Daya Ram Nishad vs State
2017 Latest Caselaw 6330 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved/AFR
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 5103 of 2005
 

 
Appellant :- Daya Ram Nishad
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Dharmendra Dhar Dubey[A.C,Satya Srivastav[A.C.]
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Per : Hon'ble Shri Narayan Shukla,J.)

Heard Mr.Dharmendra Dhar Dubey, learned Amicus Curiae for the appellant as well as Mr.Nagendra Bahadur Singh, learned Additional Government Advocate for the State.

The present jail appeal has been directed against the judgment and order dated 25.9.2003, passed by the Additional District and Sessions Judge, Allahabad in Sessions Trial No.452 of 2002, whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and convicted under Section 302 IPC and sentenced to the imprisonment for life alongwith fine of Rs.2000/-, in default to undergo rigorous imprisonment for two months.

The case of the prosecution, as set up, is that the informant Ramesh Kumar Nishad son of Shiv Lal Nishad, resident of village Beeker, Police Station Ghoorpur, district Allahabad lodged a First Information Report on 15.4.2002 at 09.25 hours at Police Station Ghoorpur, district Allahabad. In his First Information Report he had stated that on 14 April 2002 Roshani, Rakesh son of Awadhesh, Sonkaran son of Mahanand and Daya Ram son of Late Jhallar, residents of his village, had went away towards northern side of the village for grazing buffalo in the drain (Nala). His daughter did not return to house. He searched her, but since it was night he could not trace her out. On 15 April 2002 he went to the house of Rakesh and Sonkaran and asked about her, then they told that on 14 April 2002 at about 2 p.m. Daya Ram was assaulting Roshani by pushing down her in the drain. He had mounted upon her. She was weeping and crying. Then on 15 April 2002 he alongwith other villagers went there and saw that the dead body of her daughter was lying in the drain in the naked position and her right leg was tight with her neck by her frock. He stated that Daya Ram had committed rape with her and murdered her. On the basis of the First Information Report the police arrested the accused Daya Ram on 17.4.2002, who admitted his guilt and stated that he had hidden her underwear and sleepers behind bushes in the drain. At his instance the sleepers and underwear were recovered from the spot of the incident, that was sealed and recovery memo was prepared in presence of witnesses Shri Ramesh Nishad son of Shiv Lal and Shri Munsi Lal son of Sugai residents of Beekar, Police Station Ghoorpur, Allahabad. The dead body of Roshani was sent for post mortem examination. In the post mortem examination the cause of death was reported as under:-

"Cause of death is strangulation leading to asphyxia."

The post mortem report also described the ante mortem injuries which are fourteen in number. We quote them as under:-

"1. L.W.10x3 cm on Rt. side of Head 6 cm above the Rt. Orbital margin.

2. Contusion 4x 1 ½ cm on Rt.side of back of neck.

3.L.W. 3X1 cm on upper lip central part.

4.L.W. 4X1 cm on lower lip central part.

5.Contusion on front of neck in upper part 12x3 cm.

6.L.W.over medial end of Lt. Clavicle 3x1 cm.

7.Contusion 5x3 cm on dorsal aspect of Lt. Forearm with fracture of both radius & ulna bone.

8.Contusion 4x1 on Lt. shoulder anteriorly.

9.Contusion on left front of chest 19x10 cm.

10.Contusion 6 x 3 cm on Lt. Front of Thigh middle part.

11.Contusion 7 x 3 cm on Lt. Front of middle leg.

12.Contusion 4 x 2 cm with fracture of humerus of Lt. Arm. (Lot aspect upper part).

13.Contusion 5 x 4 cm on Rt. front of thigh.

14.On Rt. buttock 11x 7 cm abrasion on middle part."

After investigation a charge sheet was filed against the accused Daya Ram Nishad, on the basis of which the Additional District Judge, FTC charged him for commission of offences punishable under section 376 as well as 302 of the Indian Penal Code.

In the statement recorded under Section 313 of the Criminal Procedure Code the accused Daya Ram had denied from commission of any such offence and stated that he runs a kirana shop in village and the complainant as well as his family members had borrowed the articles. Since huge amount had become due, when he demanded the payment then some altercation had happened. Somebody killed Roshani and put her dead body in the drain and since no clue was found, the accused was assaulted and falsely implicated in the said case.

Dr.V.K.Sahu, Radiologist, Motilal Nehru Hospital, Allahabad was examined as P.W.6. He supported the report of ante mortem injuries caused to the deceased. He further stated that the injury number five was severe one. He deposed that the injuries caused to the deceased could be caused by falling down from the height. He further reported that the injuries caused to the deceased except injury No.5 could not be a reason to cause the death, since those can be caused during fighting and may also be caused by a single man. He further stated that all the injuries were possible to be caused by a major person since the deceased girl was aged about 7 years. He further deposed that if it was a simple case of rape then the sudden death was not possible with the injuries caused to the urine. He further stated that the death could be caused after 12 to 14 hours of bleeding. The ante mortem injury No.5 was described as contusion on front of neck in upper part 12x3 cm. The Medical Officer had also reported the injuries of contusion caused into left front of thigh middle part and left front of middle leg and contusion with fracture of humerus of left arm, contusion in right part of thigh and abrasion on right buttock on middle part. He reported that the cause of death was 'strangulation'.

Informant Ramesh was examined as P.W.1. In his cross examination he deposed that while his daughter Roshani had gone for grazing buffalo towards drain, Sonkaran, Rakesh and accused Daya Ram residents of same village had also gone alongwith her for grazing the cattle. In the evening his buffalo reached his gate and other boys who had accompanied the accused had also returned to his houses but his daughter did not return. Then they searched out her but she could not be found. In the next day she was found dead in the drain in naked position. She was murdered. He carried her dead body to the house and on the next day when he got investigated then Sonkaran and Rakesh told him that yesterday at 2 p.m. Daya Ram had killed Roshani in the drain, he further stated that after committing rape he murdered her. Then he lodged the First Information Report. He further stated that when the accused Daya Ram was arrested by the police, on his instance the deceased's underwear and one pair sleepers were found recovered. In the cross examination he stated that she used to go back home in the noon for lunch, but on the date of incident she had not come. He had also not gone to provide her food, whereas when in the evening she did not turn up then he asked from Sonkaran and Rakesh about her whereabouts, but they did not told him about her. Since Daya Ram (accused) did not meet him, he could not ask from him. However, he started searching her, but he could not see her dead body on the spot, then he returned to home and slept over in the night. Neither he had informed to the Police Station nor had asked from anybody about her. When on 15 April 2002 again he started searching her, then he saw her dead body. There were several persons, namely, Rajesh, Manjhi, Rakesh, Sonkaran who had also gone to search her with him. The dead body was found at about 8.30 a.m., which was naked and lying down on earth in the opposite direction. Her neck and legs were tied, but there was no bleeding from the body. However, subsequently he stated that her private part was bleeding. He carried the dead body of Roshani over his shoulder and when he reached the house at about 10 O'clock he kept her body in the house for 2 hours and thereafter proceeded to Police Station, where he reached at 3 p.m. and lodged the First Information Report. Then he further submitted that he had not gone the Police Station, rather his other family members had gone there and they lodged the First Information Report. He further stated that he had lodged the First Information Report at the instance of Sonkaran and Rakesh.

Sonkaran who had been eye witness was examined as P.W.2. In his deposition he denied from commission of any such incident. He stated that he did not know Roshani and Daya Ram had not murdered her in his presence. On the date of incident he was in his house. When his statement recorded under Section 161 Cr.P.C. was shown to him, he stated that he had never given any such statement.

Another eye witness Rakesh, aged about 9 years was examined as P.W.3. He in his deposition stated that deceased Roshani was known to him and Daya Ram murdered her in his presence. The accused had murdered the deceased at 2 p.m. At the time of incident he had sat near a Babul tree and Roshani was also present thereat and she was playing with them. When her buffalo went towards drain, she went there to get her back. Accused Daya Ram followed her and when he saw Daya Ram was committed her murder by strangulating her and assaulting her, then he had asked Daya Ram, why he was assaulting her, then he directed him to go and take food, then he went to take food. He further stated that Daya Ram had murdered Roshani by strangulating her and she died. He further stated that he being in fear did not tell this incident to anybody in the village, however he told it to the police officer when he came to the village. In the cross examination he supported his statement recorded in the examination in chief and deposed that when they were playing, they had listen her cry. She was crying "bachao bachao" and when after hearing her cries he reached there then the accused threatened him and directed to go to take food. When he proceeded to take lunch she had died. He stated that she was alive when he was present there. He had stated the reason for not telling the incident to anybody was that Sonkaran had warned him to not tell anybody about this incident otherwise his uncle shall kill him also. In the cross question he accepted relationship between the informant such as his father Awadhesh and father of Roshani, Ramesh are cousin brothers. Thus Roshani was his sister. P.W.3 and Roshani were neighbours. His statement was also recorded by the Police Officer on 15 April 2002.

One Rajesh Kumar Nishad, who was the witness of the preparation of the inquest report was examined as P.W.4. He had also ascribed the First Information Report. In his deposition he accepted it as well as accepted the preparation of inquest request in his presence.

The Investigating Officer Sub Inspector N.K.Pandey was examined as P.W.7. He proves the recovery of deceased's underwear and sleepers (chappals). He submitted that the underwear of the deceased as well as other articles were sent for analysis to the Forensic Lab, but since no analysis report could be received, he was unable to say that whether any human blood was found in the underwear of the deceased or not. He further proved the site plan prepared in the matter.

The learned counsel for the appellant Mr.Dharmendar Dhar Dubey, asserted that the present case is based totally on false story narrated by the prosecution. He stated that the statement of First Information Report is based on hearsay evidence, which was provided by P.W.2 and P.W.3. The story narrated by the prosecution is completely unbelievable for the reason that the informant, who was father of the deceased after coming to know that the deceased was not traceable, did not inform the police, rather he slept over in his house comfortably and started searching Roshani (deceased) in the next morning. P.W.2, in his deposition, who had informed to the father of the deceased about the offence, had denied from having knowledge of any such incident. In so far as P.W.3 is concerned, admittedly he was relative of the deceased, therefore, he is said to be an interested and partisan witness and he has been said to be the interested witness to support the story of murder of the deceased. The evidence deposed by P.W.3, who had been the interested witness, cannot be made a sole basis for holding guilty to the appellant unless it is corroborated with other incriminating evidences. He further stated that the appellant's guilt for commission of offence has been established on the basis of last seen theory, whereas the prosecution has failed to establish his guilt by corroborating last seen evidence with other incriminating evidences. The articles which were recovered by the Investigating Officer were said to be sent for chemical examination, but neither report of the analysis has been brought on record nor have the reasons were assigned, therefor. He further submitted that the inquest report was prepared after about three hours. He further raised finger over the trustworthiness of the testimony of P.W.3 and asserted that his statements were contradictory to each other as once he had deposed that when he went for food the accused was assaulting the deceased, but subsequently he deposed that she had died before his proceeding for food. He further stated that except the statement of P.W.3, which is contradictory and weak one, there was no other evidence to corroborate his deposition as well as to establish the fact that the appellant murdered Roshani (deceased). He further stated that no motive of the accused for commission of offence has been established by the prosecution.

Per contra Mr.Nagendra Bahadur Singh, learned Additional Government Advocate has stated that P.W.3, who has been one of the informants of the incident, informing the father of the deceased about the incident, has supported well the story of the prosecution. He was aged about 9 years and firstly he was tested by the learned Sessions Judge about his understanding. Learned Sessions Judge being satisfied about his maturity of mind to explain the facts permitted his deposition. P.W.3 identified the accused in the court. In his deposition he had stated that the deceased was murdered by the accused in his presence. He had seen the incident of assaulting the deceased by Daya Ram by strangulating her and when he lodged the protest, he was directed by the accused to go for food. He very clearly stated that the accused had murdered the deceased by strangulating her. Since P.W.2 Sonkaran had warned him to not tell the incident to anybody else otherwise the accused shall kill him, he did not tell this story promptly to anybody. He had deposed the place of incident which was a drain where the buffalo of the deceased had gone. The body of the deceased was recovered from the said drain. The articles viz. one pair of sleepers and underwear were found behind the bushes in drain, which were identified by the deceased. After the incident Daya Ram was not seen by anybody. In so far as the evidence of last seen is concerned, he stated that prosecution story is not based on the last seen evidence, rather P.W.3 has been the eye witness of the incident who had seen that accused was assaulting Roshani by strangulating her. He further stated that in so far as the motive of the deceased for commission of offence is concerned, the injury reports itself establish that the accused was in intention to commit her rape as the injuries were caused by the nearest places of her private part, which could be received during the protest lodged by her against commission of rape. Therefore, the appellant's guilt is well established for commission of rape as well murder of the deceased and accordingly he has rightly been convicted by the court below for commission of offence under Section 376 and 302 of the Indian Penal Code.

We have heard the submissions of learned counsels for the parties as well as perused the records of the court below.

The First Information Report was lodged by the father of the deceased on the basis of the information received from P.W.2 and P.W.3. P.W.2 had denied from seeing any such incident. There may be the reason that accused Daya Ram is his uncle, thus the sole ocular evidence to prove the incident is of P.W.3. Rakesh, who was of nine years of age. He had also been one of the informant to inform the father of the deceased about the incident, on the basis of which the First Information Report was lodged by the father of the deceased. He very naturally stated that when he was playing with Roshani, her buffalo had gone to drain, she followed her buffalo to get it back, but at the same very time the accused had also followed Roshani and killed her in the drain by strangulating her. The ante mortem injuries show that before killing her there had been long fighting between two, which establishes that she had protested the action of the accused whatsoever it was, but ultimately accused succeeded to kill her by strangulating her. After his arrest at the instance of the accused her articles like sleepers and underwear were found behind the bushes in the drain. In so far as the motive is concerned, we are of the view that mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established as the Hon'ble Supreme Court in the case of Arjun Marik and others versus State of Bihar1 has held in paragraph 10 as under:-

"10.Learned counsel for the appellants first contended that the motive for the crime is said to be the greed for wealth and reluctance of deceased Sitaram to advance further loan to the appellant, Arjun Marik but in fact there is no material on record either to suggest that the deceased Sitaram was carrying on money lending business or that the appellant Arjun Marik was indebted to him or ever took any sums on loan from the deceased. In this connection it may first be pointed out that mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anyone else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."

The Supreme Court in the case of State of Himachal Pradesh versus Jeet Singh2 has held that there was no doubt that it is a sound principle to remember that every criminal act was done with a motive, but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. Relevant paragraph 33 is reproduced hereunder:-

"33.No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two Judge Bench of this Court (Dr. A.S. Anand,J. - as the learned Chief Justice then was and Thomas, J) in Nathuni Yadav vs. State of Bihar (1998 9 SCC 238):

"17.Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R.V. Parlmer (Shorthand Report at p.308 SCC May 1856) thus:

'But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.'

Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."

With regard to trustworthiness of testimony of the child witness the Hon'ble Supreme Court in the case of B.A.Umesh versus Registrar General High Court of Karnataka3 has held that if the statement of the witness aged seven years has been found natural, trustworthy and without any chance of being tutored, it can not be taken lightly. Since in the present case the mitigating circumstances establish that it was the accused only who could have committed the crime since except him nobody had gone to follow the deceased and P.W.3 an eye witness had very specifically deposed that he had seen the commission of murder of the deceased by the accused. Relevant paragraph 15 is reproduced hereunder:-

"15.It is further submitted on behalf of the petitioner that though the testimony of the child (PW2) aged about seven years could be sufficient for holding the petitioner guilty of offence for conviction but the death sentence should not be imposed on the basis of testimony of a seven year old child. We are unable to accept this proposition. If the statement of the witness, aged seven years, has been found natural, trustworthy and without any chance of being tutored, it cannot be taken lightly as mitigating circumstances, particularly, in the facts and circumstances of the present case."

In so far as the reliance to be placed on the sole witness is concerned, the Hon'ble Supreme Court in the case of Vedivelu Thevar versus The State of Madras4 has held that the court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence reliable and free from all taints which tend to render oral testimony to open to suspicion, it becomes its duty to act upon such testimony. Relevant paragraphs 10, 11 and 12 are reproduced hereunder:-

"10. The decision of this Court in the case of Vemireddy Satyanarayan Reddy and three others v. The State of Hyderabad 1956 SC R 247: (S) AIR 1956 SC 379((B) was also relied upon in support of the contention that in a murder case the court insists on corroboration of the -testimony of a single witness. In the said reported decision of this Court, P.W. 14 has been described as " a dhobi boy named Gopai. " He was the only person who had witnessed the murder and his testimony had been assailed on the ground that he was an accomplice. Though this Court repelled the contention that he was an accomplice, it held that his position was analogous to that of an accomplice. This Court insisted on corroboration of the testimony of the single witness not on the ground that his was the only evidence on which the conviction could be based, but on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252 (of S C R): at p. 381 of AIR):

"...... Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to -act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same."

It is not necessary specifically to notice the other decisions of the different High Courts in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."

On reliability of the testimony of the related witness the Supreme Court in the case of Sucha Singh and another versus State of Punjab5 has held that the relationship is not the factor to affect the credibility of a witness. The Supreme Court further held that it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Relevant paragraphs 16 and 17 are reproduced hereunder:-

"16.We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR .366, para 25)

"25.We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

17. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):

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

On the question of contradiction of the statement of P.W.3, we have gone through the judgment of the Hon'ble Supreme Court in the case of Sucha Singh and another (Supra), in which the Hon'ble Supreme court held that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

In view of the aforesaid principles laid down by the Hon'ble Supreme Court when we examined the statement of P.W.3, we found that the contradictions in his statement indicated by learned counsel for the prosecution comes under the category of normal discrepancies, which shall not weigh over other part of his statement as well as the incriminating evidence found in the case. Thus, we are of the view that the arguments raised by Mr.Dharmendra Dhar Dubey, learned Amicus Curiae do not stand against the punishment awarded to the accused by the court below, since the court below has thoroughly discussed each and every aspect of the case and has rightly arrived at conclusion about the guilt of the appellant.

Therefore, the judgment and order dated 25.9.2003, passed by the Additional District and Sessions Judge, Allahabad in Sessions Trial No.452 of 2002, whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and convicted under Section 302 IPC and sentenced to the imprisonment for life alongwith fine of Rs.2000/-, in default to undergo rigorous imprisonment for two months, is affirmed.

In the result the appeal lacks merit and is hereby dismissed.

The learned Amicus Curiae Mr. Dharmendra Dhar Dubey shall be paid Rs.10,000/- (Rupees Ten Thousand Only) for providing active assistance to the Court from the fund of State Legal Services Authority.

 
Order Date :-6.11.2017
 
Banswar
 
(Chandra Dhari Singh,J.)      (Shri Narayan Shukla,J.)