Khubey & Anr vs State Of Uttar Pradesh

Pritinker Diwaker, J

As these two appeals arise out of a common judgement and order dated 31.5.2006 passed by Additional Sessions Judge/Fast Track Court No. 3, Jalaun at Orai in Sessions Trial No. 90 of 1993 (State vs. Rajendra Singh and Ors.), convicting the accused-appellants under Sections 302/149, 148, 307/149, 452, 436/149, 435 of IPC and sentencing them to undergo imprisonment for life and a fine of Rs.5000/- each, rigorous imprisonment for one year each, rigorous imprisonment for five years and a fine of Rs.2000/- each, rigorous imprisonment for one year and a fine of Rs.2000/- each, rigorous imprisonment for ten years and a fine of Rs.5000/- each and rigorous imprisonment for two years and a fine of Rs.2000/- each, in default of payment of fines, simple imprisonment for one year, with a direction that all sentences to run concurrently, they are being disposed of by this common order.

In the present case, there are three deceased, namely Ram Babu s/o Jahar Singh, Smt. Bhagwati w/o Jahar Singh and Lakhan Singh s/o Bhurey. As per prosecution case, there was an old enmity between accused party and the complainant party. On 3.2.1993, accused persons gained entry in the residential premises of the deceased, carrying firearms and other weapons in their hands. They first caught hold deceased Ram Babu and killed him by causing firearm injuries and thereafter they also chopped his head and took the same along with them. Another deceased Bhagwati, when she was going to take bath to her new home, she was assaulted by accused persons by firearm and axe, resulting her instantaneous death. When third deceased Lakhan Singh was trying to escape from the place of occurrence and had made an attempt to call other villagers, he too was done to death by accused persons by causing him firearm injuries. Accused persons also made an attempt to cause injuries to (PW-1) Jahar Singh but somehow he managed to escape himself. At 7:00 pm, on the basis of written report, vide Ex.Ka.1, FIR vide Ex.Ka.5 was registered against as many as nine accused persons, namely Gyan Singh, Prakash, Rajendra, Sant Ram, Sukhram, Khubey, Nekshe Pal, Puttu Lal and Shankar Pal @ Shiv Shankar under Sections 147, 148, 149, 307, 302, 435, 436, 452 and 201 of IPC. Inquest on the dead bodies of the three deceased (Lakhan Singh vide Ex.Ka.8, Ram Babu vide Ex.Ka.18 & Smt. Bhagwati Devi vide Ex.Ka.13) were conducted on 4.2.1993 and bodies were sent for postmortem, which was conducted on the same day of all the three deceased, namely Bhagwati vide Ex.Ka.2, Ram Babu vide Ex.Ka.3 and Lakhan Singh vide Ex.Ka.4 by (PW-4) Dr. Ashok Agarwal. As per Autopsy Surgeon, following antemortem injuries have been found on the bodies of the deceased:

Injuries of deceased Bhagwati

"(i) Lacerated wound measuring 7.0 x 6.0 cm over Rt shoulder, bone deep bleeding +with # Bone pieces visible.

(2) Contusion measuring 12.0 x 5.0 cm over Rt side of chest towards midline.

On dissection

IIIrd, IV, Vth Rt Rib & trachea in multiple pieces. Lacerated Rt Pleura and Rt Lung and part of lung of pericardia & heart."

The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injuries.

Injuries of deceased Ram Babu

"(i) Incised wound over lower lip cutting lower gum & teeth.

(ii) Lacerated wound over Rt side of head a sleek flap is separated upto occipital region.

(iii) Lacerated wound measuring over Rt shoulder 4.0 x 4.0 cm bone deep.

(iv) Incised wound measuring 3.0x1.5 cm over Rt side neck & 3.0x1.5 cm over mid & suprasternal notch & incised wound measuring 4.0x2.0 cm over left side of neck.

(v) Head is separated from its body at level of fifth vertebra on placing the head near trunk, which was corresponding.

(vi) Firearm wound of entry 2.0x1.5 cm over palm aspect of lift palm.

(vii) Firearm wound of exit measuring 7.0x3.0cm over dorsal aspect of left palm # fracturing three metacarpals.

(viii) Firearm wound of entry measuring 1.0x1.0cm over lateral aspect of left knee joint.

(ix) Firearm wound of exit 7.0x6.0cm over medial aspect of left knee joint fracture both bone.

(x) Abrasion measuring 4.0x3.0cm over Rt back of elbow.

(xi) Dry burn over Rt palm & Rt forearm upto 7.0 from rift. All fingers are burnt.

(xii) Abrasion measuring 4.0x2.0 cm over Rt knee cap."

The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injuries.

Injuries of deceased Lakhan Singh

"(i) Abrasion measuring 3.0x2.0 cm over right shoulder tip.

(ii) Firearm wound of entry of 0.5x0.5 cm over Rt side of chest just below Rt collar bone.

(iii) Firearm wound of exit measuring 4.5x3.5cm over lateral aspect of Rt side of chest 18.0cm below right axilla.

Note: Injury No. (2) is well connected with injury No. (3) fracturing Rt second rim lacerating upper plura and lung and Vith rib fractured lateral aspect of wound of exit..full of blood."

The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem firearm injuries.

From the spot, blood stained soil and plain soil were seized and some empty cartridges were also seized but there is no FSL or ballistic report confirming the origin of the blood or use of weapon.

After investigation, charge sheet was filed against nine accused persons. While framing charge, the trial judge has framed charge against Khubey, Sant Ram, Sukhram, Nekshey Pal, Puttu Lal and Shankar Pal alias Shiv Shanker and likewise against another accused Rajendra under Sections 148, 307/149, 302/149, 302/149, 302/149, 452, 436/149 and 435/149 of IPC

So as to hold accused persons guilty, prosecution has examined seven witnesses, whereas two defence witnesses have also been examined. Statements of accused persons were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.

By the impugned judgment, the trial Judge has convicted all the seven accused persons under Sections 302/149, 148, 307/149, 452, 436/149, 435 of IPC and sentenced them as mentioned in paragraph no. 1 of this judgement.

Except accused Rajendra, other convicted accused persons have preferred these two appeals.

During pendency of these two appeals, accused no. 1 Khubey in Criminal Appeal No. 3431 of 2006 has expired and appeal in his respect has already abated and it is only confined to accused no.2-Nekshe Pal, accused no.3-Sukhram Baba and accused no.4-Puttu Lal.

Learned counsel for the appellants submits:

(i) that two eye-witnesses (PW-1) Jahar Singh and (PW-2) Shankar Singh are not reliable and they are the interested witnesses.

(ii) that (PW-2) Shankar Singh was working at Bombay and, therefore, his presence at the place of occurrence itself is doubtful.

(iii) that (PW-1) Jahar Singh in his court statement has not taken the name of (PW-2) as an eye-witness to the incident.

(iv) that most important witness Munnu Pal has not been examined.

(v) that (PW-3) Gaya Prasad, scribe of the FIR, has not fully supported the prosecution case.

(vi) that in 313 Cr.P.C. statement, a specific defence has been taken by the accused persons that on the date of occurrence, in their village, a gang of one Meharban Singh of which Prakash was also a member, had entered and committed the murder of all the three deceased.

(vii) that as per statements of (PW-1) Jahar Singh and (PW-2) Shankar Singh, deceased Bhagwati had also suffered firearm injuries but medical report is contrary to their statements.

On the other hand, supporting the impugned judgment, it has been argued by the State counsel:

(i) that a very prompt report has been lodged by (PW-1) Jahar Singh. He submits that incident took place at 5:00 p.m. on 03.02.1993 and the report was lodged on the same day at 7:00 pm. There was no occasion for PW-1 to cook up a false story within two hours and then to lodge a report. There is no contrary evidence available on record that as to why the accused persons have been falsely implicated by PW-1.

(ii) that (PW-1) Jahar Singh and (PW-2) Shankar Singh are the natural eye-witnesses and have duly supported the prosecution case.

(iii) that in the FIR (PW-1) Jahar Singh has named (PW-2) Shankar Singh as an eye-witness to the incident.

(iv) that non examination of Munnu Pal is not fatal of the prosecution case because (PW-1) Jahar Singh and (PW-2) Shankar Singh have duly supported the prosecution case.

(v) that (PW-3) Gaya Prasad, scribe of the FIR, has supported the prosecution case and minor contradictions in his statement are required to be ignored.

(vi) that defence taken by the accused persons that on the date of incident, a gang of Meharban Singh of which Prakash was a member, had entered in the village and committed the murder of all three deceased, is simply a bald statement and no admissible evidence had been adduced by the defence, no police report to this effect had been lodged by any one.

We have heard learned counsel for the parties and perused the record.

(PW-1) Jahar Singh is an eye-witness to the incident. While supporting the prosecution case, he has stated that at about 5:00 pm, on the date of occurrence, when he reached near his house from his field, he noticed the presence of accused persons, who were carrying country made pistols, gun and other weapons in their hands. After gaining entry in his house, accused persons first caused firearm injury to his son Ram Babu and then they also chopped his head. When his nephew Lakhan Singh raised his voice, he too was done to death by the accused persons by causing firearm injury. His wife Bhagwati when was going to her new house to take bath, she too was subjected to injury by firearm and axe, resulting her death. He further states that his house was also set on fire by the accused persons. The accused persons fled away from the spot taking the chopped head of his son along with them. In the lengthy cross-examination, this witness remained firm and has reiterated as to the manner in which his son was done to death by the accused persons.

(PW-2) Shankar Singh, is the other eye-witness to the incident, states that when he was returning from his field, he heard the gunshot sound and then he saw accused persons carrying country made pistols, gun and other weapons in their hands. Initially they killed Ram Babu by causing firearm injury to him and then they also chopped his head. Accused persons also set the house of Bhurey on fire. They also committed the murder of Bhagwati by causing her injuries by firearm and axe and they also killed Lakhan Singh after chasing him up to some distance. In the cross-examination, this witness also remained firm and nothing could be elicited from him. He has categorically stated that though he works at Bombay for the last two years but does not reside there permanently and that quite often he used to visit his village.

(PW-3) Gaya Prasad, is the scribe of the FIR, states that the FIR was dictated to him by (PW-1) Jahar Singh and accordingly, it was reduced in writing and was handed over to the police. He states that though the FIR was dictated to him by PW-1 after consulting the In-charge of the police station, he clarifies, it was not dictated by the In-charge of the police station.

(PW-4) Dr. Ashok Agarwal conducted the postmortem on the three bodies of the deceased.

(PW-5) Shiv Baran Singh registered the chick FIR. (PW-6) Santosh Kumar assisted during investigation and (PW-7) Pooran Chand Pathak is the Investigating Officer, has duly supported the prosecution case.

(DW-1) Kallu Pal has stated that about 13-14 years back, Prakash, resident of village Piya Niranjanpur had joined the gang of Meharban Singh and the said gang had come to the village and made indiscriminate firing in which son of (PW-1) Jahar Singh and his wife have expired. He states that he himself has not seen any villager dying in his presence. He further states in the cross-examination that he has not seen anyone causing firearm injury or killing anybody. Almost similar statement has been made by (DW-2) Hari Singh.

Close scrutiny of the evidence makes it clear that on 03.02.1993 at about 5:00 pm, accused appellants have entered the house of (PW-1) Jahar Singh and committed the murder of Ram Babu, Lakhan Singh and Bhagwati by causing firearm injuries to them and also by causing axe injuries to Smt. Bhagwati. The accused persons even after committing the three murder did not stop, they chopped the head of Ram Babu and took the same along with them and while going they also set the house of PW-1 on fire. (PW-1) Jahar Singh and (PW-2) Shankar Singh, two eye-witnesses to the incident, have duly supported the prosecution case. Despite they being subjected to lengthy cross-examination, they remained firm and reiterated as to the manner in which three murders took place before their eyes. Postmortem reports of the three deceased also support the prosecution case.

True it is that as per eye-witnesses, firearm injuries were also caused to Bhagwati, whereas postmortem report does not say so and as per postmortem report of Bhagwati, she died only after suffering axe injuries, but this anomaly is not so significant which will affect the result of the appeal. When such a group of persons had entered the house of PW-1 Jahar Singh duly armed with and started indiscriminate firing resulting three deaths, minor contradictions in the statements of eye-witnesses are required to be ignored.

Even otherwise, law in this respect is well settled. In State of U.P. vs. Krishna Master, (2010) 12 SCC 324, the Supreme Court held as under:

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.

In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case".

In Jeewan vs. State of Uttrakhand, (2012) 13 SCC 598, the Supreme Court held as under:

"23. Now, let us examine the law in relation to discrepancies. Discrepancy has to be material and seriously affecting the case of the prosecution. Every minor and immaterial discrepancy would not prove fatal to the case of the prosecution. The Court has to keep in mind that evidence is recorded after years together and to expect the witnesses to give a minute to minute account of the occurrence with perfection and exactitude would not be a just and fair rule of evidence. The law in this regard is well settled. Even an omission or discrepancy in the inquest report may not be fatal to the case of the prosecution. The Court would have to examine the entire case and discuss the prosecution evidence in its entirety to examine the real impact of a material contradiction upon the case of the prosecution. Trustworthy evidence cannot be rejected on fanciful ground or treated to be in the nature of conjectures.

Similarly, reference can also be made to the case of Shyamal Ghosh v. State of West Bengal (2012) 7 SCC 646, where the Court dealing with discrepancies in the investigation and non-obtaining of FSL and their effect on the case of the prosecution held as under: (SCC pp. 670 & 673, paras 58 & 68)

"58. Of course, there are certain discrepancies in the investigation inasmuch as the investigating officer failed to send the bloodstained gunny bags and other recovered weapons to the FSL, to take photographs of the shops in question, prepare the site plan thereof, etc. Every discrepancy in investigation does not weigh with the court to an extent that it necessarily results in acquittal of the accused. These are the discrepancies/lapses of immaterial consequence. In fact, there is no serious dispute in the present case to the fact that the deceased had constructed shops on his own land. These shops were not the site of occurrence, but merely constituted a relatable fact. Non-preparation of the site plan or not sending the gunny bags to the FSL cannot be said to be fatal to the case of the prosecution in the circumstances of the present case. Of course, it would certainly have been better for the prosecution case if such steps were taken by the investigating officer.

** ** ** **

From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution."

We find no substance in the argument of defence that (PW-1) Jahar Singh and (PW-2) Shankar Singh being relatives and interested witnesses, are not reliable and are required to be ignored. The mere fact that PW-1 is a close relative of the deceased, his statement cannot be ignored.

It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth, such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; >a href=297379>Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52)

The Supreme Court in the matter of Bur Singh and Anr. vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under:

"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."

Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).

Non examination of Munnu Pal is not fatal to the prosecution, considering the fact that two eye-witnesses examined by the prosecution have duly supported the prosecution case and there is no infirmity in this respect. Likewise, we find no substance in the argument of defence that (PW-3) Gaya Prasad has not supported the prosecution case. PW-3 has duly supported the prosecution case and the mere fact that before lodging the FIR, (PW-1) Jahar Singh had some talk with the police officer, does not mean that concocted or false report has been lodged by PW-1. Moreover, PW-3 is a scribe of the FIR and if there is some contradiction in his statement, it will not give any benefit to accused persons when the lodger of the FIR, PW-1 himself, has duly supported the prosecution case. We further find no force in the argument of the defence that (PW-2) Shankar Singh has not been cited as eye-witness by (PW-1) Jahar Singh in his court statement. In the FIR itself, PW-1 has stated that PW-2 was also present at the time of occurrence. Similarly, non production of FSL or serological report is also not fatal because two eye-witnesses have duly supported the prosecution case.

We further find no substance in the argument of the defence that on the date of occurrence, some gang had entered the house of (PW-1) Jahar Singh and committed murder, but for sweeping statement made by accused persons under 313 Cr.P.C., there is no other reliable evidence that any such gang had entered the house of PW-1 and committed the said offence. Statement of DW-1 (Kallu Pal) is not at all reliable and appears to be after thought and created evidence. Moreover, present is a case, where in the prompt FIR, accused persons have been named as assailants and, therefore, so called defence taken by the accused persons, will not be of any help to them.

Taking the cumulative effect of the evidence, we further find it difficult to grant any benefit to accused Sukhram Baba on the ground of his alleged blindness at the time of occurrence. No such evidence has been adduced by the defence in this respect before the trial court. Even (PW-1) Jahar Singh and (PW-2) Shankar Singh have not been asked any question regarding the blindness of accused Sukhram Baba. Moreover, the defence has even not bothered to file any application before this Court for leading any additional evidence.

Considering cumulative effect of the evidence, we are of the considered view that the trial court was justified in convicting the accused-appellants. The appeals have no substance and the same are accordingly dismissed. Accused-appellant Sukhram Baba is reported to be on bail, he be taken into custody immediately for serving the sentence as awarded by the trial court. Other accused appellants are already in jail and, therefore, no further order is required in their respect.