Raja Ram vs State
2019 Latest Caselaw 4350 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A F R
 
Reserved on : 19.12.2018
 
Delivered on : 10.05.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 8164 of 2007
 
Appellant :- Raja Ram
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Jai Karan Nath, Amicus Curiae
 
Counsel for Respondent :- A.G.A., Nikhil Chaturvedi
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Ram Krishna Gautam, J.

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal under Section 383 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), has been filed by convict-appellant Raja Ram against judgment and order dated 15.12.2004 passed by Shri A. K. Sinha, Additional District and Sessions Judge, Court No.1, Kanpur Dehat in Sessions Trial No.559 of 2002 (State vs. Raja Ram) arising out of Case Crime No.452 of 2002 under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), Police Station-Ghatampur, District-Kanpur Dehat, wherein convict-appellant has been held guilty under Section 302 IPC and sentenced with life imprisonment alongwith fine of Rs.5000/-, and in case of default in payment of fine, further imprisonment for one year, with this contention that learned Additional District and Sessions Judge failed to appreciate facts and law placed before it; there was no independent eye-witness account of the occurrence, rather witnesses were related witnesses, who were inimical to convict-appellant; there was no motive whereas motive as written in First Information Report (hereinafter referred to as 'FIR') was not proved; alleged weapon of offence sickle (i.e. hasiya, a sharp edged weapon) was not sent for chemical examination, since, it could not be established as to whether it was the weapon of offence or not?; sentence imposed was too severe, hence this appeal, with a prayer for setting aside impugned judgment and order as well as acquitting the convict-appellant.

2. Prosecution case surfaced on record was that Kripa Shanker, (PW-1), presented a written First Information Report (hereinafter referred to as 'FIR')(Exhibit ka 1), scribed by Vijay Kumar and having thumb impression of Informant over it, at Police Outpost-Sarh of Police Station-Ghatampur, District-Kanpur Dehat, on 17.10.2002 at 17.00 P.M. with contention that Informant's wife, Munni Devi, aged about 35 years, used to go to place of one Ram Khilawan for doing labour work. Informant's uncle Raja Ram (accused-appellant) was suspicious of her character, hence, he forbidden her from doing job of labour at house of Ram Khilawan. This was apprised by Raja Ram to Informant that if he does not prohibit his wife to do job of labour at Ram Khilwan's house, he will repent one day. Raja Ram also apprised this fact to Ram Khilawan. On 17.10.2002 at 10.00 A.M., when Informant's wife, along with other women of her village, had gone to fetch fodder for cattle and reached pigeon pea (arahar) field of one Ram Swarup Gupta, Raja Ram while chasing her also reached there. He extended threat that she had not left going to Ram Khilawan and he will give a lesson to her. Then, he gave a blow by sickle (hasiya) over her neck and abdomen, which resulted into cut and silting of stomach and protruding of intestine. On rescue call, Rajjan, Ram Baran and Mikhu, who were present nearby, rushed on the spot. These witnesses of occurrence tried to apprehend accused Raja Ram, but he fled away towards western side. When Informant returned home, he was apprised about this incident and he submitted report at Police Outpost-Sarh in which lying of dead body of his deceased wife at above field, was written. This report was entered into Register and sent to Police Station-Ghatampur, where it was registered as Case Crime No.452 of 2002 under Section 302 IPC by making Chik Report (Exhibit ka 4) and G.D. Entry at 5.00 PM vide report No.20, carbon extract whereof is on record proved as Exhibit ka 5. Thereafter, criminal machinery was put in motion and accused Raja Ram was apprehended. Weapon of offence, sickle (hasiya i.e. sharp edged weapon), was recovered upon his pointing. Recovery Memo of sickle (Exhibit ka 3) was got prepared in presence of witnesses. Inquest proceedings was got conducted. Inquest Report (Exhibit ka 8) was got prepared in handwriting and signature of Sub Inspector, Dularey Lal, PW-8, first Investigating Officer (hereinafter referred to as 'I.O.'). Opinion of witnesses of inquest were for conducting autopsy examination over dead body of deceased, hence, necessary documents for autopsy examination were got prepared under handwriting and signature of I.O. (i.e. PW-8), which were Challan dead body (Exhibit ka 2), letter to Chief Medical Officer (hereinafter referred to as "C.M.O.")(Exhibit ka 10), Specimen Seal(Exhibit ka 11), Photo Dead body (Exhibit ka 12), another letter to C.M.O. for autopsy examination (Exhibit ka 13). Simple and blood stained earth were taken from the place of occurrence by way of preparation of Recovery Memo under handwriting and signature of PW-8, which was Exhibit ka 16. Site plan (Exhibit ka 15) of place of occurrence as well as Site plan of place of alleged recovery of weapon of offence (Exhibit ka 6) were got drawn under handwriting and signature of I.O. (i.e. PW-8). Investigation resulted into submission of charge sheet (Exhibit ka 7).

3. Autopsy examination in view of Inquest Report (Exhibit ka 2) was got conducted by Dr. Piyush Mishra (PW-7) in which following ante mortem injuries were found on the person of deceased Munni Devi :-

(i) incised wound 10 cm x 4 cm bone deep on neck, 3 cm below chin.

(ii) incised wound 9 cm x 3 cm on right side of abdomen, 8 cm above from umbilicus with protruding large intestine.

4. Upon internal examination of body, both chambers of heart were found empty; lungs were pale; semi digested food 6 ounce found in stomach; small intestine was half filled with gases; large intestine was having faecal matters and gases. In the opinion of doctor, cause of death was due to shock and haemorrhage by above ante mortem injuries. Post Mortem Examination Report i.e. Exhibit Ka 14 was prepared by the doctor concerned at the time of autopsy examination under handwriting and signature of PW-7, Dr. Piyush Mishra.

5. As offence of murder, punishable under Section 302 IPC, was exclusively triable by Court of Sessions, file was committed to Court of Sessions by Court of Chief Judicial Magistrate, Kanpur Dehat. This was made over to Court of Ist Additional District and Sessions Judge, Kanpur Dehat. After hearing learned Public Prosecutor as well as learned counsel for accused-appellant, Court levelled charge against accused-appellant Raja Ram Kewat, which reads as under :-

"मैं असरफ जमाल सिद्दीकी, अपर सत्र न्यायाधीश कक्ष सं.1 कानपुर देहात आप राजाराम केवट को निम्नलिखित आरोप से आरोपित करता हूँ।

1- यह की दिनांक 17.10.2002 समय 10.00 बजे दिन, स्थान राम स्वरुप गुप्ता के अरहर के खेत ग्राम हाजीपुर कदीम (चांदपुर) थाना-घाटमपुर, कानपुर नगर में आपने वादी कृपा शंकर की पत्नी मुन्नी देवी की हत्या कर दी। अतः आपने धारा 302 भा.दं.बि. के अंतर्गत दंडनीय अपराध कारित किया जो मेरे प्रसंज्ञान में है।

एतद्द्वारा मैं आपको आदेशित करता हूँ की उपरोक्त आरोप में आपका विचरण इस न्यायालय द्वारा किया जाये। "

"I, Ashraf Jamal Siddiqui, Additional Sessions Judge, Room No.1, Kanpur Dehat, do hereby charge you Rajaram Kewat as follows:-

1-That on 17.10.2002 at about 10.00 A.M. at pigeon pea field of Ram Swarup Gupta within area of Village-Hajipur Kadim (Chandpur), P.S.Ghatampur, Kanpur Nagar, committed murder of Munni Devi, wife of Informant Kripa Shankar, which is punishable offence under Section 302 IPC within cognizance of this Court.

You are hereby being directed for trial for charge of above offence of murder."

(English Translation by Court)

6. Charge was read over and explained to accused, who pleaded not guilty with claim for trial.

7. Prosecution examined eight witnesses for proving its case. Those were, PW-1, Informant Kripa Shankar, who has lodged FIR (Exhibit ka 1), was not eyewitness account, PW-2 Rajjan and PW-3, Ram Baran Singh, both are eye witnesses and named in FIR as witnesses, PW-4, Ram Singh is eyewitness of recovery memo of weapon of offence i.e. sickle (hasiya). PW-5, Constable/3372 Manoj Kumar, who was posted at P.S.Ghatampur on the date of registration of this case as Constable, had registered Chik FIR as well as G.D. Entry as Exhibits ka 4 and 5 respectively. PW-6, Inspector In-Charge, Rajbir Singh is I.O., who has recovered weapon of offence in presence of witnesses as well as conducted investigation. PW-7 Dr. Piyush Mishra has conducted autopsy examination over dead body of deceased and prepared Autopsy Examination Report (Exhibit ka 14). P.W.-8, Dularey Lal, Sub Inspector had conducted inquest and prepared Inquest Report (Exhibit ka 2).

8. With a view to have explanation, if any, of accused over incriminating evidences led by prosecution as well as version of accused, if any, his statement was recorded under Section 313 Cr.P.C., in which he refuted evidence of prosecution witnesses, pleaded ignorance of occurrence as well as investigation with statement that he was caught hold by police and this case was planted against him.

9. No evidence in defence was given by accused-appellant.

10. After hearing argument of learned Public Prosecutor as well as learned counsel for defence/accused, learned Trial Judge passed impugned judgment of conviction with a finding of proof of charge levelled against accused and after hearing over quantum of sentence, sentence, as above, was passed, against which this appeal.

11. We have heard Sri Jai Karan Nath, learned Amicus Curiae for appellant and Sri Nikhil Chaturvedi, learned Additional Government Advocate for State.

12. PW-1 is Informant Kripa Shankar and in his examination-in-chief, he has said that Munni Devi was his wife, who used to work as labour at house of Ram Khilawan and Informant's uncle Raja Ram was suspicious about her character, therefore, he was forbidding her to go to house of Ram Khilawan. There was threat in case of not obeying of above direction. 7 months prior to recording evidence of this witness, at about 10.00 A.M., while Munni Devi had gone to pigeon pea field of one Ram Swarup Gupta for fetching fodder for cattle, along with other women, of her village, Raja Ram rushed there and gave blow by sickle (hasiya, a sharp edged weapon) over her neck and abdomen resulting into cut of above organs. This occurrence was witnessed by Ram Baran, Rajjan and Mikhu, who made rescue call, but Raja Ram fled from there. Report of occurrence, scribed by Vijay Kumar, under dictation of this witness, and having his thumb impression after getting it heard, was presented at police station, which is same one attached with record under his thumb impression, proved and exhibited as Exhibit ka 1 and this report was submitted at Police Outpost-Sarh. Dead body of Informant's wife was lying at the field, was narrated in Exhibit Ka 1. This witness is not an eye witness account of occurrence, rather he is a witness of bringing criminal machinery into motion i.e. lodging a report. Report was lodged at 17.00 P.M. on 17.10.2002, whereas occurrence was of about 10.00 A.M on same day i.e. 17.10.2002 at a distance about 7 km from police station, but Informant was not present at his home and when he returned home, he was apprised about this occurrence by witnesses. Thereafter, he lodged this case by presenting Exhibit ka 1 i.e. Written Report. In above circumstances, it was an instant report by Informant having name of accused-appellant for commission of his wife's murder.

13. Testimony of Informant, Kripa Shanker (PW-1) recorded in examination-in-chief regarding registration of case crime number is not in contradiction, embellishment or exaggeration with his cross-examination. Rather, same is reiteration of examination-in-chief. Though it has categorically been admitted that this witness is not an eye witness account of the crime of murder of Munni Devi i.e. his wife, but report was got lodged against his own uncle, accused Raja Ram.

14. Testimony of this witness i.e. PW-1 is in full corroboration with statement of PW-5, Constable Manoj Kumar, who in his examination-in-chief has said that while being posted as Constable Moharir at Police Outpost-Sarh, P.S.Ghatampur on 17.10.2002, he had entered Chik Report on the basis of Written Report (Exhibit ka 1) submitted by Informant, Kripa Shanker (PW-1), under handwriting and signature of this witness, which is Exhibit ka 4 and this registration of case crime number was entered in G.D. Entry at Report no.20 at about 17.00 P.M. on 17.10.2002 under handwriting of this witness, for which original G.D. was brought in Court and certified copy of same was on record as Exhibit ka 5. In cross-examination, no question has been asked from this witness (i.e. PW-5) by learned defence counsel, except a suggestive question that this report was registered upon aid and advice of Darogaji, which has been answered in negative. Meaning thereby registration of above case crime number and name of accused-appellant in Chik FIR (Exhibit ka 4), fact of murder of wife of Informant on above date was said in FIR and this case crime number was registered on the basis of Exhibit ka 1.

15. Testimony of this witness i.e. PW-5 is having corroboration with statement of PW-7, Dr. Piyush Mishra, discussed as above, in which death of deceased was established to have been caused because of haemorrhage and shock due to above two ante mortem injuries, which may be possible to be caused by sickle (hasiya) at 10.00 A.M., on the date of occurrence, and in cross-examination, it has been said by this witness (i.e. PW-7) that Constable Ajay Kumar Singh along with ten police papers had brought dead body of deceased, under sealed intact position, at 11.55 A.M. of 18.10.2002 and it was examined under autopsy examination on same day at 12.10 P.M. in which injuries (i) and (ii) were owing to sharp edged weapon might be hasiya. There is no contradiction, exaggeration or embellishment in testimony of doctor (i.e. PW-7). Hence, as per Inquest Report (Exhibit ka 8) as well as Autopsy Examination Report (Exhibit ka 14), death of deceased was owing to both of above ante mortem injuries found on her person caused by sharp edged weapon, which may be sickle (hasiya). When testimony of these two witnesses were put to accused under Section 313 Cr. P. C., he answered in tune of non awareness of above facts, i.e. neither testimony was admitted nor denied, rather ignorance was replied. Whereas those documentary as well as oral testimonies established death of deceased owing to above ante mortem injuries caused by sharp edged weapon i.e. it was neither suicide nor a natural death, but a culpable homicide amounting to murder because nature and gravity of those injuries and way of its infliction was with all probabilities to cause death. Hence, it was case of murder punishable under Section 302 of IPC.

16. Written Report (Exhibit ka 1) is with specific mention of witnesses, who witnessed this occurrence, and they were Rajjan son of Ram Autar Kewat, Ram Baran son of Wali and Mikhu son of Faguni Kewat.

17. Rajjan has been examined as PW-2 and in his examination-in-chief, he stated that 9-10 months back to recording of evidence on 07.08.2003, at about 9.00-10.00 A.M., he was present in pigeon pea field and was cutting fodder from boundary of above field, when heard cry from field of Ram Swarup Gupta, upon which he along with Ram Baran and Mikhu rushed towards Ram Swarup Gupta's field and found Raja Ram assaulting Munni Devi (Informant's wife) by sickle (hasiya). PW-2 as well as other witnesses tried to apprehend Raja Ram, but he ran towards western side. Munni Devi was having injury of hasiya over her neck and abdomen resulting cut over her abdomen and protruding of intestine. She died on the spot. This witness along with Mikhu and Ram Baran (PW-3) narrated the occurrence to Informant, Kripa Shanker (PW-1). This witness was not cross-examined in continuation of his examination-in-chief, rather his cross-examination was deferred and it resumed on 21.08.2003. Hair splitting cross-examination has been made for establishing political enmity, but this witness has categorically said as follows :

"घटना वाले दिन मैं चारा काटने गया था मैं चारा काटने के लिए 8 बजे निकला था। चारा काटने के लिए जाते समय मुझसे किसी के मुलाकात नहीं हुई। एक बोझ चारा काटा था। चारा काटने राम स्वरुप के खेत में गया था। राम स्वरुप के खेत में पश्चिम में चारा काट रहा था। मैं मिक्खु को जानता हूँ। मिक्खु भी वही चारा काट रहा था जहां मैं काट रहा था। रामबरन को जानता हूँ। वह अरहर के बगल के खेत में मजदूरी कर रहा था। यदि उन्होंने मेरे बयान में न लिखी हो तो मैं वजह बता नहीं सकता। आवाज सुनकर हसिया छोड़कर मौके पर तीनो लोग गए थे। हम तीनो लोग 20-25 कदम के फासले पर थे जब चारा काट रहे थे। रामवरन जो पास में ही घास निरा रहा था करीब 2 ..3 बोझ घास निरा चूका था। "

"On the date of occurrence I had gone for taking chaff. I had gone at 8.00 P.M. None met him while going for taking fodder. One bundle of fodder was cut by him. I had gone in the field of Ram Swarup and was taking fodder from western side of his field. I am acquainted with Mikhu who was taking fodder there at. Ram Baran is acquainted to him. He was with sickle and cutting chaff. If this was not written in the statement he cannot tell the reasons of it. But after hearing cry they have rushed on the spot after leaving their sickle on the spot. These three were at distance of 20-25 steps. Ram Baran was there getting grass weeded. 2-3 bundles were weeded."

(English Translation by Court)

18. Meaning thereby, presence of all three witnesses was proved by this witness. No question about assault made by Raja Ram by sickle over person of Munni Devi on above date, time and place under presence of these three witnesses, on the spot has been asked in cross-examination by learned counsel for defence, which makes examination-in-chief as fully intact and unrebutted statement. Hence, PW-2 is a fully reliable witness.

19. PW-3 is Ram Baran. He too in his examination-in-chief has categorically said that about one year before from the date of recording his statement on 29.10.2003 at about 10.00 A.M., he was present in field of one Shiv Pujan for taking fodder for his animals. Rajjan (PW-2) and Mikhu were also there at a few distance. When cry was heard from pigeon pea field of Ram Swarup Gupta, all of them rushed to the spot and found Raja Ram assaulting Munni Devi by sickle. Munni Devi sustained injuries on her neck and abdomen with protruding of her intestine. They tried to apprehend Raja Ram, but he ran towards western side. Munni Devi was lying dead on the spot. Thereafter, said occurrence was narrated to Informant, Kripa Shanker (PW-1). In cross-examination, this witness has categorically said about his presence In Court in response to summon issued by Court. He stated that he is a poor agricultural labour and had deposed correct fact, as was witnessed by him. There is no embellishment, exaggeration in his cross-examination. Minor variations in evidence of this witness, which have been vehemently pressed by learned counsel for appellant, were of such nature, which makes this witness a natural witness. A suggestive question was put to this witness that he has not witnessed this occurrence, which has been answered in negative with assertion that he has witnessed this occurrence. This witness is a fully reliable witness.

20. PW-4 is Ram Singh, who is an eyewitness of recovery of weapon of offence and has no enmity with convict-appellant. He in his testimony has categorically said that on 19.10.2002, Police of Ghatampur had come at village Chandapur while Raja Ram was in their company. This witness and Amar Singh were taken as witnesses and they all went by Government Jeep at Akbarpur Barai Road, where accused Raja Ram halted the jeep and he led others to sugarcane field of one Hari Prasad, son of Babu Lal, from where he got sickle (hasiya) recovered. He gave this to police and disclosed to be the same sickle used in commission of murder of Munni Devi (Informant's wife). This recovery was done at about quarter to 5.00 P. M. Sickle was sealed with preparation of recovery memo on spot, which was prepared under handwriting and signature of Daroga Ji. It was read over to witnesses, thereafter this witness, Ram Singh (PW-4), another witness Amar Singh as well as other police personnel accompanying police team, put their signatures over this recovery memo, which is same one placed on record, proved and exhibited as Exhibit ka 3. Signature of accused Raja Ram was also got over this Recovery Memo (Exhibit ka 3). Weapon of offence, Sickle was with blood stains over it and same was present in Court at the time of recording evidence of this witness, which was proved and exhibited as Material Exhibit 1. In cross-examination, this statement has been further reiterated that police has taken these two witnesses after disclosing the purpose and in front of them this recovery was made upon pointing and disclosure of accused Raja Ram. A suggestive question has been given to this witness (PW-4) that no such recovery was made, which has been answered in negative. Upon over all appraisal of testimony of this witness, it is apparent that the same is without any exaggeration, embellishment or contradiction. Rather it is in full support to testimony of PW-6, Rajbir Singh. PW-6 in his examination-in-chief has said on oath that while being posted as Inspector In-Charge, P.S.Ghatampur on 19.10.2002, he took charge of investigation of this Case Crime number from erstwhile I.O., Dularey Lal (PW-8). Thereafter, he along with Constables Anil and Kashimr Singh, Constable Driver Sushil Singh went to Kundauli Brickkiln by a government jeep, where he met Sub Inspector, V. L. Kannaujia and Constable Subodh. They all went to village-Chandapur. In between an information about presence of accused Raja Ram Kewat at a Wine Shop was received. Consequently, raid was conducted by Police Team and accused Raja Ram was apprehended at about 15.30 P.M. Upon his query, accused Raja Ram confessed his guilt regarding commission of Munni Devi's murder by him, with disclosure of fact that weapon of murder i.e. hasiya (sickle), may be got recovered. Hence, PW-6 along with two public witnesses Ram Singh (PW-4) and Amar Singh, accompanied by aforesaid Police Team, took accused Raja Ram to Akbarpur Barai Road as pointed out by him, from where Raja Ram got the weapon of offence i.e. sickle, recovered from sugarcane field of one Hari Prasad at about 16.45 P.M., which was admitted to be the same sickle by which Munni Devi was murdered. It was wrapped in a cloth and sealed. It contained blood stains and mud over it. Recovery memo was got prepared by Sub Inspector, V. L. Kannaujia under dictation of PW-6 and each witnesses put their signatures over it. Copy of the same was given to accused, after having signature of receipt by him, which is on record as Exhibit ka 3. Material Exhibit 1 is the same sickle present in Court which was got recovered upon pointing of accused Raja Ram. Spot map of place of recovery of sickle was prepared on the spot under handwriting and signature of PW-6, which is on record as Exhibit ka 6. Accused along with material exhibit and recovery memo was filed at concerned Police Station. Statements of those public witnesses of recovery were got recorded and after recording of Inquest and Autopsy Report coupled with statements of witnesses, charge sheet, Exhibit ka 7 was filed under handwriting and signature of PW-6. In cross-examination of this witness, there is no contradiction, rather full corroboration to above witness Ram Singh (PW-4).

21. Aforesaid facts have further been corroborated by testimony of PW-8 Dularey Lal, who was the first I.O. of this case. By his statement on oath, in his examination-in-chief he has stated that while being posted as Sub Inspector at Police Station-Ghatampur on 17.10.2002, he was deputed with this case crime number in which he copied Chik FIR and G.D. Entry in case diary, recorded statement of Constable Clerk Manoj Kumar Gupta. He visited the spot and got examined Informant Kripa Shanker (PW-1). He also inspected the spot prepared site plan which is in handwriting and signature of this witness (Exhibit ka 15). Plain and blood stained soil were taken from the spot in two different containers, which were kept under seal with preparation of recovery memo under handwriting and signature of this witness, which is Exhibit ka 16. Those containers were present in the Court at the time of his evidence and they were proved and exhibited as Material Exhibits 2 and 3. Witnesses Chhotey Lal, Raj Kumar, Daulat Singh, Rajjan, Ram Baran and Mikhu were examined and their statements were got recorded in case crime number. Plain and blood stained soil taken in two different containers in sealed condition were deposited in G.D. Entry of concerned P.S. at 6.48 P.M. vide Report no.9. Thereafter, investigation was transferred to Inspector, In-Charge Rajbir Singh i.e. PW-6. In cross-examination, this witness has said about information received from Police Outpost-Sarh of P.S.Ghatampur, which was reporting Outpost and this information was received by this witness at 5.30 P. M. Till then this report was entered at Police Outpost-Sarh. At the time of receiving this information, this witness was at P.S.Ghatampur. He received those documents from Police Outpost-Sarh at 6.30 P.M. and he rushed at spot at 7.00 P.M. which was about 7 km away from Police Outpost-Sarh where Sub Inspector, V. L. Kannaujia along with two Constables were present, those were Constables Ravindra Singh and Ajay Kumar Singh. Dead body was taken at about 8.00-8.30 P.M. in the night. Regarding investigation made by this witness there is no contradiction, exaggeration or embellishment and when his testimony was put to accused under Section 313 Cr.P.C., one and common reply "गलत है" was given by accused, whereas investigation was formally proved by this witness, which was in corroboration with testimony of PW-6 Rajbir Singh and PW-5 Manoj Kumar.

22. PWs 2 and 3, Rajjan and Ram Baran respectively, are eye witness account of occurrence, who were said to be relative of Informant, and their testimonies have been argued to be not taken into consideration. Repeatedly, this Court as well as Supreme Court have propounded that interested and related witnesses are not to be thrown on the basis of being interested witnesses, rather their testimonies are to be cautiously appreciated. In present case, particularly accused too is real uncle of Informant, hence, witnesses are very close relatives and interested to accused also, but they have categorically proved the occurrence. (Ref :Gopinath alias Jhallar Vs. State of U. P., 2001 (6) SCC 620).

23. Court in Leela Ram Vs. State of Haryana, 2000 SCC (Crl.) 222 has propounded that minor embellishments and trivial discrepancies held, do not by themselves render the evidence of witnesses unbelievable. Instead hair splitting at any point, totality of situation, ought have been considered.

24. In Lallu Manjhi and Another Vs. State of Jharkhand, AIR 2003 SC 854, Court has held that conviction can be based on evidence of solitary witness, if it is clear, cogent and unimpeachable. In present case, two witnesses of ocular testimony, PWs 2 and 3 have categorically proved the occurrence of murder of Munni Devi by accused Raja Ram and this has further been corroborated by testimony of PW-5, Manoj Kumar, who was independent witness before whom weapon of offence was recovered upon disclosure made by accused-appellant Raja Ram. Hence, all these testimonies were unimpeachable, clear and cogent with minor variance, proving those to be natural and worth reliable witnesses.

25. Learned counsel for appellant argued that I.O. had not sent weapon of offence or plain and blood stained soil for its serological test. This argument is of no avail where prosecution is successful to prove charge by clear and cogent ocular testimony. More so, non sending of blood stained weapon of assault, pellets for chemical or ballistic examination by I.O., are defects in his investigation, which are not fatal to prosecution as has been propounded by Court in Dhanraj Singh Vs. State of Punjab, AIR 2004 SCC 1920.

26. Motive has been specifically said in FIR (Exhibit ka 1) and this was proved by PW-1 in his testimony, though motive is of no avail in case of direct ocular testimony as propounded as propounded repeatedly by this Court as well as Apex Court.

27. Court in State of Rajasthan Vs. Kishore, AIR 1996 SC 3035 has held that investigation's irregularity or illegality does not constitute ground for rejection of prosecution case. After all, function of a criminal Court is of administration of criminal justice and not to count errors committed by prosecution parties or to declare who amongst parties performed better as has been held in Rajendra Prasad Vs. Narcotics Cell, AIR 1999 SC 2292.

28. Hence, upon over all appreciation of facts and evidence placed on record, there is full proof evidence in proof of charge levelled against accused-appellant and Trial Court has rightly appreciated it.

29. In Kali Ram Vs. State of Himachal Pradesh AIR (1) 1972 SCC 2773, Court has propounded that in criminal case onus is upon prosecution to prove different ingredients of offence and unless it discharges that onus it cannot succeed to prove its case. Prosecution has to prove its case beyond all reasonable doubt whereas accused is required to prove only till establishing preponderance of probabilities as has been propounded by Apex Court in Vijayee Singh and others Vs State of U. P. AIR 1976 SC 966.

30. In appeal the burden is on appellant to prove how judgment under appeal is wrong? Appellant must show where assessment has gone wrong as has been propounded in Narbada Prasad Vs. Chhaganlal, AIR 1969 SC 393.

31. In present case, learned counsel for appellant has failed to show as to whether Trial Court failed to appreciate the facts and evidence placed before it or where assessment has gone wrong. Trial Court with a very reasoned judgment and categorical analysis of oral and documentary evidence, under correct perspective of law, has based impugned judgment of conviction, hence, this appeal merits its dismissal.

32. Regarding sentencing under Section 302 IPC, Legislature has given two sentences, either capital punishment or life imprisonment with fine. Upon appreciating aggravating and mitigating circumstances of present case, this case was certainly not a case of capital punishment and Trial Court has sentenced for life imprisonment with fine, which was minimum sentence provided by Legislature, hence, on the basis of sentencing too, this appeal merits its dismissal.

33. In the result, this appeal is dismissed accordingly. Impugned judgment of conviction and sentence dated 15.12.2004 passed by Additional District and Sessions Judge, Court No.1, Kanpur Dehat in S.T. No.559 of 2002, is hereby affirmed.

34. Certified copy of this judgment along with record be sent to Court concerned for follow up action. Copy of this judgment be also supplied to accused-appellant through concerned Superintendent of Jail.

35. Sri Jai Karan Nath, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs.10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Jai Karan Nath, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date : 10.05.2019

Manish Himwan