JUDGMENT Imtiyaz Murtaza, J.
1. This jail appeal has been filed against the judgment and order dated 17.5.2002 passed by Addl. District & Sessions Judge, F.T.C. No. IT Agra whereby the appellant is convicted under Section 302 I.P.C. and sentenced to imprisonment for life.
2. The report of the occurrence was lodged by Kali Charan at P.S. Khandauli, district Agra on 19.10.1998. According to the allegations of the first information report, on 19.10.1998 in the noon his son Charan Singh and nephew Pramod Kumar were grazing their catties near the brick-klin of Netrapal Singh. At about 3.00 P.M. Suresh Baghel resident of Vijaygarhi, P.S. Tundala, district Firozabad reached there and chased away the cattle. When Pramod stopped the catties being driven away, Suresh strangulated his son Charan Singh with a cloth. Pramod raised alarm and Suresh ran away by leaving the cloth around the neck of his son. The villagers had removed the cloth from the neck of Charan Singh but till that time he was already dead. Mahesh Chand, son of Yad Ram, Pooran Singh son of Jhamman Singh and Jagvir Singh son of Tikam Singh brought the dead body in front of the house of Ninnu Ram and several family members were also collected there. It is further alleged that Suresh had teased his niece on the day of Rakshabandhan and he had scolded him. Suresh was brother-in-law of his cousin Ram Prakash and on account of this relationship no action was taken against Suresh for teasing and Suresh had also threatened him that as he had insulted him, he will take revenge before Deepawali. On account of this enmity he had strangulated his son Charan Singh. The report was registered at 5.15 P.M. The distance of the police station was 9 Kms.
3. After the registration of the case S.I. Rama Shankar Misra had commenced investigation. He had recorded the statement of the scribe Bhagwan Singh and Kali Charan, the informant, and reached at the place of occurrence and prepared the inquest report which was Ext. Ka. 4. He had also prepared the letter to C.M.O. for the post-mortem examination which is Ext. Ka. 6. He had also prepared the challan lash and Naksha lash which are Exts. Ka. 7 and Ka. 8. He had recovered the cloth near the dead body and prepared its recovery memo which is Ext. Ka. 9. He had also recorded the statements of Pramod, Kali Charan and Lakhan Singh etc. and prepared the site plan which is Ext. Ka. 10. He had investigated the case up till 20.10. 1998. Thereafter the investigation was handed over to S.I. Veerpal Singh Sirohi who had submitted the chargesheet which is Ext. Ka. 11.
4. Post-mortem on the dead body of the deceased Charan Singh was conducted by Dr. R.C. Joshi who had noted the following ante-mortem injuries:
Ligature mark 28 cm × 1.5 cm all around neck & mark interrupted on the back of neck middle part in area 2 cm. Horizontally placed. Situated between thyroid cartilages mandible.
5. In the opinion of the doctor the cause of death was asphyxia as a result of strangulation.
6. After the submission of the charge sheet, the case was committed to the court of Sessions. In support of its case, the prosecution had examined 7 witnesses namely P.W. Kali Charan, P.W. 2 Pramod Kumar, P.W. Dr. R.C. Joshi, P.W. 4 Lakhan Singh, P.W. 5 Ram Shanker Misra, S.I., P.W. 6 Nepal Singh and P.W. 7 S.P. Gupta CP.
7. Learned Sessions Judge after considering the evidence on record convicted the appellant as aforesaid. Hence this appeal.
8. We have heard Sri Amit Kumar Srivastava, amicus curiae, and learned A.G.A. for the State.
9. Learned Counsel for the appellant submitted that eyewitness account is not reliable. There is conflict in medical and direct evidence. There was direct motive for the informant to falsely implicate the appellant. On the other hand, learned A.G.A. had submitted that the prosecution had fully proved its case by the testimony of the eye witnesses which was corroborated by the postmortem examination report and learned Sessions Judge had rightly convicted the appellant.
10. In order to appreciate the submissions of learned Counsels for the parties, we have to carefully examine the evidence on record.
11. P.W. 1 Kali Charan deposed that the appellant was brother-in-law of his relative Ram Prakash who lived in front of his house. Suresh was also living with Ram Prakash for several years prior to the occurrence. He further deposed that about 9 months back on the day of Deepawali, he, his son Charan Singh and nephew Pramod Kumar were grazing their buffalos and goats on the vacant land near brick-klin of Netrapal Singh. He was sitting on the chak road. His son Charan Singh and nephew Pramod were sitting under the Babool tree. At about 3.00 P.M. Suresh reached there and chased away the catties. It is further deposed that when Pramod Kumar went to collect their cattle, the appellant had caught hold of Charan Singh and took out a cloth from his pocket and strangulated him. Pramod Kumar raised alarm and he also reached there alongwith Jagvir, Mahesh and Pooran. They tried to apprehend Suresh but he ran away. He had seen Suresh strangulating Charan Singh. They reached and opened the cloth but he was already dead. They brought the dead body of Charan Singh in front of the house of Ninnoo Ram under a Bargad tree and the cloth was also lying near the dead body. Prior to this occurrence on the day of Rakshabandhan his niece was sleeping in front of the house and at about 3.00 A.M. Suresh had teased her. He and his brother Raja Ram had beaten Suresh and some altercation had also taken place and he had threatened to take revenge before Deepawali as they have insulted him in the presence of several persons. On account of fear of defamation of his daughter and at the instance of his relatives and neighbourers, no action was taken against him. On account of this enmity Suresh had committed the murder of Charan Singh. On his dictation Bhagwan Singh had prepared the report which he had lodged at the police station which is Ext. Ka. 1. The investigating officer had recorded his statement and also inspected the place of occurrence. The age of the deceased at the time of occurrence was about 13-14 years.
12. P.W. 2 Pramod Kumar deposed that on the date of occurrence he had not attended his school on account of a holiday. He and his cousin Charan Singh, deceased, used to attend school. After returning from the school they used to study and work of grazing cattle. On the date of occurrence he and Charan Singh had gone for grazing the cattle. There were other catties of different persons and they were also grazing their catties. He and Charan Singh were sitting there. Suresh reached there at about 3.00 P.M. and chased away their catties. He had gone to collect his cattle and at that time Suresh took out a cloth from his pocket and strangulated Charan Singh. He raised alarm. Kali Charan and several other persons namely Jagvir, Pooran and Mahesh reached there. They had seen Charan Singh who had died. Suresh ran away from there towards Hathras road. They had brought Charan Singh in front of the house of Ninnoo Ram. At the time of occurrence Suresh was staying in the house of his brother-in-law Ram Prakash. On the day of Rakshabandhan his sister Shanti was sleeping outside the house and Suresh had teased her. Jagdish apprehended Suresh and Kali Charan had beaten him. After this Suresh had threatened him and challenged that he will take revenge. On account of this enmity Suresh had committed the murder of Charan Singh on the day of Deepawali.
13. P.W. 3 is Dr. R.C. Joshi who had conducted the post-mortem examination on the dead body of the deceased.
14. P.W. 4 Lakhan Singh deposed that investigating officer had prepared the inquest memo of the dead body of Charan Singh. A red colour cloth was also found near the dead body. He had also signed the inquest memo which is Ext. Ka. 4.
15. P.W. 5 is S.I. Rama Shankar Misra who had conducted the investigation.
16. P.W. 6 is Con. Nepal Singh. He deposed that the inquest on the dead body of Charan Singh was prepared by S.I. Rama Shankar Misra and thereafter the dead body was sealed and handed over to him for taking it to the mortuary and had produced the dead body on 20.10.1998.
17. P.W. 7 is Con. Satya Prakash Gupta. He deposed that S.I. Rama Shankar Misra had gone to the place of occurrence on 19.10.1998 which was entered in G.D which is Ext. Ka. 5. He had also deposited the cloth by which murder was committed which was entered in G.D. also. A copy of the G.D. is Ext. Ka. 20.
18. The case of the appellant was of denial. He deposed that he has been falsely implicated because he had come to stay with his brother-in-law as he was going to inherit the property of his brother-in-law.
19. The counsel for the appellant had submitted that the testimonies of P.W. 1 Kali Charan and P.W. 2 Pramod Kumar should not have been relied upon because both are close relative of the deceased. The prosecution did not examine other independent witnesses which were available.
20. We have considered the submission and in our opinion there is no substance in this submission. It is a settled position that there is no proposition in law that relatives are to be treated as untruthful witness, just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong person in the crime, so as to allow the real culprits to escape unpunished. The submission of the non examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons.
21. In this case eyewitness account was furnished by P.W. 1 Kali Charan and P.W. 2 Pramod Kumar. P.W. 1 Kali Charan is also the informant of the case. The testimony of P.W. 1 shows that on the date of occurrence he had gone for grazing his cattle and he had seen him running away from the place of occurrence. P.W. 2 Pramod Kumar had support the version of the informant about the occurrence. He had described the manner of assault. He deposed that appellant had taken out a cloth from his pocket and strangulated Charan Singh with the said cloth. He had raised alarm. Kali Charan and several other persons namely Jagvir, Pooran and Mahesh had arrived there. He had also supported the testimony of P.W. 1 that he had gone for grazing the cattle. P.W. 1 Kali Charan and P.W. 2 Pramod Kumar had also deposed about the motive of the crime. Both have stated that on the day of Rakshabandhan festival the appellant had teased his niece Shanti Devi who was sleeping outside the house. The brother of the informant Raja Ram had caught Suresh, the appellant, and Kali Charan had beaten him. They further deposed that Suresh had threatened him that he will take revenge prior to Deepawali. The eye witness account is also corroborated with the post mortem report which indicates cause of death as asphyxia as a result of strangulation. The occurrence took place in broad day light. The appellant was already known to the witnesses.
22. It is contended on behalf of learned Counsel for the appellant that the testimony of P.W. 1 should be rejected on the ground that in the first information report he did not mention that he had witnessed the occurrence himself but in his deposition he stated that he had reached at the place of the occurrence. He had removed the cloth from the neck and these facts are not mentioned in the first information report. In our opinion, these are not such contradictions on the basis of which the testimonies of the eyewitnesses should be rejected. The first information report is not an encyclopedia that contains all the details. In the first information report it was mentioned that the Persons were collected there. They had opened the cloth. In our opinion there is no such contradiction to disbelieve the testimony of the eyewitnesses, which is otherwise consistent, reliable and corroborated with the post-mortem examination report. The Sessions Judge has rightly relied upon the testimony of the witnesses and recorded finding of conviction and we also concur with the same.
23. In view of the above, the appeal is dismissed. The conviction and sentence of the appellant awarded by the trial court is affirmed. The appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
24. Office is directed to send a copy of this order within two weeks to the C.J.M., Agra.