Bhookan vs State Of U.P.
2019 Latest Caselaw 4591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
 Reserved on 06/07.05.2019
 
Delivered on 16.05.2019
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 1350 of 2017
 

 
Appellant :- Bhookan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Raj Kumar Singh,A.K.Aeasthi,Manish Tiwari,P.C. Srivastava
 
Counsel for Respondent :- Govt. Advocate,Mukhtar Alam
 
WITH
 
Case :- CRIMINAL APPEAL No. - 4962 of 2013
 

 
Appellant :- Dinesh @ Sanwa
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra, Jayant Prakash Singh
 
Counsel for Respondent :- Govt. Advocate, Mukhtar Alam
 
WITH
 
Case :- CRIMINAL APPEAL No. - 4546 of 2013
 

 
Appellant :- Rajendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.C. Srivastava
 
Counsel for Respondent :- Govt. Advocate,Mukhtar Alam
 
WITH
 
Case :- CRIMINAL APPEAL No. - 4482 of 2013
 

 
Appellant :- Vishesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.C. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Sudhir Agarwal,J.

Hon'ble Raj Beer Singh,J.

(Delivered by Hon'ble Raj Beer Singh, J.)

1. These appeals have been preferred against the common judgment dated 26.09.2013 and order dated 27.09.2013, passed by the learned Additional Sessions Judge Court No.1, Jyotibaphule Nagar, in Session Trial Nos. 25/2011, P.S. Rajabpur, District Jyotibaphule Nagar, whereby the appellants Bhookan, Vishesh, Rajendra and Dinesh @ Sanwa have been convicted under Sections 302/34 and Section 452 of IPC. They have been sentenced to life imprisonment along with fine of Rs. 10,000/- each under Section 302/34 of IPC and in default of the payment of fine they have to undergo one month additional imprisonment. Similarly, they were sentenced to five years rigorous imprisonment along with fine of Rs. 5,000/- each for the offence under Section 452 of IPC and in default of payment of fine they have to undergo six months additional imprisonment. Both the substantial sentences are to run concurrently. .

2. The case of prosecution is that on account of Pradhan election enmity, on 20.08.2010 at about 8:00 PM, while complainant Pawan Kumar and his mother were sitting at their house and his father Bhorendra Singh was going to close main gate of the house, appellant-accused Bhookan Singh, Rajendra Singh, Dinesh and Vishesh trespassed into the house of complainant making exhortation that they would kill Bhurendra (deceased) and made indiscriminate firing at Bhurendra. The deceased sustained two bullets and he fell down. When the complainant and his mother raised alarm, all the four accused persons ran away. Injured Bhorendra was taken to Sai Hospital, Moradabad but after midnight he was referred to Fortis Hospital Noida. The complainant reported the matter to police on 21.08.2010 by submitting written tahreer Ex. Ka-9 at the police station and consequently case was registered on 21.08.2010 at 13:15 hours under Sections 452 and 307 of IPC against all the four accused persons vide FIR Ex. Ka-22.

3. The deceased was medically examined at Sri Sai Hospital, Moradabad vide MLC Ex.Ka.2 and following injures were found on his person:

1. Lacerated wound of entry 3 cm x 2 cm over Right side of chest about 6 cm below Right nipple 7'o' clock position. blackening and charring & tattooing present around the wound.

2. Lw of exit 1 cm x 1 cm, about 7 cm away from injury no.1 in axillary region.

3. Lw of entry 1.5 cm x 2 cm back of Right side of chest about 6 cm from midline at the level of vertebra D8-D9, blackening & charring & tattooing + bleeding present around the wound. Gun powder burn mark over Rt. side chest + back of chest & Rt arm and right upper forearm.

4. Linner abrasion 3 in number about 6-9 cm in length apart 1 cm over left forearm in front medial aspect.

Injury No. 1 & 3 caused by firearm. Injury no.2 caused by exit of firearm. Injury No.4 caused by friction against hard object probable nails. Injuries are fresh. Kept under observation & refer to surgeon.

4. During treatment, deceased Bhorendra expired on 24.08.2010 at 3:20 PM at Base Hospital, New Delhi. The inquest proceedings were conducted by police of police station Narayana, Delhi vide inquest report Ex. Ka-5 and dead body of deceased was sent for postmortem.

5. The postmortem of deceased was conducted on 25.08.2010 by PW-3, Ashok Kumar, vide postmortem report Ex. Ka-3 and following ante-mortem injuries were found on the person of deceased.

"1. Firearm entry wound over lower right anterior (front) chest size 2.5 cm x 1 cm round located 7 cm below right nipple and 12 cm right to midline at 8th ICS (intercostal space) Track after piercing skin, muscle and outer right surface of the liver - it makes an exit wound - along the posterior axillary line at the level of 8th ICS size of exit 1cm x 1cm (round). Tattooing present around the entry wound in a radius of : 12 cm.

2. Firearm entry wound, size 2.5 cm x 1 cm on the back, midline (just 1.5 cm Rt from midline), 27 cm below nape of neck at the level of 9th Thoracic Vertebra. Tattooing present around in a radius of 10 cm.

Track- on dissetion a bullet along with wads found impacted in the body of 9th thoracic vertebra on right half.

Cause of death of the deceased is shot due to firearm injury.

6. During course of investigation site plan of the spot of incident was prepared, the samples of blood stained and simple soil were taken from the spot. The blood stained clothes of deceased were seized on 23.08.2010 by seizure memo Ex. Ka-11. On 25.08.2010 one torch was taken into possession vide seizure memo Ex. Ka-12. On 26.08.2010 accused Bhookan Singh and Dinesh were arrested by the police and a country made pistol of 12 bore was recovered from Bhookan Singh while a country made pistol of 315 bore and one live cartridge was recovered from accused Dinesh. The recovered pistols and cartridges were taken into possession vide recovery memo Ex. Ka-16. Regarding recovery of country made pistols, separate cases under Section 25 of Arms Act, 1959 were registered against accused Bhookan Singh and Dinesh.

7. Investigating Officer recorded statements of witnesses and after completion of investigation, all the four accused persons were charge-sheeted for the offence under Sections 452, 302/34 of IPC vide charge-sheet Ex.Ka-15 and separate charge-sheets under Section 25 of Act 1959 were also filed against accused Bhookan Singh and Dinesh.

8. Learned Trial Court has framed charges under Sections 452, 302/34 of IPC against all the four accused persons. Accused Bhookan Singh and Dinesh were also charged under Section 25 of Act, 1959, as under:

**eSa ,l-,-,- gqlSuh] l= U;k;k/kh'k] ts-ih- uxj vki Hkwdu] jktsUnz o fnus'k mQZ lkoka rFkk fo'ks"k dks fuEufyf[kr vkjksi ls vkjksfir djrk gwW %&

izFke ;g fd fnukad 20-8-2010 dks le; 20-00 cts ckLFkku xzke Hkokyiqj ckalyh Fkkuk jtciqj ftyk ts-ih- uxj esa vki yksxksa us oknh ds ?kj esa vijk/k dkfjr djus ds vk'k; ls vukf/kd`r izos'k fd;k bl izdkj vkius /kkjk 452 Hkk0na0la0 ds vUrxZr naMuh; vijk/k fd;k tks bl U;k;ky; ds iz'kaKku esa gSA

f}rh; ;g fd mDr fnukad] le; o LFkku ij vki yksxksa us lkekU; vk'k; ds vxzlj.k esa ,d jk; gksdj oknh iou dqekj ds firk HkksjsUnz flag dh xksyh ekj dj gR;k dj nh bl izdkj vkius /kkjk 302 lifBr /kkjk 34 Hkk0na0la0 ds vUrxZr naMuh; vijk/k fd;k tks bl U;k;ky; ds iz'kaKku esa gSA

,rn~}kjk eSa vkidks funsZ'k nsrk gwW fd mDr vkjksi esa bl U;k;ky; }kjk vkidk fopkj.k fd;k tk;sxkA **

(Emphasis supplied)

"I, S.A.A. Husaini, Sessions Judge, J.P. Nagar charge you Bhookan, Rajendra, Dinesh @ Sanwa and Vishesh as under:

Firstly, that on 20.08.2010 at 20:00 hours at Village Bhawalpur, Bansli, P.S. Rajabpur, District J.P. Nagar, with intention to commit offence, all of you trespassed into the house of complainant and thereby committed an offence punishable under Section 452 IPC within the cognizance of this Court.

Secondly, on the above stated date, time and place, in furtherance of common intention all of you committed murder of complainant's father Bhurendra Singh by firing bullet and thereby committed an offence punishable under Section 302/34 of IPC within the cognizance of this Court.

I hereby direct that all of you be tried by this Court.

(English Translation by Court)

**eSa] fd'kksj dqekj] vij ftyk ,oa l= U;k;k/kh'k] d{k la[;k&3] ts0 ih0 uxj vki Hkwdu dks fuEufyf[kr vkjksi ls vkjksfir djrk gwW %&

;g fd fnukad 27-8-2010 dks le; 3-30 ,0 ,e0] LFkku ogn taxy xzke >udiqjh] Fkkuk jtciqj] ftyk ts0 ih0 uxj esa vkidks iqfyl }kjk fxj¶rkj djus ij vkids dCts ls ,d vnn ns'kh reapk 12 cksj o nks vnn dkjrwl ftUnk 12 cksj cjken gq,A ftls j[kus dk ykbZlsal vkids ikl ugha FkkA bl izdkj vkidk mDr d`R; /kkjk 25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k gS] tks bl U;k;ky; ds izlaKku esa gSA

eSa ,rn~}kjk vkidks ;g funsZ'k nsrk gwW fd vkidk fopkj.k mijksDr vkjksi ds fy;s bl U;k;ky; }kjk fd;k tk;sA**

(Emphasis supplied)

"I, Kishore Kumar, Additional Session Judge, Court No.3, J.P. Nagar charge you Bhookan as under:

That on 27.08.2010 at 3:30 AM in the jungle area of village Jhanakpuri, P.S. Rajabpur, District J.P. Nagar you were arrested by the police and a country made pistol of 12 bore and two live cartridges of 12 bore were recovered from your possession for which you had no licence. Thus thereby you committed offence punishable under Section 25, Arms Act within the cognizance of this Court.

I hereby direct you be tried by this Court on the aforesaid charge.

(English Translation by Court)

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

10. In order to bring home the guilt of accused-appellants, prosecution has examined twelve witnesses.

11. The accused persons were examined u/s 313 CrPC, wherein they denied prosecution evidence and claimed false implication. However, no evidence was led in defence.

12. After hearing and analyzing the evidence on record, all the four accused persons were convicted under Sections 452, 302/34 of IPC by Trial Court vide impugned judgment and order and sentenced as stated above. However, appellants Bhookan Singh and Dinesh Singh were acquitted of the charge under Section 25 of Arms Act, 1959.

13. Being aggrieved by the impugned judgment and order, the appellant Bhookan Singh has preferred Criminal Appeal No. 1350 of 2017, appellant-accused Dinesh @ Sanwa has preferred Criminal Appeal No. 4962 of 2013, appllant-accused Rajendra has preferred Criminal Appeal No. 4546 of 2013, appellant-accused Vishesh has preferred Criminal Appeal No. 4482 of 2013. As all these appeals arise out of the common judgment, they are being disposed of by this common judgment.

14. We have heard Sri P.C. Srivastava, learned counsel for the appellants Rajendra and Vishesh; Sri Jayant Prakash Singh, learned counsel for Dinesh @ Sanwa; Sri Narendra Nath Tripathi, learned counsel for the appellant Bhookan, Sri Syed Ali Murtaza, learned A.G.A. for the State and Sri Mukhtar Alam, learned counsel for the complainant and perused the record.

15. Learned counsels for the appellants have submitted that:

I. PW-1 Pawan Kumar, PW-2 Manisha Devi and PW-3 Ashok Kumar are interested witnesses and their version has not been corroborated by any independent witness. As per prosecution version, the accused persons have made indiscriminate firing at the deceased and PW-1 Pawan Kumar and PW-2 Manisha Devi were also there but they have not sustained a single injury. The presence of these witnesses at the time of incident is highly doubtful. PW-3 is a chance witness, his testimony is not reliable.

II. Appellants Rajendra and Vishesh were not named as assailants by deceased in his statement exhibit ka-27 recorded by the police. Their names were also not stated by PW-1 Pawan Kumar and PW-2 Manisha Devi in their initial statements recorded under Section 161 of Cr.P.C. and later on they have implicated these appellants by filing affidavits. Even co-accused has stated that fires at the deceased were made by accused Bhookan Singh and Dinesh Singh. It was submitted that involvement of Rajendra and Vishesh is highly doubtful.

III. There is delay of one day in lodging FIR and delay has not been explained. The entire facts and circumstances indicate that FIR was lodged after consultation.

IV. For accused Rajendra, Dinesh and Vishesh, there was no motive on their part to commit murder of the deceased and even witnesses have admitted that they have no enmity with them.

V. There are serious contradictions and inconsistencies in the statement of witnesses which render their statements unreliable.

16. Refuting above contentions, learned A.G.A. submitted that all the four accused persons are named in FIR. As incident took place inside the house of the deceased, thus, his family members are natural witnesses of the incident and their testimony cannot be ignored only on the ground that they are interested witnesses. Deceased had sustained two firearm injuries, and first he was taken to Sai Hospital, Moradabad, whereafter he was referred to Fortis Hospital, Noida and thus, delay of one day in lodging FIR is quite natural as the first priority of family members of deceased would be to save life of the deceased and not to rush to police station to lodge the FIR. The eye-witnesses examined by prosecution have been subjected to cross-examination but no important contradiction or infirmity could emerge in their cross-examination. The conviction of appellants is based on evidence and Trial Court was fully justified in convicting appellants.

17. We have considered rival contentions and perused the record.

18. The scrutiny of evidence reveals that PW-1, complainant, Pawan Kumar supporting prosecution version has stated that on 20.08.2010 at about 8:00 PM he along with his mother Manisha Devi and father Bhorendra was sitting in his house and there was light of inverter. When his father was going to close the door, accused Rajendra, Bhookan Singh, Vishesh and Dinesh came there and making exhortation that they would kill deceased Bhorendra, gained entry into the house and on account of election enmity, they made indiscriminate firing at his father by country made pistols. His father sustained two bullets injuries and fell down. When complainant and his mother raised alarm, all the accused persons ran way. The deceased was taken to Sai Hospital, Moradabad and after midnight he was referred to Fortis Hospital, Noida. PW-1 Pawan Kumar has proved written tahreer as Ex. Ka-1. PW-1 has further stated that his father was going to contest pardhan election and it was not liked by accused Bhookan Singh and due to this reason the alleged incident took place. During treatment deceased succumbed to the injuries.

19. PW-2 Manisha Devi stated that on 20.08.2010 at about 8:00 PM when she along with her son Pawan and husband Bhurendra was present at her house and her husband was going to close the main gate, all the four accused persons having country made pistols trespassed into the house and made indiscriminate firing at the deceased, resultantly her husband sustained firearm injuries. When she and her son raised alarm, all the accused persons ran away. She also stated that accused Bhookan Singh was a candidate for pardhan election while her husband was also going to contest the election and due to this reason accused Bhookan Singh and other accused persons were having enmity with her husband.

20. PW-3 Ashok Kumar stated that on 20.08.2010 at about 8:00 PM while he was bringing milk from dairy and reached in front of the house of deceased Bhurendra, he saw that accused Bhookan Singh, Rajendra, Dinesh and Vishesh, having country made pistols, were making exhortation at the gate of the deceased that they would not leave him alive and thereafter they made indiscriminate firing at the deceased, who after sustaining firearm injuries fell down and the accused persons ran away. PW-3 further stated that at the time of incident, wife of Bhurendra and his son Pawan were present there and all the accused persons were recognized in the light of Inverter and electricity. The deceased Bhurendra was taken to hospital but during treatment on 24.08.2010 he succumbed to injuries.

21. PW-4 Preetam Bala has medically examined deceased Bhurendra at Sai Hospital, Moradabad vide medical examination report Ex. Ka-2 and PW-5 G.A. Sunil Kumar has conducted postmortem on the dead body of deceased. PW-6 ASI Ram Ji Pandey has conducted inquest proceeding while PW-7 S.I. R.K. Sharma has investigated the case. PW-8 S.I. Ashok Kumar Chauhan has conducted the further investigation. PW-9 S.I. Dharambir Singh and PW-12, Constable Ram Swaroop Singh are witnesses of recovery of pistols and cartridges from accused Bhookan Singh and Dinesh. PW-10 Meghraj Singh has proved the documents of arms act case while PW-11 constable Ramnath Singh has proved the FIR and G.D. entry.

22. So far as this contention is concerned that PW-1 Pawan Kumar and PW-2 Manisha Devi are interested witnesses, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held that ordinarily relations of deceased would not depose falsely against innocent persons so as to allow real culprit to escape unpunished, rather such witness would always try to secure conviction of real culprit.

23. In Dalip Singh Vs State of Punjab, A.I.R. 1953, S.C. 364, it was held that the ground that witnesses being close relatives and consequently being the partisan witness would not be relied upon has no substance. Similar view has been taken in Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The contention about branding witnesses as interested witness and credibility of close relationship of witnesses has been examined in a number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. Similar view was taken in State of Gujrat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839.

24. In the present case, it is correct that PW-1 Pawan Kumar is son of the deceased while PW 2 Manisha is wife of the deceased but the incident has taken place at 8:00 PM inside their house and thus, their presence at the spot is quite natural. It is correct that none of these witnesses have sustained any injury in the alleged incident while version of these witnesses is that accused persons have made indiscriminate firing but in this regard it may be seen that as per prosecution case, accused-appellant Bhookan Singh was angry with deceased Bhurendra only, on account of election enmity and it is the consistent version of prosecution that all the accused persons have fired at the deceased with intention to kill him. When all the accused persons have fired pointing out the deceased, it is not unnatural that witnesses present at the spot might not sustain any injury. These witnesses have been subjected to cross-examination, but no material contradiction or infirmity could be pointed out. Their version is consistent with the medical evidence. Further post-mortem report of deceased shows that he has sustained two fire-arm entry wounds, which indicates that fire-arms used by the accused persons were country made pistols of 315 bore or 32 bore, which do not discharge pellets, rather bullet hit at the object. In such weapons question of dispersal of pellets does not arise so as to cause injury to any other persons near to the object.

25. So far as the testimony of PW-3 Ashok Kumar is concerned, there is nothing to show that he is related to the complainant or he is an interested witness. In his cross-examination, PW-3 Ashok Kumar has stated that the deceased is neither a member of his family nor he is his friend. PW-3 Ashok Kumar has been subjected to lengthy cross-examination but no major contradiction or infirmity could be shown. The incident has taken place at 8:00 PM and version of PW-3 is that at that time he was bringing milk from the dairy, when reached in front of the house of deceased, he witnessed the incident in question. His version is that he was outside the gate of the house and thus, there was no probability that he would sustain injuries in the incident which took place inside the house of the deceased particularly when fires were shot by pointing out at the deceased. The version of PW-1 Pawan Kumar and PW-2 Manisha Devi is amply corroborated by the evidence of PW-3 Ashok Kumar. In view of all these facts, it is clear that the testimony of PW-1 Pawan Kumar, PW-2 Manisha Devi and PW-3 Ashok Kumar is not affected on the ground that they are interested witnesses or that they have not sustained injury.

26. The testimony of PW-3 was also assailed on the ground that his presence at the spot is unnatural and PW-3 is a chance witness as the presence at the alleged place has not been explained. As stated earlier the version of PW-3 is that at that time he was bringing milk from the dairy, and when reached in front of the house of deceased, he witnessed the incident in question. PW-3 is resident of the same village and thus, it is not unnatural that at 8:00 PM, he might have bringing the milk from dairy of village. He has stood the test of cross-examination and nothing adverse could be shown against his credibility. Thus, the contention has no force.

27. Much thrust was made by learned counsel for the appellants Rajendra and Vishesh that after the incident, statement of deceased was recorded by PW-7 S.I. R.K. Sharma vide Ex. Ka-27 and in that statement deceased has not named appellants Rajendra and Vishesh as his assailants. It was also pointed out that in their initial statement to Investigating Officer, they have not named these appellants and after that they had filed affidavits implicating these appellants.

28. In this regard it may be observed that all the witnesses have clearly stated that all the four accused persons have fired at the deceased. Even in FIR, this version was clearly stated. These witnesses have denied alleged statements recorded by Investigating Officer, wherein these appellants were not shown as assailants and stated that these statements were not made by them. The totality of facts indicate that even if shots fired by these appellants might not have hit the deceased, the facts and evidence on record clearly indicate that all the four accused persons were having common intention to commit murder of the deceased. In fact, they were charged under Section 302/34 of IPC and have been convicted of this charge. As the testimony of PW-1, PW-2 and PW-3 appears cogent and trustworthy, their testimony cannot be doubted on the alleged inconsistency. No doubt in his statement Ex. Ka-27, deceased has not named appellants Rajendra and Vishesh as assailants but there is nothing to show that the deceased was in a fit state of mind to make such statement. The authenticity of this statement was seriously disputed by witnesses. PW-7 could not produce any document to indicate that he visited deceased at the Base Hospital and recorded his statement. Considering the evidence as a whole, the version of the defence that appellant Rajendra and Vishesh were falsely named later on cannot be accepted.

29. Similarly, PW-1, PW-2 and PW-3 have denied the alleged statements recorded during investigation and attributed to them. Though, in those statements, appellants Rajendra and Vishesh were not named but PW-1, PW-2 and PW-3 have denied these statements and stated that they have not made such statements. Here it may be stated that the statements of these witnesses are consistent with case diary statements made subsequently. Thus, it cannot be said that they have made improvements. Considering all aspects, the contention of the learned counsel has no force.

30. So far as the question of delay in lodging FIR is concerned, it is well settled, if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, has held;

"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."

31. In Amar Singh Vs. Balwinder Singh & Ors. (2003) 2 SCC 518, the Hon'ble Apex Court held that :

"In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR."

32. In this connection it will also be useful to take note of the following observation made in Tara Singh V. State of Punjab AIR (1991) SC 63.

"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."

33. In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:

"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."..

34. From the above discussed exposition of law, it is manifest that prosecution version cannot be rejected solely on the ground of delay in lodging FIR. Court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused.

35. In the present case, it is clear that the deceased has sustained two firearm injuries at vital parts of his body besides one other injury and soon after the incident he was taken to Sai Hospital, Moradabad and on the same night he was referred to Fortis Hospital, Noida. Thus, it is apparent that there was no occasion on the part of complainant to lodge report on the day of incident as he was attending the deceased. In such facts and circumstances, it is quite natural that first priority of the family members of the deceased would be to save the life of the deceased and not to rush to police station to lodge FIR. PW-1 Pawan Kumar has given sufficient and reliable explanation that on the next day when he came to his house to arrange money for treatment, he reported the matter to police by submitting written tahreer Ex. Ka-9. In the attending facts and circumstances, this version of PW 1 is quite convincing and there is nothing to doubt this version. As the delay in lodging FIR has been explained by satisfactory and reliable evidence, no adverse inference can be drawn against the prosecution case on account of delay in lodging the FIR.

36. It was next contended that there was no motive on the part of the accused persons particularly that of accused, namely, Rajendra, Dinesh and Vishesh to commit the murder of the deceased and there is nothing to show, why they would commit murder of the deceased. It is correct that PW-1 has stated in cross-examination that he has no previous enmity with appellant-accused Dinesh, Vishesh and Rajendra but it is well settled that if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence but the absence of motive does not lead to contrary conclusion. In that case, however, other evidence has to be closely scrutinized. If positive evidence is clear and cogent, the question of motive is not important. However, this is relevant to lend assurance to the other evidence. Motive is not a sine qua non for commission of a crime. Moreover, failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when other reliable evidence, available on record unerringly establishes the guilt of the accused. Reference may be made to State of U.P. V Nawab Singh, 2005 SCC (Criminal) 33.

(36A) In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, has held that in case prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness, proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify courts in reaching ultimate conclusion. But that does not mean that motive, if not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance.

37. In the present case as it is clear that the prosecution case is based on eye account of three eye-witnesses and no major infirmity or inconsistency could be pointed out in their testimony. Even otherwise, it is consistent case of the prosecution that the deceased was going to contest pradhan election and it was not liked by accused Bhookan Singh, who was also contesting election. The witnesses have stated that it was due to this reason, the alleged incident took place. It is correct that no specific motive was attributed to the other three accused persons, but in view of the above evidence it could not be said that there was no motive at all. Be that as it may, the fact remains that prosecution version is based on the direct testimony of three eye witnesses. In view of all these facts, the involvement of accused persons cannot be doubted on the ground that they have no previous enmity with the deceased. The contention of the learned counsel has no substance.

38. Lastly, it was argued by learned counsel for appellants that there are contradictions and inconsistencies in the statements of witnesses. It was pointed out that as per prosecution version, the accused were identified in the light of Inverter but there is no evidence on record that there was any electricity connection in the house of the deceased. As PW-1 Pawan Kumar has admitted that he has never paid electricity bill. PW-3 Ashok Kumar has also stated that he is not aware that there was electricity connection in the house of the deceased or not. It was further pointed out that as per prosecution version the accused persons have fired several rounds of fires but no empty cartilage or any other evidence of firing was found at the spot.

39. All the above stated factors are minor inconsistencies and same do not affect the substance of testimony of PW-1 Pawan Kumar, PW-2 Manisha Devi and PW-3 Ashok Kumar. So far as the above stated inconsistencies are concerned, in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].

40. In the present case, alleged incident took place at 08.00 AM inside the house of the deceased. No major contradiction or inconsistency could be pointed out in the statements of PW 1, PW 2 and PW 3. As stated earlier, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of prosecution case, should not be made a ground on which ocular testimony can be rejected in its entirety. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant or witness fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. There is nothing to show that the witnesses examined by the prosecution, have any enmity or grudge against the appellants. They were named in FIR and no such reasons could be shown as to why these witnesses would depose falsely against the appellants. The instant case is required to be examined in the totality of circumstances and in the light of aforesaid legal propositions. In view of the evidence on record and aforesaid analysis of facts and evidence on record, we reach the inescapable conclusion that prosecution has succeeded in bringing home the guilt of the all the appellants.

41. In view of the above, we are of the considered opinion that conviction of the appellants-accused Bhookan, Vishesh, Rajendra and Dinesh @ Sanwa u/s 302/34 and 452 IPC is based on evidence and the trial court was justified in convicting all the appellants-accused.

42. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

43. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

44. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants, by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon him.

45. All the four appeals are dismissed. The conviction and sentence of all the four appellants, namely, Bhookan, Dinesh @ Sanwa, Rajendra and Vishesh u/s 302/34 and 452 of IPC in S.T. No.25 of 2011, P.S. Rajabpur, Crime No.1398 of 2010, is affirmed. All the appellants accused are stated on bail. Their personal bonds are cancelled and sureties are discharged and, they be taken into custody forthwith to serve out the remaining sentence.

46. Let a copy of this judgment along with Lower Court Record be sent to Court concerned for necessary compliance. A compliance report be sent to this Court.

 
Order Date :- 16.05.2019
 
A.Tripathi 		
 
					(Raj Beer Singh, J)       (Sudhir Agarwal, J)