Ajai Kumar Verma vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Ram Lakhan Verma, learned counsel for the appellant and Sri Umesh Verma, learned Additional Government Advocate for the State were heard at length.

Instant criminal appeal has been preferred by appellant-Ajay Kumar Verma challenging the judgment and order dated 19.09.2008 passed by learned Additional Sessions Judge (F.T.C. Court No. 1), Ambedkar Nagar, in Sessions Trial No. 23 of 2004, arising out of Case Crime No. 207 of 2003, under Section 302 IPC, Police Station Kotwali Tanda, District Ambedkar Nagar, whereby the appellant Ajay Kumar Verma was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one year additional imprisonment.

In brief, the case of the prosecution was that the complainant Arun Kumar Agarwal (who is not an eye witness of this case) who happens to be real brother of the deceased Ajay Kumar Agarwal has lodged an FIR at the Police Station Kotwali Tanda, District Ambedkar Nagar on 29.10.2003 at about 23:55 hours alleging therein that on 29-10-2003 at about 6.00 p.m. his elder brother Ajay Kumar Agarwal was sitting at his Jewellery shop situated in Mohalla Hayatganj, Chowk, Tanda, District Ambedkar Nagar alongwith Omkar Nath (PW-3). In the meantime, because of the old enmity regarding ancestral land in furtherance of conspiracy hatched by S.O. Sarnath Singh Police Station Kotwali Tanda, District Ambedkar Nagar, Ram Shila Verma and Ajay Kumar Verma sons of Keshav Ram Verma came to the shop of his brother armed with fire arms and immediately opened fire on his brother Ajay Kumar Agarwal. Seeing this incident the persons of the vicinity made an effort to apprehend the accused persons but the accused persons ran away from there making fires which caused terror in the Chowk area. Omkar and other persons had taken his injured brother immediately to Community Health Centre (CHC) Tanda whereby his brother was declared dead. This FIR was lodged on the same day at 23:55 hours. The distance from the police station to the place of occurrence was about half kilometer.

After registration of the case investigation proceeded and the inquest proceedings were conducted in the following morning at about 6:00 a.m. and the same stood concluded at 7:00 a.m. Thereafter the dead body was sent for postmortem. The postmortem was conducted at CHC at 8:00 AM on 30.10.2003 by PW-4 Dr. Vivek Gupta. The duration of death was reported to be about half day and following ante-mortem injuries were noted by the doctor:

"(A) Fire arm wound of entry 2.5 cm x 2 cm with lacerated, inverted margins on right side of head 2 cm above right ear.

(B) Fire arm wound of exit 3 cm x 3 cm on left side of head just above left ear including upper part of left ear pinna. Both injuries were communicating to each other.

(C) Lacerated wound 3 cm x 0.5 cm x bone deep on left side head 4 cm above left ear.

(D) Abraded contusion 3 cm x 1.5 cm x 0.5 cm below left eye.

(E) Fire arm wound of entry 5 cm x 1.5 cm on left side of chest 12 cm below left axilla tattooing present around injury in an area of 25 cm x 18 cm margins of central wound inverted.

(F) Fire arm wound of exit 0.8 cm x 8 cm with everted margins fat protruding from injury on left side just 25 cm below right axilla."

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem injuries.

The place of occurrence was inspected by the Investigating Officer. Blood stained and plain earth were taken into custody and its memo was prepared and after concluding the investigation charge-sheet was filed only against the present appellant.

The case of the defence was of his false implication because of the enmity and it was stated by the appellant in his statement under Section 313 Cr.P.C. that Ajay Agarwal (deceased) had committed murder of his father Keshav Ram with his companions and the case was pending in Court. The deceased was killed at some other place in the night by some unknown persons. No one could recognize the assailants and only because of the enmity the appellant has been falsely implicated in this case.

In order to prove its case, the prosecution has examined PW-1, Arun Kumar Agarwal, the complainant of this case, PW-2 Ram Shanker Verma, PW-3 Onkar Manjhi, as eye witnesses of this incident, PW-4 Dr. Vivek Gupta who has conducted the postmortem of the deceased, PW-5 Head Moharrir, Arvind Kumar Pandey, who has prepared the chik report and G.D. of this case, PW-6 Vinod Kumar Yadav, the subsequent Investigating Officer of this case who has arrested the appellant and has filed charge-sheet in this case, PW-7 Virendra Singh, the initial Investigating Officer of this case.

No evidence either oral or documentary in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court convicted the appellant as above, hence the instant appeal.

Submission of the learned counsel for the appellant was that in the instant case the FIR was delayed and no explanation of such delay was furnished on behalf of the prosecution. It has also been argued that the nomination of Ram Shila Verma was found to be false and no evidence could be collected during investigation regarding the conspiracy alleged to be hatched by S.O. Sarnath Singh. So the allegations of the FIR were false because Ram Shila Verma was, at the relevant time, in custody in some other case under NDPS Act. It has also been argued that the manner of incident as alleged in the prosecution and as alleged by the eye witnesses was not supported by the medical evidence. The postmortem reveals that it was a case of three fires. It has also been argued that the presence of the alleged eye witnesses on the place of occurrence was doubtful and their evidence does not inspire confidence. No other person of the vicinity could be produced by the prosecution as an independent witness. Nothing material is alleged to have been recovered from the possession of the appellant but the learned trial court has not considered all these aspects in a correct perspective which has rendered its judgment unsustainable under law. The accused appellant was entitled to get the benefit of doubt.

Learned Additional Government Advocate has submitted that the delay in the FIR was because the complainant got the information of this incident on phone thereafter he came to the place of occurrence and had taken injured to hospital where he was declared dead. Thereafter he brought back the dead body to his house. So the delay stands explained. The names of the other accused persons in the FIR were mentioned by him only on the basis of the information which was given to him by some other persons. So simply because of the delay in FIR the case of the prosecution cannot be thrown out. Two eye witnesses have given cogent reasons for their presence at the place of occurrence and have fully supported the case of the prosecution. The appellant had very strong motive to commit this offence as the deceased was involved as accused in the murder of his father. Learned A.G.A. has also argued that there was no medical conflict in the incident and the other accused persons Ram Shila Verma who was named in the FIR was in jail in a case under NDPS Act and it is clear from the material on record that he, prior to this incident has surrendered before the court and got his bail bonds cancelled and went into custody and this conduct of the accused shows that Ram Shila Verma was also involved in this incident and only because of his knowledge about this offence he surrendered to his bail. Since he has not been tried, therefore, this fact would not render any help to the present appellant. Learned trial court has given cogent reasons for placing reliance on the evidence of the prosecution witnesses and has rightly convicted the appellant. The judgment of the learned trial court is well reasoned and needs no interference in the instant appeal.

The first point to be considered is the delay in FIR in this case. FIR in a criminal case is a valuable document as the entire prosecution case revolves around it. Though it is not a substantive piece of evidence but definitely it is the pivotal document on which the entire prosecution case rests. The incident of this case is alleged to have taken place at 6:00 p.m. on 19.10.2003. The place of occurrence from the police station was only at a distance of about half kilometer and the FIR of this case was lodged at 23:55 hours on the same day i.e. after about 6 hours of the incident. So it is clear that there is some delay in the FIR. After perusal of all the documents we do not find any ground to hold that the FIR was not registered at the time as alleged by the prosecution. The complainant got the information of this incident on phone thereafter he came to the place of occurrence, took the injured to hospital where he was declared dead. Thereafter dead body was brought back to his house. Complainant being the elder male member of the house must have consumed some time to console his family members. Apart from it in this case police must also have avoided to register the case as the S.O. of the same police station was also made an accused in the FIR. Hence in our considered opinion, in the instant case the FIR was lodged without any delay on behalf of the complainant. All these things must have consumed a lot of time. So the FIR cannot be said to be delayed. Even if it is presumed to be lodged with delay even then law is settled on the point that merely on the basis of delay in the FIR, the entire prosecution case cannot be thrown out. However, a duty is cast upon the court to scrutinize the evidence with extra care and caution.

Hon''ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others v. State of Rajasthan reported in , 2013 (5) SCC 655 in para 12 as under:--

"12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand reported in [, JT 2001 (5) SC 169], wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and others v. State of Maharashtra reported in [, 2007 (2) SCC 170, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

So simply on the ground of delay in FIR entire prosecution case can not be discarded but duty is cast upon the court to scrutinize the prosecution evidence with extra care and caution.

Submission of the learned counsel for the appellant was that the dead body of the deceased was at his house on a stretcher and there is no evidence that any permission was taken from the hospital authorities to take the stretcher to his house. But we are not the least impressed with this argument and this argument is misconceived. ''Tanda'' is a small town and the deceased was owner of a jewellery shop. He was declared dead at the hospital. So if in that position his well wishers, in order to take the body from the hospital to his house, have managed the stretcher and the body was lying at his door on the stretcher then this fact, by no stretch of imagination, can be said to be detrimental to the case of the prosecution. The prosecution is not obliged to explain all such petty things which have absolutely no bearing on the case of the prosecution.

The evidence of PW-1 is not of great importance because admittedly he was not an eye witness. Great stress has been laid by the learned counsel for the appellant that in the instant case no independent witness of the vicinity has been examined by the prosecution. According to the prosecution evidence there were several other shops and several other persons were present but none of them could be examined by the prosecution and only one Theliawala PW-2 Ram Shanker Verma and PW-3 Omkar Manjhi who was having close relations with the deceased were examined. In our considered opinion PW-2 Ram Shanker Verma who was pulling on a small shop on a Thelia was an independent witness of this incident having no relationship with the complainant side. He was running his shop near the place of incident. PW-3 Omkar has also explained the circumstances and reason for his presence at the shop of the deceased.

Law is settled on the point that it is the quality of the evidence and not the quantity of the witnesses i.e. material for the courts. Even if several other persons have seen the incident even then the prosecution is not obliged to examine all the witnesses to prove the case. If the prosecution considers that the case stands proved by the evidence of few of the witnesses and if their evidence is found to be wholly reliable then non-examination of all or any of the other witnesses would not, in any manner, adversely affect the case of the prosecution.

Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Nirpal Singh V. State of Haryana reported in , 1977 Cr.LJ. 642 (SC) at page 469.

Evidence of PW-3 Omkar Nath has been challenged on the ground that he is a chance witness.

Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness. In a recent judgment in the case of Nagappan v. State (by Inspector of Police, Tamil Nadu) reported in , (2014) 3 SCC (Cri) 660 Hon''ble the Apex Court in paragraph No. 10 has observed as under :--

"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab , AIR 1953 SC 364 Guli Chand v. State of Rajasthan , (1974) 3 SCC 698, Vadivelu Thevar v. State of Madras , AIR 1957 SC 614, Masalti V. State of U.P. , AIR 1965 SC 202, State of Punjab v. Jagir Singh , (1974) 3 SCC 277, Lehna v. State of Haryana , (2002) 3 SCC 76, Sucha Singh V. State of Punjab , (2003) 7 SCC 643, Israr v. State of U.P. , (2005) 9 SCC 616, S. Sudershan Reddy v. State of A.P. , (2006) 10 SCC 163, Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra , (2007) 9 SCC 1, Woman v. State of Maharashtra , (2011) 7 SCC 295, State of Haryana v. Shakuntla , (2012) 5 SCC 171, Raju v. State of T.N. , (2012) 12 SCC 701, Subal Ghorai v. State of W.B. , (2013) 4 SCC 607."

(emphasis added)

On the point of chance witness reference may be made to the pronouncement of Hon''ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in , (2010) 3 SCC 56 wherein Hon''ble Apex Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Partap and Others V. State of Haryana reported in , 1983 (3) SCC 327 which reads as under:--

"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression ''chance witnesses''. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses''. The expression ''chance witnesses'' is borrowed from countries where every man''s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man''s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ''chance witnesses'' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."

(emphasis added)

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in , (2005) 9 SCC 650 and the Hon''ble Apex Court has observed in para 8 which is reproduced as under:

"Coming to the plea of the accused that PW-3 was ''chance witness'' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as ''chance witnesses'' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ''chance witnesses''. The expression ''chance witness'' is borrowed from countries where every man''s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man''s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

(Emphasis added)

In view of the aforementioned legal position the evidence of PW-3 Omkar Nath cannot be discarded only on the ground that he was a chance witness because he was not the resident of a place near to the place of occurrence and had no occasion to be present with the deceased at the relevant point of time. According to the evidence of PW-3 he has explained the reasons of his presence at the shop of the deceased and according to his evidence he was a regular customer of the shop of the deceased and had good relations with the deceased. On the relevant date and time he was sitting in the shop with the deceased when this incident took place. PW-2 is also an independent and natural witness who runs a small shop on a Thelia near the place of occurrence. So simply because the other witnesses have not been examined by the prosecution the evidence of these two witnesses cannot be thrown out. Court is required to scrutinize their evidence and to find out whether the evidence of these two witnesses falls within the category of wholly reliable or not.

In the instant case the appellant had a very strong motive to commit the offence, though we are conscious of the legal position that it is a case of direct evidence and law is settled on the point that where the direct evidence of commission of an offence is available then the motive pales into significance. But in the instant case the appellant himself in his statement under Section 313 Cr.P.C. has stated that the deceased Ajay Agarwal had murdered his father prior to this incident alongwith his companions and the said murder case was pending in Court. Since the appellant was of the view that his father has been murdered by the deceased so this fact by itself provides a very strong motive for commission of the offence and not for the false implication of the appellant because the deceased had taken the revenge of the enmity if any, due to which the father of the appellant was murdered. PW-2 who is an eye witness of the incident has stated that at the time of incident there was sufficient electric light and he was at his Thelia shop at a distance of about 20-22 paces and he heard the noise of the firing and saw that Ajay Agarwal was sitting in the shop and the two persons fired at him due to which he fell inside the shop. At that time Omkar Manjhi (PW-3) was sitting at his shop. He has stated that he had seen that Ajay Agarwal was fired by appellant Ajay Kumar Verma. He has also seen the other person firing on the deceased but he could not recognize him. He has stated that earlier he was a salesman on a desi liquor shop and appellant used to come there so he recognized him. Thus this witness has not only supported the case of the prosecution but has also established the presence of PW-3 Omkar Nath at the shop of the deceased at the time of incident. PW-3 Omkar Nath has also supported the case of the prosecution and has given eye witness account of the incident and has assigned the role of firing and causing death of the deceased to the appellant and one co-accused (unknown person). Thus perusal of the evidence of PW-3 shows that he has given a well reasoned explanation for his presence at the place of occurrence. In such small towns this is common practice that people go to meet each other as there is no other mode of entertainment there. Evidence of PW-3 cannot be discarded on the ground that he was a chance witness. His evidence stands fully corroborated by the medical evidence. Learned counsel for the appellant has drawn our attention towards some minor contradictions which have emerged in the evidence of the two eye witnesses but law is settled on the point that only those contradictions that goes to the root of the case are material and minor contradictions in the evidence of most natural witnesses are bound to occur. Learned counsel for the appellant during course of arguments could not bring to our notice any contradiction which goes to the root of the case. So these contradictions being minor in nature are immaterial and have rightly been not given any importance by the learned trial court.

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of State of U.P. v. Naresh reported in , JT 2011 (3) SC 508 wherein Hon''ble Apex Court has held as under:--

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited."

A similar view has been reiterated by this Court in Tehsildar Singh & Anr V. State of U.P., [, AIR 1959 SC 1012]; Pudhu Raja & Anr. V. State, Rep. By Inspector of Police, [, JT 2012 (9) SC 252]; and Lal Bahadur v. State (NCT of Delhi), [, (2013) 4 SCC 557)].

Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."

Learned counsel for the appellant during course of his arguments has placed great stress on the point that according to the medical examination there were two wounds of entry and two wounds of exit and according to the evidence of the doctor one bullet was recovered from the clothes of the deceased. Thus on the basis of this recovered bullet an argument has been raised that two bullets with exit wounds must have crossed the body and the third fire remained embedded in the clothes. On this point our attention was drawn towards the evidence of PW-4 Dr. Vivek Gupta who had conducted the postmortem of the deceased wherein he has stated about the recovery of one bullet under the vest of the deceased. However no question was put to this witness during cross examination whether the recovered bullet had come out from the wound of exit or it was the result of third fire. This witness has admitted in his cross-examination that during postmortem one bullet was found in the vest of the deceased. Perusal of the injuries sustained by the deceased shows that the first wound of entry was on the right side of head above right ear which went through and through and passed of from a place above the left ear involving the top of the left ear. The second wound of entry was on the chest on the right side and its exit wound was on the left side of chest. So this fire went from right side of chest to left crossing the entire thorax. It appears that in penetrating the whole part of chest the bullet after exit from the wound remained embedded in the vest. From perusal of the postmortem report we are of the considered view that the bullet which was recovered from the vest of the deceased was the bullet that came out from the second fire after penetrating the whole chest from right to left. So this argument of learned counsel for the appellant has no substance and on the strength of recovery of the bullet from the vest of the deceased it cannot be said that it was a case of three fires. So the evidence of two eye witnesses stands fully corroborated by the medical evidence.

Learned counsel for the appellant has also submitted that the second unknown accused person was not even arrested. He has also raised the argument that the second accused person was not put up for test identification parade. These two arguments are self contradictory in itself. Admittedly, the identity the second accused could not be established nor the second accused could be arrested. On the basis of the information furnished by the other persons the FIR was lodged against the brother of the present appellant but he was found confined in jail after surrender in pending NDPS case. No charge-sheet for this offence was filed against him. So if the identity of the second accused person could not be established nor he could be arrested during investigation then no question of putting any person to test identification parade arises. So this argument of the learned counsel for the appellant is misconceived.

Learned counsel for the appellant has also argued that the other accused person has not been arrested and the appellant has been convicted in the instant case. It is again a misconceived argument. The person whose identity could not be established who has not even faced the trial then how he can be convicted. So far as the present appellant is concerned his name was mentioned in the FIR and there is eye witness account of his involvement in the commission of the offence and the same stands fully corroborated by the medical evidence. So in our considered opinion the case of the prosecution was fully proved and learned trial court has not committed any illegality in convicting the appellant. The judgment of the trial court is well reasoned and needs no interference.

In view of the above, this appeal sans merits deserves to be dismissed and is hereby dismissed. Appellant Ajay Kumar Verma is in custody. He shall serve out his sentence as awarded by the learned trial court.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.