Hon'ble Arvind Kumar Mishra-I,J.
(Judgement Delivered by Hon'ble B.K.Narayana,J.) Heard Dr. C.P.Upadhyay,learned counsel for the appellant and A.N.Mulla, learned AGA for the State assisted by Sri Saghir Ahmad, learned AGA, J.K.Upadhyay, learned AGA, Sri Hasan Abidi and Sri Irfan Chaudhary, learned brief holders for the State.
This criminal appeal has been filed by the appellant Manoj @ Munna Patel against the judgment dated 21.04.2005 and order dated 25.04.2005 passed by Additional District & Sessions Judge, Court No.3, Varanasi in S.T. No. 444 of 2004 convicting the appellant under Sections 302 and 323 IPC and sentencing him to imprisonment for life and a fine of Rs. 50,000/- under Section 302 IPC and one year rigorious imprisonment and a fine of Rs. 1,000/- under Section 323 IPC and in default of payment of fine awarded under both the counts three years additional rigorous imprisonment. The Additional District & Sessions Judge, Court No.3 Varanasi directed that both the sentences shall run concurrently and the amount of fine deposited by the appellant shall be paid to the heirs of the deceased as compensation.
Briefly stated, the facts of this case are that on the basis of written report (Ex. Ka-1) given by PW-1 Prem Chandra Patel, son of Ram Lal Patel, r/o Ramna at P.S. Lanka, District Varanasi on 07.02.2004 at about 12.40 p.m., case crime no. 56 of 2004, under Sections 302/323 IPC was registered against the appellant. The complainant in his written complaint alleged that while he alongwith his father Ram Lal Patel brother Suresh Chandra Patel and Ghanshyam Singh, Gram Pradhan of the village was pulling out grass from the field of Chhotey Lal and their grand father Mani Ram Patel was sitting at some distance from them, his cousin brother Manoj @ Munna Patel suddenly appeared at the place of incident and wielded repeated blows with his spade on the neck of his grand father and immediately ran away from the place of incident. His grand father died instantaneously while running away from the place of incident, the accused Manoj @ Munna Patel also assaulted his younger brother Harish Chandra with spade causing injuries to him. After the registeration of the FIR PW-6, SHO Ajit Singh Chauhan, P.S. Lakna himself assumed the investigation of the case and reached the place of incident and prepared site plan Ex.Ka-7 and other documents, namely, police form 13, police form no. 379, letter addressed to CMO Ex. Ka- 8, 9 and 10 respectively and got the inquest report Ex.Ka-2 prepared on his instructions. He also collected blood stained and plain earth from the place of incident and prepared its recovery memo Ex.Ka-4 and obtained the signatures of both the witnesses thereon and thereafter dispatched the cadevar of the deceased with constables Sitaram and Jai Singh for post mortem.
The post mortem of the dead body of the deceased was conducted on 07.02.2004 at about 4.30 p.m. at B.H.U. by PW-5 Dr. A.K. Pradhan, who prepared his post mortem report Ex.Ka-6. Injuries of Mani Ram Patel, brother of complainant were examined by Dr. Arvind Kumar on 07.02.2004 at about 4.30 p.m. at Shiv Prakash Gupta Hospital Varanasi. The Investigating Officer after completing the investigation of the case submitted charge sheet Ex. Ka-11 under Section 302/323 IPC against the accused before the C.J.M., Varanasi. Since the offences enumerated in the charge sheet were triable by the Court of Sessions, the C.J.M., Varanasi vide his order dated 28.06.2004 committed the case for the trial of the accused to the Court of Sessions where it was registered as S.T. No. 440 of 2004 and from there it was made over to the court of Additional District & Sessions Judge, Court No.3 Varanasi. Charge was framed against the appellant under Section 302/323 IPC. The appellant pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined PW-1 Prem Chandra Patel, PW-2 Suresh Chandra Patel, PW-3 Ghanshyam Patel, as eye witnesses of the incident and formal witnesses PW-4 Rajesh Kumar Singh, PW-5 Dr. A.K.Pradhan, PW-6 Ajit Singh Chauhan and PW-7 Constable Bhadai Ram. In his statement recorded under Section 313 Cr.P.C. the appellant denied the entire prosecution case and further stated that families of the appellant and the complainant Harish Chandra and deceased Mani Ram were residing in the same house. The place of incident was at a distance of about one km. from their house in Village Narottampur. The parties were litigating before the Consolidation Authorities since 1993 and the appellant being the only earning member in his family, he was falsely implicated in the present case by the complainant with the sole object of breaking the back bone of the appellant's family financially. The appellant neither examined any defense witnesses nor filed any documentary evidence on record.
Learned Additional District & Sessions Judge, Court No.3, Varanasi after considering the submissions made by him by learned counsel for the parties and scrutinizing the evidence on record convicted the appellant under Section 302/323 IPC and awarded him the aforesaid sentences.
It has been submitted by learned counsel for the appellant that considering the distance between the place of incident and the promptness with which FIR of the occurrence appears to have been lodged by PW-1, unequivocally indicates that the incident had taken much before the time shown in the FIR and none had seen the same and the FIR was lodged when the dead body of the deceased was found, after due deliberations and consultation on the advise of the police personnel falsely implicating the appellants and the same is apparently ante timed. He next submitted that in view of the irreconcilable contradictions and inconsistencies in the testimonies of the three eye witnesses of the occurrence examined on behalf of the prosecution with regard to the manner in which the deceased had been assaulted and the medical evidence on record which does not corroborate the prosecution version vis a vis the manner of assault, the appellants conviction on the basis of the evidence of PW-1, PW-2 and PW-3 is not justified at all. According to PW-5 Dr. A.K.Pradhan who had conducted the post mortem of the dead body of the deceased, the injuries found on the dead body of the deceased could have been caused by a sharp cutting weapon alone and spade not being a sharp cutting weapon and the prosecution also having also failed to produce the injured witness Harish Chandra who would have been the star witness of the occurrence and to lead any cogent evidence for proving that the blood stained spade which was recovered from the place of incident was used in committing the murder of the deceased, it cannot be said that the prosecution has proved its case against the appellant beyond all reasonable doubt and hence the conviction of the appellant recorded by the trial court and the sentence awarded to him cannot be sustained and are liable to be set aside.
Per contra Sri Sagir Ahmad, learned AGA submitted that the prosecution case stands fully proved from the evidence of PW-1 Prem Chandra Patel, PW-2 Harish Chandra Pate and PW-3 Ghanshyam Patel l who were present on the spot at the time of occurrence had witnessed the incident. The finding of guilt recorded by trial court is based upon cogent evidece and sentence awarded to the accused appellant is supported by relevant considerations and the impugned judgment which does not suffer from any infirmity, perversity or illegality does not require any interference by this Court. Thus this appeal which lacks merit is liable to be dismissed.
We have very carefully examined the submissions made by the learned counsel for the parties and scanned the entire lower court record. Appellant Manoj @ Munna Patel was tried by learned Additional District & Sessions Judge, Court No.3 for having committed the murder of Maniram, the grand father of the complainant Prem Chandra Patel, PW-1.
The only question which arises for consideration before us is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not.
In order to ascertain whether the prosecution has been successfull in proving its case beyond all shadows of reasonable doubts or not, the court has to examine the following issues :-
(I) FIR :- Whether the FIR is ante timed.
(II) Time of occurrence :- Whether the time coincides with medical evidence.
(III) Place of occurrence.
(IV) Manner of occurrence.
(V) Motive:- Whether the motive or the guiding force behind the occurrence was of such a strong character so as to pursuade to commits such heinous offence like murder in the case.
(VI) Credibility of witnesses.
Now we proceed to test the facts of the present case and the evidence on record on the touch stone of the aforesaid issues:-
(I) FIR - The first issue relates to credibility of the FIR. So far as the credibility of the FIR in this case is concerned, learned counsel for the appellant has questioned its reliability by inviting our attention to the time of occurrence mentioned in the FIR and the distance between the place of incident and the police station and the time at which the FIR was registered. The occurrence in this case is alleged to have taken place at 11.30 p.m. on 07.02.2004 in the field of one Chhotey Lal in village Narrottampur, District Varanasi. The written complaint of the incident Ex. Ka-1 was scribed by PW-1 complainant Prem Chandra Patel himself and given at P.S. Lanka which is admittedly at a distant of 5 kms. from the place of incident, on the same date at 12.40 p.m. Advancing his arguments in this regard further learned counsel for the appellant learned counsel for the appellant invited our attention to the examination in chief of PW-1 Prem Chandra Patel in which he has deposed that the written report of the incident was scribed by PW-1 himself and given at the police Station by him where he had gone along with Harish Chandra, younger brother of his grand father. Learned counsel for the appellant next referred to the cross examination of PW-1 (pages nos. 12 and 13 of the paper book) in which he had stated that after the incident he along with the other persons present on the spot had chased the accused for about 25-30 feet and then returned back to the place where the dead body of Mani Ram was lying on the ground. He had stayed at the place of incident for about half an hour and thereafter he had gone to his house with Harish Chandra and remained there for about 10-15 minutes during which period he had scribed the written report himself and thereafter he had gone to P.S. Lanka along with Harish Chandra ona Scooter, registeration number whereof was UP65 N0537 and he had reached the police station Lanka at between 12.40 p.m.-1.00 p.m. where he had met a police officer. He had remained at the police station for 20-25 minutes and thereafter he had returned back to his house leaving behind Harish Chandra at the police station.
Learned counsel for the appellant also took us through the cross examinations of PW-3 Ghanshyam Patel (page 23 and 24 of the paper book) in which he has stated that he had put his signature on the inquest report at 1.00 p.m.. The Investigating Officer of this case Ajit Singh Chauhan had arrived at the crime scene at about 12.00 noon and the entire proceeding was completed by 2.00- 230 p.m..
However we are unable to agree with the contention of the learned counsel for the appellant that the FIR in this case is ante timed on the basis of the submissions made by him.
Time of his arrival at the P.S. stated by PW-1 in his examination in chief is not the exact time but estimated and variation of few minutes on either side is quite natural and justifiable. The FIR cannot be termed as ante-time simply because PW-3 has deposed in his cross examination that the I.O. of the case had arrived at the place of incident at about 12 noon and PW-3 had signed the inquest report at about 1.00 p.m. and entire paper work on the spot was completed by 2.00-2.30 p.m. for the simple reason that on page 23 of paper book, PW-3 in his cross examination has categorically stated that he did not remember the time at which he had signed the inquest report. Thus the time of his signing the inquest report, arrival of the Investigating Officer at the place of incident and the time taken by the police in completing the necessary paper work on the spot as stated by PW-3, in his cross examination is the estimated time and not exact and accurate. According to the evidence of PW-3 the entire proceeding on the spot was completed by 2-2.30 p.m.. From the perusal of the inquest report Ex. Ka-2 it follows that the inquest had begun at 2.00 p.m. and the entire proceeding was completed at 3.20 p.m., hence there is no material discrepancy with regard to the time at which PW-1 had reached the police station and the time during which necessary paper work on the spot was completed by the police in the testimonies of PW-1 and PW-2. The discrepancies in the depositions of PW-1, PW-2 and PW-3 pointed out by the learned counsel for the appellant appear to be normal discrepancies. The discrepancies are due to normal error of observation and normal errors of memoray due to lapse of time and not material discrepancies.
The fact that written report of the incident Ex. Ka-1 was given by PW-1 at P.S. Lanka on 07.02.2004 is proved from the testimony of PW-4 Rajesh Kumar who has deposed before the trial court that on the basis of the written compliant given by PW-1 Prem Chandra Patel, chick FIR- Ex.Ka-5 was prepared by him at Chick No. 31 of 2004 and registered as case crime no. 56 of 2004 under Sections 302 and 323 IPC.
More over there is evidence of PW-7 Constable 1138 Bhadai Ram who had deposed before the trial court that on the date of the incident he was posted at P.S. Lanka and he had prepared the necessary G.D.entry vide Rapat No. 36 on 07.02.2004 at about 12.40 p.m. and proved the same as Ex. Ka-12. Thus in view of the evidence of PW-4 Rajesh Kumar and PW-7 Bhadai Ram, we are afraid that we cannot accept the contention of the learned counsel for the appellant that the FIR in this case is ante time.
The issues relating to the time of occurrence, place of occurrence, manner of occurrence, motive and credibility of witnesses are being taken up together.
Time of occurrence as mentioned in the FIR has been seriously disputed by the learned counsel for the appellant by submitting that the medical evidence on record does not corroborate the time of incident mentioned in the FIR.
According to the FIR the incident had taken place at about 12.30 p.m. on 07.02.2004. The post mortem of the dead body of the deceased was conducted by Dr. A.K.Pradhan on the same day at about 4.30 p.m. "Cause of death according to the post mortem report Ex. Ka-6 is stated to be total decapicitation of head."
Learned counsel for the appellant has invited our attention to the cross examination of PW-5 Dr. A.K.Pradhan (page 27 of the paper book) in which he had stated that in order to fix the time of death, the presence rigor mortis and other documents forwarded to the doctor who conducts the post mortem are taken into consideration. During winter season rigor mortis sets in early on the dead body and remains present for a considerably longer period than during the summer season.
The deceased had died on 07.02.2004 during winter season. At the time of the post mortem, rigor mortis was present on the whole body of the deceased meaning thereby that rigor mortis had developed from the head of the deceased upto his heel. During winter season rigor mortis remains present for 18-24 hours and after death, it takes about 4-6 hours for the rigor mortis to set in, about 12 hours for the rigor mortis to develop from head to feet and it remains present for 18-24 hours.
Learned counsel for the petitioner has also invited our attention to the post mortem report of the deceased and submitted that according to the post mortem report about 500 gms. undigested food (bread and rice) was found in the stomach of the deceased which total falsifies the time of the incident mentioned in the FIR. He then referred to the cross examination of PW-5 in which he had opined that it was possible that the deceased had died on 06.02.2004 between 9.10 p.m. and the food contents found in the stomach of the deceased may have been consumed by him four hours before.
Relying upon the cross examination of PW-5, learned counsel for the appellant has stated that the post mortem of the deceased was conducted on 07.02.2004 at about 4.40 p.m. and at the time of the post mortem rigor mortis had developed over whole of the body of the deceased and considering the fact that, even if it is assumed that the rigor mortis had set in after four hours of the occurrence, as the incident in question had taken place during winter it must have taken at least about eight hours for the rigor mortis to set in over the whole body of the deceased coupled with the presence of 500 gms. of undigested food in the deceased's stomach, then the time of incident mentioned in the FIR stands totally belied as in view of the medical evidence of the deceased could not have died after 2.40 a.m. We however are not unable to agree with the contention of the learned counsel for the appellant, in view of the setted legal position that in case of conflict between the ocular testimony and medical evidence, it is the ocular evidence which will prevail unless it is proved that the ocular testimony is unreliable, untrustworthy and uncredible which does not appear to be so in the present case. The doctor had noted three identifiable ante mortem injuries on the dead body of the deceased together complete decapitation of head (three separateed injuries iidentifiable)". All the three eye witnesses have stated in their evidence in unison that the accused had weilded three blows on the deceased. More over PW-5 Dr. A.K.Pradhan has categorically stated on page -2 of his examination in chief that it was possible that the deceased had died on 07.02.2004 at about 11.30 a.m. due to the injuries inflicted on his neck which further could have been caused by an assault made by spade and the injuries so inflicted upon the deceased were sufficient to cause instantaneous death. Thus we do not find inany material in consistencies or discrepancies between the eye witness account of the incident and the medical evidence on record with regard to the time of occurrenc mentioned in the FIR.
Learned counsel for the appellant has not made any submissions challenging the correctness of the place of incident as disclosed in the FIR and in the testimonies of the prosecution witnesses, hence we find that the prosecution has fully succeeded in proving that the occurrence had taken place in the field of Chhotey in village Narrottampur.
So far as the issue relating to the manner of occurrence is concerned, learned counsel for the appellant has stated that there are glaring inconsistencies and contradictions in the testimonies of the three eye witnesses of the occurrence with regard to the manner in which the deceased had been allegedly assaulted by appellant and that the injuries found on the dead body of the deceased could not have been caused by the blood stained axe which was allegedly recovered from the place of the incident.
In order to examine the aforesaid challenge we will have to delve into the evidence of the three eye witnesses, namely, PW-1 Prem Chandra Patel, PW-2 Suresh Chandra Patel and PW-3 Ghanshyam Patel on the point of manner of assault. PW-1 Prem Chandra Patel has stated that while his father Ram Lal Patel, his brother Suresh Chandra Patel and Ghanshyam Singh, Pradhan of the village were pulling out grass from the field of one Chhotey Lal at some distance from the place where Maniram his grand father was standing, the appellant Manoj Patel his cousin brother, suddenly appeared at the place of occurrence with a spade in his hand and wielded repeated blows on the neck of his grand father with the intention of causing his death and thereafter ran away from the place of incident leaving behind the spade. On page-12 of his cross examination, PW-1 stated that the appellant had struck the first blow at the deceased from behind on his neck causing injury on his neck. After receiving the first blow Maniram had fallen on the ground and while he was lying with his back on the ground, the appelalnt had then wielded two more blows to the deceased and in all he had struck the deceased thrice.
PW-2 Suresh Chandra Patel stated more or less the same facts in his examination in chief which were stated by PW-1 in his examination in chief, PW-2, however, he in his cross examination (page-17 of the paper book) deposed that when the appellant reached near Maniram he was cutting grass with his face towards the west. On reaching near Maniram the appellant uttered something to him, which he could not hear as the face of the Maniram was not visible to him and he was further not in a position to state whether the deceased had replied to the appellant or not. Although initially Maniram was standing with his face towards west, but when the appellant addressed him, he turned his face towards the appellant and at that point of time the appellant struck a blow with his spade on the neck of the deceased. At the time of the assault the distance between the appellant and the Maniram was about one foot. He further deposed that he had seen the appellant wielding the first blow on the deceased and thereafter he pushed him as a result he fell on the ground on his back then the appellant assaulted him again with his spade. The appellant had wielded three blows and all the three blows were struck while Maniram was lying on the ground. He further stated that when the appellant pushed Maniram he fell on the ground. Deceased Maniram was neither squating on the ground nor cutting grass. Similarly PW-3 Ghanshyam though corroborated the prosecution case as spelt out in the FIR in his examination in chief but he in his cross examination (page-23 of the paper book) deposed that at the first instance he had seen the appellant coming from the side of chak road and after noticing him he had resumed his work of cutting grass and when he saw the appellant next he was abusing Maniram and assaulting him. He had seen the appellant wielding three blows on the deceased. At the time when the appellant had assaulted the deceased Maniram, he was sitting and the first blow was wielded by the appellant with his spade on the deceased from behind on his back, whereafter he had fallen on the ground with his back against his ground. The second and third blows were wielded by him on the neck of the Maniram, while he was lying on the ground with his face towards sky. Thus the contradictions pointed out by the learned counsel for the appelant in the testimonies of PW-1, PW-2 and PW-3 with regard to the manner of assault are that while according to PW-1 the first blow was struck by the appellant on the neck of the deceased from behind where after the deceased fell and lay with his back against the ground and the remaining two blows were struck to him by the appellant thereafter but according to the PW-2, the first blow was wielded by the appellant to the deceased while he was facing him and thereafter the appellant had forcibly made the deceased lie on the ground and struck three blows on him in that position. According to PW-1 at the time of the assault, the deceased was standing on the ground while according to the PW-2 the assault was made while the deceased was sitting on the ground and cutting the grass. On the other hand PW-3 deposed that the first blow was wielded by the appellant from behind while the deceased Maniram was sitting causing injury on his back side whereafter he had fallen and while he was lying with his back on the ground the appellant had stuck two more blows on his neck from the front.
PW-5 Dr. A.K.Pradhan who had conducted the post mortem of the dead body of the deceased found follwing injuries on the dead body.
"Ante mortem injury- Complete decapitation of head at lvel of C2, C3 and C5 with multiple time sharp weapon (unilateral number of three) injuries ligated with minor skin tag positionally (three separateed injuries iidentifiable)". He in his cross examination stated that none of the injuries found on the dead body of the deceased could have been caused if the blows were wielded to the deceased in a sitting position. He further stated that the head of the deceased was attached with the body of the deceased by a shred of skin in the back of the neck. The deceased had not been wielded any blow from behind. Thus on the basis of the aforesaid contradictions in the evidence of the three eye witnesses PW-1, PW-2 and PW-3 with regard to the manner in which the deceased was assaulted and the firm opinion of the doctor who had conducted the post mortem of the dead body of the deceased PW-5 Dr. A.K.Pradhan that none of the injuries were found on the dead body of the deceased could have been caused either from behind or while the deceased was sitting. Learned counsel for the appellant strenously urged that it was extremely doubtful that PW-1, PW-2 and PW-3 had seen the occurrence.
We are however, unable to agree with the contention of learned counsel for the appellant, the contradictions pointed out by the learned counsel for the appellant in the evidence of the three eye witnesses with regard to the manner in which he was assaulted are minor contradiction and the same do not effect the core of the prosecution case. All the three eye witnesses have stated in unison that the deceased was assaulted by the appellant thrice with a spade while he was cutting grass in the field of chhotey at about 11.30 p.m. on 07.02.2004, we do not find any reason to disbelieve their evidence which appears to be unimpeachable, worthy of credit and wholly reliable and canot be discarded, in view of the opinion of PW-5, Dr. A.K.Pradhan.
The three witnesses of fact examined on behalf of the prosecution, namely, PW-1 Prem Chandra, PW-2 Suresh Paten and PW-3 Ghanshyam Patel have corroborated the prosecution case as spelt out in the FIR on all material aspects. Although there is little discrepancy in their evidence with regard to the position of the deceased at the time he was assaulted by the appellant, whether the appellant assaulted him in a standing position or when he fell down on the ground or whether the first blow was struck from behind or while the deceased was standing in front of the accused, however in our opinion this is minor discrepancies and it does not erode otherwise reliable case of the prosecution based on the testimony of the eye witnesses. The evidence of the three eye witnesses is substantive in nature while the evidence of Dr. A.K.Pradhan, PW-5 has corroborative value alone and the eye witness account which fully supports the prosecution case as spelt out in the FIR which was lodged promptly, cannot be disbelieved by relying upon medical evidence.
As far as the motive for the appellant to commit the murder of deceased is concerned, PW-1 in his examination in chief has categorically deposed that the appellant had became inemical towards his deceased Maniram, his grand father after he had won the case between the parties in respect of agricultural property situate in village Narrotampur Khurd from the court of Deputy Director of Consolidation. Pendency of litigation between the parties is admitted to the defense also. Thus it cannot be said that the appellant had no motive to commit the murder of the deceased.
Even if the prosecution failed to prove the motive for committing the crime the same will not be of any help to the appellant as it is settled law that in a case of direct evidence motive has little relevance and the entire prosecution case cannot be discarded, even if the prosecution fails to establish motive beyond doubt. There is no doubt that in case of direct evidence, the prosecution is not obliged to prove the motive but the qualitiy of the evidence must be such so as to inspire confidence. In the present case, the three eye witnesses have fully proved that Maniram was assaulted by the appellant with spade in broad day light and that he had weilded three blows on the deceased with his spade and caused his instantaneous death.
Credibility of the witnesses has been assailed by learned cousnel for the appellant on the ground that of the three eye witnesses PW-1 and PW-1 who are grand son and brother of the deceased are highly interested and partisan witnesses and as far as PW-3 Ghanshyam Patel is concerned, his presence at the place of incident is extremely doubtful as he is a chance witness and hence no reliance can be placed on the testimonies of PW-1, 2 and 3 for the purpose convicting the appellant. We do not find any substance in the aforesaid submissions on the learned counsel for the appellant in the presence of PW-1, PW-2 and PW-3 at the place of incident appears to be quite natural. They are not chance witness. Merely because PW-1 and PW-2 are close relatives of the deceased, their testimony is not liable to be disbelieved. The aforesaid aspect has been examined by the Apex Court in several cases.
"35. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo, 2003 Cri.L.J. 844 (S.C.) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.
36. In Mst. Dalbir Kaur v. State of Punjab, 1976 Cr.L.J. 418 (S.C.) following observations were made:-
(i) Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.
(ii) Witness gained over by accused not examined by the prosecution- held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the court for examining such witnesses.
(iii) witness who gives details with absolute accuracy is trustworthy.
38. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another v. State of U.P. 2012 (77) ACC 209, has observed in paragraph no.19 referring to the case of Namdeo v. State of Maharashtra (2007) 14 SCC 150 that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law.
40. Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows:
"In Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; (2010 AIR SCW 3707), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
41. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others (2011) 4 SCC 324."
We have very carefully scrutinized the statement of PW-1, PW-2 and PW-3 and we have noticed that despite being subjected to gruelling cross examination by the defense they have corroborated the prosecution case, on all the material particulars and the defense has not able to elicit anything from them which may even remotely create any doubt with regard to the veracity of the facts deposed by them. A suggestion was made by the defense that since appellant was the only earning member of his family and the parties are closely related to each other and litigating before the consolidation authorities, the appellant was falsely implicated in the present case by PW-1 with the object of breaking the financial back bone of the appellant's family as he was sole earning member in his family but we find that the defence has failed to substantiate the aforesaid aspect of the matter.
It has also been argued by the learned counsel for the appellant that the failure of the prosecution to produce the injured witness Harish Chandra who would have been the best witness to give a correct and accurate account of the occurrence leads only to one inference that if he was produced he would not have supported the prosecution case as spelt out in the FIR and to nominate the appellant as accused. In our opinion the prosecution case stands fully proved from the evidence of PW-1, PW-2 and PW-3 whose presence at the place of occurrence at the time of incident cannot be doubted. Mere omission on the part of the prosecution to examine the injured witness, in our opinion will not effect the core of the prosecution case rendering it unreliable, in view of the observations made by the Hon'ble Apex Court in the case of Mst. Dalbir Kaur Kaur (supra) which we have already noted herein above.
We also do not find any reason why the complainant PW-1 will falsely implicate the appellant in the murder of his grand father and in the process allow the real culprit to go escort free and to disbelieve the evidence of PW-1, PW-2 and PW-3 which is unimpeachable and inspires confidence.
In view of the foregoing discussion, the prosecution in our opinion has succeeded in proving the charges framed against the appellant beyond all shadows of reasonable doubt and that the trial court has not committed any illegality or infirmity in convicting and sentencing the appellant under Sections 302 and 323 IPC.
This appeal which is devoid of any merit is dismissed.
There shall however be no order as to costs.
Order dated:-19/09/2016 Abhishek Sri/-