Amar Singh And Another vs State Of U.P.
2023 Latest Caselaw 12672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

C.J. Court							            AFR
 
									Reserved
 
CRIMINAL APPEAL No. - 1752 of 2012
 
	1.  Amar Singh			
 
	2.  Panjabi			.....................                  	Appellants
 
						Vs.
 
	State of U.P.			.....................		Respondent	_________________________________________________________
 
	For appellants				:	Shri Jitendra Kumar Mishra
 
	For respondent / State			:	Shri Amit Sinha,  AGA  & 
 
							Ms. Mayuri Mehrotra, 
 
							State Counsel	_________________________________________________________
 
Hon'ble Pritinker Diwaker, Chief Justice
 
Hon'ble Nalin Kumar Srivastava,J.

(Per : Nalin Kumar Srivastava, J.)

(25.04.2023)

1. Present criminal appeal has been preferred by appellants Amar Singh and Panjabi against the judgement and order dated 6.4.2012 passed by Additional District & Sessions Judge, Court No.1, Kannauj in Sessions Trial No.181 of 2011 (State vs. Amar Singh and another) convicting the appellants for the offence punishable under Sections 302, 394 and 307 IPC and sentencing them to undergo rigorous life imprisonment and a fine of Rs. 10,000/-, ten years rigorous imprisonment and a fine of Rs. 5,000/- and seven years rigorous imprisonment and a fine of Rs. 4,000, respectively, with stipulation of default clause. All the sentences were directed to run concurrently.

2. Brief facts of the case, as culled out from the record, are that informant Mijaji Lal son of Ramadin Yadav, resident of village Mansukhpurwa, Majra Bahosi, Police Station Indergarh, District Farrukhabad gave a verbal information on 28.12.1989 at about 20.30 hours at Police Station Indergarh that on 28.12.1989, his brothers Mewa Lal and Prahlad and nephew Veer Singh had gone to sow wheat in barren land. Mewa Lal and Veer Singh had returned to home, but Prahlad Singh was digging and weeding grass with spade. Amar Singh, resident of the same village, had grudge for about 10-12 years because of the said barren land. When Amar Singh came to know that wheat has been sown in the field, he armed with ''farsa', Panjabi armed with ''sword', Chaubey armed with Tawal and Nanhu with lathi reached at the field at about 4.00 p.m. and started abusing and beating Prahlad. On his shrieks, Pappi, daughter of Mewaram, who was cutting grass nearby, rushed to the house and informed about the incident. Thereafter, informant armed with licensee gun No. 55380 with belt and eight cartridges alongwith his both sons, namely, Mahendra and Surendra reached the spot. The accused persons left Prahlad Singh and started beating Mewa Lal, Veer Singh and Mahendra Singh and caused injury to every one. Amar Singh snatched the gun with belt and cartridges and ran away towards Majhila. Incident was witnessed by the informant, Pappi, Narendra, Surendra and all other villagers. Condition of Prahlad Singh, Mewalal and Veer Singh was serious.

3. On the basis of the information aforesaid, chik F.I.R. (Ext. Ka-1) was registered at Police Station concerned on 28.12.1989 at 08.30 p.m. under Sections 307, 394 and 324 IPC. G.D. entry was also made at the same time, which is Ext. Ka-6.

4. Investigation of the case proceeded. Injured were sent for medical examination and on the way, Prahlad Singh succumbed to his injuries. The Investigating Officer recorded the statement of witnesses. He inspected the spot and prepared site plan (Ext. ka-8). He also prepared the inquest report (Ext. ka-3) of the deceased and papers relating to post mortem. The Investigating Officer also took the specimen of plain and bloodstained soil from the place of occurrence and prepared the memo (Ext. ka-9).

5. Post mortem of the dead body of the deceased was performed and autopsy report (Ext. ka-2) was prepared by Dr. O.P. Gangwar on 30.12.1989 at 1.10 p.m. On examination of the dead body of the deceased, following ante-mortem injuries were found:

"(1) Lacerated wound 3.5 cm X 1 cm scalp deep left side head 11 cm above left ear.

(2) Abraded contusion 10 cm X 4 cm over left side face involving middle of nose underlying nasal bone and left maxilla fractured.

(3) Lacerated wound 1.5 cm X .5 cm X muscle deep over left side upper lip.

(4) Incised wound 2 cm X .3 cm X bone deep over angle of lower jaw on the left side margin clear cut both angle of sharp.

(5) Incised wound 4 cm X 1 cm X bone deep left side chin , margin clear cut both angle sharp obliquely placed underlying bone cut fracture.

(6) Incised wound 9 cm X 2 cm X muscle deep posterior lateral aspect Rt side upper part neck margin clear cut, both angle sharp.

(7) Incised wound 8 cm X 3 cm X bone deep over front of Rt wrist region margine clear cut, both angle sharp underlying Bone cut.

(8) Incised wound 7 cm X 2 cm X Bone deep dorsum of Rt hand involving wrist margin clear cut both angle sharp, underlying Bone cut.

(9) Incised wound 6 cm X 1.5 cm X Bone outer side Rt knee margin clear cut, both angle sharp underlying Bone cut partially.

(10) Incised wound 2.5 cm X .5 cm X muscle deep back of left wrist, margin clear cut, both angle sharp.

(11) Lacerated wound 14 X .5 cm X muscle deep outer side left ankle."

6. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante mortem injuries.

7. Injured Veer Singh was medically examined on 28.12.1989 at 10.30 p.m. and during his examination, following injuries were found :

"(1). A lacerated wound 2" x 1/2" x 1 and ¼ present on the right eye brow, bleeding present.

(ii) Haematoma of R cheek & eye lids present 4" x 4".

(iii) Haematoma with lacerated wound of upper lip 1" x 1/2" X 1/2" present.

(iv) A incised wound 4" x 1" x 1 and 1/2" present on the left lateral malleolus, incising malleolus and adjoining bones, bleeding present. "

8. In the opinion of the doctor, all the injuries were fresh and simple except injury no. (iv), which was grievous and caused by sharp weapon, whereas others were caused by some blunt weapon. Injury report (Ext. ka-4) was prepared.

9. Injured Mewalal was medically examined on 28.12.1989 at 10.45 p.m. and during his examination, following injuries were found :

"(1). A lacerated wound 1/2" x 1/2" x 1/4" present on the left parietal eminence of scalp.

(ii) A lacerated wound present on the right cheek near right tragus 1/4" x ½" x 1/4".

(iii) A lacerated wound 1" x 1/2" x 1/4" present on the left eye brow.

(iv) Fracture of left maxilla present haematoma of lids of left eye and left cheek 4" x 4". "

10. In the opinion of the doctor, all the injuries were fresh and simple except injury no. (iv), which was grievous. Injury report Ext. ka-5 was prepared.

11. After completing the investigation, charge-sheet (Ext. ka-10) against the four accused persons was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by the Sessions Court, was committed to the Court of sessions.

12. Accused persons appeared before the trial court and charges under Sections 394, 307, 302, 324 and 325 of IPC were framed against them. They denied the charges and claimed trial.

13. Trial proceeded and during trial accused Nanhu son of Amar Singh and Arvind @ Chaubey were declared juvenile in conflict with law and their cases were separated and sent to Juvenile Justice Board for trial

14. In order to bring home the charges against the accused persons, prosecution has examined seven witnesses, who are as follows:

Mija Ji

PW-1 (informant / eye witness)

Mewa Lal

PW-2 (injured / eye witness)

Veer Singh

PW-3 (injured / eye witness)

Dr. O.P. Gangwar

PW-4 (who conducted post mortem of the deceased)

Ishwar Dayal

PW-5 (witness of inquest)

R.S. Kamal (pharmacist)

PW-6 (who proved the injury reports of the injured)

S.I. Munnu Lal Katiyar

PW-7 (scribe of the F.I.R. and secondary witness for I.O.)

15. In support of oral version, following documents were filed and proved on behalf of the prosecution:

Chik F.I.R.

Ext. A-1

Post Mortem Report

Ext. A-2

Inquest report

Ext. A-3

Injury report

Ext. A-4

Injury report

Ext. A-5

Copy of G.D. Entry

Ext. A-6

Tarmimi G.D.

Ext. A-7

Site plan

Ext. A-8

Memo of plain and blood stained soil

Ext. A-9

Charge sheet

Ext. A-10

16. After conclusion of evidence, statements of accused persons were recorded under Section 313 of Cr.P.C., in which they pleaded their false implication due to enmity and party-bandi.

17. PW-1, PW-2 and PW-3 are the witnesses of fact.

18. P.W-1, namely, Mijaji Lal (informant), in his oral testimony, has supported the F.I.R. version. He has proved his T.I. over chik F.I.R. (Ext. A-1). He has explained the whole occurrence and the role of all the accused persons in the commission of crime in his testimony.

19. P.W.-2 Mewalal is the injured witness. He has also corroborated the F.I.R. version and supported the testimony of PW-1.

20. PW-3 Veer Singh is also the injured witness. He has also corroborated the F.I.R. version and supported the testimonies of PW-1 and PW-2.

21. PW-4, PW-6 and PW-7 are formal witnesses.

22. PW-4 - Dr. O.P. Gangwar has performed the autopsy of the deceased and prepared the Autopsy Report (Ext. ka-2).

23. PW-5 - Ishwar Dayal is the witness of inquest and has proved the inquest report Ext. ka-3.

24. PW-6 - R.S. Kamal, Pharmacist at Vinod Dixit Hospital, Kannauj has proved the injury reports of injured Mewa Lal and Veer Singh as (Ext. ka-4), (Ext. ka-5) respectively and also the signature of Dr. B.N. Agrawal, who examined the said injured as secondary witness, as Dr. B.N. Agrawal has expired .

25. PW-7 - S.I. Munnu Lal Katiyar, who was posted as C. Mhr. at Police Station Indergarh, in his deposition has proved his signature over chik F.I.R. (Ext. ka-1), registration G.D (Ext. ka-6), (Amending) Termimi G.D. (Ext. ka-7) and the proceeding of investigation, as Ganga Ram, who was the Investigating Officer has expired. As secondary witness for I.O. he has proved site plan (Ext. ka-8), Memo (Ext. ka-9) and charge sheet (Ext. ka-10).

26. On the basis of aforesaid oral and documentary evidence, learned trial court recorded the conviction of the appellants and sentenced them, as mentioned herein-above.

27. The impugned judgment and order of the trial court has been assailed by the learned counsel for the appellants on various grounds.

28. Heard Shri Jitendra Kumar Mishra, learned counsel for the appellants, Shri Amit Sinha, learned AGA and Ms. Mayuri Mehrotra, learned State Counsel for the State and perused the entire record.

29. In a criminal trial, the prosecution has a bounden duty to prove its case beyond reasonable doubt on the basis of cogent and reliable evidence and not on the weaknesses of the defence. If the prosecution case rests upon eyewitness account, the ocular evidence must be reliable and free from all infirmities and the eye witness must fall into the category of ''sterling witness' and if such ocular evidence is also supported and corroborated with the medical evidence, in all probabilities, the prosecution may succeed in proving its case beyond reasonable doubt.

30. Present is a case which rests upon eyewitness account and two, out of the three, witnesses of fact are injured witnesses.

31. PW-2 Mewalal and PW-3 Veer Singh are the injured witnesses and from the perusal of their entire testimony, we find that they have made almost similar statements regarding the role of accused persons in commission of the crime, place of occurrence, weapons used in crime and other relating factors. They have sustained injuries in the said occurrence and on account of being injured witnesses their evidence stand on a different and distinguished footing and deserves to be seen as a cogent and reliable piece of evidence.

32. PW-2 and PW-3 both have clearly stated that at the time of the incident when after having informed by Km. Pappi regarding the assault on Prahlad Singh by four accused persons, they rushed to the place of occurrence to save him. PW-2 has made a specific statement supported by PW-1 and PW-3 as well that when he rushed to the field to save Prahlad Singh, he also took his single barrel gun alongwith eight cartridges, Veer Singh, Mahendra and Surendra also accompanied him and this statement is also corroborated by PW-3.

(i) PW-3, who is the son of the deceased, has stated that when they reached the site of occurrence, accused persons left his father and caused injuries to him and his uncle Mewalal (PW-2). He sustained grievous injuries upon his eye, leg and face and his uncle Mewalal, father Prahlad Singh also sustained grievous injuries.

(ii) PW-1, PW-2 and PW-3 stated in a single voice that accused Amar Singh snatched the gun and belt of cartridges from Mewalal and flew away. They have also made identical statements on the point that during the incident accused Amar Singh caused injuries to the deceased and injured persons by use of farsa, Panjabi by sword, Chaubey by tawal and Nanhu by lathi.

33. A primary objection has been raised by the learned counsel for the appellants in respect of non-production of Km. Pappi as prosecution witness. It has been argued that statement of deceased Prahlad Singh, while he was alive, was not recorded by the police under Section 161 CrPC, hence it was incumbent upon the prosecution to produce Km. Pappi as witness, who was the best person to tell as to how occurrence started. This plea was vehemently opposed by the learned State counsel and the learned counsel for the informant.

34. From the perusal of the record, we find that in charge sheet (Ext. ka-10), name of Km. Pappi has been shown as witness, which reveals that her statement under Section 161 CrPC was recorded by the Investigating Officer. The question arises as to whether non-production of Km. Pappi, as witness, makes any adverse effect upon the prosecution version and the answer we find in negative. It is always the prerogative of the prosecution to decide as to how many and which of the witnesses have to be examined by it before the Court. The law, as provided under Section 134 of the Evidence Act, is that "no particular number of witnesses shall in any case be required for the proof of any fact."

35. We rely upon Chacko vs. State of Kerala, (2004) 12 SCC 269 wherein it has been held that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness, if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.

36. Reference can also be placed on the Hon'ble Apex Court decision in Raj Narain Singh Vs. State of U.P. 2010 AIR SCW 521 wherein it has been held that it is not necessary that all those persons, who were present at spot, must be examined. It is the quality of evidence, which is required to be taken note of by Courts and not the quantity.

37. We can very well remind here that PW-1, PW-2 and PW-3 are the eye witnesses. PW-1 in his deposition has stated that Pappi has told that all the four accused persons are bitterly assaulting Prahlad Singh by farsa, taval, sword and lathi and when he along with PW-2 and PW-3 reached the field, Prahlad Singh was lying unconscious there in injured condition and at the same time they caused injuries to Mewalal and Veer Singh with the aforesaid weapons and ran away. He has also stated that all the three injured were taken to hospital by the police. The police taking into account the serious condition of the injured persons immediately sent them for medical treatment and Prahlad Singh died on the way.

38. PW-2 also corroborated this story and stated that when they reached the place of occurrence, he saw all the four persons from a distance of 20-25 meters causing injuries to Prahlad Singh and as soon as he reached near the Nali, the accused persons left Prahlad Singh and attacked over him and his gun was also snatched. In the same fashion, PW-3 also states that when they reached the field, accused persons leaving his father Prahlad Singh attacked over him and his uncle Mewalal. He further states that when he reached the field alongwith Mewalal, all the accused persons were assaulting Prahlad Singh and when the accused persons made assault upon him and Mewalal, Prahlad Singh was lying on the ground. This witness also clarifies that his statement given to the Investigating Officer to the extent that when he reached the spot, accused persons had already caused injuries to his father Prahlad Singh, was correct.

39. Learned counsel for the appellants have pointed out that there are contradictions in the statements of the aforesaid witnesses on the point that when they reached the spot, any incident was carrying on or not and their ocular version at this juncture is highly doubtful.

40. The aforesaid plea draws our attention to a glaring fact that the incident in the present matter happened on 28.12.1989 and the statement of PW-1 was recorded in the year 2007, PW-2 in the year 2008 and PW-3 in the year 2011, hence, the evidence of witnesses of fact has been recorded after 18 - 22 years of the incident. No normal man can be expected to have a computerized and calculated memory of any incident which occurred before him 15 or 20 years back. When the Court evaluates the veracity of deposition of any witness of fact, it should always take into account as to after a gap of how much time the evidence of such witness has been recorded. The human memory has its own limitations and it is natural to be faded into a gap of long span of time. It is not possible for a normal person to describe in verbatim and in the same fashion the whole incident, which was witnessed by him before 15-20 years and what he had stated before the Investigating Officer at that time. The contradictions, if any, found in the testimonies of PW-1, PW-2 and PW-3 should be considered with this prospect also. The view of this Court finds support from Dharnidhar vs. State of U.P., 2010 (6) SCJ 662 wherein it has been held that when the witnesses are examined in the Court after a considerable lapse of time, it is neither unnatural nor unexpected that there can be some minor variations in the statements of the prosecution witnesses and in fact, as held in Ramesh vs. State of U.P., (2009) 15 SCC 513, minor contradictions in the testimonies of the prosecution witness are bound to be there and in fact they go to support the truthfulness of the witnesses. We have meticulously scrutinized the entire testimony of PW-1, PW-2 and PW-3 and we find no material contradictions in their depositions.

41. In this backdrop, we are of the opinion that non-production of Km. Pappi, as witness, was not fatal for the prosecution and also that PW-1, PW-2 and PW-3 are the reliable and trustworthy witnesses having consistency in their statements and as such they fall into the category of ''sterling witnesses'.

42. We consider it apposite to examine the prosecution witnesses from the angle of medical evidence also. The statement of PW-4, who performed the autopsy of the deceased, reveals that as many as 11 injuries were found on the body of the deceased, which were in the form of lacerated wounds, abrasion, and incised wounds inflicted upon various parts of the body, such as skull, face, neck, hand, etc.. The autopsy report shows that cause of death was shock and haemorrhage as a result of ante mortem injuries. PW-4 has opined that death of the deceased might be caused by injuries inflicted by the sharp weapon on 28.12.1989 at about 4.00 p.m.. The witnesses of fact clearly state that farsa, sword, taval and lathi were the weapons used in the occurrence. No doubt they stated about the use of some blunt objects also in the commission of crime. Nature of injury nos. 1,2,3,4 and 11 shows that these injuries might be inflicted by use of hard and blunt object. We find that overall, there is no major contradiction between the ocular and medical evidence. It has been pointed out by the learned counsel for the appellants that PW-4, the doctor, in his deposition has opined that death of the deceased might have been caused by injuries inflicted by use of sharp edged weapons but if the argument is even taken to be correct, we find that the medical evidence nowhere rules out the use of hard and blunt object to inflict injuries to the deceased. Hence, there is no material contradiction between ocular and medical evidence and even if it is pointed out, in a catena of decisions it has been held that if the ocular evidence is found trustworthy and credible, the medical evidence based on the probabilities only cannot prevail over the ocular evidence.

43. In Ravi Kumar vs. State of Punjab, (2005) 9 SCC 315, it has been held that when ocular evidence is cogent and reliable, medical evidence to the contrary cannot corrode the evidentiary value of the former.

44. Likewise, in Premsagar Manocha vs. State (NCT Delhi), (2016) 4 SCC 571, it was held that being based on his knowledge, expert opinion may be subject to change on coming across any authentic material subsequently. Opinion of expert witness is different from testimony of witness of fact. Duty of expert is to render his opinion along with reason and relevant material. It would then be for the Court to see correctness of opinion and reach its conclusion accordingly.

45. In the light of the aforesaid established legal position, we conclude that the evidence of PW-1, PW-2 and PW-3, as eyewitnesses of the occurrence, is cogent and trustworthy and prevails over the medical evidence in all aspects wherever the autopsy report is found in conflict with that of the ocular evidence.

46. From a perusal of the record, it reveals that Dr. B.N. Agrawal, who medically examined both the injured persons Veer Singh and Mewalal, had expired in a road accident and PW-6 in the form of secondary evidence deposes for him and proves the injury reports of injured Veer Singh and Mewalal as Ext. ka-4 and Ext. ka-5 respectively, on the basis of original medico legal register. He states that both the injured persons were examined on 28.12.1989 by Dr. B.N. Agrawal at 10.30 p.m. and 10.45 p.m., respectively. Perusal of the injury report (Ext. ka-4) of injured Veer Singh clearly indicates that he has sustained a lacerated wound present on the right eye brow, incised wound present on the left lateral malleolus incising malleolus and adjoining bones and haematoma of right chest and eye side and on lacerated wound of upper lip. Injury no. (iv) incised wound was found grievous caused by sharp weapon and x-ray was advised, whereas other injuries were caused by some other blunt object. In the same manner, (Ext. ka-5), injury report of injured Mewalal clearly indicates that he has sustained lacerated wounds present on the left parietal eminence of scalp, present on the right cheek near right tragus, present on the left eye brow and fracture of left maxilla. All the injuries were found simple. Injury no. (iv) was grievous, x-ray was advised. Nature of injuries caused to both the injured persons are indicative of fact that all the injuries were caused by PW-2 and PW-3. It is true that there is no x-ray report or supplementary report on record but the medical reports of both injured persons, which are on record, have been proved by secondary evidence of PW-6, which was admissible in law as the original doctor expired before recording evidence in the Court. In that fashion, testimonies of PW-1, PW-2 and PW-3 prove the prosecution case and gets full corroboration from the medical evidence in material aspects.

47. It is pointed out by the learned counsel for the appellants that all the fact witnesses rendered by the prosecution are the witnesses related to the deceased and as such they are interested witness as well and in the same manner it has also been submitted that the prosecution witnesses and the informant had strong motive to implicate the appellants in a false case. It is further pointed out that since the occurrence happened in day light at a public place, in all probabilities persons from public must have been present at the time of incident, but independent witnesses were concealed by the prosecution in this case and were not examined. Learned AGA, per contra, vehemently opposing the aforesaid contention, has argued that relationship is not a factor to discard the testimony of any witness of fact, if the same inspires confidence of the Court. It has been further argued that since it is a case of ocular evidence, motive has no significance in this matter.

48. While dealing with the aforesaid issue, this fact cannot be lost sight that in the present matter out of the three witnesses of fact, PW-2 Mewalal and PW-3 Veer Singh are the injured witnesses. It will be pertinent to mention here that witness of fact if himself sustains injuries in the same incident and deposes accordingly before the Court, his evidence stands on a different footing and the credibility of his evidence cannot be doubted only because he is related to the deceased and as such is an interested witness.

49. It is true that in the F.I.R. itself, it has been mentioned that many villagers had seen the occurrence apart from the witnesses of fact, who have been examined before the Court. PW-2 the injured states that on their shrieks, Mija Ji, Bharat and several persons of the village reached the spot. PW-1 also states that many village persons came to the spot at the time of occurrence and similar statement is found in the testimony of PW-3 also. We have also sifted the charge sheet (Ext. ka-10) submitted in this matter by the Investigating Officer and from a perusal of the same it is apparent that Km. Pappi, Mahendra Singh and Surendra Singh are also named as eye witnesses of the case. The point to be dealt with is whether the prosecution case is adversely affected if the witnesses of fact named in the charge sheet, who are said to be independent witnesses, are not adduced before the Court and at the same place it is also to be examined whether witnesses of fact, who are said to be related / interested witnesses, are credible and reliable witnesses or not.

50. The testimonies of PW-1, PW-2 and PW-3 have been scrutinized meticulously by the learned trial court and also examined by us and we have no hesitation to hold that after a careful scrutiny the evidence of aforesaid witnesses has been found credible and reliable. In view of that, in our considered view, the prosecution was not required to adduce any other witness just to show that it was going to prove its case by some independent witness also.

51. There is another practical aspect of the matter, which cannot be ignored by any Court of law that independent persons of public often avoid to stand as witness for prosecution in any criminal trial for so many reasons. In State of Andhra Pradesh vs. S. Rayappa and others, (2006) 4 SCC 512, the Hon'ble Supreme Court examined several aspects of a criminal trial and this aspect was also taken into account as to why independent witnesses ignore to depose in favour of the prosecution and in what circumstances the probability of false implication may be ruled out. It was also clarified as to why the prosecution in so many cases is bound to rely upon the witnesses, who happen to be the relative to the deceased (victim). It was held in paras 6 and 7 as under :

"6.......By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.

7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of PW 1 and PW 2 on the sole ground that they are interested witnesses being relatives of the deceased."

52. The trial Court has discussed the various aspects of motive and enmity existing between the parties in the present case. Reliance has been placed upon Bikau Pandey Vs. State of Bihar (2003) 12 SCC 616 by the learned state counsel wherein it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance.

53. In Anil Rai Vs. State of Bihar (2001) 7 SCC 318 it has been held that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons.

54. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma Vs. State of Himachal Pradesh (2011) 10 SCC 129 it has been held as under:

"...Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence."

55. However, in the present case a specific cause of animosity has been assigned between the parties and that was in respect of some barren field and this fact of animosity finds place in the testimony of witnesses of fact. PW-1, in his examination-in-chief, states that the informant side and the accused persons were having animosity on account of the barren field. Further, he has been cross-examined in respect of some will and he has denied that his Dau Kamta Prasad has executed any will in favour of Lilawati, who was the sister of his uncle Bhaiyalal. He has further denied that the land of Lilawati was ploughed by deceased Prahlad and Mewalal till the present occurrence happened and due to that reason Lilawati and her family members had some enmity with deceased - Prahlad and injured-Mewalal. He has further admitted that Amar Singh, the accused in this case, and other person Panjabi were prosecuted in the case of murder of his uncle Brijwasi and Pyare Lal wherein they were acquitted. He has further admitted that the accused persons belong to his own family and also states that the accused persons had no enmity with deceased Prahlad and other injured persons prior to this occurrence. PW-2 has also been cross-examined on the aforesaid points. PW-3 also states that no litigation in connection with any land or property took place between him and his father and accused Amar Singh.

56. Learned counsel for the appellants has made an attempt to show from the aforesaid statements of PW-1, PW-2 and PW-3 that they are trying to conceal the actual facts relating to the murder of the deceased and in fact the appellants were not the actual assailants, who have committed the crime. In our opinion, in view of the credible ocular version rendered by PW-1, PW-2 and PW-3, no other person comes into light as an assailant except the present appellants who have committed the offence. Further more, it has been clarified above that in a case based on eye witness account the question of motive loses its significance.

57. The trial court has meticulously scrutinized the evidence of fact adduced by the prosecution and from a careful scrutiny of the same, we also find that there are no material contradictions in the testimonies of witnesses of fact. Albeit, some minor discrepancies have rightly been pointed out by the appellants in the deposition of PW-1, PW-2 and PW-3, but they do not go to the root of the prosecution case and never affects the prosecution case adversely. In view of the legal position, as enumerated earlier, the prosecution was not obliged to examine the independent witnesses of fact whose names have been mentioned in the charge sheet (Ext. ka-10). Section 134 of the Evidence Act is explicit on this issue which, as mentioned above, provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. In Chacko case (supra), the Hon'ble Apex Court has held that Section 134 of the Evidence Act clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness, if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth, then on his evidence alone conviction can be maintained.

58. This fact is also not doubted by either of the parties that eye witnesses of the case were known to the appellants. Hence, we find that there was no need of identification of the appellants and the trial court, while appreciating the various aspects of the case, has correctly found that it is not a case of false implication due to old enmity between the parties, rather it is well proved from the evidence on record that due to enmity, the present crime has been committed by the accused persons / appellants and the factor of enmity goes against the appellants and in the same manner the issue of witnesses of fact being related to the deceased also does not go in favour of the appellants.

59. Reliance has been placed upon Bhagwan Jagannath Markad Vs. State of Maharastra, (2016) 10 SCC 537 wherein it has been has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness.

60. Emphasis has been laid down on Surinder Kumar Vs. State of Punjab (2020) 2 SCC 563 by the learned A.G.A., wherein it has been reiterated that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.

61. In Ashok Kumar Chaudhary v. State of Bihar, (2008) 12 SCC 173, it was held that if the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eye witness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

62. Further, it was held in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 that non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution.

63. To falsify or strengthen the prosecution case, one important factor, which is always looked into, is the place of occurrence which, if not certain and fixed, is capable of putting the prosecution case within the cloud of suspicion, but if the place of occurrence is definite, it, no doubt, strengthens the truthfulness of the prosecution story. In the present case, the place of occurrence is the barren field, which had been a cause of enmity between the parties. PW-1, PW-2 and PW-3 all the witnesses of fact make specific statement that occurrence happened in that very field where the deceased was present. These witnesses have been cross-examined by the defence during trial and the boundaries and detail of place of occurrence have been pointed out by them. The learned counsel for the appellants have tried to take some benefit of contradictions occurred in the statements of the aforesaid witnesses in this regard. When we sift the evidence at this very point we also find some minor contradictions so far as boundary of the place of occurrence is concerned. The learned trial court has also taken into account the fact as to which was the accurate place where the deceased was assaulted. PW-3 Veer Singh states that the incident took place in northern side of field no. 3049, which was in the southern direction of the road. In the site plan, (Ext. ka-8), the same position has been shown, although the number of the field has not been mentioned therein. PW-1 states that he had pointed out the place of occurrence to the Investigating Officer and had also shown, the place from where he himself alongwith his family members witnessed the occurrence. The aforesaid place has also been pointed out in site plan, Ext. ka-8. The topography shown in Ext.ka-8 also finds support from the statement of PW-2. PW-1 and PW-2 make specific statement that after causing the occurrence, the accused persons fled away in the eastern direction and the same has been shown in the site plan Ext. ka-8. PW-7, appearing as secondary witness for the Investigating Officer, has stated that the Investigating Officer had taken bloodstained and plain soil from the place of occurrence and memo, Ext. ka-9, was prepared by him. This is another factor, which denotes that this is the same place wherefrom the bloodstained and plain soil was taken by the Investigating Officer, as shown in the site plan (Ext. ka-8).

64. The learned AGA has submitted that PW-2 and PW-3 being injured witnesses are of distinguished character of witnesses and their evidence cannot be doubted upon. Earlier in this judgment, we have analysed the medical report and the injuries of the injured persons, which are in conformity with each other. We also find that the injured witnesses give consistent version of the incident, which also makes their deposition credible. In fact, the presence of injured witnesses at the time and place of occurrence cannot be doubted as they had received injuries during the course of incident and they should normally be not disbelieved, as held in Bhagwan Jagannath Markad case (supra) and Maqsoodan vs. State of U.P., (1983) 1 SCC 218.

65. The relevant witnesses have also been cross-examined in respect of inquest report and the learned trial court has applied its judicial mind to the genuineness of the same. We have also perused the inquest report (Ext. ka-3) and found that case crime number and sections are clearly mentioned in the inquest report, which means that the inquest was performed after lodging the F.I.R. Panchas have also opined that the death of the deceased was caused due to ante mortem injuries. The argument raised by the learned counsel for the appellants that no chitthi majrubi (letter by police for medical examination) relating to the deceased Prahlad Singh, when he was in injured condition, was prepared by the police. The learned trial court has also analyzed this point and also rightly concluded that Prahald Singh died on the way to the hospital and his inquest was also performed in the hospital itself and in these circumstances, if chitthi majrubi relating to him is not on record, it does not falsify the prosecution case, particularly in a situation where chitthi majrubi of two injured persons was prepared, as PW-7 states.

66. To avoid the blame of false implication, a prompt registration of F.I.R. is normally must in any criminal case. In the case in hand the incident occurred on 28.12.1989 at about 4.00 p.m. and the F.I.R. has been lodged about four and half hours thereafter on the same day, as is evident from the chik F.I.R. Ext. ka-1. The registration G.D. (Ext. ka-6) was also prepared at the same time and after the death of injured Prahlad, a termimi G.D. (amending G.D.) (Ext. ka-7) was also prepared and proved by PW-7. Hence, it is discernible that F.I.R. in this case is a genuine document. It has been registered on the basis of oral information given by the informant Mija Ji, as he himself deposes and finds support from the version of PW-7 and prompt registration of F.I.R. rules out any possibility of false implication of accused persons / appellants. In Sat Kumar vs. State of Haryana, (1974) 3 SCC 643, the Hon'ble Apex Court held that the fact that the informant had lodged the F.I.R. within half an hour at a place twelve miles away from the place of occurrence travelling in trucks leaves no possibility for concoction of a false case against any of the accused persons.

67. Defective investigation is very often a part of the prosecution case, which is targeted by the defence in order to avail the benefit on account of laches, omission and negligence committed by the Investigating Officer during investigation. In the case in hand, as assailed by the learned counsel for the appellants, the licensee gun allegedly snatched by its licensee Mewalal by the accused persons has not been recovered by the Investigating Officer. It is also submitted that the bloodstained cloth of injured persons were not seized by the Investigating Officer and bloodstained and plain soil was also not sent alongwith any bloodstained cloth for forensic test. It is true that above omissions are found in the investigation conducted by the Investigating Officer but in the light of the reliable ocular evidence, we do not find it any significant or strong omission on the part of the Investigating Officer, which may adversely affect the prosecution case. In a catena of decisions, it has been settled that for certain defects in the investigation, the accused cannot be acquitted if the prosecution case is proved by other cogent evidence. In C. Muniappan vs. State of T.N., 2010 (6) SCJ 822, it has been held that :

"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."

68. We have observed that the appellants have also been charged for the offence under Sections 307, 324 and 325 IPC as well for inflicting injuries to the injured persons Mewalal and Veer Singh, but they have been acquitted by the trial court for the offence under Sections 324 and 325 of IPC and have been convicted under Section 307 IPC keeping in view the fact that they had assaulted upon both injured persons with intention to kill them. The number and nature of injuries caused to both the injured persons, as appears from the injury reports (Ext. ka-4 and (Ext. ka-5, respectively) and the manner of assault, as has been deposed by PW-2 and PW-3 in their depositions, is connotative to the fact that after giving fatal blows to Prahlad Singh, the accused persons were adamant to kill both injured persons also and with the intention to kill them, they made several blows upon them. The learned trial court considered this aspect in the impugned judgment and has drawn a right conclusion, which we concur with. Further, there is clinching evidence on record that the licensee gun alongwith belt of cartridges was robbed by the appellants and in committing the aforesaid robbery they also voluntarily caused hurt to them and on that basis offence under Section 394 IPC is also proved against them. We would like to emphasise that deceased Prahlad Singh was assaulted by the accused persons with intention to kill him with the aid of dangerous weapons and ultimately they succeeded and Prahlad Singh died subsequently.

69. Section 394 IPC provides as under :

"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

70. In the case in hand, we find on the basis of the evidence on record that the aforesaid ingredients of Section 394 IPC are completely made out against the appellants because it is apparent from the evidence on record that when the injured Mewalal reached the place of occurrence, the accused persons also made assault upon him and voluntarily, causing hurt to him, committed robbery by snatching the gun with belt and cartridges from him. This fact has been properly proved in evidence.

71. So far as charge under Section 307 IPC is concerned, the settled law is that it is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract the provisions of Section 307 of IPC is the intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the results. In fact the important thing to bear in mind for determining the question as to whether the offence under Section 307 IPC is made out, is the intention and not the injury, even if it may be simple or minor. Question of intention to kill or knowledge of death is always a question of fact and not of law. The Hon'ble Supreme Court in Hari Kishan and State of Haryana vs. Sukhbir Singh, AIR 1988 SC 2127 has held that the intention or knowledge of the accused must be such as is necessary to constitute murder. In State of Madhya Pradesh vs. Harjeet Singh and another, AIR 2019 SC 1120, it was reiterated that Section 307 IPC does not require that injury should be on vital part of the body. Merely causing hurt with intention or knowledge of causing death is sufficient to attract Section 307 IPC.

72. The aforesaid legal principle, if examined in the context of the facts and circumstances of the present case, is totally applicable and we find that offence under Section 307 IPC is made out against the accused-appellants.

73. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the the present case, we are of the opinion that the conclusion given by the learned trial court in the impugned judgment and order is in accordance with law and the evidence available on record. The judgment is the result of the thoughtful consideration and cautious scrutiny of the evidence on record, oral as well as documentary. Thus, this Court is of the view that the prosecution has been able to establish the guilt of the accused appellants under Sections 302, 394 and 307 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court.

74. The impugned judgment of conviction and sentence, which has been sought to be assailed, is well thought and well discussed and the same, warranting no interference, is liable to be upheld and appeal having no force is liable to be dismissed. Accordingly, the impugned judgment and order is upheld and the appeal is dismissed.

75. Appellant Panjabi is in jail. However, appellant Amar Singh is on bail. His bail bonds are cancelled and sureties are discharged. He be taken into custody forthwith for serving the remaining sentence.

76. Let a copy of this judgment along with trial court record be sent to the Court concerned, Kannauj for necessary compliance.

Order date : 25.04.2023

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(Nalin Kumar Srivastava J.) (Pritinker Diwaker, CJ)