Ram Kuamr And (2) Others. vs State Of U.P.
2017 Latest Caselaw 3852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 154 of 1999
 

 
Appellant :- Ram Kumar And (2) Others.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Subodh Misra,Khaleeque A Khan,Rishi Pandey
 
Counsel for Respondent :- Government Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. The present criminal appeal has been filed by accused appellants Ram Kumar, Shiv Ram and Vishnu against the judgment and order dated 08.04.1999/12.04.1999 passed by 4th Special Additional Sessions Judge, Sitapur, in Sessions Trial No. 541 of 1993 whereby and whereunder the accused/appellant Ram Kumar was found guilty under Section 307 IPC and was punished with rigorous imprisonment for a period of seven years with fine of Rs.2000/-. Accused/appellants Shiv Ram and Vishnu were also found guilty under Section 307 IPC read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.2000/- each. In default of payment of fine, all the accused/appellants were directed go undergo rigorous imprisonment for a period of six months. The appellants were further convicted under Section 452 IPC and were directed to undergo rigorous imprisonment for a period of two years and fine of Rs.500/- each with default stipulation of one month's further rigorous imprisonment. All the sentences were directed to run concurrently.

2. The brief facts giving rise to filing of the present criminal appeal are that in the intervening night of 17/18.09.1990 at about 03.00 AM in the night all the accused/appellants entered into the house of the complainant Dwarika in village Loharanpurwa H/o Badrawa within the territorial jurisdiction of Police Station Machhrehtra with half-guns. There was a lantern illuminating in the house. Accused Ram Kumar fired at Mahesh, brother of the complainant, with his half-gun which hit him on his forehead. After noise, hue and cry by the family members, the accused persons fled away. Hearing the noise, Chheddu, Shiv Sharan and other villagers came there. It has been narrated that prior to the present incident, accused/appellant Ram Kumar kidnapped Kumari Madhura, cousin of the complainant, for which they made a complaint, which took certain altercation and that was the reason to teach the lesson. By means of Ext. Ka-1, a written report by Ram Chandra, a first information report was lodged at Police Station in the morning at 07.30 AM at Case Crime No.133 of 1990 and after investigation, charge sheet was submitted against all the accused/appellants. Learned Judicial Magistrate took cognizance and committed the case to the Court of Sessions where charges under Sections 307 r/w Section 34 IPC and 452 read with Section 34 IPC were levelled against them for which they pleaded not guilty and claimed for trial.

3. In order to prove the prosecution case, PW-1 Dwarika, PW- 2 Mahesh (injured witness), PW-3 Dr. Rajendra Kumar Srivastava, Radiologist, PW-4 Dr. G.C. Verma, Medical Officer, who medically examined Mahesh, PW-5 Constable Rajpal Singh were examined.

4. In the Statement recorded under Section 313 Cr.P.C. appellants denied participation in the occurrence and claimed that they have been falsely implicated in this case due to inimical relation with the complainant.

5. Learned court below after going through the records and statement of the witnesses found the accused/appellants guilty and sentenced them as above. Aggrieved by the order, the appellants have filed instant appeal on the ground that all the witnesses examined by the prosecution were related witnesses and there are certain contradictions in their statements. It has further been submitted that the prosecution has failed to prove the case beyond reasonable doubt.

6. I have heard Mr. Khaleeque A. Khan, learned counsel for the appellants, as well as Mr. Izhar Husain, learned AGA for the State, and gone through the records.

7. The prosecution has based its story on the statement of PW-3 Dr. Rajendra Kumar Srivastava, Radiologist, who conducted X-ray examination of injured Mahesh, who referred the patient for X-ray and after that it was found that there were radio opaque shadows on the forehead. He has proved X-ray plate and X-ray report Ex.Ka-3. After the injuries caused to injured Mahesh, he was medically examined by Dr. G.C. Verma, who, as PW-4, deposed before the Court that on 18.09.1990 he had medically examined the injured Mahesh and found the injuries on his person as follows:-

i. Extensive lacerated injury measuring 12 cm x 7 cm x bone deep on the right side of skull 4.5 cm above the right eye brow outlying soft tissues lost with tags of skin left.

ii. Multiple lacerated wounds in the area of 4 cm x 3 cm on the skull 0.5 cm below and left to injury no.1. Smallest 0.2 cm x 0.2 cm and largest 1 cm x 1 cm x scalp deep.

iii. Abraded contusion circular 2 cm in diametre on the left side of face 0.5 cm lateral to left angle of mouth.

The doctor opined these injuries were the result of fire.

8. PW-2 Mahesh is an injured witness. He was examined before the Court and stated that due to kidnapping of his cousin the accused appellants had inimical relations. Due to certain altercation between them and allegation of kidnapping, in the night, all the accused/appellants entered into the house while they were sleeping with their father and in the light of lantern they saw all the accused/appellants with half guns and immediately got up and sat down but in the meantime accused/appellant Ram Kumar fired on him which hit his forehead. After the fire, all the accused/appellants ran towards west. The occurrence was witnessed by inmates of the house and other witnesses, who were present there after occurrence.

9. By filing the present appeal the learned counsel for the appellants has submitted that the trial court committed manifest error of law in placing reliance on the shake evidence of prosecution. The appellants were implicated in the instant case in a revengeful manner due to previous enmity between the parties. It has further been submitted that the First Information Report was lodged after due consultation and after a much delay. It has further argued that the witnesses are close relatives are not trustworthy.

10. This Court has examined the statement of the witnesses. It is true that there is considerable discrepancy and embellishment in regard to the instrument or assault, similarly, the assault which was made on the body of the injured was made is discrepant but the version of the learned counsel for the appellants that the interested witnesses who were examined to prove the prosecution case should not be taken as true witnesses is not acceptable for the reasons that there is no provision in law that the statement of family members cannot be accepted.

11. Mahesh PW-2 has been examined as a prosecution witness and stated that the accused/appellants have caused injuries.

12. The injuries found on the person of PW-2 and the fact that PW-2 was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence. The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, it was held as under:

"31. We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka-1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

13. The trial court judgment was fortified by the decisions of the Court in Pudhu Raja and another v. State Represented by Inspector of Police- (2012) 11 SCC 196, Jaswant Singh v. State of Haryana-(2000) 4 SCC 484 and Akhtar and others v. State of Uttaranchal-(2009) 13 SCC 722 on the law of material omissions and contradictions. Concurringly, the Court too observed that the defence had failed to demonstrate from the informant's testimony such discrepancies, omissions and improvements that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by this Court:

"325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. ..."

14. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

15. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

16. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

17. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

18. In Inder Singh (supra), Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

19. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

20. Learned trial court has examined this contention of the appellants and by discussing the case of State of U.P. vs. Paras Nath Singh reported in 1973 Cr.L.J. 850 held that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court it is not probable to involve the accused on false ground. Further in view of Sandeep vs. State of Haryana reported in AIR 2001 SC 1103 it was held that where the witnesses were known, both the victim and the accused, there evidence would be material and could not be criticized on the ground that he was an interested witness. In case of Ashok Kumar Chaudhary vs. State of Bihar - 2008 (61) ACC 972 (SC) it was held that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined.

21. Learned trial court has assessed the prosecution witnesses and found that nothing came out from the examination-in-chief or cross examination which may discredit the testimony of the witnesses.

22. In the case of Bhajan Singh @ Harbhajan Singh and Ors. vs. State of Haryana reported in (2011) 7 SCC 421 it was held that the evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.

23. The learned A.G.A. has submitted that the natural witnesses who were present at the spot at the time of occurrence and who sustained injuries were examined by the prosecution. There is no hard and fast Rule that interested person can never be true witnesses to the occurrence and they will always depose falsely before the Court. It will always depends upon the facts and circumstances of a given case.

24. The only requirement to scrutinize the evidence of related witnesses, under law, is that their evidence should be scrutinized with extra care and caution but the same cannot be discarded only on the ground of their relationship. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Appa v. State of Gujarat, AIR 1988 SC 698, wherein Hon'ble Apex Court has 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".

25. 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."

26. 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........."

27. 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 inimical 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.

28. The Hon'ble Apex Court, in the case of ''Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.' (2007) 1 SCC (Cri) 500, has held in paragraph no.16 as under: -

"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy Vs. State of A.P., Ashok Kumar Pandey, Vs. State of Delhi, and Bijoy Singh Vs. State of Bihar). Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the doctors (PW11 and PW12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions."

29. The Apex Court in the case of 'Dharnidhar Vs. State of Uttar Pradesh and others' reported in (2010), 7 SCC 759, in paragraph nos.12 to 14, has held as under:-

"12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under:

" 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint."

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.

14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court."

30. As per the dictum of the Apex Court, it is now a settled position of law that the statements of the alleged injured witnesses can be safely relied upon by the court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.

31. Learned counsel for the appellants has submitted that the first information report was lodged at a belated stage. Thus, no reliance can be placed on the facts as narrated by the prosecution.

32. The record reveals that the incident took place at about 03.00 AM in the night while the first information report was lodged on 18.09.1990 at 07.30 AM just in the morning after the incident. The distance from the place of occurrence to the police station is reported to be about 6 kilometers. The prosecution witnesses have given a consistent version that on account of night they did not proceed to police station out of fear and only after the sun risen, they proceeded to police station for lodging the first information report. In light of above facts and distance from the place of occurrence to the police station, it cannot be said that the first information report was in any way delayed. This finds support by Ravi vs. Badrinarayan and others - (2011) 2 SCC (Crl.) SC 751, Om Prakash v. State of Haryana - (2011) 6 Supreme 244, Sher Singh v. State of Haryana - AIR 2011 SC 373.

33. Learned counsel for the appellants has submitted that the Investigating Officer has not been examined and the investigation is defective and has no relevance.

34. Investigation is not the solitary area for judicial scrutiny in a criminal trial, even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will be plummet to the level of investigating officer. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers (vide State of Karnataka v. K. Yarrappa Reddy - AIR 2000 SC 185.

35. Any irregularity or deficiency in investigation by investigating officer need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent [vide State of West Bengal v. Mir Mohd. Uma - 2000 (41) ACC 598 SC, Acharaparambath Pradeepan v. State of Kerala -2007 (57) ACC 293 (SC)].

36. Learned counsel for the appellants has submitted that there was no motive for the appellants to cause injuries to the complainant side.

37. In reply, learned counsel for the State has submitted that where there is a direct evidence available, motive has no relevance at all. It has further been submitted that the prosecution witnesses and the complainant have given facts with regard to motive.

38. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. [Abu Thakir v. State; AIR 2010 SC 2119, State of U.P. vs. Nawab Singh; AIR 2010 SC 3638, Bipin Kumar Mondal v. State of West Bengal; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, Thaman Kumar Vs. State of Union Territory of Chandigarh; (2003) 6 SCC 380, State of H.P. vs. Jeet Singh; (1999) 4 SCC370]

39. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case [Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26].

40. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. (Sheo Shankar Singh v. State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar vs. State of Punjab; 2001 (2) JIC (SC), State of H.P. vs. Jeet Singh; (1999) 4 SCC 370; Pannayar v. State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85)

41. It is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material Absence of motive- Not of much consequence when chain of proved circumstances is complete. [G. Prashwanath v. State of Karnataka; AIR 2010 SC 2914, Jagdish vs. State of M.P.; 2009 (67) ACC 295 (SC), Ujjagar Singh v. State of Punjab; AIR 2008 SC (Supp) 190]

42. The prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful & acceptable evidence is available on record sufficient to establish the guilty of accused persons. [Gopi Ram Vs. St. Of U.P.; 2006 (55) ACC 673 SC; State of U.P. vs. Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, R.R. Reddy V. State of A.P.; AIR 2006 SC 1656, Sucha Singh V. State of Punjab; AIR 2003 SC 1471, State of Rajasthan v/s Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v/s State of Rajasthan AIR 2011 SC 72]

43. The motive as raised on behalf of the appellants is that the prosecution has failed to prove any motive for the commission of the crime and in absence of clear and emphatic motive the order of conviction is liable to be set-aside and the accused persons are entitled to acquittal. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi vs. State of U.P. reported in (1987) 2 SCC 352, the Apex Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance.

44. Motive is a double edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. But proof of the existence of a motive is not necessary for a conviction for any offence.

45. Learned counsel for the appellants has submitted that in light of the facts and oldest pendency of this case, a lenient view should be taken on the point of sentence.

46. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

47. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -

"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

48. In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

49. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -

"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."

50. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -

"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."

51. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. It is to be exercised a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.

52. Learned counsel for the appellants has also relied upon Ramesh v. State of U.P. -S.Cr.D. 1992 Page 337 and Sanjay Kumar and another v. State of M.P. - 1995 JIC 553 (SC).

53. In case of Sanjay Kumar v. State of M.P., there was a compromise between the parties and in Ramesh v. State of U.P., the pendency of appeal was not treated to be converted into a minor offence.

54. Considering the submission of learned counsel for the appellants and the nature of injuries caused by accused/appellants with common intention to cause injury, this Court is of the view that some lenient view should be taken on the point of sentence. On the point of conviction under Sections 307 and 452 IPC this Court is of the view that there is no illegality or irregularity in the order impugned. Accordingly the appeal is partly allowed. The conviction under Section 307 IPC is confirmed. However, sentence under Section 307 IPC of all the accused/appellants is reduced to a period of two years rigorous imprisonment with fine of Rs.5,000/- each and in default of payment of fine, they have to further undergo imprisonment for a period of six months. The conviction under Section 452 IPC is also confirmed but the sentence is modified to the period of three months simple imprisonment with fine of Rs.2,000/- each and in case of default of payment of fine, they have to further undergo imprisonment for a period of two months. The sentence shall run concurrently.

55. The period of detention already undergone by the appellants in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

56. Let a copy of this order and lower court record be sent back immediately to learned Chief Judicial Magistrate, Sitapur, with direction that the accused/appellants Ram Kumar, Shiv Ram and Vishnu be immediately taken into custody and sent to jail to serve out the sentence as modified by this Court.

Order Date :- 31.08.2017

A. Katiyar