Bhushan vs State
2018 Latest Caselaw 2368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                        Judgment reserved on 11.7.2018
 
A.F.R.                            Judgment delivered on  07.9.2018
 
Court No.34.
 
Case :- CRIMINAL APPEAL No. - 894 of 1983
 

 
Appellant :- Bhushan & Ors.
 
Respondent :- State
 
Counsel for Appellant :- Keshav Sahai,Bimla Prasad,D.N. Wali,D.R.Choudhary,Prateek Tyagi,R.K.Pandey,Rahul Misra(A.C.),Ravindra Sharma
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi,J)

1. This appeal under Section 374 Cr.P.C. has been preferred by accused appellants Bhushan and Lala alias Satish Pal against judgment and order dated 05.4.1983, passed by VIIth Additional Sessions, Ghaziabad in Sessions Trial No.66 of 1981. By impugned judgment, all the appellants have been convicted under Sections 302/149 and 307/149 I.P.C. and have been sentenced with life imprisonment and rigorous imprisonment for five years respectively. Accused-appellant Om Pal, Madan and Lala alias Satish Pal have also been convicted under Section 147 I.P.C. and have been sentenced to undergo one year rigorous imprisonment. Accused-appellants Tejpal and Bhushan have been convicted and sentenced under Section 148 I.P.C. and have been punished with one year rigorous imprisonment. All the sentences were directed to run concurrently.

2. Out of five appellants, appellants no.4 and 5, namely Tejpal and Lala alias Satish Pal, died during pendency of the appeal and appeal in respect of them stood abated vide order dated 29.1.2009. Further, vide order dated 11.7.2018, appeal in respect of appellant no.2 namely Madan also abated due to his death. Consequently, the instant appeal, now survives only in respect of appellants no.1 and 3, namely, Bhushan and Om Pal.

3. Prosecution story, as emerging from F.I.R. as well as evidence adduced in this case is as follows: Incident took place on 22.11.1980 at 7.30 P.M. near Village Duhai towards 4 kms South. The F.I.R. of the incident was lodged by P.W.1, Ram Saran on the same day at 8.15 P.M. mentioning therein that his father Horam (deceased) drives Tonga and usually plies it between Bhikhanpur to Duhai, Ghaziabad and Murad Nagar. Accused Tejpal and Ompal had hired his Tonga for going to Garh Mukteshwar. The fare was settled at Rs.300/-. It was also settled that half of the fare would be paid on reaching Garh Ganga and the remaining half while returning, on reaching Murad Nagar. All the accussed-appellants namely Bhushan, Lala @ Satish Pal, Madan, Tejpal, Ompal and Mahendra along with the complainant his father Horam and his mother Sukhdei proceeded to Garh Ganga on Tonga from Duhai. However, Mahendra became down with fever so he returned back on the next morning.

4. On reaching Garh Ganga, when Horam demanded the half amount of fare from the appellants, they refused to pay and said that they would pay the fare at Murad Nagar. On 22.11.1980, at about 9 A.M., P.W.1, (complainant) along with his parents and the accused persons proceeded to return home by Tonga. On reaching Murad Nagar, all the accused took lunch in a hotel. At Murad Nagar, the father of P.W.1 deceased Horam, again asked them to pay the fare, so that he and his family may also have something to eat, which was again refused by the accused-appellants promising to pay the same at Duhai. When at about 7.30 P.M. the Tonga reached near Duhai, Tejpal asked Bhushan to pay the Tonga fare to Horam, whereupon Ompal, Madan and Satish caught hold of Horam and Bhushan and Tejpal started inflicting knife blows on his body. When the mother of informant Sukhdei tried to save her husband, she was also inflicted knife blows by the accused-appellants. The informant tried to save his parents but he was pushed down the Tonga as a result he fell down and sustained injuries. On hearing the alarm, Jai Prakash, Pradhan of the Village Duhai and two cyclists came from the side of Duhai, whereafter all the five accused jumped out from Tonga, fled away towards West and disappeared in the fields. Horam succumbed to his injuries and he died on the spot. P.W.1 informant Ram Saran and his mother, P.W.4 Smt. Sukhdei both were medically examined on 23.11.1980 and 22.11.1980 respectively. P.W.2 Dr. M.K.Goel examined the injured informant Ram Saran on 23.11.1980 at 11.45 p.m. He found following injuries on his person:

"1. Abrasion 1 cm. X 2.5 cm. on left side of face just below the outer angle of left eye. Soft scab present.

2. Contusion 4 cm x 1.5 cm on left side of face just below left eye. Colour bluish.

3. Abrasion 1/2 cm x .25 cm on right side middle of nose.

4.Abrasion 3 cm x 1/2 cm on back of lower part of left forearm above wrist. Soft scab present.

5.Traumatic swelling 1 cm x 1/2 cm in middle of upper lip."

The said Doctor proved the injury report as Exhibit Ka-2.

5. P.W.9, Dr. B. Kumar examined Smt.Sukhdei, P.W.4 and found following two injuries on her person:

"1. Stab wound 2 cm x o.5 cm x depth not proved on right scapula, 4 cm above angle of scapula.

2. Incised would 1.5 cm x 0.3 cm x muscle deep on back of chest in medial on the level of third thorasic vertebra. Both injuries were kept under observation. X-ray was advised for injury no.1.

6. After registration of F.I.R. (Exhibit Ka-1), usual investigation proceeded. Statements of witnesses were recorded by Investigating Officer. Recovery memos of plain soil, blood stained soil and blood stained clothes were prepared. Inquest proceedings were undertaken and after completion of necessary documentation, the dead body of deceased was sent to Chief Medical Officer, Ghaziabad for autopsy.

7. Autopsy on the dead body of deceased Horam was conducted on 23.11.1980 by P.W.5, Dr.A.S.Sudan. According to him, the deceased was aged about 50 years. His body was average built. Rigor mortis was found present in all the four limbs. His clothes and neck contained marks of blood. He found following injuries on his person:

"1. Incised wound 1.5 cm x 0.5 cm x muscle deep on the right side neck 5 cm above the right side of sternalnotch direction from downward/upward inside. Underlying cheek and muscle, blood profusing out.

2. Abrasion 3 cm x 0.5 cm on the right side cheek.

3. Incised wound 2 cm x 0.5 cm om skin deep on the right side eye brow.

4. Abrasion 2 cm x 1 cm on the right forehead near hair.

5. Stab wound 3 cm x 0.5 cm x muscle deep. Right side 16 cm from right nipple at 7'O clock position.

6. Incised wound 2 ½ cm x ½ cm x muscle deep right side.

7. Incised wound 2.5 cm x 1 cm x bonedeep on the outer part of right leg upper part.

8.I.W. 5 cm x 1 cm x bone deep on the lower part of left leg inpt. (bone cut)

9.I.W. 2 cm x 0.5 cm x muscle deep on the inner side right middle part thigh.

10.Incised wound 2.5 cm x .5 cm x muscle deep on the middle back of rt side thigh joint back of injury. no.9."

8. On internal examination, 10th rib of the right side chest was found fractured. Membrances of lungs were found congested and 50 c.c. blood was found in the lungs cavity. Diaphram was also found punctured and it co-related with injury no.5. In the opinion of the doctor, cause of death was shock and haemorrhage due to ante mortem injuries.

9. P.W.8 Hari Raj Singh, the Investigating Officer, after completing investigation, submitted charge-sheet before the Chief Judicial Magistrate, Ghaziabad on 31.12.1980.

10. The case was committed to the Court of Sessions where charges against accused-appellants were framed on 27.7.1981. All the accused-appellants were charged for committing offence under Section 147 I.P.C. Bhushan and Tejpal were charged for committing offence under Section 148 I.P.C. All accused were charged under Section 302 read with Section 149 I.P.C. for committing murder of the deceased Horam. All were also charged under Section 307/149 I.P.C. for causing knife injuries to Smt. Sukhdei which could have resulted in her death.

11. Accused-appellants pleaded not guilty and claimed to be tried.

12. In support of its case, prosecution examined informant P.W.1 Ram Saran, son of the deceased and P.W.4 Smt. Sukhdei, wife of the deceased as witnesses of fact. Rest are formal witnesses. P.W.3 Sagwa Singh is witness of recovery memos Exhibit-1 to Exhibit-3 i.e. the blood stained jersy, pant and shirt respectively. He has also proved recovery of blood stained knives Exhibit-5, recovery memo Exhibit Ka-5 and copy of Check report Exhibit Ka-7. P.W.7 is Constable Rama Shanker who alongwith Constable Hari Prakash had taken the dead body from the place of occurrence to District Hospital,Ghaziabad for post mortem, on 23.11.1980. P.W.6 Head Constable Mango Singh is the witness who has proved the registration of the F.I.R., entry thereof in the G.D. Exhibit Ka-10. P.W.5 is Dr. A.S. Sudan who has performed autopsy on the dead body of the deceased Horam and has proved the post mortem report as Exhibit Ka-6. P.W.9 is Dr. B. Kumar who had examined the injuries of Smt. Sukhdei and has proved her injury report Exhibit Ka-25. P.W.2 Dr. M.K. Mittal had examined injuries of informant P.W.1 Ram Saran and has proved his injury report. S.H.O., Muradnagar, Hari Raj, Investigating Officer of this case, was examined as P.W.8, who has proved site plan Exhibit-ka-11, inquest Exhibit-Ka12, photo lash Exhibit Ka-13, challan Lash Exhibit Ka-14, report of C.M.O. Exhibit-Ka-15, report of R.I. Exhibit Ka-16 and specimen seal Exhibit Ka-17. Recovery memo of blood stained and plain soil Exhibit Ka-18, 1 Rupee coin Ex-Ka-20 and tonga Exhibit Ka-21. Recovery memo in respect of clothes of accused Exhibit Ka-3, recovery of knife Exhibit Ka-4. Besides, he also proved articles on which there were blood stained, belt of tonga Material Exhibit 6, Exhibit-7. Piece of 'Tat' (jute cloth) Exhibit-8, bed sheet Exhibit-9, Shirt Exhibit-10, Bidi Bundle Exhibit-11, Match box-Exhibit-12, 'gilat' coin, Exhibit 13 and clothes of accused Tejpal Exhibit 1 to 3.

13. After conclusion of prosecution evidence, statements of the accused-appellants were recorded under Section 313 Cr.P.C. All of them denied the prosecution case by stating the same to be totally false and stated that they have been implicated falsely in this case on account of enmity.

14. The learned Trial Court, after hearing the learned counsel for the parties and after a detailed discussion of the evidence, convicted and sentenced accused-appellants as mentioned above, by the judgment and order impugned in this appeal.

15. We have heard Shri Rahul Mishra Advocate (Amicus Curaie) on behalf of appellant no.1 and Shri D.R. Choudhary appearing on behalf of appellant no.3 who are the only two surviving appellants and the learned A.G.A. on behalf of the State and have carefully, gone through the lower court's record.

16. The legality and correctness of the impugned judgment has been assailed in this appeal by the learned counsel for the appellants mainly on the following grounds:

(i) Only two witnesses of fact have been examined by the prosecution in this case. Both these witnesses being close relatives of the deceased i.e. wife and son of the deceased, are highly interested witnesses and the appellants should not have been convicted by the courts below, on the basis of their statements.

(ii) No motive has been assigned to the appellants to commit the offence.

(iii) Injuries of Ram Saran/complainant (P.W.1) do not coincide with the weapon used in the offence i.e. knife as he has not sustained any incised wound or stabbed wound and his injury report shows that all the injuries sustained by him are simple in nature, caused by hard and blunt object or by friction against hard and blunt object.

(iv) According to the prosecution story, eight persons including five accused and three victims were going on the same Tonga to Garh Ganga which appears impossible as eight persons cannot ride in the same Tonga.

(v) In the F.I.R., it has been mentioned that two cyclists had reached at the spot hearing hue and cry, but none of them has been produced as a witness.

(vi) (P.W.1), Ram Saran/complainant has been medically examined on 23.11.1980 i.e. on the next date of the occurrence whereas his mother Sukhdei (P.W.4) has been examined on the same day. The aforesaid fact clearly shows that Ram Saran/complainant (P.W.1) got injured in some other incident. He was neither present at the time of occurrence, nor did he receive injuries in the occurrence in question. More so, Ram Saran/complainant (P.W.1), at page 33 has stated that his medical examination was done with his mother, whereas his injury report shows otherwise. He has been medically examined on the next day and not with his mother, which is a material contradiction.

(vii) No charge has been framed against the appellants in respect of injuries sustained by Ram Saran/complainant (P.W.1).

(viii) There is no independent witness of the recovery under Section 27 of the Evidence Act. The only witness of recovery namely Sagwa Singh (P.W.3) is a resident of other locality. His presence on the spot of arrest is doubtful. He is a chance witness planted by the police. Sagwa Singh belongs to the same caste (Kumhar) and is a friend of the deceased, therefore, he is also a highly interested witness.

(ix) No one has seen the accused going on a Tonga along with the deceased and injured persons.

(x) The contents of stomach of the deceased does not support the statements of the witnesses. According to the witnesses, the deceased had eaten nothing before the occurrence, whereas semi digested food has been found in the stomach of the deceased.

(xi) The story of arrest of the accused Tejpal on 23.11.1980 is wholly unreliable. All the appellants have been shown to be arrested by the police on the information received by an informer on 23.11.1980 at 11 a.m. from a Tubewell situate at Village Sultanpur and it appears strange that appellant Tejpal was found wearing the same blood stained clothes at that time. Learned Amicus Curaie has vehemently contended that the incident has occurred in the night of 22.11.1980 and it appears unnatural on the part of an accused Tejpal to be in the same clothes having blood stains on it till 11 A.M. on the next day, without changing them.

(xii) No confessional/disclosure statement has been recorded by the police before discovery of the blood stained knife and handle of knife from the Sugarcane field.

(xiii) The story of recovery of knife and handle of knife, has been disbelieved by the learned trial court itself.

(xiv) Admittedly, it was a dark night and there was no source of light, therefore, it was not possible to identify the assailants, who were unknown accused and who committed the crime in order to commit loot.

(xv) The statement of witnesses does not find corroboration with the site plan. The site plan shows that the appellants had run away towards south east direction, after the crime whereas P.W.4 Sukhdei has stated that they ran towards western side.

(xvi) Learned counsel for the appellant Ompal has argued that the appellant Ompal has been assigned the role of only catching hold of the deceased. He has not been assigned the role of inflicting knife injuries to any of the injured. The story of catching hold of the deceased appears unreliable in view of the fact that if the deceased had not made any effort to run away, what was the requirement for the appellant Ompal to catch hold of him.?

17. On the aforesaid grounds, learned counsel for the appellants have submitted that as the prosecution has miserably failed to prove its case beyond reasonable doubt, therefore, the impugned judgment which has been passed without a proper analysis and appreciation of evidence, only on the basis of surmises and conjectures, be set-aside and the appeal be allowed.

18. Per contra, learned A.G.A. has vehemently contested the arguments advanced by learned counsel for the appellants by contending that in this case there is eye witness account of the incident by two reliable witnesses. Both of whom are also the injured witnesses, therefore, their presence on the spot cannot be doubted. Both the witnesses are the widow and son of the deceased, therefore, they are the most natural witnesses and their testimony cannot be discarded on the ground that they are close relatives and they cannot be termed as interested witnesses. Learned A.G.A. has next contended that the present case being a case of direct evidence, the prosecution is not obliged to prove motive. However, the motive is clearly apparent. The appellants had hired the tonga of deceased Horam at a fare of Rs.300/-, but they were reluctant to pay the fare to the deceased and when he insisted for the payment of fare, the appellants, instead of paying him Rs.300/-, started inflicting knife blows on his body causing his instantaneous death. It is further contended by learned A.G.A. that the complainant and his family had no enmity with the accused, hence there was no reason to falsely implicate them. It is next contended that so far as the omission to frame charge against the appellants in respect of the injury sustained by P.W.1 is concerned, it does not make any difference in view of the fact that no prejudice has been caused to any of the appellants due to such omission. Learned A.G.A. has further contended that so far as the contents of stomach of the deceased is concerned, as per the settled view of medical jurisprudence, no conclusion can be drawn only on the basis of contents of stomach, because it may differ from person to person, depending on their digesting capacity. Learned A.G.A. has further contended that the arrest of accused Tejpal in the blood stained clothes on the next day, does not appear unnatural considering the fact that the incident has taken place in the night of 22.11.1980 and Tejpal has been arrested at 11 A.M. on the next day and as he was continuously absconding he could not get a chance to change his clothes before his arrest.

19. On the aforesaid grounds, learned A.G.A. has prayed that the appeal, being devoid of merit, is liable to be dismissed and the impugned judgment of conviction, rendered by the learned trial court, after discussing each and every aspect of the case properly, deserves to be confirmed.

20. We have considered the rival submissions advanced by learned counsel for the parties in wake of the legal position and the evidence available on record.

21. In order to prove the veracity of the prosecution story and to find out the truth, it is necessary to discuss and analyse the statements of the witnesses produced by both the parties.

22. P.W.1, Ram Saran who is the son of the deceased and the first informant is an injured eyewitness. He has supported the prosecution story by stating that he had gone to Garh Mukteshwar on 18.11.1980. His father Horam Singh used to earn his livelihood by plying Tonga. Accused Tejpal and Ompal had come to his Village Bhokkanpur to hire Tonga. The fare to and fro for going to Garh Mukteshwar was settled at Rs.300/-. His mother and he also accompanied his father on the Tonga with the accused Tejpal and Ompal from Duhai village. Accused Madan, Bhushan, Lala and Mahendra also joined them. They reached Garh Mukteshwar at about 6 P.M. As Mahendra fell ill due to fever, he returned back on the next morning. P.W.1 has further stated that on 22.11.1980 at 9 A.M. he along with his father, mother and all the five accused persons proceeded to return to the village by Tonga. When they reached near Murad Nagar, they took a short break. The accused persons went to take lunch at a hotel while P.W.1 and his parents remained seated at Tonga. When the accused returned after taking lunch, his father asked for them to pay fare on which they stated that they would pay the fare on reaching Village Duhai. When they were about to reach Village Duhai at about 7 or 7.30 P.M., accused Tejpal asked Bhushan to pay the fare to Horam on which accused Madan, Lala, Ompal caught hold of Horam and Bhushan and Tejpal started inflicting knife injuries on him. Bhushan and Tejpal both were armed with separate knifes. When his mother tried to save her husband Horam, she also sustained injuries. The accused pushed him down the Tonga when he tried to save his parents, as a result he (P.W.1) also sustained injuries.

23. Hearing the alarm, Pradhan of village Duhai, two cyclists and several other villagers reached at the spot whereupon the accused ran away. His father succumbed to knife injuries and died on the spot. He (P.W.1) rushed to Murad Nagar Police Station and lodged an oral report about the incident which was scribed at the police station and was read over to him. After hearing which, he put his signatures on it.

24. During his cross-examination P.W.1 has stated that it was settled between his father and the appellants that out of the total fare of Rs.300/- half will be paid on reaching Garh Mukteshwar and half at the time of returning, on reaching Murad Nagar. The accused did not pay any amount at Garh Mukteshwar and assured that they will pay the entire fare on reaching Murad Nagar. P.W.-1 has stated that on reaching Garh Mukteshwar, they did not cook food. They had taken some 'Laddoos' with them which they ate on the first night. He has further stated that one day his mother had cooked 'Khichdi' after borrowing utensils and cooking stove from the persons staying by their side. He had stated that neither he nor his mother had any money with them and his father was bearing all the expenses. He has stated that about 7 or 8 knife injuries were inflicted on his father and when his mother tried to save him, the accused also inflicted two knife blows on her. The accused pushed him from the Tonga due to which he sustained injuries on his face and lips. Thereafter, he rushed towards Murad Nagar raising alarm hearing which witnesses reached at the spot and the accused ran away from there. About the source of lights, P.W.1 has stated that it was a moon lit night and the witness Jai Prakash had torch with him.

25. P.W.4 Sukhdei, who is the mother of P.W.1 and widow of the deceased is also an injured eye witness. She has repeated almost the same facts during her examination-in-chief and there is no need to repeat the same here. In her cross-examination, she has stated that she did not know the names of Tejpal and Ompal prior to the occurrence. She came to know their names on the way to Garh Ganga. She has stated that Tejpal and Ompal had came to her house for hiring Tonga and had stayed there for the time till they had started for Garh Ganga. She has stated that she had no ornaments at that time and she had kept with her some clothes only. She was not wearing any ornaments at that time while going to Garh Ganra. She had no money with her. Her husband had not given any amount to her for spending at Garh Ganga. She has stated that her husband had asked the accused persons to pay the fare to purchase some "Dana" but, they did not pay the same, and her husband somehow managed the expenses at Garh Ganga. She has also stated that they stayed at Garh Ganga for four days, but she cooked food only on two or three times and they survived only on tea on the remaining days. She has further stated that she had taken some rice and pulses with her from home and she cooked 'Khichdi' one day. While returning, her husband had taken tea at Muradnagar. She has corroborated the statement of P.W.1 by stating as under:

";g r; gqvk Fkk fd tkrs esa vk/kk iSlk xaxk ij nsaxs vkSj ykSVrs le; vk/kk fdjk;k eqjknuxj ij nasxsA xaxk ij tkrs gh vk/kk iSLkk ns nsaxsA esjs ifr us xaxk igqprs gh 300 #0 vfHk;qDrksa ls ekaxs FksA mUgksus dgk fd cq/k es nsaxsA esjs ifr us vfHk;qDrksa ls I;kj ls dgk Fkk fd esjs ikl iSlk ugh gS rqeus dgk Fkk vk/kk iSlk ns nks rks bUgkssus dgk Fkk fd cq/k dks nasxsA cq/k dks tc iSlk ekaxk rks vfHk;qDrksa us dgk fd gekjs [kpsZ ls cp tk;xk rks eqjknuxj ij nsaxsA geus dgk fd ge xjhc vkneh gSa nks nQk ekaxs gS iSls D;ks ugh nsrs gksA^^""

26. With regard to the manner of occurrence, she has stated as under:

^^ esjs ifr dks lcls igyk pkdw Hkw"k.k us fQj rstiky us ekjkA Hkw"k.k us pkdw VSVq;s ij ekjk FkkA tc Hkw"k.k us pkdw ekjk rc jkl esjs ifr ds gkFk esa Fkh vkSj rkaxk py jgk FkkA rstiky us esjs ifr ds cxy es pkdw ekjk FkkA vkseiky us esjs ifr dks ekjk ugh ij idM+ ds nck fy;k Fkk vfHk;qDr vkseiky dks fn[kkus ij dgk fd ;gh vkseiky gSA Hkw"k.k vfHk;qDr dh rjQ b'kkjk djds dgk fd blus esjs ifr dks pkdw ekjk Fkk] esjs cpkus ij esjs Hkh blus nks pkdw ekjs FksA nksuks pkdw esjs ihNs dh rjQ xnZu ij yxsA enu vfHk;qDr dks fn[kk dj iwNk rks xokg us dgk fd blus esjs lkFk dqN ugh fd;k] esjss ifr dks vkSjks ds lkFk blus Hkh idM dj nck fy;k FkkA esjs yMds dks fdlh gfFk;kj ls ugha ekjk ?kwlkas ls ekjkA^^

27. P.W.3 Sagwa Singh, who is a witness of recovery of knife and the handle of knife, recovered from sugarcane field, at the instance of accused has stated that at about 11 A.M., the police had arrested Tejpal and had taken his blood stained clothes into custody. Recovery memo of the clothes was prepared by the police on the spot which was read over and he had put his signatures on it. He has proved the recovery memo as Exhibit Ka-3. During his examination, the blood stained clothes of accused Tejpal were produced in Court including a pant, a shirt and a jacket which were marked as material Exhibits 1,2 and 3. P.W.3 has further stated that the accused Bhushan had confessed before the police that the knife from which he had killed Horam was thrown away by him in a sugarcane field and he could give it to the police, searching it out from the sugarcane field. Thereafter, the accused went to the field along with the police, searched the knife and gave it to the Darogaji. The knife recovered at the instance of the accused Bhushan was also produced in the Court which was identified by this witness (P.W.3) and marked as material Exhibit 4. P.W.3 has further stated that knife recovered at the instance of accused Bhushan was sealed at the spot and its recovery memo (Exhibit Ka-4) was prepared.

28. He has further stated that the accused Tejpal had confessed that the knife from which he had inflicted injuries on Horam, got broken and he threw away its handle in the sugarcane field which he could search it out. Thereafter, the accused Tejpal searched the handle of the knife and gave it to the police. The broken handle of knife was also produced in the Court during examination of P.W.3 which he identified and it was marked as material Exhibit 5. Its recovery memo was prepared on the spot and was proved by the P.W.3 as Exhibit Ka-5.

29. During his cross-examination this witness has stated that the Tonga of the deceased was standing at Murad Nagar on the pavement facing Ghaziabad. The accused persons were arrested from the jungle while they were sitting near a water pump.

30. All other witnesses are the formal witnesses and their roles have already been mentioned in the earlier part of the judgment.

31. In defence, the accused persons produced one witness Gram Pradhan, Ramautar as D.W.1 who has stated that he is the Gram Pradhan of village Duhai. Horam Kumhar was going to Muradnagar via Duhai. Some miscreants surrounded his Tonga at about 150 yards away from the culvert of village Duhai. His field is near the culvert. Hearing alarm at about 7.30 P.M. he rushed towards the Tonga and saw Horam lying unconscious in the Tonga. His wife was also in the Tonga. She informed that 3 or 4 miscreants had inflicted knife blows on them and they had looted Rs.20 or 25/- from them. She had also informed that all the miscreants were unknown to her and she did not know their names. D.W.1 has further stated that Horam had some litigation with one Jai Narayan with regard to 30 bighas of land which was gifted to Horam by his in laws. One Munshi Kumhar was doing pairvi in that case on behalf of Jai Narain and Horam had inimical relations with Munshi Kumhar. As the accused persons were helping Munshi Kumhar, the complainant and his son had inimical relations with the accused persons, therefore, they falsely implicated them in the present case. D.W.1 has further stated that the sugarcane field, from where the recovery of knife and its handle is said to have been recovered, belongs to him. Neither any knife nor any handle of knife has been recovered from his field.

32. A perusal of the aforesaid statement of D.W.1 shows that certain facts are admitted to the defence witness also. For example place, time and date of occurrence is admitted to D.W.1. The presence of deceased and his wife Smt. Sukhdei (P.W.4) in the Tonga at the time of incident is also admitted to him. The fact that the deceased Horam died due to knife injuries and P.W.4 Sukhdei sustained knife injuries during the same incident is also not disputed by him.

33. The defence has tried to assail the credibility of prosecution story by disputing the presence of Ram Saran (P.W.1) on the spot on the ground that Ram Saran has stated that he was also medically examined along with his mother at Ghaziabad Hospital, but according to the medical examination report, he has been examined on the next day at 11.45 P.M. which shows that Ram Saran was actually not present on the spot and he has either sustained injury in some other occurrence or has self inflicted the injuries just to prove his presence at the time of occurrence at the spot.

34. In this regard, the attention of this Court has been drawn towards the following statement of P.W.1 :-

^^ iqfyl us eq>s o esjh eka dks ekSds dh txg ls MkDVjh ds fy;s Hkstk Fkk lkFk es ,d flikgh x;k Fkk mldk uke ugh ekywe ,d nwljk flikgh vLirky es fey x;k FkkA MkDVjh ds fy;s ,e0 ,e0 th0 vLirky vk;s FksA eS o esjh eka lkFk vk;s FksA ge yksx vLirky djhc 9 cts jkr igqp x;s FksA 10 & 15 feuV vLirky es cSBk;s jD[kk mlds ckn ge yksxks dk MkDVjh eqvk;uk gqvkA eka dks Hkjrh dj fy;k ij eq>s Hkjrh ugh fd;kA eka dks djhc 9 cts Hkjrh fd;k gksxkA iVVh oxSjk gksus ds ckn mUgs ,d dejs esa Hkst fn;k FkkA eS vLirky es eak ds ikl jgk flikgh pys vk;s Fks eS fnu fudys lqcg 4 cts ds djhc eak ds ikl ls pykA esjs cMs HkkbZ nqgkbZ ds ikl jkLrs es vkrs gq;s feysA eS pqUxh ls Vªd es cSBk FkkA fQj dgk fd VªkUliksVZ dh ;wfu;u ds ikl Vªd [kMs Fks mUgh es ls ,d Vªd es cSB x;k FkkA ml Vªd dk uEcj Hkh /;ku ugh gSA esjk HkkbZ HkksDduiqj ls jEew ds lkFk iSny vk jgk FkkA HkkbZ dks irk igys gh yx x;k FkkA mUgksus eq>ls iwNk dSls dSls gqvk eSus lc crk fn;kA mlds ckn eS okfil vLirky eak ds ikl igqpkA eq>s ;g ugh ekywe fd cki dh yk'k ekSds ls dgk Hksth xbZ FkhA eka ds ikl 2 & 3 ?kUVs #d dj eS ?kj HkksDduiqj rkaxs es cSB dj pyk x;kA nqgkbZ rd rkaxk x;k fQj eS iSny x;kA HkksDduiqj djhc 10 cts fnu igqp x;k FkkA eS cjkcj nks fnu fQj ?kj gh jgkA^^

35. Learned counsel for the appellants has vehemently contended that according to P.W.1 he remained stayed at his home for two days. If that was so, then when and where he got himself medically examined ?

36. A perusal of the impugned judgment shows that the learned trial court has ignored the aforesaid discrepancy occurring in the statement of P.W.1 and has recorded a clear finding that the injury report of Ram Saran shows that he did not have serious types of injuries. He was too much worried due to the death of his father and injuries sustained by his mother and was busy in getting their treatment done and to lodge the report, therefore, it is just possible that he did not get time to get himself medically examined on the same day. According to learned trial court, simply because Ram Saran was not examined on that day will not mean that he was not present on the spot. The learned trial court has also observed that the injuries of Ram Saran were noted in the General Diary of the police.

37. We find no reason to differ with the view expressed by learned trial Court. The entire prosecution case cannot be discarded only on the ground of aforesaid discrepancy, which in our view, appears natural in wake of the fact that the occurrence has taken place on 23.11.1980 and the statement of P.W.1 has been recorded on 01.12.1981 i.e. after one year of the occurrence and with the time gap, some minor discrepancies are bound to occur in the statement of a witness.

The legal position is well settled that falsity of particular material witness or material particular, would not ruin the prosecution case from the beginning to end.

38. In Gangadhar Behera and Ors. Vs. State of Orissa (2002) 8 SCC 381 the Supreme Court has held as under:

"The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a 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. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff...........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."

39. The injury reports of both the injured finds corroboration from their statements. P.W.1 has not received any knife injury which finds corroboration with his statement and of P.W.-2 that he was pushed down from the Tonga by the accused-appellants, due to which he fell down on earth and sustained injuries on his face and lips. His injury report shows that the doctor has found his injuries to be caused by hard and blunt object and by friction on some hard surface. The time duration of injuries of PW-1 was found one day old, which is in consonance with the time of incident.

40. The F.I.R. in this case has been lodged promptly. The incident has taken place at 7.30 P.M. and the report has been lodged at 8.15 P.M. The promptness of the report shows that there was no time for deliberation and consultation or for cooking a false story so as to falsely implicate the appellants. Even assuming for the sake of arguments, the defence story that unknown miscreants, in order to commit loot had killed Horam, to be true, if that was so the F.I.R. could have been lodged against unknown accused persons. There appears no reason why an eyewitness injured would falsely implicate an innocent and shield the real culprit?

41. The motive assigned to the injured witnesses to falsely implicate the accused-appellants in this case by D.W.1, does not inspire confidence in view of the fact that there was no direct enmity between the complainant and his family members with the accused persons. Had there been any intention with the complainant and his family members to falsely implicate any person for the reason as assigned by the defence, Jai Narayan or Munshi Kumhar should have been falsely implicated and not the present accused-appellants who were only helping Munshi Kumhar who was doing pairvi on behalf of Jai Narayan.

42. So far as the argument advanced by learned counsel for the appellants about the number of witnesses and their being close relatives of the deceased is concerned, we do not find any force in it.

43. It is true that only two witnesses of fact have been produced in the present case both of whom being the wife and son of the deceased are close relative, but it does not make any difference in wake of well settled legal position that it is quality and not quantity of witnesses, which is important. Time honoured principle is that the evidence has to be weighed and not to be counted and the test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.

44. In Namdev Vs. State of Maharashtra (2007) 14 SCC 150, Court has observed as under:-

"Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."

45. There is no doubt that both the prosecution witnesses in this case are close relatives of the deceased. However, only on the ground that they are close relatives, they cannot be termed as interested witnesses and their evidence cannot be discarded.

46. In the present days, the witnesses, who are relatives and friends of the deceased, only come in the witness box and any other witness, who has no interest in the deceased or who is not inimical to the accused, generally avoid to give evidence against a murderer taking risk of his own life.

47. In a catena of judgments, Apex court has held that a close relative would be the last to screen the real culprit and falsely implicate an innocent person.

48. In Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54 at page 59, Court held 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 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."

49. In Masalti Vs. State of U.P., AIR 1965 SC 202 Court said:

"Normally close relatives of the deceased would not be considered to be interested witnesses."

50. In Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614, Court has opined as under:-

"A close relative who is a natural witness cannot be regarded as an interested witness, for the term ''interested' postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason."

51. In Pulicherla Nagaraju alias Nagraja Reddy Vs. State of Andhra Pradesh, AIR 2006 SC 3010, Court has observed as follows:

" It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon."

52. In Hari Obula Reddi and others v. The State of Andhra Pradesh, AIR 1981 SC 82 a three-Judge Bench of Apex Court has held as under:-

"Evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

53. In Harivadan Babubhai Patel vs. State of Gujarat (2013) 7 SCC 45, Court observed as under:-

"In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eye witnesses should be rejected solely on the ground that they are close relatives and interested witnesses."

54. Our attention has been drawn by learned counsel for the appellants towards some discrepancies and contradictions occurring in the statements of witnesses, but we are of the firm view that there is no such material contradiction or discrepancy so as to make the whole case unreliable.

55. The legal position is well settled that minor discrepancies not going to the root of prosecution case, should be ignored.

56. In Thoti Manohar Vs. State of Andhra Pradesh, (2012) 7 SCC 723, Court has held as under:-

"The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc., but in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored".....

"We find that the evidence of the injured witnesses who are close relatives to the deceased have really not embellished or exaggerated the case of the prosecution. They are the most natural witnesses and there is nothing on record to doubt their presence at the place of occurrence. By no stretch of imagination, it can be stated that the presence of the said witnesses at the scene of the crime and at the time of occurrence was improbable. Their version is consistent and nothing has been suggested to bring any kind of inherent improbabilities in their testimonies".

57. Now the only question left to be answered is, "whether both the appellants are jointly liable for committing the murder of the deceased?"

58. The learned trial court has convicted the appellants under Sections 302 and 307 I.P.C. with the aid of Section 149 I.P.C. which provides for vicarious liability/joint liability of every member of an unlawful assembly for every act committed by any member of such unlawful assembly in prosecution of the common object of that assembly which the member knew to be likely to be committed.

59. When the charge is under Section 149 I.P.C., the presence of the accused as a member of an unlawful assembly is sufficient for conviction even if no overt act is imputed to him, whereas, in the present case, both the appellants namely Bhushan and Ompal who are now the only surviving appellants, have been assigned the specific roles.

60. Hon'ble Supreme Court in the case of Parashuram Pandey Vs. State of Bihar, 2015 SCC (Cri) 113 while interpreting section 149 I.P.C. has laid down the law as under:-

"The Section creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. In a case under Section 149 the accused if is a member of the unlawful assembly, the common object of which is to commit a certain crime and if that crime is committed by one or more members of that assembly every person who happened to be a member of that assembly would be liable for that criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed the act or not."

61. In another landmark case of Vishnu Vs. State of Rajasthan (2010) 1 SCC (Cri) 302 the Supreme Court while elaborating the ambit and scope of section 149 I.P.C. has reiterated the law as under:-

"Section 149 of the Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed. The common object my be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behavior of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf."

62. In Roy Fernandes Vs. State of Goa, AIR 2012 SC 1030, the Supreme Court has held as under:

"To determine the existence of common object, the Court is required to see the circumstances in which the incident had taken place and conduct of members of unlawful assembly including the weapon of offence they carried or used on the spot."

63. To hold a person vicariously liable under Section 149 I.P.C., it is also not necessary to prove that the members had a prior meeting of minds and the legal position in this regard is well settled that the common object may form on spur of the moment. The Supreme Court in Ramchandran Vs. State of Kerala, AIR 2011 SC 3581 has held as under:

"Common object may form on spur of the moment. Prior concert in the sense of meeting of unlawful assembly members is not necessary."

64. In view of the above, it does not make any difference as to what roles accused Bhushan and Ompal have played in the incident and whether they had any prior concern with the other accused. Both of them are equally liable u/s 149 I.P.C. for the offence committed by the other members of the unlawful assembly.

65. It is also noteworthy that none of the accused in this case has given any satisfactory answer to the questions put to them u/s 313 Cr.P.C. and all of them have given evasive answers by stating "Galat Hai", "Ranjishan" and "Pata Nahin" in reply to every question put to them.

66. Hon'ble Apex Court in Munna Kumar Upadhyay Vs. State of Andhra Pradesh, (2012) 6 SCC, 174 has held as under:

"If the accused gives incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the Court can draw an adverse inference against him and as the conduct of accused would tilt the case in favour of prosecution."

67. In the case of Ram Naresh Vs. State of Chattisgarh (2012) 4 SCC 257, the Hon'ble Apex Court has observed as under:

"The object of recording of a statement under Section 313 Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires, but once he does not avail the opportunity, the consequences in law must follow".

68. From the above discussion, we are of the firm view that the prosecution has successfully proved its case against accused-appellants beyond reasonable doubt. Learned trial court has rightly held them guilty and has punished them accordingly. There does not appear any illegality or irregularity in the findings recorded by the learned trial court and there is no need to interfere in the same.

69. Accordingly, we confirm the impugned judgment and order dated 05.4.1983. The appeal is liable to be dismissed and it is accordingly dismissed.

70. The appellants are on bail. In view of the dismissal of their appeal, their bail bonds are cancelled and the sureties are discharged. The Chief Judicial Magistrate, Ghaziabad, is directed to take the appellants into custody immediately and lodge them to jail to serve out the sentence of life imprisonment.

71. A copy of this judgment be sent to the C.J.M., Ghaziabad, by FAX for immediate compliance.

72. The lower court's record along with a copy of the judgment be sent back to the court concerned.

73. Shri Rahul Mishra Advocate, (Amicus Curiae) appearing on behalf of the appellant no.1, who has very efficiently assisted this Court in disposal of this appeal shall be paid Rs.11,000/- as his fee.

Order Date:-07.9.2018

SB