Avadhesh Kumar vs State Of U.P.
2018 Latest Caselaw 1786 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 17.07.2018
 
Judgment Delivered on : 31.07.2018
 

 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 2191 of 2004
 

 
Appellant :- Avadhesh Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dharmendra Singhal,Jitendra Singh,M.S. Chandel,Purushottam Pandey,Shyam Dhar Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ram Surat Ram (Maurya),J.

Hon'ble Umesh Chandra Tripathi,J.

[Delivered by Umesh Chandra Tripathi,J.]

[1]. This criminal appeal is born out of the judgment and order dated 20.03.2004 passed by Additional Sessions Judge/F.T.C. No. 3, Mirzapur, in Sessions Trial No. 278 of 1998 (State v. Avadhesh), Police Station - Kotwali Katra, District - Mirzapur, whereby appellant Avadhesh Kumar was convicted and sentenced as follows :

(i) Imprisonment for life and fine of Rs. 10,000/- and in case of default in payment of fine, additional imprisonment for two years, under Section 302 of the Indian Penal Code (in short 'IPC'); and

(ii) Seven years' rigorous imprisonment and fine of Rs. 5,000/- and in case of default in payment of fine, additional imprisonment for one year, under Section 307 of IPC;

[2]. Both the sentences were directed to run simultaneously.

[3]. Stream of events leading up to the lodging of the first information report are that on 09.08.1998 at about 04.00 A.M., while informant Maya Shanker s/o Pudai r/o Village Chandra Deepa, Police Station - Kotwali Katra, District - Mirzapur, along with his family members was sleeping in his house, his neighbour Neetu d/o Shambhoo Nath Dubey, aged about 13 years, came to his house, running and crying and told that Avadhesh Kumar has killed her parents. He also chased Neetu to kill her, but she managed to escape, bearing few injuries. On this, informant Maya Shanker and Pradeep s/o Kapil Dev came out and they saw Avadhesh Kumar fleeing towards the east. Thereafter, they went to the place of occurrence and saw neighbour Shambhoo Nath Dubey and his wife Shanti Gupta lying dead outside their room. It was requested that report be lodged and appropriate action be taken. The written report is on record and the same is marked as Ex.Ka.1.

[4]. Contents of written report were taken down by Head Constable head moharir Ram Shanker Singh (scribe) in the chik first information report (FIR No. 286 of 1998) at Case Crime No. 1103 of 1998 under Sections 302 and 307 of IPC at Police Station - Kotwali Katra, District - Mirzapur on 09.08.1998 at 05.10 A.M. The FIR is on record and the same is marked as Ex.Ka.7. On the basis of entry so made in the FIR, relevant entry was made by the aforesaid scribe in the general diary and a case was registered against the accused at the aforesaid case crime number under the aforesaid sections. The carbon copy of the G.D. is on record and the same is marked as Ex.Ka.8.

[5]. Thereafter, investigation of the case commenced and it was entrusted to Devendra Kumar Rai (Investigating Officer). He first of all noted down chik G.D. in case diary and recorded statement of the informant. Thereafter, he reached at the place of occurrence and prepared its site plan, which is on record and marked as Ex.Ka.9. He thereafter recovered blood-stained and simple earth from near the dead body of deceased Shanti Gupta and Shambhoo Nath Dubey and prepared recovery memo of the same, which are on record and marked as Ex.Ka.2 and Ex.Ka.3, respectively. He also recovered blood-stained 'gadasa' (chopper blade used in fodder-cutting machine) from the place of occurrence and prepared recovery memo of the same, which is on record and marked as Ex.Ka.6. He thereafter took the dead body of deceased Shambhoo Nath Dubey and Shanti Gupta into possession and after selecting inquest witnesses, held inquest on the dead body of deceased and prepared 'panchayatnama' (inquest report) of the same, which are on record and marked as Ex.Ka.4 and Ex.Ka.5, respectively. In the opinion of the inquest witnesses, it was thought proper to send the dead body of the deceased Shambhoo Nath Dubey and Shanti Gupta for post-mortem examination to ascertain the real cause of their death.

[6]. Injured Neetu Gupta was brought to District Hospital, Mirzapur on 09.08.1998 at 05.10 A.M. by constables Ram Surat Yadav and Chandra Deepa, Police Station - Kotwali Katra, District - Mirzapur, where she was medically examined by Dr. K.P. Singh, Emergency Medical Officer, District Hospital, Mirzapur, who noted the following injuries on her person :

1. Incised wound size 5.3 cm. x .25 cm. x scalp deep on lt. side of head, 9 cm. above the lt. ear pinna, 18 cm. above the lt. eye brow. Advised for x-ray.

2. Incised wound on rt. hand dorsum in between little and ring finger size 3.5 cm. x .5 cm. x muscle deep, blood clot present. Advised x-ray.

3. Lacerated wound size 4.5 cm. x 1 cm. on dorsum and inner aspect of rt. little finger.

4. Incised wound on post part of head starting from 10 cm. behind the lt. ear root, size 8 cm. x .5 cm. x bone deep, blood clot present, 8 cm. above the C7 vertebrae. Advised for x-ray.

[7]. From the above injuries, following inference was drawn :-

Injuries were caused by sharp object, it is under observation, duration of injuries fresh.

[8]. The injury report of injured Neetu Gupta is on record and the same is marked as Ex.Ka.26.

[9]. Dead body of deceased Shanti Gupta was brought to District Hospital, Mirzapur on the same day (09.08.1998) by constables - CP 530 Anil Kumar Pandey and CP 475 Rajdhar Yadav, Police Station - Kotwali Katra, District - Mirzapur. Post-mortem examination on the cadaver of the deceased was conducted at 03.00 P.M. by Dr. S.N. Misra, Senior Medical Officer and Dr. S.S. Parmar, Medical Officer, District Hospital, Mirzapur, who noted the following ante-mortem injuries on her person:-

1. Incised wound 15 cm. x 2 cm. x bone deep on the neck left side 4 cm. below the left angle of mandible. Margin of wound smooth, even, clean cut, well defined. Trachea cut, all blood vessels cut, muscles of neck cut.

2. Incised wound 4cm. x 2 cm. x muscle deep on the left pinna of ear upper part. Eyes closed.

[10]. In the opinion of the doctors, death of deceased Shanti Gupta was caused due to shock and haemorrhage as a result of ante-mortem injuries.

[11]. The post-mortem report of deceased Shanti Gupta is on record and the same is marked as Ex.Ka.11.

[12]. On the same day, dead body of deceased Shambhoo Nath Dubey was also brought to District Hospital, Mirzapur by the aforementioned constables. Post-mortem examination on the cadaver of the deceased was conducted at 03.30 P.M. by Dr. S.N. Misra, who noted the following injuries on his person :

1. Incised wound 5 cm. x 2 cm. x bone deep on the right side of neck 4 cm. below the right angle of mandible.

2. Incised wound 3 cm. x 1 cm. x bone deep on the left shoulder joint.

3. Incised wound 10 cm. x 3 cm. x bone deep on the left side of forehead extending up to upper part of left side of face.

4. Incised wound 4 cm. x 1 cm. x bone deep on the head 3 cm. above to injury no. 3. Margins of wound smooth, even, clean cut and well-defined.

[13]. In the opinion of the doctor, death of deceased Shambhoo Nath Dubey was caused due to shock and haemorrhage as a result of ante-mortem injuries.

[14]. The post-mortem report of deceased Shambhoo Nath Dubey is on record and the same is marked as Ex.Ka.12.

[15]. Along with the cadavers of both the deceased, a total of 18 police forms, 10 and 8 of deceased Shanti Devi and Shambhoo Nath Dubey, respectively, were presented before Dr. S.N. Misra, which were collectively marked as Ex.Ka.13 to Ex.Ka.25.

[16]. After completion of investigation, the Investigating Officer submitted charge sheet against the accused under Sections 302 and 307 of IPC. The charge sheet is on record and the same is marked as Ex.Ka.10.

[17]. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. - 278 of 1998. From there, it was made over for trial and disposal to the court of Additional Sessions Judge/F.T.C. No. 3, Mirzapur. Accused Avadhesh Kumar was heard on point of charge and the trial court was prima facie satisfied with the case against him, therefore, it framed charges against him under Sections 302 and 307 of IPC. Charges were read over and explained to the accused, who abjured the charges and opted for trial.

[18]. The prosecution, in order to prove the guilt of the accused and substantiate charge against him, examined as many as nine prosecution witnesses, out of whom, Neetu Gupta, daughter of deceased Shambhoo Nath Dubey and Shanti Gupta (P.W.3) was examined as witness of fact, while informant Maya Shanker (P.W.1), Mahanth (P.W.2), Sita Ram (P.W.4), Head Constable head moharir Ram Shanker Singh (scribe) (P.W.5), Investigating Officer Devendra Kumar Rai (P.W.6), Dr. S.S. Parmar, Medical Officer, District Hospital, Mirzapur (P.W.7), Dr. S.N. Misra, Senior Medical Officer, District Hospital, Mirzapur (P.W.8) and Dr. K.P. Singh, Emergency Medical Officer (P.W.9), District Hospital, Mirzapur were examined as formal witnesses.

[19]. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statement of the accused Avadhesh Kumar was recorded under Section 313 of the Cr.P.C., wherein he claimed to have been falsely implicated in the present case on account of enmity.

[20]. In turn, the defence did not lead any evidence, either oral or documentary.

[21]. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order of conviction, which gave rise to the instant criminal appeal.

[22]. Heard Afzal Ahmad Khan Durrani, holding brief of Sri Shyam Dhar Gupta for the appellant and Sri S.A. Sachan, A.G.A. for the State of Uttar Pradesh.

[23]. Learned counsel for the appellant contended that first information report is ante-timed. It had not been lodged on 09.08.1998 at 05.10 A.M., but was lodged later on, showing the date and time of lodging as mentioned above. P.W.3 Neetu Gupta, the lone eye-witness of the occurrence, is not a reliable witness. There are major contradictions and improvements in her statement. Injuries caused to P.W.3 Neetu Gupta and deceased Shambhoo Nath Dubey and Shanti Gupta are not probable by 'gadasa' having no handle. Identity of deceased Shambhoo Nath Dubey is not established. The learned trial court without considering all the facts and circumstances of the case and without appreciating the material brought on record, has passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeal deserves to be allowed.

[24]. Per contra, learned A.G.A. contended that there is no illegality or perversity in the impugned order of conviction passed by the court below.

[25]. At the time of lodging of the first information report, P.W.3 Neetu Gupta admitted this fact that after the incidence, two police personnel came at the residence of P.W.1 informant Maya Shanker and took her to District Hospital, Mirzapur. The conduct of police personnel is very natural. It was their duty firstly to save the life of Neetu Gupta, who was severely injured. P.W.3 Neetu Gupta had not gone to the police station at the time of lodging the F.I.R. Accordingly, the genuineness of lodging the F.I.R. cannot be doubted on the basis that Neetu Gupta was medically examined at the same time when the F.I.R. was lodged.

[26]. From the perusal of injury report of P.W.3 Neetu Gupta, post-mortem report of deceased Shanti Gupta and Shambhoo Nath Dubey and statement of P.W.7 Dr. S.S. Parmar, P.W.8 Dr. S.N. Misra and P.W.9 Dr. K.P. Singh, it is apparent that all the injuries caused to the injured and the deceased have been caused by the same sharp-edged weapon at the same time. The injury of deceased Shanti Gupta was on the left side of the neck and ear. The first injury of deceased Shambhoo Nath Dubey was on the right side of the neck and other three injuries were on different parts of the body. The first injury of P.W.3 injured Neetu Gupta was on left side of the head, the second one was on right hand dorsum in between little and ring finger, the third one was on right hand and fourth one was again on the left side of the head. Nature of injuries caused to deceased Shanti Gupta show that they were caused to her while she was sleeping, due to which she died. The first blow on deceased Shambhoo Nath Dubey was caused while he was sleeping. After the first blow, he was awakened. The other three injuries were caused to him in while he was awake, in standing position, when he was trying to save himself from the blows. All the injuries of injured Neetu Gupta were caused while she was trying to defend herself. Deceased Shanti Gupta and Shambhoo Nath Dubey and injured Neetu Gupta might have sustained injuries on 09.08.1998 at 04.00 A.M.

[27]. As no x-ray report of P.W.3 injured Neetu Gupta was produced by the prosecution before the trial court, it is evident that she had not sustained any bony injury. Neetu Gupta stated that she was hospitalized for about one week. Her statement is corroborated by statement of P.W.6 I.O. Devendra Kumar Rai, who admitted this fact that he interrogated Neetu Gupta on 14.08.1998 in the hospital. Accordingly, the injuries caused to Neetu Gupta were dangerous and one of the injuries was caused on vital part of the body. Her presence on the spot at the time of the occurrence cannot be doubted.

[28]. P.W.3 Neetu Gupta belongs to a poor family and is semi-literate. She admitted in her examination-in-chief that she has studied only up to Class VI. In her medical report, her age is mentioned about 14 years. She has described the occurrence in a very natural manner. In her examination-in-chief, she stated that at the time of the occurrence, she was living with her parents in a rented room belonging to Soshan Gupta. Accused-appellant Avadhesh Kumar was a manual labour in the scrap shop of Soshan Gupta. Her father Shambhoo Nath Dubey was a tempo driver. Accused-appellant Avadhesh Kumar used to sleep sometime in the scrap shop of Soshan Gupta, sometime outside the scrap shop and sometime in a room built in the backside of the scrap shop. In the night of the occurrence, her mother Shanti Gupta and father Shambhoo Nath Dubey were sleeping in an open area in front of shop of Soshan Gupta. Accused-appellant Avadhesh Kumar was also sleeping along with her father. Her mother was sleeping upon a stone at a short distance from her father Shambhoo Nath Dubey and accused-appellant Avadhesh Kumar. She was sleeping inside the room. The door of the room was kept open so that her father and mother may come in the room. Upon hue and cry being made by her father Shambhoo Nath Dubey, she woke up and saw that her father was in the room and was shrieking and requesting accused-appellant Avadhesh Kumar not to kill him. She saw that Avadhesh Kumar was assaulting her father with 'gadasa'. She rushed towards her mother to awake her, but saw that she was already dead and blood was oozing out of her body. On seeing this, she shrieked, which drew the attention of the accused-appellant towards her and he started chasing her. She fled in the west towards the road. While chasing her, the accused-appellant inflicted a two injuries on her - one on her head and the other on her hand by 'gadasa'. She rushed towards the residence of P.W.1 informant Maya Shanker, which was adjoining to the rented room of her father Shambhoo Nath Dubey. On hearing her shriek, informant Maya Shanker opened the door and came out, on which accused-appellant Avadhesh Kumar made his escape good towards the east. After that, some person went to the police station to call the police, whereafter the police came on the spot and took injured Neetu Gupta to the hospital, where she was treated.

[29]. From the perusal of F.I.R., injury report and statement of P.W.3 injured Neetu Gupta, it is evident that she could not see the accused-appellant Avadhesh Kumar while he was assaulting her mother Shanti Devi, but she saw the accused while he was assaulting her father Shambhoo Nath Dubey. When she shrieked after seeing her mother being murdered, the accused chased and assaulted her, due to which she sustained injuries. There is no material on record on the basis of which this version of P.W.3 Neetu Gupta may be discarded. From her statement which is corroborated by medical evidence and circumstantial evidence, it is proved beyond reasonable doubt that accused-appellant Avadhesh Kumar had firstly murdered Shanti Devi and after that, he assaulted Shambhoo Nath Dubey, due to which he succumbed to his injuries. When Neetu Gutpa shrieked after seeing her mother dead, he chased her and assaulted her with the same weapon 'gadasa', due to which she sustained injuries. At the time of the occurrence, Shambhoo Nath Dubey was shrieking and requesting accused-appellant Avadhesh Kumar not to kill him, in the presence of P.W.3 Neetu Gupta. This shrieking and making request by Shambhoo Nath Dubey to accused-appellant Avadhesh Kumar in the presence of Neetu Gupta is the dying declaration of deceased Shambhoo Nath Dubey, as per provision of Section 32 of the Indian Evidence Act, 1872 which is admissible in evidence.

[30]. From the statement of P.W.3 Neetu Gutpa, it is evident that accused-appellant Avadhesh Kumar was sleeping along with Shambhoo Nath Dubey on the night of the occurrence. This fact is not denied by the accused-appellant. Learned counsel for the appellant has not made any suggestion to witness P.W.3 Neetu Gupta that accused-appellant Avadhesh Kumar was not sleeping along with Shambhoo Nath Dubey on the spot at the night of the occurrence. Accused-appellant Avadhesh Kumar has also not specifically denied this fact in his statement under Section 313 of Cr.P.C. Informant P.W.1 Maya Shanker has not supported the prosecution version and was declared hostile by the prosecution. He admitted this fact that he is subscriber of written information Ex.Ka.1 but he stated that he scribed Ex.Ka.1 on the dictation of police inspector, who called him at about 4-5 A.M. From his statement, it is evident that he was at Police Station - Kotwali Katra at 05.10 A.M. when first information report was being lodged. At that time, Neetu Gupta was not present at the police station. She was being treated at District Hospital, Mirzapur. P.W.1 informant Maya Shanker has not stated that any member belonging to the family of injured/deceased or any member of the locality was present in the police station at the time of lodging of the F.I.R. It was not possible for the police to know all the facts, particulars of the case, name of the accused and deceased, etc. From these facts, only this inference can be drawn that informant Maya Shanker has scribed written information Ex.Ka.1 on the basis of the information received by P.W.3 Neetu Gupta and he has not supported the prosecution version before the court for reasons best known to him. But his conduct shows that at the time of recording his statement before court, he was favourable to accused-appellant Avadhesh Kumar.

P.W.1 informant Maya Shanker stated that he went on the spot after knowing about the death Shambhoo Nath Dubey, but at that time, he has not seen the accused-appellant Avadhesh Kumar either on the spot or fleeing away from the spot. He further admitted that at that time, Shambhoo was lying dead in front of his room. This shows that P.W.1 informant Maya Shanker knew the accused-appellant Avadhesh Kumar and when he reached on the spot, the accused-appellant was not there. The residence of informant Maya Shanker is adjacent to the place of occurrence. He may know the accused-appellant Avadhesh Kumar only because he was living and working on the shop of Soshan Gupta nearby his residence. Accused-appellant Avadhesh Kumar was sleeping along with deceased Shambhoo Nath Dubey. At about 4-5 A.M., he was not found on the spot, where Shambhoo Nath Dubey and Shanti Devi were killed. His absconding from the spot is an additional circumstance of his involvement in the murder of deceased Shambhoo Nath Dubey and Shanti Gupta.

[31]. P.W.3 Neetu Gupta has stated in her cross-examination that accused-appellant Avadhesh Kumar was working in the shop of Soshan Gupta from about 4-5 months of the occurrence. He did not cook his food. Sometimes he used to take meal in hotel, sometimes at her residence and sometime at the residence of Soshan Gupta. Accordingly, Neetu Gupta was well-acquainted with accused-appellant Avadhesh Kumar. The accused-appellant used to follow Neetu Gupta and insisted her to leave her residence and go with him.

[32]. Learned counsel for the appellant contended that it was not possible for P.W.3 Neetu Gupta to identify the accused-appellant Avadhesh Kumar in the night. We do not agree with the submission made by learned counsel for the appellant as Neetu Gupta was well-acquainted with accused-appellant Avadhesh Kumar and she may have easily identified him even in the darkness of night. Neetu Gupta stated that due to interruption of power supply, accused-appellant Avadhesh, her father Shambhoo Nath Dubey and her mother Shanti Gupta were sleeping outside their room in an open area. At that time, she was also sleeping in the open area, but when power supply was reinstated, she went to sleep inside the room, while her mother and father continued to sleep outside in open space. She left the door of the room open in order to enable her parents to enter the room after waking up. From this statement, it can be easily inferred that at the time of the occurrence, power supply was reinstated.

[33]. In Shivraj Bapuray Jadhav & Ors. v. State of Karnataka reported in (2003) 6 SCC 392, Hon'ble Apex Court observed as follows :

The submission that the occurrence was two days prior to the new moon day and, therefore, the ocular witnesses could not have witnessed the occurrence as they claimed to have, does not appeal to us for the reason that not only, as noticed by the High Court, the parties are used to living in the midst of nature and accustomed to live without light, the parties could have been identified easily not only from the voices but from the fact that they are known persons and close relatives and living in the neighbouring huts. Though the learned trial Judge had noticed some of the discrepancies in the evidence, as rightly observed by the High Court, nothing substantial seems to turn out of the so-called discrepancies which appear to be merely trivial, not undermining the credibility or truthfulness of the evidence spoken to by the witness or the case of the prosecution and as rightly noticed by the High Court, the defence could not succeed in bringing to the notice of the Court any single discrepancy on any material aspect of the case in the form of contradiction by marking it on behalf of the accused in the evidence of the eyewitness, which could be said to either belie or undermine the credibility of those witnesses who claimed to have witnessed the occurrence and deposed before the court. In a case which turns on direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard.

[34]. Accordingly, identification of accused-appellant Avadhesh Kumar by Neetu Gupta cannot be doubted.

[35]. P.W.5 Head Constable Ram Shanker Singh (scribe) has proved this fact that on the basis of written information of informant P.W.1 Maya Shanker, first information report was lodged by him on 09.08.1998 at 05.10 A.M. His statement is supported by informant Maya Shanker, although he was favouring the accused at the time of recording his statement before the court. In view of this, the submission of learned counsel for the appellant that F.I.R. is ante-timed, has no substance.

[36]. P.W.3 Neetu Gupta has stated that one day, while she was returning from school to her residence, accused-appellant Avadhesh Kumar met her and told her to go with him, leaving her home. She narrated this fact to her mother, after which her mother and father had scolded Avadhesh, whereafter he became annoyed. Shanti Devi was the real mother of Neetu Gupta, but Shambhoo Nath Dubey was not her real father. She admitted in her cross-examination that she is the real daughter of Ashok Kumar Gupta, who lives at Imarti Road. When Neetu Gupta was about 6 months old, her mother left Ashok Kumar Gupta and started living with Shambhoo Nath Dubey. This fact was narrated by Shanti Gutpa to Neetu Gupta. Being the real mother of Neetu Gupta, Shanti Devi might have strongly opposed and condemned the conduct of accused-appellant Avadhesh Kumar. Shambhoo Nath Dubey, being stepfather of Neetu Gupta, might have not opposed accused Avadhesh as strongly as Shanti Gupta. From these facts, it may be safely inferred that accused-appellant Avadhesh had brutally murdered Shanti Devi first, when she was sleeping and then assaulted Shambhoo Nath Dubey. This was a strong motive for the accused-appellant to commit the offence.

[37]. Here it must also be noted that if offence is proved, the prosecution version cannot be doubted on the ground that it has failed to proved the motive of the accused to commit the offence. In Om Prakash @ Raja v. State of Uttaranchal reported in (2003) 1 SCC 648 Hon'ble Apex Court held as under :

11. As regards the motive for the crime, the High Court on an analysis of the evidence found that it could either be a frustrated attempt to commit robbery or it could be for taking revenge against the master and his family. It is in evidence of PW-1 that the decision to dispense with his services was conveyed to the accused on the previous day because the accused incurred the displeasure of the family on account of his misbehaviour viz., suspected theft and his killing or harming the pet birds. That apart, as stated by the accused in his statement under Section 313 Cr.P.C., he was asked to quit the job for having illicit intimacy with the sister of the co-accused and he was scolded on that account. The accused would have been aggrieved for one or all of these reasons. We are not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. ......

[38]. Learned counsel for the appellant contended that dead body of deceased Shambhoo Nath Dubey was lying in the open space. However, P.W.3 Neetu Gupta narrated that accused-appellant Avadhesh Kumar had assaulted her father in the room. On the basis of this statement, he submitted that Neetu Gupta is not a reliable witness. Neetu Gupta had never stated that her father Shambhoo Nath Dubey fell in the room due to injuries caused to him by accused-appellant Avadhesh Kumar. She stated that when Avadhesh Kumar was assaulting her father, she rushed to wake her mother, but saw that her mother was already dead. Then she shrieked, whereafter accused Avadhesh chased her. The conduct of Neetu Gupta is very natural. It was also natural for injured Shambhoo Nath Dubey, who sustained injury, to go towards his daughter and wife for help. Therefore, the prosecution version cannot be doubted on the basis that dead body of deceased Shambhoo Nath Dubey was lying in open area.

[39]. P.W.3 Neetu Gupta further stated in her cross-examination that after 2-3 months of the occurrence, the police took her to Police Station - Kotwali Katra to identify accused-appellant Avadhesh Kumar. On the basis of this statement, learned counsel for the appellant submitted that accused-appellant Avadhesh Kumar was not known to P.W.3 Neetu Gupta. Avadhesh started living nearby the rented room of deceased Shambhoo Nath Dubey and his family before 4-5 months of the occurrence. In between these 4-5 months, he was in continuous touch with Neetu Gupta and her family members. Therefore, it cannot be said that accused-appellant Avadhesh was not known to Neetu Gupta before the occurrence.

[40]. In the backdrop of the aforesaid discussions, we find no force in the submissions made by learned counsel for the appellant.

[41]. P.W.3 Neetu Gupta has not narrated the motive of the occurrence to P.W.6 Investigating Officer Devendra Kumar Rai. In her statement recorded under Section 161 of the Code of Criminal Procedure (in short 'Cr.P.C.'), she stated to the I.O. that accused-appellant Avadhesh had assaulted her by throwing 'gadasa'. But she stated before court that accused-appellant Avadhesh had not assaulted her by throwing the 'gadasa', but by having 'gadasa' in his hand. From the perusal of injuries of Neetu Gupta, it is apparent that accused-appellant had assaulted her having 'gadasa' in his hand. The version of Neetu Gupta is corroborated by medical evidence. She has also not narrated to the I.O. that her parents were sleeping in open space due to interruption of power supply and that there was electricity and fan in her room. She narrated this fact for the first time in the court. Learned counsel for the appellant tried to create doubt on the basis of these improvements and contradictions. All these statements of Neetu Gupta are very natural. It was the duty of the I.O. to interrogate P.W.3 Neetu Gupta and other witnesses on these facts. These are material facts of this occurrence, but only because the I.O. was negligent in performing his duty, the whole prosecution version cannot be discarded.

[42]. In State of U.P. v. Hari Mohan Singh and others reported in (2000) 8 SCC 598, Hon'ble Apex Court held as under:

.....However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. .....

[43]. P.W. 3 Neetu Gupta has not narrated the time of the occurrence in her examination-in-chief, but she admitted in her cross-examination that in the night at about 2-2.30 A.M., the police reached at the residence of informant Maya Shanker. From this fact, it may be inferred that the occurrence had taken place, probably at 02.00 A.M. or 02.30 A.M. in the night. Neetu Gupta is a layman and semi-literate person who studied up to Class VI. She cannot be expected to narrate the exact time of the occurrence. Even a skilled person cannot differentiate between 04.00 A.M. or 2-2.30 A.M., without watching a clock. Neetu Gupta had no clock. She was badly injured. Her father and mother were brutally murdered. In such a situation, her credibility cannot be doubted on the basis of these statements.

[44]. P.W.3 Neetu Gupta admitted in her cross-examination that she could not see the assault made on the neck of her father Shambhoo Nath Dubey by accused-appellant Avadhesh Kumar. When she woke up, she saw that the accused was giving blow on the body of Shambhoo Nath Dubey by 'gadasa'. She could not see part of the body where her father sustained injury, because she immediately ran from the room to wake her mother. These statements of Neetu Gupta are natural and not contradictory. From the spot, a blood-stained 'gadasa' without handle, which is used in fodder-cutting machine, was recovered. Learned counsel for the appellant contended that from this 'gadasa', injury to Neetu Gupta, deceased Shambhoo Nath Dubey and Shanti Gupta cannot be caused. Only by 'gadasa' having a handle, such injury may be caused. This recovery was not made before P.W.3 Neetu Gupta. Neetu Gupta never stated in her statement that accused-appellant Avadhesh Kumar caused injuries to her and her parents by this 'gadasa'. Even if it is presumed that this 'gadasa' was falsely shown to have been recovered from the spot by the police to strengthen the prosecution case, the whole prosecution version cannot be discarded.

[45]. Here it must also be noted that the upper part of the 'gadasa' used in cutting fodder is thick and easy to grip. By holding the upper part of the 'gadasa' injuries to injured Neetu Gupta and deceased Shambhoo Nath Dubey and Shanti Gupta may be easily caused. Neetu Gupta could not explain that whether at the time of assaulting, accused-appellant Avadhesh Kumar was holding 'gadasa' in his right hand or in his left hand. It is but natural. Nobody can notice this fact in such a situation.

[46]. For the sake of the argument, even if it is presumed that some improvement has been made by Neetu Gupta in her statement before court or there are some contradictions in her statements, then on the basis of these improvements and contradictions, the whole prosecution version cannot be discarded.

[47]. In Gangadhar Behera and others v. State of Orissa reported in (2002) 8 SCC 381, Hon'ble Apex Court held that :

Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. 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'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), 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.

[48]. Learned counsel for the appellant contended that no independent witness has supported the prosecution witnesses. Only sole eye-witness Neetu Gupta has supported the prosecution version. Only on the basis of her statement, the accused-appellant cannot be convicted.

[49]. In Gangadhar Behera's case (supra), Hon'ble Apex Court held as follows :

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

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-

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

The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

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:

"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."

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."

[50]. In Sardul Singh v. State of Haryana reported in (2002) 8 SCC 372, Hon'ble Apex Court held as under :

There cannot be a prosecution case with a cast-iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt. This Court in Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] has observed, as to what should be the approach of a court in such circumstances, as follows:

"6. The maxim falsus in uno, falsus 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 scrutinize 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.

[51]. P.W.3 injured Neetu Gupta is a natural witness. She has narrated the prosecution version in a very natural manner. There are no material contradictions in her statements, which are corroborated by medical evidence, on the basis of which her testimony may be discarded. She has no reason to make false allegations against accused-appellant Avadhesh Kumar. In her presence, the accused-appellant caused injuries to her father Shambhoo Nath Dubey, who was requesting the accused-appellant not to kill him. On hearing the shriek of Neetu Gupta, the accused-appellant chased and caused injuries to her. On the same night and in the same sequence, her mother Shanti Gupta was also murdered. In such circumstances, it shall be presumed that her mother was also murdered by the accused-appellant, although Neetu Gupta had not seen the accused-appellant committing the murder of her mother.

[52]. In post-mortem report and inquest report, address of deceased Shanti Gupta is noted as w/o Shambhoo Nath Dubey r/o Village Chandra Deepa, Police Station - Kotwali Katra, District - Mirzapur. In the injury report of Neetu Gupta, her address is mentioned as d/o Late Ashok Kumar Gupta r/o Chandra Deepa, Police Station - Kotwali Katra, District - Mirzapur and in the post-mortem of deceased Shambhoo Dubey, his address is noted as s/o Late Raj Mani r/o Virohi Deoria, Police Station - Vindhyachal, District - Mirzapur. In the inquest report of deceased Shambhoo Nath Dubey, although address mentioned in the post-mortem report is noted, but his present address was noted as r/o Chandra Deepa, Police Station - Kotwali Katra, District - Mirzapur. In her statement before court, Neetu Gupta stated the name of her father as Shambhoo Nath Tiwari. On the basis of these discrepancies, learned counsel for the appellant submitted that identity of Neetu Gupta and deceased Shambhoo Nath Dubey is not proved. Neetu Gupta is not the real daughter of Shambhoo Nath Dubey, she is the real daughter of Ashok Kumar Gupta. As discussed above, she is semi-literate. She might have narrated the name of her father as Shambhoo Nath Tiwari instead of Shambhoo Nath Dubey by mistake. It is admitted fact that deceased Shambhoo Nath Dubey, Shanti Gupta and injured Neetu Gupta were not permanent residents of Chandra Deepa, Police Station - Kotwali, District - Mirzapur. They were residing there temporarily on rent. Neetu Gupta did not know the meaning of the word 'late' prefixed before the name of a dead person. In her medical examination, the name of her father name is mistakenly noted as Late Ashok Kumar Gupta instead of Ashok Kumar Gupta. It is not disputed that Shambhoo Nath Dubey and Shanti Gupta were murdered at the place of occurrence in front of shop of Soshan Gupta. Identity of injured Neetu Gupta, deceased Shambhoo Nath Dubey and Shanti Gupta and the accused Avadhesh Kumar was not disputed by the accused-appellant before the trial court. In this reference, neither anything has been stated by the accused-appellant Avadhesh Kumar in his statement under Section 313 of Cr.P.C. nor any suggestion has been made by learned counsel for the appellant to any of the witnesses. In such circumstances, their identity cannot be doubted at all.

[53]. For the reasons aforesaid and after going through the material brought on record and the impugned judgment, we are of the considered view that there is no infirmity or illegality in the well-observed and well-reasoned order of conviction passed by the trial court and the same needs no interference.

[54]. In the result, the appeal fails and the same stands dismissed. Conviction and sentence of appellant Avadhesh Kumar passed by Additional Sessions Judge/F.T.C. No. 3, Mirzapur are hereby upheld.

[55]. Appellant Avadhesh Kumar is in jail. He shall remain in custody to serve out the remaining part of the sentence awarded to him.

[56]. Let a copy of this order be certified to the trial court for the purposes of intimation and necessary compliance. Let lower court's record be remitted back to the court concerned.

Order Date :- 31.7.2018

I. Batabyal

[U.C. Tripathi,J.] [R.S.R. (Maurya),J.]

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