Reserved on 30.9.2021 Delivered on 29.10.2021 Case :- CRIMINAL APPEAL No. - 4588 of 2008 Appellant :- Devendra Singh And Others Respondent :- State of U.P.
Counsel for Appellant :- Gajendra Chauhan,Ambrish Kumar,Anurag Pathak,Apul Misra,B.P.Mishra,Dilip Kumar Gupta,Gajendra Pratap,Kamal Krishna,Narendra Kumar Singh,Noor Mohammad,Praveen Kumar Srivastava,R.K.Singh,Vidya Bhaskar Singh,Virendra Singh Parmar Counsel for Respondent :- Govt. Advocate
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
(Delivered by Hon'ble Mrs. Sadhna Rani (Thakur), J.
The present criminal appeal has been filed by the appellants Devendra Singh, Govind Singh, Ghanshyam Singh and Amit Singh against the judgment and order dated 24.7.2008 passed by the learned Additional Sessions Judge, Court No. 1, Kannauj in S.T. Nos. 477 of 2003, under Section 302/34 I.P.C. State Vs. Devendra Singh and others and appellant Govind Singh in S.T. No. 478 of 2003, State Vs. Govind Singh convicting and sentencing them under Section 25/27 Arms Act respectively.
As per the prosecution case a written complaint was lodged by the complaint Mahesh Pratap Singh on 16.7.2003 at about 22:35 P.M. at P.S. Chhibramau, District Kannauj stating that he was a resident of village Nagla Man, Kotwali Chibara Mau, District Kannauj. His youngest brother Akhilesh had developed love relations with Poonam, daughter of his uncle Munnu Singh. Four days prior to the incident, Akhilesh had eloped with Poonam. Family members of both Akhilesh and Poonam were searching them. The family members of Poonam in the village declared that if they found Akhilesh and Poonam, they would certainly kill them. The first informant got the information that Akhilesh and Poonam were planning to come to Chibaramau. The brothers of Poonam also got the said information. On receiving the said information, both the brothers of Poonam namely, Devendra Singh and Govind Singh sons of Munnu Singh, their cousin Ghanshyam and uncle Amit went to Chibaramau by two Motor cycles. The complainant having suspicion that the accused may cause some untoward incident, also went to Chhibramau along with Suraj Pal Singh son of Bharat singh and Rambeer Singh son of Ram Ratan Singh by their bicycles. They searched for Akhilesh and Poonam and at about 10:15 p.m. found them at the Eastern bypass. All of them were coming back towards Tal Gram Tiraha, on foot and when they reached in front of the house of Ram Vilas Tripathi, the accused Devendra Singh and Govind Singh, Ghanshyam and Amit reached there on their Motor cycles. The complainant saw the accused persons in the light of the bulb and torch and recognized them. All the four accused persons abusing Akhilesh and Poonam got down from their motor cycles. The accused Devendra Singh, Govind Singh and Ghanshyam were armed with the Country made pistols whereas Amit was holding a knife in his hand. They forcibly caught hold of Akhilesh and Poonam, dragged them behind the bus and fired and assaulted them. The complainant and his companions made hue and cry. Hearing the sounds of fire many people had gathered on the spot. Taking benefit of this, the accused persons showing their weapons ran towards Talgram Tiraha riding on their motor cycles. When complainant reached on the spot victims Akhilesh and Poonam had succumbed to the injuries.
After lodging the chik F.I.R., the investigation was taken over by the Station House Officer Sri, R.K. Mishra. He reached on the spot where the dead bodies were lying. He recorded the statements of the complainant on the next day at about 6:05 A.M. At the pointing out of the complainant, he made spot inspection and prepared the site plan. The inquest report was prepared by S.I Nanhu Mal under his supervision. The samples of blood-stained and normal earth were collected from the spot and its memo was prepared. The recovery of sealed two empty cartridges of 315 bore was made from the spot. The dead bodies were sent to the postmortem. Necessary documents were copied in C.D. On 20.7.2003. The accused Govind Singh, Ghanshyam Singh and Amit were arrested. They confessed their guilt. At the pointing out of Govind Singh one Country made pistol used in commission of the crime was recovered along with empty cartridges in it. The site plan of the recovery place and the memo of recovery of the Country made pistol with empty cartridges were prepared. The case crime no. 389 of 2003 under Section 25/27 of the Arms Act was registered against accused Govind Singh on 25.7.2003. The memo regarding inspection of the torch was prepared. On 2.8.2003, the accused Devendra Singh had surrendered in the Court. The investigation was handed over to Inspector Jitendra Singh Parihar on the transfer of earlier I.O. After perusal the previous C.D the subsequent I.O. had sent the blood-stained and plain earth for inspection. On 29.8.2003, he recorded the statement of accused Devendra Singh and after completion of the investigation the charge sheet no. 185 of 2003 against all the four accused persons under Section 302/34 IPC had been submitted. Charge-sheet no. 174/03 was filed against accused Govind Singh under section 25/27 Arms Act.
The accused persons pleaded not guilty and demanded trial. The charges were framed against all the four accused persons namely Devendra Singh, Govind Singh, Ghanshyam and Amit under Section 302/34 IPC and against Govind U/S 25/27 Arms Act on 20.12.2003.
To prove their case, the prosecution had produced as many as 7 witnesses in the Court. Out of whom PW-1, the complainant -Mahendra Pratap Singh had proved his complaint as Exhibit K-1, map of the spot inspection as Exhibit K-2. Suraj Pal son of Bharat Singh appeared as PW-2 and denied his presence on the spot at the time of incident, he was declared hostile. Dr. R.K. Singh appeared as PW-3 and proved the postmortem reports of both the deceased persons as Exhibit K-3 and K-4. Sub inspector Nanhu Mal appeared as P.W.-4. He proved the inquest report of the deceased Ahilesh Kumar Singh as Exhibit k-5, challan of the dead bodies as Exhbit k-6, photos of dead body as Exhibit K-7, the letter to the C.M.O. as Exhibit K-8; inquest report of the deceased Poonam as Exhibit K- 9, the Challan of the dead body as Exhibit K-10, the photo of dead body as Exhibit K-11, letter to the C.M.O as Exhibit K-12. Second investigating Officer Jitendra Singh Parihar appeared as PW-5 and proved the charge sheet as Exhibit K-13, Chik FIR as Exhibit K-14, copy of G.D as Exhibit K-15. The first Investigating Officer Shri R.K Mishra appeared as PW-6 and proved the site plan as Exhibit K-16. Memo of blood stained and plain earh as Exhibit K-17, memo of two empty cartridges as Exhibit K-18. He also proved the site plan of recovery of pistol as Exhibit K- 19, recovery memo as Exhibit K-20, inspection memo of the torch as Exhibit K-2. P.W.-6 has also proved the blood-stained and normal earth as Material Exhibit 1 and 2, two empty cartridges of 315 bore as Material Exhibit-3 Exhibit-4. The Country made pistol recovered at the instance of Govind Singh as Material Exhibit-5 and the empty cartridge recovered along with this pistol as Material Exhibit-6. Two FSL reports have also been placed by the prosecution in the trial court.
The statements of all the four accused persons were recorded under Section 313 Cr.P.C, wherein they had denied their involvement in the crime and claimed their implication being false due to enmity. They also stated that Poonam who was in possession of enough jewellery was attacked by some unknown assailants who committed the murder of both Poonam and Akhilesh. No oral or documentary evidence has been produced by the accused persons.
The present appeal has been filed on behalf of all the four accused persons on 28.7.2008 on the ground that they have been wrongly convicted against the weight of evidence on record and contrary to law. The conviction is wrong and sentences are excessive. Learned trial court did not consider the relevant point of law argued on behalf of them.
We have heard the rival contention of the learned counsel for both sides and perused the record.
Learned counsel for the appellants argued that there was no eye witness of the incident. The only witness of fact who had supported the prosecution case is P.W.-1 Mahendra Pratap Singh, the brother of the deceased is a highly interested witness. His sole testimony cannot be the ground of conviction. The FIR is Anti -timed. There was no source of light on the spot. In the FIR there is no whisper of inflicting knife injuries on the person of the deceased. The alleged knife and two pistols used in the crime and the torch had not been produced. The recovered pistol had not been sent to Forensic Science Laboratory. The conduct of the complainant is also suspicious as when he had heard the whisper that the accused persons might commit murder of his brother he ought to have informed the police. It could not be explained that why did he along with his companions reached on the spot without any weapon when had suspicion or knew the intention of the accused.
Learned A.G.A, on the other hand, argued that it was straight and simple case of honour killing. As both the deceased had eloped from the village, this brought bad name to the family of accused persons. In revenge the accused persons committed crime in a pre-planned and pre-meditated manner. The incident was witnessed by the complainant himself. There is no contradiction much less material contradiction in the evidence of the witnesses. The ocular evidence is supported by the medical evidence. The prosecution had fully established the charges against the accused persons and the trial court had rightly convicted and sentenced them.
It is consistently laid down by the Hon’ble Apex Court in the case of Kamlesh Prabhudas Tanna and another Vs. State of Gujrat 2014 (Crl.L.J.) 443 and in the case of Majjaal Vs. Haryana 2013 (6) SCC 798 that while exercising the appellate jurisdiction the High Court is expected to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case can be said to have been proved beyond reasonable doubt by the said evidence. The credibility of a witness has to adjudged by the appellate court in drawing inference from the proved and admitted case. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of appeal, and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
In view of the above proposition we proceed to examine the rival contentions of the learned counsel for the parties.
The prosecution case rests on the sole testimony of P.W.-1 Mahendra Pratap Singh, the brother of deceased Akhilesh who has been projected as eye witness of the incident. Another eye witness Suraj Pal produced as P.W.-2 had not supported the prosecution and had turned hostile.
Learned counsel for the appellants urged that the sole witness of fact produced by the prosecution P.W.-1, the real brother of the deceased, had not witnessed the incident. His testimony cannot be relied upon.
The Apex Court in the case of Dalip Singh and others VS. State of Punjab, 1954 (1) SCR 145 has laid down that a witness is normally to be considered independent unless he /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.
In the case of Rizwan and other Vs. State of Chhatishgarh through the Chief Secretary, Govt. of Chhatishgarh, Raipur (2003) 2 SCC 661, the aspect of reliability of prosecution witnesses and the test to be applied to weigh the evidence has been discussed in the following manner:-
“12. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. It is to be appraised in each case as to what extent the evidence is worthy of acceptance.”
The Apex Court in Parvat Singh v. State of M.P., (2020) 4 SCC 33 has laid down that undisputedly there can be conviction relying upon the deposition of sole witness provided it is found to be trustworthy and reliable and there are no material contradictions and / or omissions and / or improvements in the case of the prosecution.
In Ravi VS. State represented by Inspector of Police, (2008) 15 SCC 115, the Apex Court has held that there is no legal impediment in convicting a person on the testimony of solitary witness provided he is wholly reliable.
In Sahabuddin and another Vs. State of Assam, (2012) 13 SCC 2013, the Apex Court has held that the interested witness is a person who desires to falsely implicate the accused. The relatives are not necessarily interested witnesses whereas in certain cases only relatives are available as witnesses. The evidence of relative is acceptable if it is otherwise trustworthy and corroborated by other evidences.
In Laltu Ghosh Vs. State of West Bengal (2019) 15 SCC 344, Hon'ble Supreme Court has held that a witness may be called interested only when he / she derives some benefit from the result of a litigation which in a criminal case would mean that the witness has a direct or indirect interest in seeing accused punished due to prior enmity or other reasons and, thus, has the motive to falsely implicate the accused. In criminal case, it often happens that the offence is witnessed by a close relative of the victim whose presence at the spot of the incident would be natural. The Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.
In Vijendra Singh Vs. State of U.P., (2017) 11 SCC 129, the Apex Court has held that the evidence of an interested witness should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony if found to be intrinsically reliable or inherently probable it may by itself be sufficient in the circumstance of a particular case to base a conviction thereon.
In Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, 1981 (2) SCC 35 it was observed that the evidence of a closely related witness is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it. Though the evidence cannot be discarded merely on the ground that the witnesses are related to each other or to the deceased. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses though it cannot be suspicious of such evidence.
Thus the court cannot reject the evidence on record on the ground which are in the nature of conjuncture but if a reasonable doubt arises regarding the guilt of the accused, the benefit of doubt has to be given to the accused.
In the instant case, P.W.-1 Mahesh Prasad Singh has stated that both the parties belong to the same village. The deceased was the younger brother of the complainant. The accused Devendra Singh and Govind Singh are sons of his uncle Mannu Singh. Amit Singh is the uncle of Devendra Singh. Ghanshyam is the cousin of Devendra Singh. This relationship is admitted to both the parties.
The deceased Akhilesh had love relations with the deceased Poonam, the sister of Devendra Singh and Govind Singh. Both Poonam and Akhilesh eloped from their houses four days prior to the incident. The family members of both were searching them. The accused persons used to challenge that if they would find Poonam and Akhilesh, they would kill them. On 16.7.2003 in the evening, the complainant came to know that Poonam and Akhilesh were coming to Chhibramau. The accused persons also got the news. All the four accused persons reached to Chhibramau on their motorcycles. Having suspicion of some untoward incident the complainant along with Surajpal and Rajbeer went to Chhibramau by their bicycles and searched for Akhilesh and Poonam. At about 10.15 P.M. they found both of them on the Eastern bye-pass. When they were coming to Talgram Tiraha along with Poonam and Akhilish, in front of the houses of Ram Bilas Tripathi, all the four accused persons came from the western side on their motorcycles. They forcibly dragged Poonam and Akhilesh and took them behind the bus and murdered them with the help of knife and fire-arms. Govind Singh, Devendra Singh and Ghanshyam were armed with Country made pistols whereas Amit was carrying knife. The complainant and Surajpal were carrying torches. There was electrical light of bulbs in which they recognized the accused persons. On their hue and cry and after hearing the sound of firing, the persons nearby came there. All the four accused persons showing their pistols and knife ran away riding their motorcycles. By then, Akhilesh and Poonam had died.
P.W.-1 proved the version of the first information report lodged by him. Nothing incriminating has came in his cross examination.
P.W.-2 Suraj Pal, in his examination-in- chief had admitted the relations of Akhilesh and Poonam and that both had eloped from the village 4-5 days before the incident. He had also admitted that on 16.7.2003 after hearing the news that Akhilesh and Poonam are about to come in the village, all the four accused persons Devendra Singh, Govind Singh, Ghanshyam and Amit Singh went to Chhibramau to search them. Mahesh Pratap Singh, the brother of Akhilesh also went to Chhibra Mau to find out Akhilesh and Poonamon. This witness had denied that he accompanied Mahesh Pratap Singh and also refused witnessing the incident. This witness had been declared hostile by the prosecution and had been crossed by the State counsel. In the cross-examination, though p.w.-2 had denied his alleged statement under section 161 Cr.P.C. and did not support the prosecution case but had admitted the fact that all the four accused persons and the complainant Mahesh Pratap Singh went to Chhibramau on the date of the incident in search of Akhilesh and Poonam. He had not denied the fact of murder of Akhilesh and Poonam by the accused persons. He had not been cross examined also by the counsel for the accused on any point.
In Gura Singh Vs. State of Rajasthan (2001) 2 SCC 205 Hon'ble Apex Court has held that merely because a witness has turned hostile, his entire evidence should not be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such a witness.
The evidence of the P.W.-2, thus, cannot be discarded as a whole. His evidence to the extent of presence of both the parties in Chhibramau on the date of the incident and elopement of the two deceased is supporting the prosecution case which is uncontroverted.
In this connection, we may refer to paper no. 19-B/1 in the trial Court file which is an application moved by the complainant Mahesh Pratap Singh in the trial court to assert that the accused Amit who was on bail was giving threat to life to the witnesses Surajpal Singh, and Suraj Pal Singh got registered a N.C.R. no. 118 of 2004 in that regard. It was stated that the complainant was having danger to his life and the life of the witnesses from the accused Amit and prayer for the police protection had been made therein. This application is accompanied with the photocopy of the N.C.R. paper 19- B/2 report no. 118 of 2004 lodged by Suraj Pal Singh son of Bharat Singh (p.w.-2) against Amit, Shishupal and Munnu Singh. The allegations therein are that the accused Amit Singh along with his brother Shishupal Singh and Munnu Singh abused him giving threat at his door step that if he would depose against the accused, he would be killed. Both the witnesses Satyapal Singh and Mahesh Pratap Singh are the eye witnesses of the incident.
Though this application and the NCR had not proved by the prosecution and and exhibited as such, but the NCR can not been denied by the accused side and it is noteworthy that only after the NCR dated 25.6.2004, the witnesses P.W.-2 Surajpal had given his evidence in the Court where he became hostile.
Admittedly, there was no previous enmity between the parties. It was only because the deceased Akhilesh aged about 30 years had developed relations with deceased Poonam aged about 18 years, the accused persons borne enmity.
Now we will consider the argument advanced by the learned counsel for the appellants one by one;
It is argued that the first information report was Anti- time as the incident was said to have occurred at about 10.15 P.M. on 16.7.2003 and the first information report is stated to have been lodged at 10.35 P.M., which was too quick. It not possible to lodge the first information report in such a short period as the distance between the place of occurrence and the police station (as admitted by P.W.-6) is 4-5 km. It has also been pointed out that in the inquest report there is overwriting over the date of receiving of the report and date of starting the investigation. In the inquest report of the deceased Akhilesh, the date 17.7.2003 had been changed to 16.7.2003 by overwriting which can be seen through a naked eye.
We may note that as per record, the F.I.R. was lodged and the investigation started on 16.7.2003. The Chik F.I.R. dated 16.7.2003 had been proved by the complainant and the second Investigating Officer Jitendra Singh Parihar. Admittedly, inquest report was prepared on 17.7.2003 so it appears that inadvertently in the inquest report the date 17.7.2003 was mentioned by the inquest writer as the date of receiving information and the date of starting investigation which was later on corrected by overwriting. This correction / overwriting, thus, can not be considered to be manipulation.
So far as the distance of the police station from the place of occurrence is concerned, it is true that the Investigating Officer P.W.-6 had mentioned the distance to be 4-5 km in his statement but in the Chik F.I.R. (Exhibit K-13) proved by the second Investigating Officer, the distance of the place of occurrence from the police station has been shown as 1 km. Only. The distance mentioned in the written document namely the Chik FIR has to be considered more authentic than the oral evidence of the witness. Thus, the contradictions regarding overwriting in the date of the inquest report and the distance of the place of occurrence from the police station concerned do not prove the first information report being Anti-time.
It is also argued that there was no source of light on the spot to recognize the assailants. The torch which was said to be with the complainant at the time of the incident had not been produced in the Court. Moreover, the alleged memo of the torch was prepared after 9 days of the incident, on 25.7.2003. In the site plan, no source of light had been shown by the Investigating Officer. It is, thus, argued that the record indicates that there was no source of light on the spot to witness the incident.
In this regard, if we go through the first information report, it is mentioned therein that the complainant and his companions witnessed the incident in the light of the torch and bulbs. The memo of torch was prepared by the Investigating Officer after 9 days and the torch was given in the possession of the complainant which could not be produced in the Court later. The source of light has not been mentioned in the site plan but both these facts can only be said to be flaws on the part of the Investigating Officer.
It is settled that the remissions and inefficiency of the Investigating agency should be no ground to acquit a person if there is enough evidence on record to establish his guilt beyond reasonable doubt. ( Reference Kashi Nath Mandal Vs. State of West Bengal (2012) 7 SCC 699).
Apart from the torch the light of the bulb as the source of light is also mentioned in the F.I.R. itself. The P.W.-1 has stated that he and Suraj Pal Singh both were having torches and there was light of bulbs on the spot in which they had witnessed the incident. In the cross examination, P.W.-1 had stated that near the place of occurrence there were houses of Ajay Travels, Ram Naresh Yadav, Genda Lal Rajput and Ram Vilas Tiwari and the existence of all these houses at the spot has been shown in the site plan also. So the street light or the light of houses existing on the spot at the time of the incident cannot be denied. The complainant P.W.-1 has further stated that the light of the house of Ram Naresh Yadav was reaching the spot. When they reached at the Tiraha, the bulbs of the nearby houses were litting. Further, when they started from their village they were carrying 'Eveready-torch' containing three cells which was shown to the Investigating Officer by litting the same.
Lastly, even if it is accepted for a moment that neither the complainant or his companions were having torches nor there was any electric light on the spot, admittedly both the parties were well acquainted to each other so it was not hard enough for them to recognize each other even in the dark night by their movements and voices etc. The argument of the learned counsel for the appellants that there was no source of light on the spot to recognize the accused persons, therefore, is of no substance.
It has also been argued by the learned counsel for the appellants that in the first information report itself the injuries inflicted by knife have not been mentioned nor as per postmortem report the injuries of knife had been found on the person of the deceased so the act of the complainant to assign knife as a weapon to accused Amit to assault the deceased persons shows the falsity of his claim of being a witness of the incident. It is true that in the first information report, infliction of knife injuries has not been mentioned and only this much is stated that all the accused persons forcibly dragged Akhilesh and Poonam on the back side of the bus and fired on them.
If we go through the first information report Amit has been shown to be armed with knife and in the post mortem report also both the deceased have been shown to have sustained stabbed injuries. In this regard, the evidence of P.W.- 3 Dr. R.k. Singh is also relevant. It is clearly stated by him that deceased Akhilesh was having two stabbed injuries and Poonam was having one stabbed injury on their persons. According to the version of the doctor all these three stabbed injuries could be inflicted by the knife. The Doctor has also opined that the knife by which the stabbed injuries were inflicted could be double sided because the margin of the edged stabbed injuries were found clear cut. This clearly shows that the stabbed injuries were inflicted and the accused Amit had been assigned the role of causing injuries with knife, the weapon which he was carrying. In the first information report also Amit is shown to be armed with knife and knife injuries had been found on the person of the deceased. P.W.- 1, the complainant who has proved the F.I.R. has stated in his examination-in-chief only that the accused persons by firing and stabbing committed murder of the deceased persons. For the above, mere non- mentioning of the stabbed injuries in the first information report can in no way be in favour of the appellants.
The presence of the complainant has also been denied on the spot. It is submitted that if the complainant was afraid of honour killings of Akhilesh and Poonam by the accused persons then there is no explantion why he did not carry any weapon with him while going to search his brother and why he did not inform the police about his fear. This proves that the complainant had neither reached Chhibramau nor witnessed the incident. The narration of the incident is only his guess work.
In our opinion, it is true that the complainant could have informed the police or could have taken some weapon with him but it is the human nature that in a given circumstance, each person reacts differently. If one reacts one way then the other cannot be said compulsorily to react in the same way. It seems that hearing the news that Akhilesh and Poonam were coming in Chhibramau, the accused persons were also going there and in the fear that they might commit some wrong, the complainant being in hurry rushed to meet his brother Akhilesh and Poonam instead of informing the police and did not carry any weapon with him. Nothing turn out from the said facts. Moreover, according to the P.W.-1 when they saw the accused persons going in search of Akhilesh and Poonam, they did not see any weapon with them apparently. The reaction of the complainant in the given circumstance and his act in not informing the police first cannot prove that he did not go to the spot or he was not present on the spot at the time of the occurrence.
It has also been claimed that the Country made pistols allegedly recovered at the instance of the accused Govind Singh had not been sent to laboratory. In this regard, the F.S.L. report is on record. As per paper 19B/4, the gun said to be recovered at the instance of Govind Singh was sent to F.S.L. and there it was marked as exhibit 1/ 2004 and on the inspection, the fire residue and one empty cartridge was found in it. Thus, the argument advanced by the learned counsel for the appellants that the pistol was not sent for F.S.L. is wrong from the record itself.
If we go through the F.S.L. Report paper no.99B/4-5 from the trial court record, one of the empty cartridge recovered from the spot had found to be fired from the pistol recovered at the instance of the accused Govind Singh which clearly shows the involvement of the accused Govind in the occurrence.
It is also argued that two pistols alleged to be seen in the hands of the accused Devendra Singh and Ghanshyam and knife alleged to be in the hands of Amit had not been produced. It is true that these three weapons had not been produced. It has come in the case diary that those weapons were thrown by the accused persons in the river Ishan and they had never been recovered.
It has also been claimed that the complainant himself had murdered Akhilesh and Poonam and implicated the appellants falsely. The argument of the learned counsel for the appellants is contradictory. On one hand, he contended that the complainant did not witness the incident and another that he committed the murder. When the complainant had appeared in the Court and cross-examined, there was no suggestion that he did not witness the incident. The contrary arguments raised by the learned counsel for the appellants that the murder was committed by the complainant himself, is not sustainable.
The reason being that if the complainant did not witness the incident then how could he be present in Chhibramau to commit the murder of Akhilesh and Poonam and if he had committed murder of the deceased then his presence on the spot cannot be denied. Moreover, in the statement of the accused under section 313 Cr.P.C. none of the accused had alleged that the murder was committed by the complainant or the complainant. All of them had suggested that Poonam was having enough jewellery and some unknown anti social elements had murdered them to commit loot. There is no F.I.R. from the side of the accused persons (brother of Poonam) on record that she had eloped with any jewellery. At the same time, the Sub Inspector Nanhu Mal who conducted the inquest found Payal, Bichhiya of white metal, Nose pin, Ear pin and One ring of yellow metal from the person of deceased Poonam. According to this witness, all her jewellery were sealed and sent with the dead body of Poonam for the post mortem. As per the post mortem report, the doctor also found one nose pin, one payal, one ring, one ear ring, Bichhiya from the person of deceased Poonam. He also found one wrist watch from the dead body of deceased Akhilesh. PW-1 has also stated that deceased was wearing bangles, nose pin, earring, ring and bichhiya. PW-6 I.O. has also admitted in his evidence that he had received a bundle of jewellery and clothes of the deceased from the office of CMO. The argument of appellants' counsel that the deceased persons might have been murdered by some dacoits/ antisocial elements while robbing them, thus, becomes wrong.
It is also argued that there are material contradictions in the statements of the witnesses which make the oral testimony untrustworthy.
From the prosecution side, six witnesses had been produced. P.W. 1 and 2 are the witnesses of fact. P.W.-3 is the doctor. P.W.-4 is the inquest writer. P.W.-5 and 6 are the Investigating Officers. P.W.-2 though had been declared hostile but his evidence to some extent supports the prosecution case.
So far as the contradictions are concerned, the contention of the learned counsel for the appellants is that the statements of the witnesses are contradictory with regard to the fact as to how they had reached at the place of occurrence after registration of the F.I.R. It is pointed out that as per P.W.- 1, when the police officer came back to the police station, he accompanied the complainant. The complainant was going by a bicycle indicating the spot and the police officer was following him by a jeep. The P.W.-4, the inquest writer, however, had stated that along with the Investigating Officer he went to the place of occurrence by a jeep driven by the driver Ram Pratap Singh. The complainant Mahendra Pratap Singh was also with them in the jeep. P.W-6 the first Investigating Officer had stated that the complainant did not accompany him when he went to the spot on the date of incident. The complainant met him on the spot only. This witness had further stated that Nanhu Mal (Inquest writer) did not go to the spot along with him rather in the morning he came when he was called.
Considering the above, we find that these contradictions are not material. How the complainant had reached the spot whether along with the Investigating Officer or the Investigating Officer reached later on or the complainant went by his bicycle do not make material difference, as this much is clear from the statement of witnesses that after lodging of the first information report, the complainant, the Investigating Officer and the inquest writer all had reached the spot.
Next contradiction pointed out by the learned counsel for the appellants is that P.W.-1 had stated that the Investigating Officer had examined the dead bodies in supine and prone position to see the injuries sustained by them. It was stated by him that the Investigating Officer after reaching the spot had examined the dead bodies in supine and prone position and noted down their injuries. Further P.W.-1 had stated that in the morning when the Investigating Officer came, he had examined the injuries of both the deceased persons, Akhilesh sustained two and Poonam sustained one injury of knife. Whereas P.W.-4 had stated that they had examined the dead bodies in supine and prone position and noted down their injuries in the inquest report. P.W.-6 in this connection in his statement had refused to have examined the dead bodies on the first day because it was night. The evidence, thus, shows that either the Investigating Officer had examined the injuries twice, which was wrong action, or the alleged eye witnesses had made a false statement.
Considering the statement of P.W.-1 we may note that it appears he had only explained that the Investigating Officer after reaching on the spot had examined the injuries on the person of dead bodies. It is not clear from the statement of P.W.-1 that whether the Investigation Officer had examined the injuries of the deceased persons in night or in the morning but a reading of the statement of this witness makes it clear that the injuries were inspected by the Investigating Officer. The statement of P.W.-4 that they had examined the dead bodies in supine and prone position and noted down the injuries in the inquest report and the report was prepared in the day light is clear and categorical. The statement of P.W.-7 further makes it clear that they did not inspect the dead bodies when they reached the spot because it was night. All the reports were prepared in the morning. Further P.W. -1 made a very clear statement that the Investing Officer inspected the injuries inflicted by knife in the morning. It is the law of prudence also that even the apparent injuries can not be seen properly in the night. The investigating team is supposed to examine the injuries minutely at the time of noting them down either at the time of preparing the inquest report or the medico legal report. Thus, the argument of material contradictions in the evidence of witnesses in this regard is completely baseless and turned down.
Further, even if there is any such discrepancy, it may be because of some confusion as to when did the Investigating Officer inspect the injuries. Such discrepancy being a very minor one can be very well ignored.
There is also some discrepancy in the statement of witnesses regarding the recovery of rupees from the clothes of the deceased Akhilesh which has been pointed out by the learned counsel of the appellants. It is argued that P.W.-4 (inquest writer) in his cross examination had refused the recovery of Rs. 7800/- and other documents at the time of inspecting the dead bodies of Akhilesh and Poonam. Whereas P.W-6- the Investigating Officer in his cross examination had admitted that at the time of examining the dead body of Akhilesh Rs. 7800/- and some papers were recovered which were kept safe with some relative of the complainant. The complainant also had stated that Rs. 7800/- were recovered from the pocket of the deceased Akhilesh which were kept safe by the Investigating Officer with him and later on the money and papers were handed over to him. This contradiction is also of not of much importance because admittedly as per the statement of the Investigating Officer – P.W.-6 the recovery of Rs. 7800/- was not mentioned in any document nor any memo of the same was prepared. As there is no written document, the discrepancies in the statements of the witnesses are bound to occur because of the time gap between the incident and their examination in the Court. Moreover, as per the statement of P.W.-6 (the Investigating Officer) the P.W.-4 (inquest writer) came on the spot in the morning when he was called by him. Thus, this recovery might have been at the time when inquest writer did not arrive on the spot. Resultantly, the discrepancy cannot be of any benefit of the appellants.
On the discrepancy regarding the fact that the inquest report was prepared by putting the dead bodies on the road or it was prepared at the place where the dead bodies were found lying, we may note that P.W.-1 has stated that Darogaji with the help of the constable kept the dead bodies on the road where they were sealed by the P.W.-4. Whereas P.W.-6 had denied the fact that the dead bodies were removed from the place where they were lying and the inquest report was prepared after putting the dead bodies on the road. Whether at the time of inquest, the dead bodies remained at the site of the incident or shifted to the road to facilitate the work does not make any significant difference. It has no bearing on the issue before us.
Learned counsel for the appellants further pointed out that P.W.-1 had stated that to seal the dead bodies, Raju Dubey was sent to purchase the cloth and the money was given by him. Whereas, P.W.-2 and P.W.-7 had denied the fact that some person was sent to purchase the cloth rather they had stated that they themselves were carrying the cloths in which the dead bodies were sealed. This discrepancy in the statements of the witness is again of no importance.
It is also contended by the learned counsel for the appellants that in the first information report and in the examination-in-chief of the complainant, it has come that when they reached near the deceased persons they were already dead, whereas in the cross examination P.W.-1 complainant had stated that when they reached at the spot of murder Poonam and Akhilesh were lying and they heard them groaning that all the four accused persons had killed them.
This discrepancy again can only be said to be an improvement. It is human nature to exaggerate the things. This improvement or exaggerations can very well be ignored in the light of the evidence before us.
It is also argued by the learned counsel for the appellants that there is contradiction in the statements of witnesses as in which direction the accused persons ran away after committing the crime. P.W.-1 in his evidence states that the accused persons after committing crime ran away toward 'Talgram Tiraha'. Whereas P.W.-6 has stated that after firing the accused persons ran away toward the west. The learned counsel for the appellants argued that this contradiction shakes the trustworthiness of the prosecution witnesses.
A perusal of the site plan Exhibit k-16 shows the direction of fleeing away of the assailants on South-West, so both the directions mentioned by the complainant and the Investigating Officer become correct that the accused person after committing the crime ran away from West to South direction.
Thus, from the above, discussion, it is clear that though there are some minor discrepancies in the statements of the witnesses but they are inconsequential. The Apex Court in the case of State Of Rajasthan vs Smt. Kalki & Anr. (1981) 2 SCC 752, has said that in the deposition of witnesses there are always normal discrepancies, however, honest and truthful they may be, those discrepancies are due to normal error of observations, normal error of memory due to lapse of time, due to mental deposition such as shock, horror at the time of occurrence and the like. In Laltu Ghose Vs.State of West Bengal (2019) 15 SCC 344, it has been held that if there is no major contradiction in the statement of witnesses minor variation cannot tilt the balance in favour of defence. A. Shankar Vs. State of Karnataka, (2011) SC 2302, the Apex Court has reiterated that in all the criminal cases normal discrepancies are bound to occur in deposition of witnesses due to lapse of time or due to mental deposition. Considering the legal position in the facts of the instant case, we find that the discrepancies in the evidence of the witnesses are not material rather they are very minor in nature, which do not go to the root of the matter. Thus, the learned counsel for the appellants cannot take benefit out of these discrepancies.
Moreover, the Court should read the evidence as a whole as Hon’ble Apex Court has held in the judgment of State of U.P. Vs. Krishnamurthy and others (2010) 12 SCC 324 that upon reading of the evidence, if it appears to have a ring of truth then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching the core of the case cannot be ground for rejecting the evidence. The Court should sift the evidence to separate the false-hood from the truth. When a witness is subjected to gruelling cross examination for several days, some inconsistencies or discrepancies may occur in his statement which if not significant cannot discredit his testimony. The is not expected to have exact sense of time or remember every detail of the incident and state with precision the entire chain of events after a lapse of time.
In this case P.W.-1, the sole witness of the fact, had been examined for three days so the minor discrepancies as pointed out in his statement were bound to occur.
The learned counsel for the appellants has placed three judgments passed by the Coordinate Bench of this Court in Criminal Appeal No. 1875 of 2007, Shesh Narain Vs. State of U.P. dated 27.5.2016, Criminal Appeal No. 5211 of 2011, Madan Singh Vs. State of U.P. dated 21.2.2019 and Criminal Appeal No. 4857 of 2011, Parshu Ram Vs State of U.P. dated 14.2.2019 before us to contend that the trial court had committed error in scrutinizing the evidence of the prosecution witnesses holding the appellants guilty of causing murder of the two.
It is contended that the evidence is fanciful and creates reasonable doubt regarding the guilt of the accused. There was no enmity between the parties. The source of light is not clear. There is no explanation with regard to non seizure of the torches and there is no recovery of weapon used in murder. In fact, assailants were the unknown persons and the only witness of fact has failed to inspire confidence, so the assailants are entitled for acquittal.
If we go through the judgments placed by the appellants counsel, we find that all the above judgments of the Coordinate benches of this Court do not lay down any specific principle of law. Every case has its own facts and on the basis of its peculiar facts, the Court had reached at a specific conclusion.
From the above discussions, in the facts of the instant case, it is clear that there was no prior enmity between the parties. Both the deceased had eloped together 4-5 days before the incident which had brought a bad name to the family members of the deceased Poonam. Two appellants are the real brothers of deceased Poonam, third one is the uncle and fourth is the cousin of Poonam who could not tolerate it and their arrogance had resulted into the incident. This is a clear cut case of honour killing.
During the whole sequence of events, the family members of Poonam neither informed the police regarding missing of the girl nor they had lodged any F.I.R. of the incident. They neither came forward to take the dead body of Poonam and after postmortem both the dead bodies were handed over to the family members of the deceased Akhilesh. This conduct of the accused persons further adds to the conclusion that they were behind the crime. At the same time, the evidence of P.W.-1 inspires full confidence in order to place reliance on his testimony. Though the other eye witness P.W.-2 had denied his presence on the spot at the time of occurrence but he had admitted that before 4-5 days of the incident, both the deceased persons had eloped from their houses. Receiving the information that they are coming to Chhibramau on 16.7.2003, all the accused persons and the complainant had gone to Chhibramau in search of them. Regarding this part of the statement, P.W.-2 had not been cross examined by the accused counsel. So the presence of all the accused persons and the complainant in Chhibramau on the date of the incident is uncontroverted. There is no evidence on record to prove the defence theory that the complainant or some miscreants had committed the murders.
Thus, it is firmly established by the prosecution that the appellants are the persons who had committed two murders on the flimsy ground of saving honour of their family.
For the above discussion, we do not find any merit in the contentions of the learned counsel for the appellants. The judgment of the trial court for conviction under Section 302/34 I.P.C. does not suffer from any infirmity to warrant interference.
So far as conviction of the accused Govind Singh under section 25/27 of Arms Act is concerned, the record of case crime no. 389 of 2003, S.T. No. 478 of 2003, State Vs. Govind Singh, under section 25/27 Arms Act police station Chhibramau District Kannauj is before us.
A careful reading of the record makes it clear that as per the order sheet though after framing charge on 20.12.2003, this case was fixed for evidence on every date along with the main file of case crime no. 381 of 2003, S.T. No. 477 of 2003, State Vs. Devendra Singh and others, but both the cases were never consolidated and, thus, the evidence regarding 25/27 Arms Act could not be produced in the Court.
Though the recovery of pistol with live cartridge at the pointing out of the accused Govind Singh had been proved in the main file. Recovery memo and site plan of recovery place had also been proved by P.W.-6, the Investigating Officer in the main file. But the Chik First information report, D.M. Permission and chargesheet of Case crime no. 389 of 2003 had not been proved. In fact, there is no evidence at all regarding case crime no. 389 of 2003 in the record of the trial court. Hence, in absence of any evidence in this regard, the judgment of the trial court holding the accused Govind guilty under section 25/27 Arms Act cannot be sustained. The judgment of the trial court regarding 25/27 Arms Act is erroneous and the conviction and sentence for the said offence is, thus, liable to be set aside.
The judgment and order dated 24.7.2008 for conviction and sentence in S.T. No. 477 of 2003 arising out of case crime no. 389 of 2003, State Vs. Govind Singh under Section 25/27 Arms Act is, therefore, set aside. The appeal of appellant Govind Singh in this regard is allowed. Whereas the judgment of the trial court in S.T. No. 477 of 2003 arising out of case crime no. 381 of 2003, State vs. Devendra Singh and others for conviction and sentence of the appellants under Section 302/34 I.P.C. is affirmed.
The appeal is, thus, allowed in part to the above extent. All the appellants are in jail.
The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance.
Necessary steps shall be taken by the Court below to notify this judgment to all concerned.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
Order Date:- 29.10.2021 Gss