Jitendra And Others vs State Of U.P.
2022 Latest Caselaw 1562 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                           Reserved on 23.03.2022
 
							       Delivered on 27.04.2022			
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 113 of 2007
 

 
Appellant :- Jitendra And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Brijesh Sahai,A.C. Srivastava,Devendra Swaroop,Jamaluddin Mohd. Nasir,Mohit Kumar Singh,Noor Mohammad,P.K.Srivastava,R.P. Singh,S.K. Pandey,Sujata Choudhary,Sunil Singh,Yogesh Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

[By Justice Sadhna Rani (Thakur)]

The appellants are aggrieved by the judgment and order dated 22.12.2006 passed by the Additional District and Sessions Judge, Court No.16, Meerut in S.T. Nos. 830 of 2002 (State Vs. Anangpal and Others) arising out of Case Crime No.103 of 2002, under Sections 147, 148, 307, 302, 120B I.P.C., Police Station Sardhana, District Meerut.

By the impugned judgment and order, the learned trial court convicted and sentenced all the three appellants Jitendra, Bovinder and Amit under Section 147 I.P.C. for one year rigorous imprisonment each; under Section 148 I.P.C. for two years rigorous imprisonment each; under Sections 302/149 I.P.C. for life imprisonment with fine of Rs. 5,000/- each and in default, all the three accused persons have to undergo additional imprisonment for three months; under Section 307/149 I.P.C. for seven years rigorous imprisonment with fine of Rs. 5,000/- each and in default, accused persons have to undergo further simple imprisonment of three months.

Accused Anangpal was acquitted of the charges under Sections 120B/ 302 I.P.C by the same judgment in S.T. No. 831 of 2002 (State Vs. Bovinder and Another) and accused Bovinder and Amit were acquitted of the charges under Sections 4/25 Arms Act.

During the pendency of the appeal, appellant nos.2 and 3 namely Bovinder and Amit were granted remission by the State. Resultantly, both of them did not press their appeal at the stage of arguments, hence, the appeal is dismissed on their behalf as "Not pressed". Now, only the appeal of appellant no.1- Jitendra is before us for consideration. It may be noted that the proposal of premature release of appellant Jitendra is said to be pending before the State Government.

The law was set into motion by lodging of an F.I.R. by Munesh Devi w/o late Virendra Singh, by submitting a hand written complaint scribed by Umedsingh (brother of first informant Munesh Devi), wherein she had asserted that her husband had died in a road accident about eight years ago and she alongwith her minor son Sumit and minor daughter Kumari Priya @ Bitto used to live in her house in the village Ahmedabad. On 26.02.2002, she went to the house of Jagveer in the village Jaunmana and when she came back on 27.02.2002 at about 6:00 AM, she found that her daughter Kumari Priya was lying dead with the injuries on her person and her son Sumit was lying injured in an unconscious state. When she sprinkled water on Sumit he gained consciousness and disclosed that on the last night i.e. on 26.02.2002 at about 11:00 P.M. Jitendra, Bovinder and Amit all sons of Anangpal armed with knives had assaulted Priya @ Bitto and Sumit with the intention of committing their death and went back presuming both of them to be dead. It was stated that Anangpal was the elder brother of her deceased husband who after the death of her husband developed enmity with her. Previously also, Anangpal and his sons had assaulted her and her children. Jitendra, Bovinder and Amit in conspiracy with their father Anangpal had committed murder of her daughter and inflicted fatal injuries to Sumit with the intention of causing his death. The dead body of Km Priya was lying in her house while the injured Sumit was sent to hospital for the treatment.

On the basis of the written complaint, first information report was lodged on 27.02.2002 at 07:30 AM at the Police Station Sardhana, District Meerut. After lodging of the F.I.R., the officer in charge of the police Station Sardhana Sri Jagdish Singh took over the investigation. He collected samples of blood stained and normal earth, took into possession one stick, one pair of chappal, two blood stained pieces of tree bark, one rolling pin, pant and shirt having blood stains over them, bed sheet and mattress and got prepared memos in that regard. He recorded the statement of the complainant and other witnesses, prepared the site plan, got prepared the inquest report and other necessary documents, got the dead body sealed and sent the same for the postmortem. All the blood stained articles alongwith the blood stained and simple soil were sent for chemical examination to the Forensic Science Laboratory.

On 13.03.2002, the Investigating Officer arrested Amit and Bovinder and on their pointing out recovered one knife and one Chhura used in the incident. All the formalities regarding the recovery were fulfilled. Later on he seized a T-shirt and a lamp also, prepared the memo, copied the documents in the case diary. The reports of the Forensic Science Laboratory were received and entered in the case diary. After due investigation, on 11.05.2002, the Investigating Officer filed the charge-sheet against Anangpal, Jitendra, Bovinder, Amit and Bahadur and on 28.08.2002 the charge-sheet was filed against Mam Chandra under Sections 147, 148, 302, 307, 120B and 34 I.P.C.

On 17.03.2002 and 27.03.2002, charge-sheets against Amit and Bovinder; respectively were filed under Section 4/25 I.P.C.

After taking cognizance, the cases were committed to the Court of Sessions, wherein on 23.06.2003, charges under Sections 147, 148, 302, 307 I.P.C. were framed against Jitendra, Bovinder, Amit and Mam Chandra. The charges under Sections 302, 120B I.P.C. were framed against accused Anangpal and charges under Sections 4/25 Arms Act were framed against Bovinder and Amit, separately. All the accused persons denied the charges and demanded trial.

During trial, accused Bahadur was declared juvenile so his file was transferred to the Juvenile Justice Board and the file of Mam Chandra was also separated vide order dated 08.06.2006 as he was absconding.

In support of their case, the prosecution had produced as many as nine witnesses. P.W.-1 Smt. Munesh Devi is the first informant, who has proved her report. P.W.-2 Sumit Kumar Balliyan is the injured and the only eye witness of the incident. P.W.-3 is S.I. Ranveer Sharma, who has proved the inquest report and the documents prepared alongwith the same. He has also proved various memos prepared by him. P.W.-4 doctor Shailendra Sharma has proved the injury report of the injured Sumit Kumar Balliyan (P.W.-2). P.W.-5 is HCP Jaiveer Singh, who has proved chik F.I.R. and GD of Case Crime No.103 of 2002, under Sections 302, 307 and 120-B I.P.C. P.W.-6 Jagdish Singh is the Investigating Officer of Case Crime No.103 of 2002. He has proved the site plan of the place of incident, site plans of the place of recovery of both the knives, charge-sheet in Case Crime No.103 of 2002 and other documents prepared by him and the material exhibits collected by him during the investigation. P.W.-7 Praveen Kumar is the Constable, who has proved chik F.I.Rs and GDs of Case Crime No.127 of 2002 and Case Crime No.128 of 2002 both under Sections 4/25 Arms Act. P.W.-8 Doctor Ramesh Chandra Awasthi has proved the postmortem report of the deceased Priya. P.W.-9 Jag Mohan is the Investigating Officer of Case Crime Nos.127 of 2002 and 128 of 2002 both under Section 4/25 Arms Act who has investigated the cases and filed charge- sheets under Section 4/25 Arms Act against Amit and Bovinder separately.

As documentary evidence, the prosecution had produced the written report by the first informant as Exhibit Ka-1, report to the SHO, Sardhana dated 18.02.2002 as Exhibit Ka-2, memo of recovery regarding lamp and blood stained shirt as Exhibit Ka-3, inquest report as Exhibit Ka-4, report to P.S. Sardhana, Meerut as Exhibit Ka-5, letters to CMO as Exhibit Ka-6 and Exhibit Ka-7, police form no.13 as Exhibit Ka-8, photo dead body as Exhibit Ka-9, memo of recovery regarding one blood stained stick as Exhibit Ka-10, memo regarding one pair of blood stained slippers, two pieces of tree bark, one wooden roller pin and blood stained shirt and pant as Exhibit Ka-11, memo regarding blood stained mattress and bed sheet as Exhibit Ka-12, memo regarding blood stained and normal piece of earth as Exhibit Ka-13, injury report of injured Sumit Kumar Balliyan as Exhibit Ka-14, chik F.I.R. of Case Crime No.103 of 2002 as Exhibit Ka-15, copy of its G.D. as Exhibit Ka-16, site plan of Case Crime No.103 of 2002 as Exhibit Ka-17, memo of recovery regarding two knives as Exhibit Ka-18, letter of CJM addressed to the Central Food Laboratory as Exhibit Ka-19, site plan regarding recovery of knives as Exhibit-20, charge-sheet against Anangpal, Jitendra, Amit, Bovinder and Bahadur, under Sections 147, 148, 307, 302, 120B, 34 I.P.C. as Exhibit Ka-21, charge-sheet against Mam Chandra under Sections 147, 148, 307, 302, 120B, 34 I.P.C. as Exhibit Ka-22, chik F.I.R. of Case Crime Nos.127 of 2002 and 128 of 2002, under Section 4/25 Arms Act against accused Amit and Bovinder as Exhibit Ka-23, copy of its GD as Exhibit Ka-24, postmortem report as Exhibit Ka-25, site plans regarding recovery of knives as Exhibit Ka-25 (repeated number) and Exhibit Ka-26, charge-sheet against Amit in Case Crime No.127 of 2002 under Section 4/25 Arms Act as Exhibit Ka-27, Charge-sheet against Bovinder in Case Crime No.128 of 2002 under Section 4/25 Arms Act as Exhibit Ka-28 and reports of the Forensic Science Laboratory as Exhibit Ka-29 and Exhibit Ka-30.

As material exhibit, the prosecution has produced one mattress as Exhibit-1, bed sheet as Exhibit-2, a pair of slippers as Exhibit-3, tree barks as Exhibit-4, roller pin as Exhibit-5, pant as Exhibit-6, shirt as exhibit-7, a wooden stick as Exhibit-8, blood stained earth as Exhibit-9, plain earth as Exhibit-10, T-shirt of injured Amit as Exhibit-11, lamp as Exhibit-12, knives recovered from Amit and Bovinder as Exhibit-13 and 14; respectively.

The prosecution witnesses P.W.-1 and P.W.-2 are the witnesses of fact who have deposed the circumstances leading to the incident and the incident; respectively. Rest of the witnesses are formal witnesses who have proved the proceedings conducted by them, documents prepared by them and the material exhibits collected by them.

After the completion of the prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they denied the prosecution evidence and stated that there was a partition dispute between the parties. As defence evidence D.W.-1 RSO Control Room, Police Line Girilal had been produced.

Being aggrieved by the judgment and order of the trial court, appellants Jitendra, Bovinder and Amit have filed the present appeal on the ground that conviction and sentence are against the weight of the evidence on record and are severe and contrary to law, hence, prayer is made to set aside the impugned judgment and order against the appellants.

Learned A.G.A. has refuted the arguments advanced by the learned counsel for the appellants and supported the impugned judgment and order passed by the trial court. He has submitted that the prosecution has successfully proved its case against each appellant beyond all reasonable doubts. P.W.-2 is the injured and independent eye witness who has fully supported the prosecution case, his evidence transpires full confidence and thus, the learned trial court cannot be said to have erred in returning the conviction against the appellants. The appellants have been properly sentenced through the impugned judgment which does not suffer from any infirmity and illegality.

During arguments as the appellant nos.2 and 3- Bovinder and Amit were granted remission by the State, hence, the appeal on their behalf has not been pressed.

Now, only the appellant no.1 Jitendra is before us for consideration.

Brief case of the prosecution is that when P.W.-1 Smt. Munesh Devi had gone out of the village on 26.02.2002, the appellant alongwith co-accused persons had murdered her 16 years old daughter namely Priya @ Bitto and grievously injured her 12 years old son Sumit Kumar Balliyan. The motive behind the incident as indicated in the first information report is the enmity between the parties and it is alleged that the husband of the first informant and the father of the present appellant were the real brothers. The husband of the first informant died in an accident in the year 1995 and after his death the appellant and his father had developed enmity with the first informant and her children. Though the reason of enmity is not mentioned in the F.I.R. but P.W.-1 Smt. Munesh Devi (first informant) has stated that after the death of her husband she filed a claim for accidental compensation. The brother of her husband, the father of the present appellant namely Anangpal, also wanted death claim of the deceased but his application was rejected by the Motor Accident Claims tribunal and the compensation money was received by the first informant for herself and her two minor children. Though no document has been filed in support of the above stated motive, but the accidental death of the husband of the first informant is not denied by the appellant/ accused. The appellant in his statement under Section 313 Cr.P.C. had admitted that there was a dispute between the parties regarding the partition. Hence, the element of enmity between the parties is admitted.

It is settled law that enmity is a double edged weapon which may compel one party to commit the offence or the other party to implicate the accused falsely.

Thus, since enmity between the parties is an admitted fact, the Court has to assess the evidence very carefully as the weight of the evidence and trustworthiness of the witnesses is a relevant factor for reaching on any conclusion.

The entire conviction of the present appellant is based on the ocular evidence of P.W.-2 Sumit Kumar Balliyan who is an injured person. It is argued by the learned counsel for the appellant that mere presence of the injured on the spot cannot be said to be a guarantee of his being a trustworthy and reliable witness.

Reliance can be placed on this point on the judgment of the Apex Court in Kalabhai Hamirbhai Kachhot Vs. State of Gujarat, 2021 SCC OnLine SC 347 wherein it was reiterated that in Mohar Singh Vs. State of U.P., (2019) 8 SCC 50, the Apex Court has held that convincing evidence is required to discredit an injured witness. Paragraph 11 of this judgment is relevant to be reproduced as under:-

"11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity."

In Kalabhai Hamirbhai Kachhot (supra), the Apex Court has further relied on the decision in the State of U.P. Vs. Naresh & Ors., (2011) 4 SCC 324 and opined that the evidence of an injured witnesses cannot be brushed aside without assigning cogent reason. The paragraph Nos.-27 & 30 of the decision in the State of U.P. Vs. Naresh as under are found relevant in this regard:-

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.

30. 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 the witness and record a finding as to whether his deposition inspires confidence."

In Lakshman Singh Vs. State of Bihar (now Jharkhand), (2021) 9 Supreme Court Cases 191, the Apex Court has held that in State of M.P. v. Mansingh, (2003) 10 SCC 414, it was held that "the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly". It is further observed in the said decision that "minor discrepancies do not corrode the credibility of an otherwise acceptable evidence".

Thus, it is clear from the above decisions that the presence of an injured witness at the time and place of the occurrence cannot be doubted and the evidence of such a witness is extended to a great weightage and very cogent and convincing grounds are required to discard his testimony.

In the case at hand, the prosecution has produced only two witnesses of fact. Admittedly, P.W.-1 the first informant Smt. Munesh, the mother of the deceased and the injured, is not an eye witness. She was not present in the village on the fateful day.

The postmortem report of deceased- Priya @ Bitto is on record as Exhibit Ka-25 wherein the cause of death is shown to be shock and hemorrhage as a result of injury sustained and as per P.W.-8 the doctor, conducting the postmortem, all these injuries are possible to be inflicted by knife, the weapons assigned to the accused.

PW-4 Doctor Shailendra Sharma has proved the injury report of injured Sumit Kumar Balliyan (P.W.-2). The following injuries were found on the person of injured Sumit Kumar Balliyan on 27.02.2002 at 10:15 AM:-

1). Incised wound over left arms on posteriolateral aspect 3 cm above elbow joint, size 4.5cmx 2cmx 2cm deep, bone exposed, blood clot present in wound, dislodging of clot started fresh bleeding from depth, appears fresh.

2). Incised wound with clear edges on left side chest wall in mid axillary line size 5cmx 2.5 cmx 2.5 cm, probing of depth showed cut upto Intercostal muscles, bleeding profusely on touch, appears fresh, no airbubbles noticed coming from depth.

3). Incised wound with clear cut margins on abdomen left side, having clotted blood in wound, size 6cmx 4cmx 3cm showing protrusion of omentum out of wound on the anteriomedial aspect of wound showing continuity with abdominal cavity, depth of wound not probed because of bleeding from wound and omentum.

Though the report of the radiologist or the supplementary medical report of the injured has not been produced by the prosecution but in the injury report itself, the doctor has opined the injuries having been caused by the sharped edged weapon and nature of the injury was found to be grievous.

The alternative defence theory presented by the appellant was that at the time of the incident, the first informant (P.W.-1) was present at the spot. She had illicit relations with Kalu Ram and her daughter saw her mother with the said Kalu Ram in objectionable state, so both of them had murdered the deceased Priya @ Bitto.

A suggestion had also been given to witnesses that some miscreants came and committed the incident in the dead of night and the appellant and co-accused had been falsely implicated by the prosecution, but neither there is any evidence regarding illicit relations of Kalu Ram and the first informant nor any evidence had been produced that the unknown miscreants had committed the murder. There is no such avernment in the statements of the appellant or any other co-accused under Section 313 Cr.P.C.

It is an admitted fact that Priya @ Bitto (deceased) was not the real daughter of the first informant and was her stepdaughter and that the mother of the deceased was the real sister of the first informant.

Further, there is no explanation and it is difficult to believe that a mother would cause fatal injuries to her own son for any apprehension of ill will against her stepdaughter.

Now the trustworthiness of the evidence of the only eye witness, P.W. -2 Sumit Kumar Baliyaan who is also an injured person is to be seen.

P.W.-2, the injured minor eye witness had been examined after recording satisfaction with regard to his ability to depose in the court, P.W.-2 has stated that on the day of the incident he and his sister Priya (deceased) were alone in the house. At about 11:00 PM, they heard some noise in the room wherein the buffalo was tied up. He and his sister both sat on the Cot they were sleeping. His sister lit the lamp in the absence of electricity as it was dark inside. Amit and Jitendra sounded 'your buffalo had loosen its rope, tied her up'. On hearing that, his sister opened the door and all the accused persons, namely, Amit, Jitendra and Bovinder entered in the room. They caught hold of PW2 and thrashed him. Amit assaulted on his left hand with knife. Appellant- Jitendra assaulted with the razor and Bovinder assaulted on his back with the knife. At the same time, his sister attacked Amit with a stick, causing injuries on his chin. Someone standing on the roof asked the assailants to leave, raising a warning that someone came there. Mam Chandra was on the stairway while Bahadur was on the roof. PW 2 had identified them in the moonlight. Hearing the call, Jitendra and Bovinder ran towards outside. His sister followed and attacked them with the stick and roller pin in her hands. All the three persons caught hold of his sister near the tree in the Angan and assaulted her with knives. She fell down near the tree. PW2 wanted to save her sister but Bovinder assaulted on his toes by knife. PW2 raised alarm but no one came to save them.......After the incident PW2 saw the accused persons running towards the roof through the stairway. Because of the fear that the accused persons might come again, PW2 dragged his sister inside the room and offered her water. He changed his shirt which had cuts of knives. As his sister stopped speaking, so he got scared and became unconscious. When in the morning, his mother came and woke him up, he narrated the whole incident to his mother. He was then taken to the Ishwar Nursing Home, Sardhana and from there to the Jagat Nursing, Meerut by Anil and Jasbeer. PW2 stated that he had identified the accused persons in the light of the lamp. The accused persons used to quarrel with them often, so that they might leave the village. This witness had also identified his shirt, which he was wearing at the time of the incident.

It is argued by the counsel for the appellant that P.W.-1 though alleged that she came back at about 6:00 AM but it was not possible for a person to come back at 6:00 in the morning from another village.

In this regard, P.W.-1- has clarified in her statement that the place 'Jonmana', where she had gone to purchase a buffalo, was 35 kilometres from her village. It took two hours from her village to reach Jonmana by bus. It is said by P.W.-1 that as she had to make an inquiry with regard to the milk giving capacity of buffalo, so she stayed there. In the evening at 6:00 PM of the previous day and in the morning at about 5:30 AM on the next day, on seeing the quantity of the milk given by the buffalo being dissatisfied she came back in the morning. PW1 has also stated that her brother and father had also reached to 'Jonmana' on her call after she reached there and in the morning she came back alongwith her brother Umed Singh, father Giriraj Singh and Kalu Ram, who happened to be the brother of Jagveer and a friend of Umed Singh (the brother of the first informant). It is stated that the brother of the first informant was having an ambassador car. As the distance 35 kilometers from Jonmana to the village Ahemdabad was covered by car, and PW1 left at about 5:30 AM in the morning, in our opinion, it would have hardly taken 30 to 40 minutes or maximum one hour. The fact in the statement of P.W.-1 that at about 5:30 AM they had examined the quantity of the buffalo milk and after 5 minutes, they had left for their village is further confirmed by the fact that the first information report had been scribed by Umed Singh, brother of the first informant and was submitted at the police station at about 7:30 AM. P.W.-5 HCP Jaiveer Singh, who had registered the F.I.R. and endorsed the GD of this offence had admitted in his cross-examination that for lodging the F.I.R. Kalu Ram and Giriraj Singh came to the police station. It is also stated by P.W.-1 that when she went to the police station, her brother waited outside the police station alongwith her injured son and when she was completing the formalities in the police station, her brother alongwith villagers took her son to the hospital namely Ishwar Nursing Home Sardhana and from there he was taken to the Jagat Nursing Home, Meerut.

Though no document regarding any treatment given in the Ishwar Nursing Home, Sardhana is on record but the injury report of the Jagat Nursing Home, Meerut is on record as Exhibit Ka-14. The doctor who examined the injured in the Meerut hospital found the wounds to be dressed up which shows that before coming to Meerut the injured was given first aid at the Ishwar Nursing Home Sardhana. PW-2 has also stated in the examination-in-chief that he was first taken to Ishwar Nursing Hme Sardhana and then to Jagat Nursing Home Meerut.

Thus, the presence of Umed Singh and Giriraj Singh before 7:30 AM, at the time of lodging F.I.R., is proved by the first informant. The presence of the brother and father of the first informant at the time of lodging of first information report alongwith her not only supports the version of the first informant that she came back from Jonmana alongwith her brother, father and Kalu in the ambassador car of her brother but also ruled out the possibility of Kalu Ram staying in the house of the first informant on the fateful night. Moreover, in the site plan, only one room has been shown in the use of the first informant and her children. The other room has been shown to be used for keeping buffalo and there was only one bed in the room which again falsify the probability that the deceased saw her mother and Kaluram in a compromising position which led to the incident. The Investigating Officer has also not shown any mark of stay of any other person in that room in the night in the site plan.

If at the worst, it is assumed for a moment that the first informant and Kalu Ram were staying in the house in question on the fateful night and the deceased girl saw them in an objectionable position, then why would a mother (PW1) try to kill her own minor son. The injuries of the injured Sumit cannot be said to be simple or man made. In the injury report also, the doctor had found the injuries of the injured having been inflicted between 9:00 to 11:00 PM on 26.02.2002 and this correlates with the time of the incident which has been disclosed by the prosecution. Further, if the injuries were inflicted at about 11:00 PM and the girl had died then, it was not possible for PW-1 to wait there for more than seven hours to take her son to the hospital, who was in an unconscious state. For the above, in our considered opinion, the argument of the learned counsel for the appellant that the offence was committed by the first informant herself has no merits. There is no substance in the suggestion that some unknown miscreants had committed the crime.

P.W.-2 has further clearly mentioned the names of the accused persons and there was no reason for him to spare the real culprits and to falsely implicate the appellant and other co-accused.

Though, it is found that according to P.W.-2, accused Bovinder had assaulted him on his back and when he tried to save his sister Priya @ bitto, Bovinder again assaulted him on his toes by knife, but neither on the back nor on the toes any injury was found by the doctor. But it may be noted P.W.-2 has nowhere stated that when Bovinder assaulted him on his back, he had sustained any injury. Otherwise also, all the injuries, are on his left hand and assault by knife of Jitendra is supported by the injury report as Exhibit Ka-14. The shirt which he was wearing at the time of the incident, 5 small and two big cut marks were found by the Investigating Officer as is evident from the recovery memo.

As per the FSL report, human blood was found on the roller pin, mattress, slippers, bed sheet, stick, knives, salwar and undergarment of the deceased. In the site plan also, the marks of dragging the deceased from near the tree to the room can be seen, which again supports the version of the injured that he dragged his injured sister back into the room as he had apprehension that the accused persons might come again. The Investigating Officer had also found blood near the tree, on the bed and the tree bark and all this supports the case of the prosecution.

In State of M.P. v. Mansingh (2003) 10 SCC 414, it was observed and held by the Apex Court that the evidence of an injured witness has greater evidentiary value and unless compelling reasons exist, his statement cannot be discarded. It is further observed therein that "minor discrepancies do not corrode credibility of an otherwise acceptable evidence".

Similar position has been reiterated in Kalabhai Hamirbhai Kachhot Vs. State of Gujrat, 2021 SCC OnLine SC 347 wherein the reference of judgment Mohar Singh Vs. State of U.P., (2019) 8 SCC 50 and Kalabhai Hamirbhai Kachhot (supra) can be found.

In Kalabhai Hamirbhai Kachhot (supra), it was observed that exaggerations per se do not render the evidence brittle, but it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

In Menoka Malik And Others Vs. State of West Bengal And Others, (2019) 18 Supreme Court Cases 721, it was held by the Apex Court that "it is a well settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted.

It is the duty of the Court to separate the chaff from the grain. Minor variations in the evidence which do not go to the root of the matter need not be given undue importance, as they do not materially alter the evidence/credibility of the eye witnesses as a whole."

Only contradiction regarding the absence of the injury on the toes and back of the injured pointed out by the defence do not make the statement of PW-2 as false or unworthy of due credence. Rest of the statement of PW-2 is supported by the medical evidence, site plan as well as by the statement of the Investigating Officer.

It is also argued by the learned counsel for the appellant that the first information report is ante time as in the inquest report the names of the assailants had not been mentioned; there is an over writing in the Case Crime No.103 of 2002 and Section 120-B I.P.C. is only written in the chik F.I.R. Exhibit Ka-15 whereas it is not mentioned in the GD and the carbon copy of the same chik F.I.R. It is also not mentioned in the memo of taking into possession of the blood stained and plain earth. It is true that Section 120B I.P.C. is not mentioned in the G.D. (Exhibit Ka-16) and in the carbon copy of the chik F.I.R. but in our opinion, the job of the first informant ended with the handing over of her report at the police station and it was up to the officers present in the police station to register the case under the relevant legal provision. If at the time of registering the F.I.R., they have not mentioned Section 120-B I.P.C. in the chik F.I.R. and in the G.D. but later on, after investigation Section 120-B I.P.C. was added in the chik F.I.R., it was the Investigating Officer who had to explain. In any case, it cannot be said to be the fault on the part of the victim. Moreover, the dispute regarding adding of Section 120B I.P.C. came to an end with the acquittal of accused Anangpal, the only accused facing charges under Section 302/120B I.P.C.

In Ankush Maruti Shinde and others Vs. State of Maharashtra, (2019) 15 Supreme Court Cases 470, the Apex Court has held that the benefit of the lapse in the investigation and/or unfair investigation cannot be given to the persons who are real culprits, to those who had committed the offence.

In Gangadhar Narayan Nayak alias Gangadhar Hiregutti Vs. State of Karnataka and others, 2022 SCC OnLine SC 337, the Apex Court held that order of the cognizance of the case and the trial cannot be set aside unless such glaring illegality is shown in the investigation which amounts to miscarriage of justice. If any fault on the part of the Investigating Officer does not go to the root of the case, the whole investigation cannot be thrashed away.

At the same time, in all the memos prepared after registering the first information report on the record, Section 120-B I.P.C. has been mentioned. Moreover, in the inquest report Case Crime No.103 of 2002 has been mentioned very clearly which shows that at the time of preparing the inquest report i.e. at about 8 o'clock in the morning, the first information report was in existence.

The Apex Court in Rajesh Chandulal Gandhi and others Vs. State of Gujarat (2002) 4 SCC 426 opined that for non mentioning the number of the first information report and the names of accused persons in the inquest report, the inference can not be drawn that the first information report is ante time. As per Section 174 Cr.P.C. also there is no provision of mentioning case crime number in the inquest report.

In Tehseen Poonawalla Vs. Union of India and Another, (2018) 6 Supreme Court Cases 72, the Apex Court observed that the purpose of holding an inquest is limited. The inquest report does not constitute substantive evidence. Hence matters relating to how the deceased was assaulted or who assaulted him and under what circumstances are beyond the scope of the report. The report of inquest is primarily intended to ascertain the nature of the injuries and the apparent cause of death.

In Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450 on pp. 462-63, para-15, the Apex Court held that it is well settled by a catena of decisions that the purpose of holding an inquest is very limited, viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eye witness.

Thus, in our opinion, the above argument of the learned counsel for the appellant has no force.

It is also argued by the learned counsel for the appellant that there was no source of light on the spot. The lamp which was said to lit up on the spot, was given to the Investigating Officer on 23.03.2002, i.e. after about a month of the date of the incident and the trial court observation is on record that the lamp looked to be a new one. This shows that in the night accused persons could not be identified and because of enmity the first informant had falsely implicated them.

It is true that in the site plan, source of light has not been shown and the lamp produced in the court is also found to be new one, but admittedly the injured and the accused persons are the first cousins and the deceased was said to have opened the door after identifying the voice of her cousins, who had entered in the room wherein the first assault on PW-2 was made. This shows that it was not hard for them to recognize/ identify them by their voice, gesture and physique.

In Anwar Hussain Vs. State of U.P., (1982) 1 SCC 491, it was observed that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gait, features, etc.

In the evidence of P.W.-2, it has come that it was the moon light and he had identified Mam Chandra and Bahadurin in the moon light. Mam Chandra was on the stair way and Bahadur was on the roof and admittedly the offence had been committed starting from the room up to the tree outside where Priya @ Bitto (deceased) was assaulted by all the three accused persons. This space from room up to the courtyard was enough to identify the accused persons in the moonlight as well. For the said facts, in our opinion, the argument of the learned counsel for the appellant about the lack of source of light also fails.

In the light of above discussion, the prosecution from the statement of the injured Sumit Kumar Balliyan (P.W.-2), the only eye witness of the incident, had established the mode, manner and sequence of the entire incident. The evidence of the injured appears to be clinching and trustworthy and the same can be safely acted upon. Mere small contradictions in the testimony of PW2 cannot vitiate the whole prosecution case.

It is reiterated at the cost of repetition that in Kalabhai Hamirbhai Kachhot (supra), it has been held that mere exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Considering the said principle, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaboration of the statement made by the witness earlier. The omissions which do not amount to contradictions in material particulars, which do not go to the root of the case to materially affect the trial or core of the prosecution case, would not render the testimony of the witness untrustworthy.

In our opinion, merely absence of injury on the back or the toes of the injured (PW2) cannot be said to be a contradiction which would go to the root of the case rendering the testimony of the witness P.W.-2 as unreliable.

It is further argued by the learned counsel for the appellant that the appellant is languishing in jail since the year 2002 whereas co-accused Bovinder and Amit have been granted remission. Hence the life sentence of the appellant be commuted and be modified as a period already undergone. In this regard Sections 55, 57 of I.P.C. and Sections 432, 433 and 433A of Cr.P.C. can be looked into.

In all the above mentioned sections, it is mentioned that in every case in which sentence of imprisonment for life has been passed, the appropriate Government may commute/ suspend the execution of sentence and remit the whole or any part of the punishment.

In Duryodhan Rout Vs. State of Orissa, (2015) 2 Supreme Court Cases 783, the Apex Court held that life imprisonment means imprisonment for life i.e. imprisonment for the remainder of the convict's life. However, life sentence can be commuted by the appropriate Government under Section 55 of I.P.C. and Sections 432 and 433 of Cr.P.C.

In Raj Kumar Vs. State of Uttar Pradesh, (2019) 9 Supreme Court Cases 427, the Apex Court has held that a bare perusal of Section 433 Cr.P.C. shows that the powers the said under Section can be exercised only by the appropriate Government. This power cannot be exercised by any Court including the High Court. At the best, the court can recommend the State Government that such power may be exercised but the power of the appropriate Government cannot be usurped by the Courts and the Government cannot be directed to pass "formal compliance order". It is further held that when a minimum sentence is prescribed by law, even the Apex Court cannot, in exercise of its power under Article 142 pass an order contrary to law.

Thus, from the above provisions of I.P.C. and Cr.P.C. as also the legal pronouncements it is clear that the power of computation of conviction/ sentence lies with the appropriate Government and when a minimum sentence is prescribed by the law holding the field, the Court cannot direct for commutation of the sentence. It goes without saying that under Article 72 of the Constitution of India, the President may grant pardon etc. and suspend remit or computes the sentence in certain cases and under Article 161 of the Constitution of India, the State Government can exercise this power, but this Court in absence of any provision in this regard cannot commute the sentence of life imprisonment into the period of sentence undergone. Thus, the prayer of the learned counsel for the appellant in this regard has no force.

Hence, in the totality of facts and circumstances of the case, we are of the considered opinion that the conviction of the appellant for the offence under Section 147, 148, 302/149 I.P.C. and sentence for the prescribed period including life imprisonment for the aforesaid offences alongwith fine of Rs. 5,000/- with default stipulation and for seven years rigorous imprisonment alongwith fine of Rs.5000/- with default stipulation under Section 307/149 I.P.C., awarded by the trial court is wholly justified. The trial court has given cogent reasons for awarding the sentence. The impugned judgment does not call for any interference by this Court.

The appeal lacks merit and is liable to be dismissed.

The appeal is hereby dismissed.

Certify this judgment to the court below.

The trial court record shall be transmitted back forthwith.

Order Date :- 27.04.2022

Radhika