Netra Pal And Another vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					    		A.F.R.
 

 
							Reserved on 19.01.2019
 
					    		Delivered on 24.05.2019
 

 
Case :- CRIMINAL APPEAL No. - 1104 of 1983 
 
Appellant :- Netra Pal and Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.P. Singh Raghav, Ashok Pandey, Balbeer Singh, Brijesh Sahai, Pawan Bharadwaj, R.D. Dauholia, S.P. Singh Gahlot, Sunil Kumar
 
Counsel for Respondent :- Virendra Saran, A.G.A., Manu Saxena
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Rohit Ranjan Agarwal, J.

(Delivered by Rohit Ranjan Agarwal, J.)

1. Present Criminal Appeal has been preferred by Netra Pal (since died), Yogendra Pal, Narendra Pal and Panna Lal (since died) against judgment and order dated 05.05.1983 passed by IV Additional Sessions Judge, Bulandshahr in Session Trial No. 545 of 1982, whereby appellants have been convicted for the offence under Sections 302 and 307 I.P.C. and sentenced to undergo imprisonment for life for offence under Section 302 I.P.C and three years rigorous Imprisonment for offence under Section 307 I.P.C. Appellant Yogendra Pal has been convicted and sentenced for the offence under Section 27 Arms Act for two years rigorous imprisonment. All sentences have been directed to run concurrently.

2. At the outset, it is made clear that during pendency of this appeal, appellant Nos.1 and 4, namely, Netrapal and Panna Lal have expired and vide orders dated 13.11.2007 and 26.08.2016 appeal in respect of them has been abated. Hence, Court is proceeding to decide the appeal in respect of remaining appellants, i.e., appellant Nos. 2 and 3, namely, Yogendra Pal and Narendra Pal, respectively.

3. Prosecution story, in nutshell, as unfolded in written report (Ext. Ka-1) moved by Kiran Pal Singh, informant (PW-1), resident of village Bhaipur, Police Station Kakod, District Bulandshahr on 02.03.1982, is as follows:

Informant's father's widowed sister Smt. Premwati had been residing with him and being issue-less, she had adopted his sister Pushpa some 12 years ago. Smt. Premwati was to perform the marriage of Pushpa, which had created jealousy with his uncle Netrapal and cousins Yogendrapal and Narendrapal. They had a feeling that Smt. Premwati would not give them anything. On 28.02.1982 Pushpa had gone to draw water from the hand-pump of his uncle, when Yogendrapal had hurled filthy abuses at her and had also passed a sarcastic remark that she should have a hand-pump installed from her father's sister. Pushpa had complained against this mis-behaviour meted out to her by Yogendrapal, to her father and brother Dharampal. At about 1 p.m. Kiranpal along with his father Megh Singh and elder brother Dharampal was sitting at his flour mill. His uncle Netrapal with his son Yogendrapal armed with licence gun Nagendrapal carrying a country-made pistol and Pannalal arrived there. His father protested with Netrapal against the abusive language used by Yogendrapal to Pushpa. On this Netrapal exhorted his sons and Panna Lal to set them right as how long these complaints would be tolerated. On this Yogendrapal fired from his licensed gun hitting Dharampal, and Narendrapal fired from his C.M.P. (Country-made pistol) hitting his father Megh singh, both of them fell down and died. Pannalal also fired at Kiranpal, but he escaped unhurt as he took cover behind a tree. The entire incident was witnessed by Indrapal (P.W.-3), Smt. Kiran Devi (complainant's brother's wife), his own wife Smt. Prakasho and father's sister Smt. Premwati P.W.-2, sister Pushpa (P.W.-3) and his own brother-in-law Narendrapal Singh. All the four accused finally escaped towards the jungle. Both the deceased were taken to the Police Station in a tractor trolly where the written report scribed from Jagpal Singh was lodged. Thus, prayer was made to lodge First Information Report (hereinafter referred to as, 'F.I.R.').

4. On the basis of written report (Ext Ka-1), Chik F.I.R. (Ext Ka-2) was registered on 02.03.1982 at 14:30 hours at Police Station concerned as Crime No. 55 of 1982 under Sections 302, 307 and 109 I.P.C.. G.D. entry Ext Ka-3 was also made on the same day on the basis of chik F.I.R.

5. Dead bodies were carried by PW-1 on a tractor trolly to the Police Station. It appears that inquest proceeding was conducted at the Police Station concerned itself and the inquest report were prepared which are Ext. Ka-16 and 17. Along with inquest reports, relevant documents Ext Ka-18 to Ext Ka-27 were also prepared. Dead bodies were dispatched for post mortem. Investigating Officer visited the place of occurrence and prepared site plan (Ext Ka-5) mentioning all details. He also interrogated the witnesses. On 02.03.1982, the Investigating Officer took blood-stained and plain earth from the place of occurrence and kept them in sealed clothes. Investigating Officer has prepared recovery memos Ext. Ka-6 and Ka-7. Recovery memo Ext. Ka-8 of all empty cartridges recovered from the place of occurrence has also been prepared by the Investigating Officer. Ext Ka-9 is the recovery of SBBL gun recovered on pointing out of accused-appellant Yogendra Pal.

6. Post mortem on the dead body of deceased Dharampal Singh was conducted on 03.03.1982 at 03.30 p.m, Post Mortem Report is Ext Ka-12. On general examination, deceased was about 35 years old. Probable time since death was about one and half day. Body was a good built. Rigour mortis present all over body. No decomposition started.

7. On examination of body, following injuries were found:

"(i) Fire-arm wound 2-1/2" x 2" x cavity deep (entry) over lower part of chest left side 2-1/2" below left nipple blackening size of 1/6" around wound.

(ii) Fire-arm wound seven (7) in number each of size ¼"x ¼" present in an area of 4-1/2" x 2" over epigastric region."

8. On internal examination of body, peritoneum perforated abdominal cavity contains 300 CC semi clotted blood, in the stomach semi digested food material, in small intestine and large intestine gasses and faecal material were found. Whole of liver and gallbladder were found badly lacerated, three vadding piece and 10 seats were also recovered.

9. In the opinion of doctor, cause of death was due to shock and hemorrhage as a result of anti mortem injuries found on the body of the deceased.

10. Post mortem on the dead body of Megh Singh was also conducted on 03.03.1982 at 3.00 p.m, he was found aged about 55 years old. Probable time of death was about one and half day. Body was average built. Rigor mortis present, no decomposition started.

11. On examination of dead body, following injuries were found:

"(i) Fire-arm wound 1" x 1" x cavity deep (wound of entry) in right hypochondriac 3.5" above umbilicus at 11 O'clock position blackening 1/6" size.

(ii) Fire-arm wound 1" x1" x cavity deep (wound of exit) present over back right side 4-1/2" above iliac bone 3" from mid-line. Clotted and semi clotted blood coming out of it ."

12. In the internal examination, in the peritoneum wall of abdomen perforated by fire-arm wound, stomach was purforated, in the small intestine and large intestine gasses and faecal matter were also found present, liver and gallbladder were lacerated.

13. In the opinion of doctor, death was done due to shock and hemorrhage as a result of anti mortem injuries found on the body of deceased. Post mortem report prepared by the doctor concerned is Ext Ka-13.

14. Material collected from the place of occurrence and from the body of deceased during post mortem were sent for the chemical examination to the Forensic Science Laboratory. Report submitted by the Laboratory is Ext Ka-10 on record.

15. Investigating Officer after fulfilling the entire formalities submitted charge-sheet (Ext Ka-11) against the accused-persons. Cognizance was taken by the concerned Magistrate. Case being exclusively triable by Sessions Court was committed to the Court of Sessions for Trial.

16. Accused appeared. Prosecution opened its case describing all the evidences collected by the Investigating Officer during investigation and also the evidence proposed to be adduced during trial. Trial Court also heard accused side and framed charge against accused Netrapal (since died) for the offence under Sections 302/34, 302 and 307/34 I.P.C.. Accused-appellant Narendra Pal was charged for the offence under Sections 302, 302/34 and 307/34 I.P.C.. Accused-appellant Yogendrapal was charged for the offence under Sections 302, 302/34 and 307/34 I.P.C. Accused-appellant Pannalal (since died) was charged for the offence under Sections 307, 302/34 I.P.C.. Accused-appellant Yogendrapal was also charged for the offence under Section 27 Arms Act. All the charges were read over to the accused-persons to which they denied and pleaded not guilty and also claimed their trial.

17. Trial proceeded and in order to prove its case, prosecution has examined total 8 witnesses, out of which, PW-1 Kiran Pal is the informant, who claimed himself to be present on the spot at the time of incident; PW-2 Premwati, PW-3 Indrapal Singh and PW-4 Pushpa also claimed themselves as eye account witnesses of the incident; PW-5 Har Narayan S. Saxena, the chik and G.D writer; this witness has also proved the special report (Ext Ka-4); PW-6 Omveer Singh Dhaka, the then S.H.O. of the Police Station concerned, who is the second Investigating Officer. He has proved the site plan (Ext Ka-5), blood-stained, sample earth material Ext Ka-1 to Ext Ka-4 and memo Ext Ka-6 and 7. He has also proved Exts Ka-8, 9, 10 and 11, PW-7 Dr. S.K. Dutta, who has conducted post mortem on the dead bodies of deceased-persons and PW-8 Sub Inspector Surajpal Manoj, First Investigating Officer, who has proved inquest report Ext Ka-16, Ext Ka-17 and also other relevant documents Ext Ka-18 to Ext Ka-27.

18. After closure of prosecution evidence, statements of accused-persons under Section 313 Cr.P.C. were recorded in which they admitted the relation between the parties and witnesses but facts mentioned in the written report (Ext Ka-1) were denied. They have shown ignorance about preparation of inquest report, post mortem report and have stated that they were falsely imlicated in this matter. PW-1 Kiran Pal and PW-3 Indrapal Singh both are close friends. PW-2 Premwati and PW-4 Pushpa are also close relatives of the deceased and due to that reason, they have made false statements before the Court due to enmity. Similar statements have been made by all accused-persons.

19. In support of its case, defence did not examine any witness but has proved the document submitted by the prosecution as Ext Kha-1 , Kha-2 and Kha-3.

20. Having heard the learned counsel for the parties and going through the record, trial court found that prosecution has fully succeeded in bringing home the charges against accused-appellants beyond reasonable doubt and convicted and sentenced the accused-appellants as above, hence this appeal.

21. We have heard Sri Brijesh Sahai, learned Senior Advocate assisted by Shri Praveen Kumar Srivastava and Mohd. Sufian, learned counsel appearing for the appellants and Smt. Seema Shukla, Sri Ratendra Kumar Singh and Arun Kumar Singh, learned AGA appearing for the State.

22. First of all, we would like to consider the motive for occurrence. From written report (Ext Ka-1) proved by Kiran Pal, he along with his father Megh Singh (deceased), brother Dharampal (deceased) and Sabhajeet etc. had gone to Mau for the engagement of the bride groom for his sister Pushpa, and during their absence Yogendra Pal had abused his sister Pushpa while she was drawing water from hand-pump. When they returned back from Mau, Pushpa reported the incident to her father and brothers. The accused Netrapal (since died) along with his sons Yogendra Pal, Narendra Pal and Panna Lal (since died) had opened fire at the father of Kiran Pal (Megh Singh) and brother (Dharampal). This motive was set out in the F.I.R., which was lodged within one and half hours of the incident covering the distance of five miles between the police station and the village concerned. The motive was supported by Kiran Pal (PW-1), Smt. Premavati (PW-2), Netrapal (PW-3) and Pushpa (PW-4).

23. Learned counsel for the defence submitted that once Pushpa had complained to her father and brother after they returned from Mau, it was a natural conduct that they should have gone to the place of accused and not accused coming to their place and launching the attack. In this connection, it is important to mention that accused are not strangers, but are family members of the deceased and it was possible that they were not waiting for return of deceased Megh Singh and Dharampal from Mau as they were prepared for a final show down because they were not liking the way in which Premawati was spending on the marriage of Pushpa, and it is also noteworthy that drawing of water from hand-pump gave an opportunity to accused to express their resentment.

24. The counsel for the defence vehemently argued that Kiranpal was the sole beneficiary as his father Megh Singh had given his land to his other two sons Dharampal and Sabhajeet and no land was given to him. It was further argued that all the eye witnesses, i.e., PW-1 to PW-4 are from one family and there was enmity between two sides. He further tried to emphasis that when Investigating Officer conducted the spot inspection, he did not find any wood or mustard lying on the ground so as to support the version of eye witnesses, i.e, PW-2 and PW-4.

25. Shri Sahai further tried to impress upon the fact that there was dispute regarding farm and cattle between Kiran Pal (PW-1) and Netrapal as well as land dispute between Dharampal (deceased) and Yogendra Pal (accused).

26. He further tried to lay emphasis that from the perusal of site plan, it was not possible for the eye-witnesses to have seen the incident, as distance between the place of occurrence and their sitting was quite far and to have reached the site on hue and cry, it was not possible for them to have seen it.

27. (PW-1) Kiranpal, the eye-witness, had categorically in his examination has stated that he, along with his father and brother Dharampal, were sitting at his flour-mill, when the accused came there and a quarrel took place between them during which, Netrapal exhorted his sons Yogendra pal and Narendra Pal. In his cross examination, the PW-1 maintained his oral testimony as he had stated earlier and there was no deviation from the same.

28. Similarly, PW-2 (Premavati) daughter of deceased Megh Singh, has also corroborated the version of PW-1, and in her cross examination, she maintained the same and has stated that she was living with Megh Singh, the deceased, after the death of her husband and had extended some money to Netrapal (her elder brother) as he did not return the money, she had not gone to his place for last four years.

29. Similarly, P.W.3 (Indra Pal Singh) has also stated on oath that he was the eye-witness of the incident and had stood ground in his cross-examination. P.W.4 (Pushpa) also corroborated the version of all the other two eye-witnesses P.W.2 and P.W.3 regarding the fact that on hue and cry, they ran toward the scene and saw the occurrence. She also stood firm and consistent on this point in her cross-examination.

30. As far as the argument of Sri Sahai in regard to the fact that Kiran Pal is the sole beneficiary has no force and there was no occasion for him to falsely implicate the accused in the murder of his father and brother.

31. It is not disputed that Pushpa was adopted by Premawati and she was going to bear all the expenses in the marriage of Pushpa, which had created jealously in the mind of elder brother of Premawati i.e. Netrapal and his sons Yogendra Pal and Narendra Pal, which had slowly developed to a stage that the offence of such nature was committed.

32. As regards, argument of Shri Sahai that report of Chemical Examiner, Ext. Ka-10 proves that blood was not found from the sample of earth collected from the spot is concerned, in this regard, it is important to note that after about a month of the incident, the item was sent to the Chemical Examiner, the analysis was done before 30.04.1982 and it is quite possible that the blood disintegrated from the sample of earth. Just because the report of the examiner did not confirm the earth sample to be blood-stained, the evidence of the Investigating Officer, who visited the spot and collected the blood-stained and simple earth cannot be disbelieved. Apart from that there is unanimity among the eye witnesses about place of murder from where the earth stained with blood was taken. As such the place of murder cannot be doubted.

33. Another ground of attack by the defence is that the old house of PW-1 is at some distance from Gher and about 15 to 16 houses intervened in between, and the women folk of his house could not be present at Gher. PW-1, in his statement, had categorically stated that he has deserted that house long time back and he further discarded the fact that ladies still reside there. Thus, there is nothing to doubt that the women folk of the family were residing at Gher.

34. Next argument of counsel for defence is that the prosecution story supported by witnesses state that Panna Lal shot Kiran Pal from very close range, but he took cover behind the tree, learned counsel tried to make a case that firing from such a close range could not have missed the target, but if it did then the bullet marks were neither found on the trees nor on the walls of nearby house. This argument cannot be accepted as merely because Investigating Officer did not notice the pellet on the trees or nearby place, same are not sufficient to disbelieve the eye witnesses.

35. As regards the argument that all the witnesses are of the same family and are interested witnesses is concerned, it does not hold any ground as all the witnesses have supported the prosecution case and have stood firm in their cross-examination and defence could not extract anything from them which could impair their credibility.

36. Further evidence of close relation can be relied upon provided it is trustworthy, credible and is cogent. A witness may be called as interested witness only when he or she derived some benefits from the result of litigation, in the decree in a civil case or in seeing an accused person punished. But in the present case, neither of the witnesses PW-1 to PW-4 were to get any benefit, if the accused are punished.

37. As Pushpa was to get married soon and Premawati had no interest, while Kiran Pal and Indra Pal would also not derive any benefit from getting the accused punished, they can not be termed as interested witnesses.

38. Regarding the reliability of oral testimony of the closely related eye-witnesses, Hon'ble Apex Court in case of Bhagaloo Lodh and another Vs. State of Uttar Pradesh, 2011 (13) SCC 206 held as under:

"13. So far as the issue of accepting the evidence of closely related witnesses is concerned, both the courts below had placed a very heavy reliance on the depositions of Rajesh Singh (PW.1) and Devi Gulam Singh (PW.2), in spite of the fact that Rajesh Singh (PW.1) was the brother of the deceased Vinod Kumar and Devi Gulam Singh was also closely related to Rajesh Singh (PW.1). The daughter of Rajesh Singh (PW.1) got married with Sarvesh, the nephew (sister's son) of Devi Gulam Singh (PW.2). Both of them had supported the prosecution case. Both of them have been extensively cross-examined by the defence, but nothing could be extracted therefrom which could impair their credibility. The courts below found that evidence of both the eye-witnesses inspired confidence and was worth acceptance as both of them had given full version of the incident. More so, both the courts below have held that the witnesses had no reason to falsely implicate the appellants and the co-accused and spare the real assailants.

18. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased.[Vide M.C. Ali v. State of Kerala, Myladimmal Surendran v. State of Kerala, Shyam v. State of M.P., Prithi v. State of Haryana, Surendra Pal v. State of U.P. and Himanshu v. State (NCT of Delhi).]"

39. The Apex Court further in case of Gangabhavani Vs. Rayapati Venkat Reddy and Ors, 2013 (15) SCC 298, while considering the evidentiary value of interested witnesses held as under:-

"15. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide Bhagaloo Lodh v. State of U.P. and Dahari v. State of U.P.)

16. In State of Rajasthan v. Kalki, this Court held: (SCC p. 754, para 7)

"7. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.

17. In Sachchey Lal Tiwari v. State of U.P., while dealing with the case this Court held: (SCC pp.414-15, para 7)

"7. .....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

18. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. 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/deceased."

40. Similarly dealing with the credibility of related witnesses the Apex Court in case of Jodhan Vs. State of Madhya Pradesh, 2015 (11) SCC 52 held as under:-

"24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab, it has been observed thus: (AIR p. 366, para 25)

"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan."

In the said case, it has also been further observed:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

25. In Hari Obula Reddy v. State of A.P., the Court has ruled that evidence of interested witnesses per se cannot be said to be unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduced a passage from the said authority: (SCC pp. 686-84, para 13)

"13. ....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."

26. The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the cross- examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy.

27. In this context, it is requisite to quote the observations made by the Court in State of Punjab v. Jagir Singh: (SCC pp. 285-86, para 23)

"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."

41. Recently, the Apex Court in Criminal Appeal No.312 of 2010, Laltu Ghosh versus Sate of West Bengal decided on 19.02.2019 held as under:

"13. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."

14. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the vidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:

"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.""

42. In another decision in Criminal Appeal No.1839 of 2010 Md. Rojali Ali & Ors. Versus State of Assam decided on 19.02.2019, the Apex Court held as under:

"10. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an ''interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ''interested' and ''related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra):"

43. Thus, it is consistent view of the Apex Court that version of witness tallied with each other cannot be discarded on the ground that they are related witnesses.

44. That the proposition of law, which is culled out from the law laid down by the Apex Court, that a related witness cannot be said to be interested witness merely by virtue of being relative of the victim. As the Apex Court had held that a witness may be called interested witness only when he or she derives some benefit from the result of litigation, which in the context of criminal case would mean that the witness was directly or indirectly interested in seeing the accused punished due to prior enmity or other reason, and thus it was a motive to falsely implicate the accused.

45. As far as the argument regarding dispute between Kiran Pal and Netrapal regarding farm and cattle has no force that the same would lead to PW-1 falsely implicating the accused in the murder of his father and brother.

46. The argument of the defence in regard to the site plan and the spot inspection made by Investigating Officer and non-recording of the fact that there was no wood and mustard found at the spot would not lead to the conclusion that the incident did not take place at the site so mentioned and mere minor omission on the part of Investigating Officer not to have collected such samples from the place of occurrence would not belie the prosecution story.

47. It is true that when incident took place inside the premises, the natural eye-witnesses are the people present inside the said premises, and naturally there will be no one from outside to witness the incident. In case of incident taking places on road-side, the natural eye-witnesses are people present on street and the passer bye.

48. So far as the involvement of appellants in the present case is concerned, informant has specifically mentioned in written report that appellant Yogendra Pal opened fire with his gun upon deceased Dharampal, and appellant Narendra Pal opened fire upon deceased Megh Singh. Dharampal and Megh Singh sustaining injuries died instantaneously. When prosecution witnesses were examined, they have also supported this fact. There is no inconsistency or contradictions in the statements of PW-1 to PW-4 about the role assigned to appellants Yogendra Pal and Narendra Pal. Both appellants have been convicted and sentenced for the offence under Sections 302 and 307 I.P.C.. Statements of prosecution witnesses, i.e., PW-1 to PW-4 are also consistent and clear on this point that co-accused Panna Lal (since died during appeal) opened fire upon the informant which did not hit him and he manage to save himself by hiding behind tree. It has also come in the statement of prosecution witnesses examined on behalf of the prosecution during trial and in the F.I.R. that co-accused Panna Lal (since died during appeal) opened fire upon the informant with the intention to kill him. Trial court has convicted and sentenced the appellant for the offence under Sections 302 and 307 I.P.C.. Attending circumstances emerged on the spot at the time of commission of the offence clearly reflect the common intention of accused-appellants in committing the present offence. Although, appellants have been convicted only for the offence under Section 307 I.P.C., but keeping in view the evidence available on record, conviction and sentence of the appellants for the offence under Section 307 I.P.C. is liable to be modified to the offence under Section 307/34 I.P.C.

49. As far as offence under Section 302 I.P.C. is concerned, specific allegations have been levelled against appellant-Yogendra Pal to cause death of Dharampal opening fire upon him. Similarly, Megh Singh was done to death, due to fire made by Narendra Pal. Thus, finding of the trial court regarding conviction of accused-appellants for the offence under Section 302 I.P.C. need no interference. As far as offence under Section 27 Arms Act against appellant Yogendra Pal is concerned, same is also based on correct appreciation of facts and evidence.

50. Thus, from the perusal of the oral and documentary evidence as well as the medical report, the prosecution has established the offence under Sections 302, 307/34 I.P.C. and 27 Arms Act beyond reasonable doubt and there is no material discrepancy in the statements of the PW-1 to PW-4 as well as in their cross examination, which can lead to believe the story proposed by the defence. The Motive behind the occurrence is very strong as well as the promptness with which the F.I.R. was lodged and corroboration of the medical report with the occurrence leads to undeniable fact that the accused had committed the double murder of Megh Singh and Dharampal in the day-light of 2nd March, 1982. There is no reason to discard the prosecution version and the version of the eye witnesses.

51. So far as sentence 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.

52. 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 the 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 confirm to and be consistent with the atrocity and brutality with 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].

53. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.

54. Hence, applying the principles laid down by the Apex 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 and also the fact that minimum sentence has been awarded to the appellants for the offence under Section 302 I.P.C., no interference is required by this Court. Punishment imposed upon the appellants is adequate and proportionate to the gravity of offence.

55. Considering the entire aspect of the matter and looking to the circumstances under which the present offence was committed, we are of the view that impugned judgment and order dated 05.05.1983 passed by the trial court is well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused-appellants. As such impugned judgment and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed.

56. Accordingly, present appeal preferred on behalf of accused-appellants Yogendra Pal and Narendra Pal lacks merits and it is dismissed. Conviction and sentence imposed upon accused-appellants Yogendra Pal and Narendra Pal under Section 302 I.P.C. and under Section 27 Arms Act in respect of appellant Yogendra Pal are upheld. However, conviction and sentence imposed upon them for the offence under Section 307 I.P.C. is modified to the offence under Section 307/34 I.P.C.. The punishment for the offence under Section 307/34 I.P.C. will be the same as imposed by the trial court under Section 307 I.P.C. If accused-appellants Yogendra Pal and Narendra Pal are on bail, they are directed to surrender before Court below immediately to serve out the remaining sentence imposed by trial court vide impugned judgment and order. Their bail bonds are cancelled and sureties are discharged from their liabilities.

57. Copy of this judgment along with lower court record be sent forthwith to the court concerned for compliance. Compliance report be sent to this Court.

Order date : 24.05.2019

A.N. Mishra