Anwar Mian Son Of Abdul Mian vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 633 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 120 of 1994 (R) With I.A. No. 4332 of 2019

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(Against the Judgment of conviction dated 13th June, 1994 and Order of sentence dated 17th June, 1994, passed by learned 6th Additional Sessions Judge, at Dhanbad, in Sessions Trial No. 349 of 1991)

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Anwar Mian son of Abdul Mian, resident of Nawadih, Tola Goridih, P.S. and District-Dhanbad.

... ... Appellant Versus The State of Bihar (Now Jharkhand) ... ... Respondent

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

     For the Appellant      : Mr. Jayant Kumar Pandey, Advocate
     For the Resp.-State    : Mr. Pankaj Kumar Mishra, APP
                                      .....
C.A.V./Reserved on 30.01.2023              Pronounced on 07/02/2023

Per Sujit Narayan Prasad, J.:

I.A. No. 4332 of 2019:

1. Reference may be made to order dated 24.04.2019, whereby and whereunder following order has been passed by the Co-ordinate Division Bench of this Court:

"The Vakalatnama allegedly signed by the appellant namely Anwar Mian is not supported by any certification of an advocate and there is no proof of identification of the appellant attached therewith.

Mr. Jayant Kr. Pandey, the learned counsel who submits that the appellant has executed Vakalatnama in his favour is directed to file an affidavit annexing copies of identification of the appellant and certification from the advocate concerned.

Post this matter on 08.05.2019."

2. In compliance thereto, an Interlocutory Application being I.A. No. 4332 of 2019 has been filed on behalf of appellant annexing therewith the documents pertaining to identification of the appellant and certification of the advocate concerned.

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3. It appears from the statement at paragraph 4 and 5 of the Interlocutory Application that document pertaining to identification of the appellant has been filed by annexing therewith Voter I.D. Card of the appellant bearing I.D. No. BZQ0214775 with attestation of concerned Advocate namely Mohammad Sohel Akhatar having Enrollment No. JH298/14 practicing at Dhanbad Civil Court, Dhanbad, appended as Annexure- I.A.-1 to the Interlocutory Application.

4. Learned counsel for the appellant on the basis of aforesaid statement has submitted that Vakalatnama was filed on behalf of appellant by the learned counsel, namely, Jayanat Kumar Pandey, which may be accepted.

It has further been submitted that considering the documents, as appended in support of proof of identification of the appellant supported by certification by the advocate concerned, who is practicing advocate at Civil Court, Dhanbad, prayer made in the Interlocutory Application may be accepted.

5. This Court, considering the submissions advanced by learned counsel for the appellant, allows the Interlocutory Application and the instant application is treated to be filed in compliance of order dated 24.04.2019 passed by Co-ordinate Division Bench of this Court.

6. Accordingly, Interlocutory Application being I.A. No.4332 of 2019 stands disposed of.

Cr. Appeal (DB) No. 120 of 1994 (R):

7. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 13th June, 1994 and Order of sentence dated 17th June, 1994, passed by learned 6th Additional Sessions Judge, at Dhanbad, in Sessions Trial No. 349 of 1991, whereby and whereunder, the sole appellant has been convicted for commission of offence under Section 302 of Indian Penal Code and accordingly, sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of Indian Penal Code.

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8. The prosecution story in brief as per the Fard Beyan, read as under:

The informant, Muslim Mian was on is duty at Bhuli Factory from 2 p.m. on 13.11.1989. At 6 p.m. one Salim Ansari of the informant's village came to him in the Jalan Factory, Bhuli, P.S. Bankmore and informed him that the wife of the informant came to his residence and reported that Gendu Mian, father of the informant, was assaulted with a Bhala in the courtyard by one Anwar Mian, son of Late Abdul Mian of village-Nowadih, Tola- Gouridih. On hearing death information of his father, the informant rushed to his house and found his father lying dead in the courtyard of his house.. He noticed by removing the cloths of his father near right arm pit that there was injury. He found a Bhala lying on some distance in the north of the dead body and the Bhala was smeared with blood on the sharp end. He learnt from his wife, Mazidan Bibi, that at about 4:30 p.m. on the same day there had been exchange of hot words between Anwar Mian and Gendu Mian regarding bush and in the meantime Anwar Mian having been enraged, fetched a Bhala and assaulted the informant's father hitting near the right arm pit. It was further told to him by his wife that at the time of assault his wife was also standing there and that his father fell down by receiving Bhala blow. The informant's wife had rushed to catch Anwar but the accused ran away. The occurrence was seen by the informant's wife and his sons Md. Ajiz and Kurban Ansari. The occurrence was also seen by the people of the neighbourhood. It is alleged that the cause of occurrence was old enmity due to dispute of house and land and the assault was made for usurping the landed property of the deceased.

The case has been instituted on the basis of the aforesaid fard beyan. The police started investigation and chargesheet was submitted against the appellant, namely, Md. Anwar Mian @ Anwar Mian son of Abdul Mian of village Nowadih, Tola Gouridih, P.S. Dhanbad under Section 302 of the Indian Penal Code.

The case was committed and charge under Section 302 has been framed against the sole appellant on 25th March, 1992. The appellant

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having pleaded not guilty and claimed to be tried, therefore, the trial has proceeded.

Prosecution has examined altogether 11 (eleven) witnesses. The appellant had not produced any defence witness and in the examination under Section 313 of Cr.P.C., the appellant has said that he has done nothing and he has been falsely implicated. The learned trial court, after considering the testimony of the witnesses and on appreciation of the rival submissions advanced on behalf of the parties, has found the charge proved against the appellant beyond all reasonable doubt. The learned trial court has accordingly convicted the appellant under Section 302 of the Indian Penal Code and had been directed to undergo rigorous imprisonment for life, which is the subject matter of the instant appeal.

9. Mr. Jayant Kumar Pandey, learned counsel for the appellant has raised the following grounds in assailing the impugned judgment:

(i) The conviction is based upon the sole testimony of P.W. 5, 6 and 7, who have been considered by the prosecution to be eye witness but if the testimony will be scrutinized they are the highly interested witness related with the deceased and as such the conviction since is based upon the testimony of the highly interested witness, therefore, the judgment of conviction cannot be said to be sustainable in the eyes of law.

(ii) There are major discrepancy in the testimony of P.W. 5, 6 and 7 but without taking into consideration the aforesaid discrepancy the judgment of conviction has been passed, on this ground also, the judgment of conviction is not sustainable in the eyes of law.

(iii) The investigating officer has seized the cloth of the deceased and the blood stained Bhala and the same had been sent for its examination in the Forensic Science Laboratory but without waiting for the report, the judgment of conviction has been passed, as such, on this ground also, the judgment of conviction is not sustainable in the eyes of law. Reason being that the

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weapon which has been used has not been connected with the occurrence due to its non-examination.

The learned trial court has also not appreciated the fact that there was enmity in between the parties since the deceased Gendu Mian was a convict in a case of murder of the father of the appellant in which he had been sentenced for rigorous imprisonment for 10 years, as such, only in order to take revenge, the instant case has been instituted.

10. It has also been argued that the place of occurrence has been changed because in the FIR place of occurrence is the courtyard of the deceased Gendu Mian himself but the investigating officer, P.W. 11, has stated that the dead body was lying one and a half yard from the door of Amruddin Mian.

11. Per contra, Mr. Pankaj Kumar Mishra, learned APP appearing for the State has submitted by defending the judgment of conviction by making submission that it is a case where the conviction is based on the direct testimony of the eye witnesses, i.e., P.W. 5, 6, and 7, as such, it is incorrect on the part of appellant to raise the issue that the prosecution has wrongly considered these witnesses to be eye witnesses.

It has been submitted that it is also incorrect on the part of the appellant to agitate the ground that the P.W. 5, 6 and 7 since are related with the deceased, as such, their testimony is fit to be discarded. According to the learned counsel, the testimony of the interested witness cannot be discarded merely for the reason that they are related with the deceased.

It has been submitted that admittedly the blood stained Bhala and the blood stained cloth have been sent for its chemical examination to the Forensic Science Laboratory, the report of which has not come but merely on this ground, the prosecution cannot be said to be vitiated if the case of commission of murder as has been narrated in the FIR is being corroborated by the eye witness. Herein, P.W. 5, 6 and 7 have corroborated the occurrence without any inconsistency and all along

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supported the prosecution story and as such, in absence of the expert report, their testimony cannot be discarded.

12. The argument has been advanced rebutting the argument advanced on behalf of the appellant that there are discrepancies in the testimony of the eye witnesses. It has been submitted that even accepting there are minor discrepancies but the same cannot be a reason to vitiate the prosecution story if the case is being supported by the eye witnesses and exactly is the case herein where the P.W. 5, 6 and 7 have fully supported the prosecution version.

It has been submitted regarding the ground taken about the non- consideration of the issue of enmity since the deceased has been convicted and sentenced rigorous imprisonment for a period of 10 years for commission of murder of the father of the appellant, the same cannot be said to be a reason to vitiate the prosecution in view of the testimony of P.W. 5, 6 and 7 who are the eye witness who have witnessed the appellant in committing murder of the deceased.

13. Learned APP in reply to the change of place of occurrence has submitted that if the testimony of the prosecution witness will be scrutinized it is quite clear that the place of occurrence has not been changed because the investigating officer in paragraph-2 of the examination-in-chief has stated that dead body of Gendu Mian was lying in the common courtyard of Amruddin Mian and Anwar Mian.

14. Learned APP on the basis of the aforesaid ground has submitted that the judgment impugned requires no interference, as such, the instant appeal may be dismissed.

15. We have heard the learned counsel for the parties, perused the documents available on record as also the testimony of the eye witness as is available on the lower court record (LCR).

16. The FIR was instituted on the basis of the fard beyan given by the informant, namely, Md. Muslim Ansari who has given information to the police on the basis of the information being given to him by Salim

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Ansari who reported him about the death of Gendu Mian, father of the informant who was assaulted with a Bhala in the courtyard by one Anwar Mian, the appellant herein. The prosecution in order to establish the prosecution story, has examined altogether 11 (eleven) witnesses.

17. Puran Hari has been examined as P.W. 1. He is a resident of the village where the occurrence took place. He has deposed that at the time of occurrence he was in his house at about 4:30 p.m. and hearing hulla, he went to the place of occurrence and found Gendu Mian lying dead in his courtyard. He has stated that he found a wound on the right chest of the deceased. He further says that the wearing garments of the deceased was soaked with blood and a Bhala lying at a distance of 1-1/2 yard which was smeared with blood. He has also stated that the cause of occurrence was a land dispute between the accused Anwar Mian and Gendu Mian. He has further stated that he learnt about the entire occurrence from the wife of the informant that Anwar Mian had assaulted and ran away. He has also stated that he learnt from the wife of the informant that Anwar Mian was taking bush (Jhari) and Gendu Mian sent his grand-son, Kurban, to see what was happening and then Kurban returned and told that Anwar Mian was taking the bush and then Gendu Mian went and questioned why he was taking the bush. He has also stated that he learnt from the informant's wife that in the meantime Anwar Mian fetched a Bhala and assaulted Gendu Mian causing his death. It has been stated by him that the police came to the place of occurrence at about 10:30 p.m. and he was also near the dead body and the dead body was inspected by the police in his presence and the report was being prepared. He has also stated that the seizure list of the Bhala was prepared in his presence by the police and he has put signature over the same.

He has also been cross-examined wherein it has been stated about the enmity between Anwar Mian and the deceased Gendu Mian regarding house and land.

It appears from the statement made by the witness in the deposition that there is no inconsistency in the statement made in the

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cross-examination to that of the statement which was made in the examination-in-chief. However, he is not the eye witness of the occurrence since he learnt about the entire occurrence from the wife of the informant.

18. Kartik Mondal has been examined as P.W. - 2 and is also the resident of the same village. It appears from his testimony that he had rushed to the house of Gendu Mian on hearing hulla and found Gendu Mian lying dead in his courtyard and that there was injury in his right chest. He has fully corroborated the evidence of P.W. 1. He has stated that he was present when the police prepared the inquest report and seizure list of the Bhala and that he put his signature thereof. He has accepted the old dispute between Anwar Mian and Gendu Mian.

It is, thus, evident that he is also not the eye witness to the occurrence rather hearsay witness and supported the prosecution version.

19. Md. Salim Ansari has been examined as P.W. 3 and has stated that he was in his house where the wife of the informant came weeping and told him that her father-in-law was assaulted and killed by Anwar Mian with Bhala and asked him to go to her husband to call him. He has further stated that he then rushed to the house of Muslim Mian where Gendu Mian was lying dead near the door of Amruddin Mian. He has also stated about the injury over the arm pit of Gendu Mian given by the Bhala and the wearing cloth of the deceased was soaked with blood and there were mark of Bhala blow on the shirt and Ganji of the deceased.

He has also stated that he thereafter has rushed to the Jalan factory and had given information of the occurrence to the informant.

He has been cross-examined wherein he has accepted about the enmity in between the deceased Gendu Mian and Anwar Mian. However, it is evident from the testimony given in the cross- examination that he has supported the prosecution version and has not

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deviated what he has stated in the examination-in-chief. However, he also happens to be the hearsay witness.

20. Abdul Halim has been examined as P.W. 4 who has been tendered for cross-examination.

21. Md. Aziz Ansari, son of the informant, has been examined as P.W. 5. His age has been shown to be 15 years in 1992, as such, on the date of occurrence he appears to be at the age of 12 years. He has stated that on the date of occurrence at about 4:30 p.m. he was in his courtyard with his mother, grandfather Gendu Mian and brother Kurban. He has stated that accused Anwar Mian was taking bushes from the Bari belonging to Gendu Mian and that his grandfather asked Kurban to see who is taking bush from their bari, and after looking about Kurban Mian reported that it was Anwar carrying away the bushes. He has further stated that his grandfather Gendu Mian upon this went out and exchange of hot words took place between Anwar Mian and Gendu Mian and in his meantime Anwar Mian fetched a Bhala from his house and assaulted Gendu Mian as a result of which Gendu Mian fell down and Anwar Mian feld away. He has stated that they had chased Anwar Mian but the accused pushed down his mother and entered in the house of one Sher Mohammed after throwing away the Bhala at the place of occurrence. He has also stated that the Bhala was sharp and inflicted on Gendu Mian on the right side of the chest causing bleeding injury.

He has also stated that he has identified the accused and said that on hearing hulla many persons of the neighbourhood had gathered. He has been cross-examined and at paragraph-6 has stated that Amruddin Mian had a common courtyard with them because Amruddin Mian had no separate courtyard there.

He has stated in para-6 that Anwar Mian had no house there and that he lived in the house of Amruddin in the west of the house of the deceased. He has supported the prosecution story.

He has been cross-examined but no inconsistency has been found from the statement which has been made in the examination-in-chief.

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22. Kurban Ansari, another grandson of the deceased, has been examined as P.W. 6 and has stated that he was in his courtyard with his grandfather, mother and brother and that at the asking of his grandfather he went to see their bari and found that Anwar Mian was removing bush from their bari and he reported the matter to his grandfather. He has stated that thereafter a quarrel took place between Anwar and Gendu Mian. Consequently, Anwar Mian fetched a Bhala and assaulted Gendu Mian with Bhala due to which his grandfather fell down and died on the spot. He has also stated that he tried to catch Anwar Mian but he threw the Bhala and fled away.

He has been cross-examined and has stated nothing said to be inconsistent to the statement made in the examination-in-chief.

23. Majidan Bibi, the wife of the informant, has been examined as P.W. -7, has supported the prosecution case as made out in the FIR.

She has been cross-examined where she has admitted about the panchayat of the local people related to the land dispute between Anwar Mian and Gendu Mian.

24. Muslim Ansari has been examined as P.W. 8 who is the son of the deceased and the informant of this case. He has fully supported the prosecution version. He has been cross-examined but he remains consistent with the prosecution story.

25. Dr. Vinod Kumar has been examined as P.W. 9, who has conducted the autopsy of the dead body on 14.11.1989 and has found the following injuries on the dead body of the deceased:

(i) Abrasion 1/2'' x 1/6" and 1/5" diameter on the middle of outerside of right arm and;

(ii) Stab wound 1/2" x 1/4" into cavity deep situated on the right anterior axillary line 2-1/2" below the anterior axillary fold. 1/2" diameter area at the stab wound was bruised and the margines were clear cut and inverted.

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On dissection the following observation were made:- 3rd and 4th ribs were broken and driven inwards into injury no.ii. Right lung showed 1/5" diameter by 1/8" stab wound and 1/2" x 1/4" x 1/4" lacerated wound (caused by broken ribs) on the outer side of upper lobe of right lung. Right thorasic cavity was full with blood and clots and the stomach contained about 2 hours semi-digested rice. Urinary bladder was found empty and all the internal organs were pale.

He has further opined about the time elapsed since death between 15 to 20 hours before the post mortem examination. He has proved the port mortem report, which is marked as Ext.3. He has also found that all the injuries are anti-mortem in nature.

At para-5, he further opined that injury no.ii may be caused by sharp pointed weapon like Bhala.

26. Jhagru Rewani has been examined as P.W. 10 and has been tendered for cross-examination.

27. Anirudh Pd. Singh, the investigating officer, has been examined as P.W. 11. He has deposed that on 13.11.1989 when he was posted at Dhanbad and he was made in charge of the investigation of this case and in course of investigation he visited the place of occurrence and found that it was common courtyard of Anwar Mian and Amruddin Mian where he found the dead body of Gendu Mian and a Bhala lying towards north of the dead body in the said courtyard. He has also stated that he found that the pointed end of the Bhala was smeared with blood and there was punctured wound at the right arm pit of the deceased. He has also stated that the wearing apparels, i.e., Ganji and Kurta in the line of the stab injury were having a hole and stained with blood. He has also found the Bhala from the place of occurrence and prepared seizure list of the blood stained Bhala. He has proved seizure list of the Bhala to be in his writing and signature as Ext.5. He has also stated about the complaint in between the parties pertaining to initiation of proceeding under Section 107 of the Cr.P.C.

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28. The learned trial court after taking into consideration the testimony of witnesses, more particularly, the testimony of P.W. 5, 6 and 7 who have been considered to be eye witnesses and prosecution story having been supported fully by other witnesses as also after taking into consideration the testimony of the Doctor who has conducted the post mortem examination of the deceased and being corroborated by the investigating officer about the place of occurrence and the Bhala having been found near the dead body, has convicted the sole appellant for commission of offence under Section 302 of the Indian Penal Code after finding the charge proved against him beyond all reasonable doubt

29. The first argument which has been advanced that the testimony of P.W. 5, 6 and 7 is the basis of conviction of the accused person since the learned trial court has considered the testimony of these witnesses to be eye witnesses. The argument has been advanced by way of ground that these three witness since are related with the deceased, as such, they are highly interested witness and hence having not been corroborated from any independent witness, therefore, the conviction cannot be said to be sustainable in the eyes of law.

30. This Court, before answering the aforesaid submission, deems it fit and proper to refer the legal position as to whether the eye witness if found to be interested, can their testimony be discarded solely on the ground that they are somehow related with the deceased.

31. The Hon'ble Apex Court in Mallanna and Ors. vs. State of Karnataka, (2007) 8 SCC 523 has laid down that the evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility then the Court can disbelieve the same. Relevant paragraph reads as under:

"22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3 is that no reliance should be placed upon these witnesses as PW 1 and PW 2 are close relations of the deceased and PW 3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured, their evidence

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cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses, PW 1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly bodyguard of the deceased and PW 1 and PW 3 came with the deceased to the house of PW 2 which was in Gulbarga the previous night for appearance of the deceased in sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad daylight.

So far as PW 2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor (PW 6) to the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence."

In Kulesh Mondal vs. State of W.B., (2007) 8 SCC 578, the Hon'ble Apex Court has laid down at paragraph-10 which reads as under:

"11. "10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25)

„25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.‟"

We have also observe that the ground that the witnesses being close relative and consequently being partisan witnesses should not be relied upon, has no substance. This theory was repelled by the Hon'ble Apex Court in Dalip Singh and Ors. vs. State of Punjab, AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that the relatives were not the independent witness. Relevant paragraph-26 reads as under:

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

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feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

Again in Masalti and Ors. vs. State of Uttar Pradesh, AIR 1965 SC 202, the Hon'ble Apex Court has observed that there is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with such evidence of a partisan type with great care. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan, cannot be accepted as correct.

In Rizan and Anr. vs. State of Chattisgarh, (2003) 2 SCC 661, the Hon'ble Apex Court has observed at paragraphs-6 to 9, which reads as under:

"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

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7. In Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : (AIR p. 366, para 26)

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

8. The above decision has since been followed in Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222] in which Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] was also relied upon.

9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case [AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- „Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] ‟ (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.""

In Shamim vs. State (Government of NCT of Delhi), (2018) 10 SCC 509, the Hon'ble Apex Court has observed at paragraph-9 which reads as under:

"9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the

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appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. Soon after the occurrence having reached the house of her in-laws she stepped out on the verandah. The appellant who was standing on her own verandah told the witness that she had got the deceased killed because the witness did not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, can be considered as a corroborative evidence being a voluntary extra-judicial confession, considering the nature of relationship between the witness and the appellant."

32. This Court on the basis of the aforesaid position of law is proceeding to scrutinize the testimony of P.W. 5, 6 and 7 who happens to be the grandsons and daughter-in-law of the deceased.

33. It is evident from the testimony of P.W. 5, 6 and 7 that all were present in the courtyard along with the deceased. The deceased on hearing alarm, asked of his grandsons, P.W. 6, to see what is happening in the jhari. P.W. 6 has given information that Anwar Mian, the appellant, is trying to take the jhari (bush).

Upon this, the deceased came out and exchange of hot words with the appellant and the deceased took place. The appellant upon this, rushed to his house and came out with Bhala and assaulted the deceased with Bhala due to which the deceased fell down and died.

The aforesaid version has fully been supported by all the eye witnesses, i.e., P.W. 5, 6 and 7. They have thoroughly been cross- examined on behalf of the defence but it would be evident from the statement made in the cross-examination that they have stated nothing said to be inconsistent with the statement made by them In the examination-in-chief.

34. It is, thus, evident that the prosecution story as has been narrated by the informant, has been supported by the P.W. 5, 6 and 7. It is evident from the prosecution version that the deceased was sitting in the courtyard along with the wife of the informant and his two grandsons who have seen the occurrence of assault given by the sole appellant. These witnesses have all along stated in the testimony about fetching of Bhala and assault being given by the Bhala upon the father of the informant near the right arm pit. The dead body said to have been found in the

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courtyard. The lying of the dead body has been corroborated by the investigating officer as has come in his testimony that when he has visited the place of occurrence, he has found the dead body lying in the courtyard, therefore, the testimony of P.W. 5, 6 and 7 has been corroborated by the testimony of the investigating officer in regard to the dead body which had been found in the courtyard.

So far as the injuries caused by the appellant as has been disclosed by P.W. 5, 6 and 7 who had seen the occurrence and the nature of injuries has been corroborated by the Doctor who has conducted the post-mortem examination. The injuries which has been found by the doctor are being supported by the testimony of P.W. 5, 6 and 7 who have stated that the sole appellant has given Bhala blow near the right arm pit and the doctor has also found the injury on the middle of outerside of right arm, therefore, the testimony which has been given by the P.W. 5, 6 and 7 regarding the injury, has been corroborated by the doctor.

Therefore, the law as has been settled to not discard the testimony of the interested witnesses who are the eye witnesses but caution is to be given while taken into consideration the testimony of the eye witnesses who happens to be the interested witnesses.

35. This Court, on the basis of the aforesaid discussion as made in the preceding paragraph, is of the view that the testimony of P.W. 5, 6 and 7 cannot be discarded only on the ground that they are related with the deceased considering them to be the interested witnesses since herein their testimony is being corroborated by the investigating officer P.W. 11 and Doctor, P.W. 9 regarding the injury which has been found to be anti-mortem in nature, therefore, according to the considered view of this Court since the testimony of P.W. 5, 6 and 7 are being corroborated by the testimony of P.W. 11 and P.W. 9, therefore, merely because P.W. 5, 6 and 7 are the related to the deceased, their testimony cannot be discarded. Therefore, the argument advanced to that effect on behalf of the appellant is having no substance, accordingly, rejected.

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36. The second ground has been taken that the investigating officer has confirmed that the blood stained Bhala and cloth over the dead body of the deceased has been sent for its chemical examination to the Forensic Science Laboratory but in absence of the report, the judgment of conviction has been passed, therefore, it cannot be said that the commission of offence is fully being corroborated.

37. There is no dispute in the position of law that the evidence of an expert is a rather weak type of evidence and the Court do not generally consider it as offering conclusive proof and therefore it is said to rely upon the independent and reliable corroboration. The Hon'ble Apex Court in Magan Bihari Lal vs. State of Punjab, AIR 1977 Supreme Court 1091 while dealing with the evidence of handwriting expert has opined "... we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration."

This rule has been universally acted upon and it has almost become a rule of law. It was held by the Hon'ble Apex Court in Ram Chandra v. State of U.P. [AIR 1957 SC 381] that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.

The Hon'ble Apex Court again pointed out in Ishwari Prasad Mishra v. Md. Isa [AIR 1963 SC 1728] that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] where it was pointed out by the Hon'ble Apex Court that experts evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be

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desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.

The Hon'ble Apex Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. [AIR 1967 SC 1326] and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.

38. Admittedly herein, as per the version of the investigating officer the blood stained Bhala and cloth of the deceased have been sent to the FSL but the report had not been received.

39. The issue which has been raised that in absence of the report the conviction cannot be said to be justified but the position of law is well settled that the expert opinion is very weak piece of evidence and merely because the FSL report has not been received, the testimony of the witnesses cannot be discarded. The position of law is well settled that if the prosecution version is being supported by the testimony of the eye witness then its admissibility cannot be discarded as the argument is being made on behalf of the appellant. Reference in this regard be made to the judgment by the Hon'ble Apex Court in Hema vs. State through Inspector of Police, Madras, (2013) 10 SCC 192, had laid down as under paragraph-29, which reads as under:

"29. Coming to the next contention, namely, the failure of the prosecution to exhibit the report of FSL, Chennai with regard to the impression of seals, MOs 1 to 3 is fatal to the prosecution, it is relevant to note that PWs 16, 26 and 29, DSPs and SI of Police, have categorically denied the genuineness of the above seals since the same were recovered pursuant to the confessional statement of A-3 and the absence of expert opinion by itself does not absolve the liability of the appellant."

In Chhotan Sao and Anr. vs. State of Bihar, (2014) 4 SCC 54, has laid down as under paragraph-13, which reads as under:

"13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra v. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552] , to which one of

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us, Ranjana Prakash Desai, J., was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows : (SCC p. 112, para 23)

"23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary.""

In Nawab vs. State of Uttrakhand, (2020) 2 SCC 736, has laid down as under paragraph-11, which reads as under:

"11. The deceased had only one entry and exit wound. The bullet apparently exited her body and thus the likelihood of its recovery from the place of occurrence with the round end damaged after it was fired. The pistol was recovered on the confession of the appellant from under the earth in the courtyard, the earth was freshly dug. The High Court disbelieved the recovery because the independent witness PW 2 went hostile. But the High Court missed the reasoning by the trial court that PW 2 did not deny his signature on the recovery memo nor did he state that his signature was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation."

40. Here, in the instant case, the testimony of P.W. 5, 6 and 7 has fully corroborated the prosecution version and as such, due to non-receipt of FSL report, ocular evidenve of the P.W. 5, 6 and 7 cannot be discarded on the basis of the law settled that the ocular evidence is to prevail upon the expert opinion as has been held by the Hon'ble Apex Court in Anvaruddin and Ors. vs. Shakoor and Ors., (1990) 3 SCC 266, at paragraph-10 which reads as under:

"10. These two injuries are undoubtedly gunshot injuries. Dr Mathur, who performed the post-mortem, states that these injuries could be caused if fired at from a distance of over 4 feet. There were corresponding holes in the shirt worn by the victim. This medical officer does not say that the aforesaid two injuries were possible by a single shot. However, Shri Badul Rai, the ballistic expert, opined that the said two injuries could have been caused by a single shot fired from a countrymade pistol. He deposed that if the shots were fired from a short distance of 8 to 10 feet all the pellets would have entered the body en masse and would have caused an exist wound thereby discrediting the evidence of the three witnesses that the shots were fired from 2 1/2 to 3 yards. The witness, however, admitted that his estimate regarding the distance from which the shot was fired was based on standard ammunition and not countrymade weapons. But when cross-

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examined he stated that the single shot must have been fired from a countrymade weapon from a distance of 8 ft. The fact that there was no tattooing or blackening is indicative of the fact that the shots were fired from not too short a distance. The High Court took no notice of Dr Mathur's opinion in this behalf. The evidence of the three eye-witnesses as to the distance from which the shots were fired is a mere estimate. Even though the ballistic expert initially opined that injuries Nos. 12 and 13 could be the result of a single shot he vacillated and stated that the possibility of the said two injuries having been caused by two different shots could not be ruled out altogether. He merely stated that the greater probability was that they were the result of a single shot. In other words the ballistic expert was not positive in his view. In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements. We are, therefore, of the opinion that the High Court was wrong in its conclusion based on the vacillating evidence of the ballistic expert."

41. This Court, on the basis of the aforesaid position of law, is of the view that merely because the FSL report has not been received, the testimony of P.W. 5, 6 and 7 cannot be discarded, therefore, the prosecution version cannot be said to be vitiated.

42. The third ground has been raised that there are discrepancy in the testimony of the witnesses.

43. This Court having gone through the testimony of P.W. 5, 6 and 7, eye witnesses, with its corroboration by the informant and the investigating officer and the Doctor who has conducted the post mortem of the dead body of the deceased, is of the view that there is no such discrepancy so as to vitiate the prosecution story. Even though there are minor discrepancy, the same cannot lead to vitiate the prosecution story as has been held by the Hon'ble Apex Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217, at paragraphs-5 and 6 which reads as under:

"5. It appears that the parents of PW 1 as well as parents of PW 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And an alert woman social worker, PW 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from PW 1 and PW 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct.

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She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant.

Kundanben requested the appellant to apologize publicly in the presence of the women who had assembled there. If the appellant had acceded to this request possibly the matter might have rested there and might not have come to the court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by PW 1 on September 19, 1975. PW 1 was then sent to the Medical Officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehaviour with PW 1 and PW 2 in the manner alleged by the prosecution and established by the evidence of PW 1 and PW 2. Their evidence has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established : (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

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(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses."

44. This Court, therefore, is of the view on the basis of the above position of law that if there is minor discrepancy the prosecution cannot be vitiated.

45. Further ground has been raised that there was enmity in between the deceased and the sole appellant, therefore, the same ought to have been considered by the learned trial court but having not been considered, the judgment of conviction is also not sustainable in the eyes of law.

46. This Court has considered the aforesaid aspect of the matter and after going through the testimony where it has come in the evidence that the deceased was convicted for commission of murder of the father of the sole appellant and sentenced to undergo rigorous imprisonment for 10 years but merely because the same is the factual aspect but even then the testimony of the ocular witnesses, i.e., P.W. 5, 6 and 7 cannot be discarded who have fully supported the prosecution version fully. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Matibar Singh and State of Uttar Pradesh, (2015) 16 SCC 168, wherein at paragraphs-14 ad 15 it has been observed which reads as under:

"14. That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment [State of U.P. v. Indrasen, Criminal Appeal No. 902 of 1979, decided on 26-9-2001 (All)] . We must, at the outset, say that the High Court's judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the

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submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court. The fact that there was previous enmity between the complainant's party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution. Enmity is a double-edged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross- examinations to render it unsafe for the Court to rest an order of conviction against the accused persons.

15. The High Court has, in our opinion, correctly held that the sequence of events leading to the incident as also the version given by the witnesses was free from any infirmities, hence, fully reliable. The fact that there was not even a suggestion either to the victim of the assault or to the doctors examined at the trial that the stab injuries sustained at the back were self- inflicted clearly shows that the version of the complainant could not be rejected just because the so-called independent witnesses had not been examined. It is in any case difficult for us to accept that the victim when assaulted in broad daylight would have allowed the real offender to go scot- free to falsely implicate some innocent persons."

47. The ground has also been raised on behalf of the appellant about the change of place of occurrence as shown in the FIR and in the testimony of the investigating officer.

It has been submitted that the place of occurrence as has been shown in the FIR is the courtyard of the deceased himself but the investigating officer has stated that the dead body was lying 1-1/2 yard of the door of Amruddin Mian.

The learned trial court has considered the aforesaid aspect of the matter and found, on scrutiny of the entire evidence that the place of occurrence has not been found to be changed as would appear from the testimony of the investigating officer who has stated in para-2 of his examination-in-chief that the dead body of Gendu Mian was lying in the common courtyard of Amruddin Mian and Anwar Mian. Even the P.W. 5 has stated in para-6 that Anwar Mian had no house there and that he lived in the house of Amruddin in the west of the house of the deceased.

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The learned trial court, therefore, came to the conclusion that the house of deceased and the house of Amruddin Mian as well as of the accused Anwar Mian had the common courtyard and the alleged incident took place in the said courtyard.

48. This Court has scrutinized the aforesaid finding by going through the testimony of P.W. 5, 6 and 7 as also P.W. 11 wherefrom it is evident that P.W. 5 has stated as under paragraph-6 and 8 that Anwar Mian had no house there and he lived in the house of Amruddin in the west of the house of the deceased, as such, it is evident that the house of the deceased and house of Amruddin as well as of Anwar Mian had a common courtyard and the alleged occurrence took place in the same courtyard, therefore, it is incorrect to agitate on behalf of the appellant that there is change of the place of occurrence since even in the FIR, the dead body has been shown to be in the courtyard of the deceased Gendu Mian and even the investigating officer P.W. 11 has corroborated the same.

49. Further, the position of law is well settled that the judgment of conviction is to be passed if the prosecution will be able to prove the charge beyond all shadow of doubt as has been held by the Hon'ble Apex Court in Rang Bahadur Singh and Ors. vs. State of U.P., (2000) 3 SCC 454, at paragraph-22, which reads as under:

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

50. This Court, on the basis of the discussion made hereinabove and taking into consideration the testimony of the witnesses P.W. 5, 6 and 7, the eye witnesses, being corroborated by the testimony of the investigating officer and the Doctor, is of the view that the prosecution has been able to prove the charge beyond all shadow of doubt.

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51. The learned trial court after taking into consideration the testimony of the witnesses as also the evidences available on record, has arrived at a conclusion that the prosecution has been able to prove the charge beyond all reasonable doubt, which according to the considered view of this Court, cannot be said to suffer from error.

52. Accordingly, the instant appeal fails and is dismissed.

53. This Court, after having passed the order as aforesaid has considered the sentence and found therefrom that the order of sentence to undergo rigorous imprisonment of life for the offence committed under Section 302 of the Indian Penal Code suffers from infirmity, reason being that Section 302 provides that along with the sentence of imprisonment for life, the fine is also mandatory to be inflicted as would appear from Section 302 of the Indian Penal Code, which reads as under:-

"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."

54. The trial Court while imposing the sentence has not considered the mandatory provision as contained under Section 302 of the Indian Penal Code and passed the order of sentence without inflicting any fine, therefore, the order of sentence is modified to the extent that apart from the sentence to undergo rigorous imprisonment for life, a fine of Rs.10,000/- (Rupees Ten Thousand) to the appellant, is hereby imposed.

55. With the aforesaid modification in the order of sentence, the instant appeal stands dismissed.

56. Consequent upon dismissal of the appeal preferred by the appellant, since appellant is enjoying suspension of sentence after the order being passed by this Court directed to release him during pendency of the appeal, his bail bonds are cancelled and he is directed to surrender before the learned trial Court who would send him in jail to serve out his remaining sentence.

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57. Needless to say that if the appellant will not surrender, the trial Court will take endeavours for securing custody of the appellant to serve out his remaining sentence and further secure that he deposit the amount of fine so imposed by this Court.

58. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.

                                                  (Sujit Narayan Prasad, J.)

         I agree,


   (Subhash Chand, J.)                              (Subhash Chand, J.)


Jharkhand High Court, Ranchi
Saurabh /A.F.R.