the case, PW-2 Randheer, another eyewitness of this case, PW-3 Halke Singh, who is the witness of murder of Ghapole alias Ram Gopal, at the time of the incident, he was coming along with deceased Ghapole on cycle. PW-4 is Constable Ram Bahadur Singh, who has taken the three dead bodies to mortuary. PW-5 Dr. S.M. Kanaskar, who had conducted the postmortem on all the four dead bodies. PW-6 is the Head Constable Om Prakash, who has proved chik F.I.R. and G.D. of this case and also proved the papers prepared by the Investigating Officer during investigation as secondary evidence because of the death of the Investigating Officer. PW-7 Constable Keshav Das, who has proved the arrest and recovery of firearms from four accused persons. PW-8 S.S.I. R.P. Tiwari, who has proved the inquest proceedings of Ghapole alias Ram Gopal and other connected papers. PW-9 Prahlad Singh Chauhan, who has investigated the case under Section 25 of the Arms Act.

12.The defence of the accused appellants was that the area in which the village Gugaura falls, is a dacoity affected area and the place where the incident has taken place, some gangs of dacoits, namely, Basanta and Fazal were active and used to operate and take shelter in that area. These murders have been caused by the gang of dacoits and only because of the enmity, the present appellants have been falsely implicated in this case.

13.On behalf of the defence, appellant Brij Bihari was examined as DW-1 and as DW-2 Dr. P.N. Parya has been examined to prove the injuries of Brij Bihari, who was examined in District Jail by this witness. On behalf of the defence, certain papers were also filed to show the enmity which shall be referred at the relevant part of the judgment.

14.After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these criminal appeals.

15.Submission of learned counsel for the appellants would be that in this case, only three eyewitnesses have been examined. The other witness of facts have been withheld by the prosecution and no effort has been made to examine them. It has further been submitted that perusal of the evidence of these eyewitnesses reveals that they were not present at the place of occurrence as no specific role has been assigned to the accused persons regarding the part played by them in this incident. It has also been submitted that the prosecution case with regard to two accused persons, who were armed with lathi, has been disbelieved by the trial court and all the witnesses are either related to the deceased persons or inimical to the appellants therefore, it would not be safe to place implicit reliance of their testimony. The trial court has committed mistake in the appreciation of evidence and has wrongly convicted the appellants. It has further been submitted that the incident has taken place after 4:00 p.m. in the month of December. So at that time, in winter season, keeping in view the time of sun set, there must not be sufficient light to recognize the assailants while this incident is alleged to have taken place in a large area and three murders have taken place at different places in village Gugaura within a distance of 200 to 600 paces from each other. It is submitted that the evidence which has not been relied upon with regard to two accused persons ought not to have been believed to record the conviction of the present appellants.

16.Learned A.G.A. as well as learned counsel for the complainant have submitted that the appellants are the resident of the same village, therefore, they are well acquainted to the witnesses. It has further been stated that the evidence of all the three witnesses is wholly reliable and it is nowhere necessary under law that all the witnesses, mentioned in the F.I.R., must be examined. The trial court has given benefit of doubt to two accused persons, who were armed with lathi, only on the ground that not even a single lathi injury was found on the body of any of the four deceased persons. Therefore, their acquittal would not render any advantage or benefit to the present appellants because all the four deceased have received injuries corresponding to the weapons with which the appellants were armed. It has further been submitted that it is unbelievable that the related witnesses would spare the real assailants of their close relatives and would falsely implicate innocent persons in the murder of their family members. It is further submitted that presence of the witness at the place of occurrence was very natural as they were collecting fodder for their cattles, which is very common practice in villages. Learned trial court has not committed any illegality in convicting the appellants and the judgment of the learned trial court need not to be interfered with.

17.The first point to be considered in this case is the conduct of complainant Parma in lodging the F.I.R. It is submitted that his conduct brings his evidence under shadow of doubt. This witness, after the incident, which has taken place in village Gugaura regarding the three murders, did not prefer to go to lodge the F.I.R. and only after PW-3 Halke Singh came to him and informed him regarding the murder of Ghapole alias Ram Gopal then he went to lodge the F.I.R. According to the chik report, the distance of police station from the place of occurrence was nine kilometer. We are not impressed with this submission of learned counsel for the appellants because how a person would react after such a gruesome incident, would differ from person to person. Apart from it, in the instant case, the prosecution has come with a definite case that the accused persons had challenged to murder Ghapole alias Ram Gopal, who, as per their information, was coming after selling milk in Mahoba. So if the complainant waited for the safe arrival of his brother Ghapole and thought to lodge the F.I.R. thereafter then such conduct cannot be said to be abnormal. It is true that PW-1-complainant Parma has nowhere stated in his evidence that he waited for Ghapole but he has stated that he remained in his house. The Court cannot overlook the factual position that PW-1 Parma is a rustic witness. Such type of witnesses have their limitations in expressing each and everything in specific words because of the lack of education. The moment PW-3 Halke Singh came to his house and informed the complainant about the death of Ghapole then he immediately got the F.I.R. scribed by Nawab Singh and went to lodge the F.I.R. at Police Station Kabrai, which was lodged at 8:10 p.m. So in our considered opinion the delay in lodging the F.I.R., if any, was of no consequence and stands well explained.

18.The post event conduct of the appellant has also been brought to the notice of the Court and on the basis of the same, it is submitted that the said conduct was unnatural and it shows that the complainant was not present at the scene of occurrence. The post event conduct of a witness varies from person to person. There cannot be a cast iron formula regarding reaction of a person who was a witness of such an incident. Different persons would react differently on seeing any such violence and their behaviour and conduct would, therefore, be different. So the conduct of the complainant cannot be regarded as abnormal. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Rammi alias Rameshwar Vs. State of M.P. reported in 1999 (8) SCC 649 and also to the pronouncement of Apex Court in the case of Main Pal and another Vs. State of Haryana reported in 2004 Cr.L.J. 2036 wherein it has been observed that the past event conduct of a witness varies from person to person. It cannot be a cast iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would therefore be different. The conduct of witness cannot be regarded as abnormal.

19.The appreciation of any document depends on the purpose with which it is executed, keeping in view its evidentiary value. Hon'ble the Apex Court in the case of Baldev Singh Vs. State of Punjab reported in 1996 AIR 372 has discussed the evidentiary value on F.I.R. Relevant portion of the aforesaid judgment reads as under:-

"The F.I.R. is not a substantive piece of evidence. It is only relevent in judging the veracity of the prosecution case and the value to be attached to it depends upon the facts of each case. Only the essential or broad picture need be stated in the F.I.R. and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an encyclopedia of the occurrence. It may not be even necessary to catalogue the overt acts therein. Non-mentioning of some facts or vague reference to some others are not fatal. We should also bear in mind that the F.I.R. was given by PW-5 who is an illiterate lady soon after the occurrence where she should have been very emotional and in a disturbed state of mind."

20.In the instant case, three murders have taken place in Village Gugaura. In this incident three real brothers of complainant Parma have been done to death and apart from it, his real uncle Maiyadeen has also been murdered. The fourth murder has taken place near Kilwadi culvert of Terha Pul, which falls within the territorial jurisdiction of Police Station Mahoba. Such an incident has taken place in broad-day light at 4:00 p.m. Deceased persons were chased and were murdered by the accused persons. So in the instant case, there are large number of accused persons and three persons were done to death at different places in village Gugaura. Therefore, the evidence has to be appreciated in a different manner. In the case of H.P. Thakore Vs. State of Gujrat reported in 1976 (4) SCC 640, which has been followed in a subsequent judgment in the case of State of U.P. Vs. Jhhinku Nai reported in 2002 SC Criminal Rulings 201 Hon'ble Apex Court has held that when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those where stabs have not proved fatal. When people play with knives and lives, the circumstances that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal interest accomplish this purpose cumulatively.

21.The next submission of learned counsel for the appellants was that three witnesses, examined by the prosecution, were either related or inimical and not even a single independent witness has been examined. It has also been argued that two ladies namely Beti and Prema were also shown as witnesses in the F.I.R. but they have been withheld by the prosecution. Keeping in view the gruesome and highhanded manner in which this incident has taken place, independent person would avoid to become a witness as they would apprehend the same treatment at the hands of the accused persons, if they depose against them. Four persons of the same family were done to death by the accused persons. We cannot ignore the ground realities. Nowadays people avoid to become a witness in a criminal case as they consider it to be a civil dispute between two groups and also to avoid enmity with the accused persons.

22.Great emphasis has been laid by learned counsel for the appellants that in this case, the incident is alleged to have taken place in broad day light but not even a single independent witness has been cited as a witness. While appreciating the evidence, the Court cannot ignore the ground realities because in the present day world, people avoid to become a witness of a case and we would not have to travel a long way to seek reasons for this apathy of the public. They simply wanted to avoid enmity of the accused persons. In the instant case, when the accused persons, because of the enmity, have caused murders of four persons of the same family then no independent witness of the vicinity would come forward as a witness and to invite the wrath of the accused persons for no benefit of his own. Reference may be made on this point and the pronouncement of Hon'ble Apex Court in the case of case of Shiv Ram and Anr. vs State of U.P. reported in 1998 1 SCC Pg 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.

23.In another case Appabhai and another vs. State of Gujarat, AIR 1988 SC Pg 696 Hon'ble Apex Court observed that 'Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused.

24.The next submission of learned counsel for the appellants is that there was direct enmity of the accused persons with PW-1 complainant Parma and PW-2 Randheer but absolutely no effort was made by any of the accused persons to cause any injury to such person with whom they had direct enmity. But this by itself is not a ground to discard the testimony of an otherwise reliable witness. It depends on the mind set of the accused persons. What they had planned, what prevailed in their mind cannot be guessed by witnesses. Apart from it, prosecution evidence reflects that these witnesses, by running away to save themselves maintained a safe distance so they could not be injured or murdered. Here we would like to quote the observation of Hon'ble the Apex Court in the case of Dharamveer and others Vs. State of U.P. reported in AIR 2010 SC 1378 which reads as under:-

"Why the appellant did not cause any injury to these witnesses cannot be explained by prosecution. It will require entering into their mind. Human behaviour is something strange. Merely the fact that these witnesses did not suffer any injury will not make their evidence untrustworthy."

25.Apart from it, in the facts of this case, it is clear from the evidence of PW-1 that appellants first assaulted Maiyadeen. When complainant (PW-1) Hari Chand, Baldoo and Randheer made an attempt for his rescue then accused persons threatened them. These persons came in the field of Manohar. Appellants came there and killed Harichand. Thereafter complainant and witnesses were chased by these persons. In the way, Rati Chand was also present, he also made an attempt to run away but he could not succeed in making good his escape and he was also killed. But in the meantime, the witnesses maintained a safe distance so instead of making an attempt to kill these witnesses, appellants challenged to kill the brother of complainant who was coming from Mahoba. The persons, who were killed, were also witnesses to the murder of Maiyadeen. So it cannot be said that appellants made no attempt to kill witnesses rather they have killed the persons, who had witnessed the incident of murder of Maiyadeen but complainant and Randheer survived as they were successful in running away from there. For the sake of argument only, if this argument of learned counsel for the appellants is considered then it is clear that the appellants were not aware at the time of incident whether Smt. Prema and Smt. Beti would be examined as witnesses during trial against them or not. So in that condition, they should have also murdered Smt. Beti and Smt. Prema and one Chaina, who was also present along with her father Rati Chand. So in the considered opinion of this Court, this submission of learned counsel for the appellant has absolutely no legs to stand.

26.In reply to the arguments advanced on behalf of learned A.G.A. as well as learned counsel for the complainant, learned counsel for the appellants has submitted that in this case four murders have taken place but law is settled that mere gravity of the offence cannot be taken as a ground to convict the accused persons. But the prosecution will have to prove the case beyond reasonable doubt by admissible and reliable evidence. It is further submitted that emotions and sentiments have no place in a Court of law. In support of his submissions, he has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Dilavar Hussain and others Vs. State of Gujarat and another reported in (1991) 1 SCC 253, particularly paragraph no. 3 of the aforesaid judgment has been referred, which reads as under:-

"3. All this generated a little emotion during submissions. But sentiments or emotions, howsoever strong, are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape (sic). But on reliable evidence, truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm. Heinousness of crime or cruelty in its execution however abhorrent and hateful cannot reflect in deciding the guilt."

27.We are in full agreement with the submission of learned counsel for the appellants that each criminal case has to be decided on the basis of the admissible and reliable evidence. Mere gravity of offence, by itself, cannot be a ground to hold the accused persons guilty.

28.Great stress has been laid by learned counsel for the appellants on the point that the evidence of the three witnesses was not reliable as they were not present at the place of occurrence. In the instant case, keeping in view the defence taken by the appellants, the date time and place of the occurrence is an admitted fact. Apart from it, learned counsel for the appellants, during course of his arguments, has also admitted that the injuries alleged to have been caused to the deceased persons corresponds to the weapons with which the appellants are alleged to be armed with. The defence of the appellants shall be considered in the subsequent part of the judgment. Great emphasis has been laid on behalf of the appellants on the point that the presence of the prosecution witnesses was doubtful and therefore, virtually there remains no evidence against the appellants to connect them with the instant case.

29.Learned counsel for the appellants has drawn the attention of this Court towards certain statements given by the witnesses in their evidence and on the strength of the same, it has been pleaded that the witnesses were not present at the place of occurrence. It is submitted that the witnesses regarding the incident of Village Gugaura have stated that they were collecting Hariyali or cutting Karvi but neither any collected Hariyali nor Karvi was found by the Investigating Officer in the instant case as the same has not been shown in the site plan. The witnesses during their cross examination have also pleaded their ignorance as who had taken the same away.

30.After careful perusal of the evidence, we are of the view that the incident had taken place about 4:00 p.m. and after 6:00 p.m., the complainant went to lodge the F.I.R., which was lodged at 8:10 p.m., so there was a long gap between the incident and the arrival of the police at the place of occurrence. The grass and karvi collected as a food for the cattles and therefore, if anyone of the village has taken the same from the place of occurrence then it by, itself, cannot be a ground to hold that witnesses were not present. The witnesses have stated that they could not tell as to who had taken the said grass and karvi from there. There is no dispute to the fact situation that the said karvi or grass was not found on the place of occurrence where this incident has taken place. The facts of this case are entirely different. The place of occurrence is not a specific point but it is spread in a large area, so in such nature of cases, these minor omissions on the part of the Investigating Officer to verify this fact becomes absolutely immaterial. Thus in our considered opinion, mere non-recovery of grass or Karvi would not make the presence of the witnesses unreliable in the peculiar facts of this case. Regarding PW-3 Halke Singh, it is stated that according to his evidence, he was coming on a cycle from Mahoba along with deceased Ghapole, who was on other cycle. It is submitted that this witness, in his cross examination, has stated that after seeing the assault of the accused on Ghapole, he ran away from the place of occurrence. Submission of learned counsel for the appellants was that this statement of the witness shows that he ran away after leaving his cycle on the spot but perusal of examination in chief of PW-3 Halke Singh shows that he has made a specific statement that he ran on his cycle. So the non-recovery of the cycle of this witness from the place of occurrence has no consequence because this independent witness ran away from the place of occurrence on cycle. The cycle of deceased Ghapole was recovered from the place of occurrence.

31.Learned counsel for the appellants has also submitted that in this case the incident had taken place in the month of December. In the month of December, the sun sets early. So there must not be sufficient light for the witnesses to recognize the assailants. But this Court is not impressed with this submission because even in the month of December at about 4:00 p.m., there remains sufficient light. No suggestion has been given to any witness that it was a foggy day or there was no sufficient light. All the accused persons belong to the same village. Witnesses and assailants are well known to each other. The people living in the villages are accustomed to dim light and they can easily recognize each other even in very dim light because they are not accustomed to fluorescent lights like the persons who are living in the city. So by no stretch of imagination, this submission can be accepted that in the month of December at 4:00 p.m. there was no sufficient light for the witnesses to recognize the assailants.

32.The appellants have come with a definite defence that the gangs of Basanta and other miscreants were operating in the area and those persons have caused injuries to the deceased. In support of this submission, learned counsel for the appellants has drawn the attention of this Court towards the statement of PW-1 Parma wherein he has stated as under:-

eq>s ;g Hkh ugha ekywe fd dksbZ Qjkjh j'khn gky esa iqfyl eqBHksM+ esa ekjs x;s gSA gekjh tkudkjh esa ;g ckr ughs gSa fd Qjkjh yksx dxkfj;k unhas dh fdukjksa esa viuk vM~Mk cuk;s gksA u esjh tkudkjh esa dksbZ ,slh ckr gSa fd ml {ks= ess dksbZ cnek'k okjnkr djrs jgs gksA

33.Attention of this Court has also been drawn towards the statement of PW-2 Randheer, which reads as under:-

txeksgu uke dk tks Qjkjh gks x;k gS ;g lHkkflag ds ckM+s esa gh ekjk x;k FkkA ;g xyr gS fd bl eqdnesa esa eqyfte jke yky us esjs f[kykQ ;g c;ku fn;k Fkk fd txeksgu esjs ¼gYds½ ds ;gkW Bgjrk Fkk vkSj bl ckr dks eS tku cw>dj fNik jgk gwA Vs<+k iqy ls djhc 1&1 [email protected] dksl egksck dh vksj cjhiqqjk gSA cjhiqjk ds ikl dksbZ Bsyk ywVk x;k gks ;g eq>s ugh ekyweA Vs<+k iqy ls 1&1 [email protected] dksl VhdkeÅ gSA eq>s ughsa ekywe fd Vs<+k iqy ds ikl dHkh jksMost dh cl yqVh x;h gksA jkt cgknqj 'kqDyk lk0 VhdkeÅ dks ugha tkurkA VhdkeÅ esa fdlh vkneh dh jktnwr Vs<+k iqy ds ikl Nhuh x;h gks ;g Hkh eq>s ugha ekyweA eS vius xkWo ds etcwr flag dks tkurk gwWA esjs uke o ofYn;r dk xkWo es nwljk vkneh ughsa gSA

34.On the strength of the aforementioned statements, it is submitted that Mahoba is a dacoity affected area. Several gangs were active in the said area. Several crimes were committed and on the strength of this background, it is submitted that this incident has been caused by unknown miscreants. PW-8 Sub Inspector R.P. Tiwari, has stated that at that time, no gang was operative in the area. Basanta gang was not active in the said area. He has also expressed his ignorance regarding the loot of a gun and murder of Amar Chandra Tripathi. A very important fact to disbelieve the defence story is the evidence of DW-1 Brij Bihari, who is also an appellant in this case and he has given evidence that at about 4:00 p.m., he was working in the field of Ram Sewak Chacha. He heard the noise of firing and has also received pellets injury on his testicle. This witness has stated in his cross examination that number of culprits was five and all of them were armed with firearms. Learned trial court has rightly disbelieved this defence on the ground that the version of this witness is not reliable as all the deceased have also received several incised wounds, which are alleged to have been caused by Farsa and axe but this witness has not stated that any of the miscreants was armed with any sharp-edged weapon, therefore, the defence story that the incident was caused by the miscreants, who were operative in the said area stands falsified. The evidence of this defence witness does not explain as to how all the deceased received so many incised wounds. On the contrary, the evidence of this witness establishes the date, time and place of occurrence and also that there was sufficient light to witness the incident.

35.Next submission of learned counsel for the appellants is that in this case only related and inimical witnesses have been produced and two witnesses, who were named in the F.I.R. namely, Smt. Beti and Smt. Prema have not been examined. Law is settled on the point that the evidence of a prosecution witness cannot be discarded only on the ground that he happens to be a relative of the deceased or who is inimical with the accused persons. In the facts of the instant case, three real brothers of the complainant and his one uncle have been murdered. So the query before the court would be as to why the complainant would spare the real assailants and falsely implicate these accused persons. Every witness who is related to the deceased cannot be said to be an interested witness, who will depose falsely to implicate the deceased. Likewise the evidence of PW-2 Randheer is challenged on the ground that he has enmity with the accused persons but the enmity, which has been suggested is regarding a cross case, which was tried in the year 1972. The incident of that case pertains to the year 1971. To establish the enmity with PW-2, certified copy of the judgment in S.T. No. 74 of 1972 decided by learned Ist Temporary Sessions Judge, Hamirpur and judgment of cross case S.T. No. 73 of 1972 decided by the same judge on 20.10.1972 have been filed in defence. Perusal of the judgment shows that the incident of that case pertains to the year 1971, so that incident had taken place about 19 years prior to the incident. Therefore, the said enmity, if any, become stale enough to be a reason for giving false evidence. PW-2 was neither a witness nor an accused in that case. The enmity suggested to PW-1 Parma was that about one and half year prior to the incident Hari Chand deceased, Baldu got a sale deed of some land executed in their favour by Chhabi Lal. Baldu is the son of deceased Maiyadeen. In the mutation proceedings of this agricultural land accused Sahdev (since dead) had filed his objection but inspite of his objection, mutation was ordered in favour of Hari Chand and Baldu. It was also admitted by PW-1 in his cross examination that a civil suit, regarding said land, was pending in the court of Munsiff at the time of the incident. So this enmity must have aggrieved the accused persons and not the complainant side because inspite of the objections filed by Sahdev, land was mutated in favour of Hari Chand and Baldu.

36.The evidence of the prosecution witnesses have also been assailed on the ground that PW-1 Parma is a close relative of all the deceased and the prosecution has withheld the two independent witness. There is no dispute to the fact situation that PW-1 Parma is the real brother of three of the deceased and fourth deceased was his uncle. There is no law, which requires that the prosecution is obliged to examine all the witnesses. Apart from it, the other two witnesses, who were, named in the F.I.R., namely, Smt. Beti and Smt. Prema were also close relatives of the deceased. Smt. Prema was the wife of Rati Chand (deceased) and Smt. Beti was the mother of three deceased persons. If these witnesses would have been examined by the prosecution even then their evidence would have been assailed on the ground that they are close relatives of the deceased.

37.Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under:-

"16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under:-

We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held 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 relative 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 generalisation. Each case must be judged 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." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "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 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." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness.

A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-

6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

38.It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in [(2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under:-

"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."

39.Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."

40.Hon'ble Apex Court in the case of Mano Dutt and Another Vs. State of Uttar Pradesh reported in (2012) 4 SCC 79 had again occasion to consider this aspect and has observed in para 32 as under:

"Another argument with regard to the appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in view of the discussion made above, we are of the considered view that the prosecution has been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten."

41.Great emphasis has been laid by learned counsel for the appellants on the point that PW-1 had admitted that three dead bodies were lying at some distance from each other and therefore, it was not possible for the witness to see entire incident. PW-1 Parma in his evidence has stated that dead body of Hari Chand was lying at a distance of 200 to 250 paces from the dead body of Maiyadeen and the distance of the dead body of Rati Chand from the dead body of Hari Chand was about 600-650 paces. But when we go through the entire evidence, it is clear that the appellant first assaulted Maiyadeen thereafter they chased Hari Chand wherefrom the complainant and other witnesses started to run towards Kali Pahadi only to save themselves. In the way Rati Chand was also working in his field, he also made an attempt to run away but he failed and he was also killed by the appellants. So the accused persons have chased the deceased persons and have caused their murders and it is not the case of the prosecution that the witnesses were standing at one place but they were continuously moving and were being chased by the accused persons and in that continuity, the murders were being caused by the appellants. So it cannot be said that the prosecution witnesses had no opportunity to witness the occurrence.

42.Submission of learned counsel for the appellants is that in this case, the trial court has acquitted two accused persons, who were armed with lathi and therefore, prosecution case, in part, has been disbelieved, hence the same evidence cannot be relied upon with regard to the present appellants. We have gone through the judgment. The two accused persons, who were acquitted by the trial court, were alleged to be armed with lathi and not even a single lathi injury was found on the person of any of the deceased. Therefore, the trial court has rightly granted benefit of doubt to those accused persons by taking a cautious view and after careful analysis of the prosecution evidence. Simply because two of the accused persons were given benefit of doubt on valid reasons, it cannot be a ground to discard the entire prosecution case. The principle of 'falsus in uno falsus in omnibus' is not applicable in India. It is the duty of the court to separte grain from the chaff. On this point, we would like to refer the judgment of Hon'ble the Apex Court in the case of Gangadhar Behera and others v. State of Orissa reported in MANU/SC/0875/2002 has observed in paragraph 16 as under:

"Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence."

On this point, reference may also be made to the pronouncement of Hon'ble the Apex Court in the case of Babu @ Bala Subramaniam & others Vs. State of T.N. (2013) 8 SCC 60 wherein it has been observed that even if the case of the prosecution is found to be doubtful with regard to involvement of the appellants Rati Ram and Bablu even then the appellant Mool Chand @ Mulai can be convicted for the offence proved against him as the case against him can easily be separated from the remaining accused as specific role has been assigned to him. In the case in hand, the case of the two acquitted accused persons was easily separable from the rest of the accused persons. They were armed with lathi and no lathi injury was found on the body of any of the deceased. So they were rightly extended benefit of doubt.

43.Learned counsel for the appellants has also drawn the attention of this Court towards certain minor contradictions, which have emerged in the evidence and on the basis of the same, has submitted that the evidence of these witnesses become unreliable. We are of the considered view that there cannot be a prosecution case with a cast iron perfection. There must be lacuna or contradiction in every prosecution evidence but the same has to be appreciated in the light of the evidence taken as a whole keeping in mind the ground realities. Every contradictory statement cannot be a ground to throw away the prosecution case but the law is settled that only such contradiction, which goes to the root of the case are material. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh and others reported in (2011) 4 SCC 324 and has held as under:

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

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

Therefore, mere marginal variations in the statements of a witness 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's case, render the testimony of the witness liable to be discredited."

44.Learned counsel for the appellants has submitted that PW-3 Halke Singh was a chance witness. As per the prosecution case, he met the deceased Ghapole near the S.D.M. Court in Mahoba and thereafter they came together on their cycles. Learned counsel for the appellants has also submitted that according to the prosecution version, the deceased had gone to sell milk in Mahoba. So there was no occasion for him to go to the S.D.M. Court but we are not impressed with this submission because near such courts several tea shops starts running and it has nowhere been suggested in cross examination that no such shop was in existence at the said place. It is a common practice that the persons of the same village when they are coming back to their village then they wait for each other so that they may have the company of each other to their destination. Thus this ground has absolutely no force and cannot be taken as a ground to doubt the presence of PW-3 at the place of occurrence.

45.Three appellants namely, Deen Dayal, Madanpal and Dayaram have also been convicted for the offence under Section 25 of the Arms Act. During his lengthy arguments, learned counsel for the appellants has neither challenged the alleged recovery nor conviction under Section 25 of the Arms Act. Inspite of that we have gone through the evidence regarding the alleged arrest and recovery of the arms from the possession of the appellants. We are of the view that these appellants have rightly been convicted under Section 25 of the Arms Act.

46.We have very carefully and with utmost caution have scrutinized the prosecution evidence. After such appreciation of the evidence, we are of the view that the prosecution has been successful in proving its case beyond reasonable doubt. The defence taken by the appellants is absolutely false. The learned trial court has rightly convicted the appellants.

47.In view of the discussion made above, all the aforementioned four appeals deserve to be dismissed and are hereby dismissed. Bail bonds of the appellants, who are on bail, are hereby cancelled. They shall be taken into custody forthwith to serve out their sentences inflicted by the trial court. Appellants who are at present in jail shall serve out their sentence.

48.Office is directed to communicate this order to the court concerned for compliance forthwith and lower court record be sent back.

Order Date :-16th July 2015 (Raghvendra Kumar, J.) (S.V.S. Rathore, J.)

Virendra