Ranvir Singh and Others vs State of U.P.

S.B. Singh, J.—1. This criminal appeal calls in question the judgment and order dated 15th December, 1982 passed by the IXth Additional Sessions Judge, Agra in Sessions Trial No. 636 of 1980 (State Vs. Ranvir Singh and others) arising out of Case Crime No. 118 of 1980, under Sections 147, 148, 302 IPC, P.S.-Pinhat, District Agra, whereby the appellants/accused Pritam and Sultan have been convicted under Sections 148 and 302 IPC read with Section 149 IPC and have been sentenced to undergo imprisonment for life for having committed murder of Sarnam Singh punishable under Section 302 IPC read with Section 149 IPC and to rigorous imprisonment of two years for having committed rioting punishable under Section 148 IPC. By the same judgment appellants/accused Ranvir Singh, Ativir and Bhoori Singh have been convicted for the offences under Section 147 and Section 302 IPC read with Section 149 IPC and have been sentenced to undergo imprisonment for life under Section 302 IPC read with Section 149 IPC and to rigorous imprisonment of one year under Section 147 IPC. All the sentences have been ordered to run concurrently.

The deceased Sarnam Singh and informant Umrao Singh are real brothers and residents of village Theekura, hamlet of Nagla Mahamai, P.S.-Fatehabad, District Agra. All the appellants-accused are also residents of the same village.

The brief facts leading to prosecution of the appellants are as follows:

On 17.05.1980 at about 6 p.m., when the deceased Sarnam Singh was returning to his village from Agra after Pairvi of some case and reached the path-way in between the fields of Matadin and Balvir Singh within village Theekura all the accused surrounded him. Accused Pritam and Sultan were equipped with ''pharsas'' and the remaining accused namely Ranvir, Ativir and Bhoori Singh with lathies'' in their hands. They lashed out at the deceased Sarnam Singh that he had beaten their buffalo-she-calf and that they would teach him a lesson. Thereafter, all the five accused assaulted Sarnam Singh with their weapons and caused multiple injuries on his person. On an alarm raised by the deceased Sarnam Singh, PW 4 Umrao Singh, PW 5 Kalyan Singh along with Brijendra Singh, Shiv Singh and other villagers reached the spot and challenged the accused. Thereafter, the accused fled away from the scene of occurrence threatening that they would see the deceased again, if he survived by chance.

The deceased Sarnam Singh was in a shocked state of mind, so a written report of the entire occurrence was dictated to one Gajendra Singh by PW 4 Umrao Singh. With the help of PW 4 Umrao Singh, PW 5 Kalyan Singh and other villagers, the deceased Sarnam Singh was taken to the police station and the above written report submitted thither. On the basis of the above report, the First Information Report (Ext. Ka-1) was registered and an entry was made in G.D. (Ext. Ka-2) on 18.05.1980 at 12.05 a.m. PW 6, S.I. Devendra Kumar Gautam recorded the statement of the deceased Sarnam Singh under Section 161 Cr.P.C. at the police station and thereafter Sarnam Singh was sent to the Primary Health Centre, Fatehabad for treatment. As his condition was serious, the attending doctor P.W. 2, Dr. G.S. Katara referred him to the District Hospital, Agra for proper treatment. He was brought to the District Hospital, Agra at about 4 a.m. where he succumbed to the injuries. Information of his death was given to the Station Officer, Rakabganj. On the information so received the case was altered from the offence under Section 307 IPC to 302 IPC vide entry in G.D. on 19.05.1980 at 6.15 a.m. by P.W. 1, Constable Clerk Gera Lal.

After conversion of the case, S.I. Prem Pal Singh visited the Mortuary at District Hospital, Agra and held inquest. The corpse was sealed and sent for autopsy with other necessary papers connected therewith. Autopsy was conducted by PW 3 Dr. M.K. Rawat, Medical Officer, District Hospital, Agra on 18.05.1980 at about 5.40 p.m. and he had noted the following ante-mortem injuries on the person of the deceased.

(i) Incised wound 1" x 2/10" x scalp deep on the head.

(ii) Incised wound 3 1/2" x 4/10" x scalp deep on the head, semi-circular in shape.

(iii) Lacerated wound 1/2" x 3/10" x scalp deep on the head.

(iv) Lacerated wound 1/2" x 2/10" x bone deep on the root of the left ear.

(v) Lacerated wound 1" x 4/10" x skin deep on the forehead.

(vi) Abrasion 1 1/2" x 3/10" on the cheek near the nose.

(vii) Multi-abrasion in an area of 6" x 3" on the right forearm.

(viii) Contusion 8" x 3 1/2" on the left arm.

(ix) Abrasion 1/2" x 4/10" on the left forearm.

(x) Contusion 8" x 4" on the left side of chest on the upper part.

(xi) Contusion 6 1/2" x 5 1/2" on the left iliac.

(xii) Abrasion 2" x 3/4" on the left knee joint on the inner side.

On internal examination, the bones-left anterior cranial fossa and 4th to 7th ribs (left) were found fractured. Six ounce of digested food and fecal matter too was found. According to the doctor, the injuries were sufficient for causing death and the death occurred due to coma as a result of ante-mortem head injuries.

The Investigating Officer, S.I. Devendra Kumar Gautam visited the spot, prepared the site plan Ext. Ka-7, took plain and blood stained earth and prepared memo Ext. Ka-8. Further, he recorded the statement of the witnesses and submitted the charge-sheet Ext. Ka-9. Thereafter, the case was committed to the Court of Sessions on 08.12.1980. To the charges under Sections 147, 148 and 302/149 IPC, accused-appellants pleaded not guilty and attributed their prosecution to enmity with the deceased and the witnesses.

To bring home guilt of the accused, the prosecution examined P.W. 1, Constable Clerk, Gera Lal, P.W. 2, Dr. G.S. Katara, P.W. 3, Dr. M.K. Rawat, P.W. 4 Umrao Singh, P.W. 5 Kalyan Singh, P.W. 6 Devendra Kumar Gautam, P.W. 7 Constable Ramesh Singh, P.W. 8 Kamal Singh, Pharmacist, District Hospital, Agra and P.W. 9 Constable Clerk, Hemant Kishore Gautam. Except P.W. 4 and 5, all other witnesses are formal and their testimony is confined to the role which they played during the course of investigation.

P.W. 4 Umrao Singh and P.W. 5 Kalyan Singh are eye witnesses of the occurrence. They have corroborated the entire prosecution version and P.W. 4 has also proved the written report Ext. Ka-5.

The entire material on record was put to the accused/appellants to submit explanation by way of their statements under Section 313 Cr.P.C. The appellants stated that before this incident informant Umrao Singh and one Karua have already implicated them in a false criminal case under Sections 324 IPC and 107/116 Cr.P.C. The appellants have not produced any evidence in their defence but have stated that they have been acquitted in the above case.

After appreciating the evidence available on record and respective arguments, the court below has recorded a finding of conviction of the appellants/accused and sentenced them as above.

We have heard Sri Ravindra Kumar Kaushik, learned counsel for the appellants and Sri Sagir Ahmad, learned Additional Government Advocate for the State at length and have considered their rival submissions.

Learned counsel for the appellants contended that at the end of written report the recitals ("HUM LOG SARNAM SINGH KO LEKAR THANE AYE HAIN MERI REPORT LIKH KAR KANOONI KARVAI KI JAYE" English translation (We have come to the police station with Sarnam Singh. After taking down my report legal action may be taken.), reflect that the First Information Report was written after consultation with the police. PW 4 Umrao Singh has categorically stated that he dictated the written report (Ext. Ka-5) to Gajendra Singh. The report written by Gajendra Singh was read over to this witness and thereafter he put his thumb impression thereon. PW 1 Constable Clerk, Gera Lal has stated that in May 1980, he was posted at Police Station-Fatehabad, Agra and in the intervening night of 17/18.05.1980 on the basis of written report submitted by PW 4 Umrao Singh, he registered the First Information Report (Ext. Ka-1) on 18.05.1980 at 12.15 a.m. No cross examination in respect of the above recital or consultation with the police has been made of the above witnesses. Further, it has been contended that there is no mention of details of the civil or the criminal case, in pairvi of which the deceased Sarnam Singh had gone to Agra. The statement of PW 4 Umrao Singh to the Investigating Officer is also inconsistent and shifting. This witness had stated that the accused were armed with spears too but there is no mention of the above weapon in the First Information Report. The deceased Sarnam Singh had gone to Agra in pairvi of some case, this fact is proved by the testimony of PW 4 Umrao Singh. The Hon''ble Apex Court in the case of Jarnail Singh Vs. State of Punjab, , 2009 (6) Supreme Court 526 has held that the FIR is not an encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. The occurrence took place on 17.05.1980 at about 6 p.m. The distance between the police station and the place of occurrence is about 9 miles and the First Information Report was registered on 18.05.1980 at 12.15 a.m. The date, time and place of occurrence, name of the accused-appellants, weapons attributed to them and the name of witnesses find place in the First Information Report and in view of the above decision, the necessary facts are contained therein.

Further, it has been contended on behalf of the appellants that there was no motive to cause injuries to or to commit murder of the deceased Sarnam Singh. PW 4 Umrao Singh has stated that a buffalo-she-calf belonging to the accused had grazed the field of the deceased Sarnam Singh and that the latter had beaten and driven it out. It is alleged that thrashing of buffalo-she-calf by deceased generated a motive for commission of the offence. The above motive was not very serious in nature. The accused-appellants have stated in their statements under Section 313 Cr.P.C. that prior to the occurrence of this incident, cases under Sections 324 IPC and 107/116 Cr.P.C. were registered against them at the instance of Umrao Singh and Karua. PW 4 Umrao Singh and PW 5 Kalyan Singh have admitted that the case under Section 324 IPC resulted in acquittal and a copy of the order-sheet dated 18.02.1980 in the proceedings under Sections 107/117 Cr.P.C. discloses that the proceedings terminated in compromise. Thus, animosity between the parties existed from much before the occurrence of this incident and their relations were tainted with malice for the deceased. The Hon''ble Apex Court in the cases of (1) Nagaraj Vs. State , (2015) 4 SCC 739, (2) Sanaullah Khan Vs. State of Bihar, , 2013 (81) ACC 302 (SC) and (3) Subal Ghorai Vs. State of W.B., , (2013) 4 SCC 607 has propounded that motive is not a sine quo non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence, the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses, even if, there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. In view of the above proposition, the motive attributed by PW 4 Umrao Singh for the commission of crime is not of much relevance.

Further, it has been contended on behalf of the appellants that in this case only two witnesses of fact PW 4 Umrao Singh and PW 5 Kalyan Singh have been examined by the prosecution. PW 4 Umrao Singh is real brother of the deceased Sarnam Singh and PW 5 Kalyan Singh is cousin of PW 4 Umrao Singh. The witnesses are family members and their testimony is not reliable. It is noteworthy that the evidence of witnesses cannot be discarded solely on this basis. The Hon''ble Apex Court in the cases of (1) Dhari & others Vs. State of U.P. , AIR 2013 SC 308, (2) Shyam Babu Vs. State of U.P., , AIR 2012 SC 3311 and (3) Shyamal Ghosh Vs. State of West Bengal , AIR 2012 SC 3593 has propounded that the testimony of a witness in criminal trial cannot be discarded merely because the witness is a relative or family member of the victim. In such a case, the court has to adopt a careful approach in analyzing the evidence of such witnesses and if the testimony of the related witness is otherwise found credible, the accused can be convicted on the basis of the testimony of such related witness.

To supplement the above contention, it has been further argued that Brijendra Singh and Shiv Singh, the independent witnesses named in the First Information Report and 4 to 6 neighbors who were present at the scene of occurrence have not been examined by the prosecution. The above contention of the learned counsel for the appellants is true but the Hon''ble Apex Court in the cases of (1) Kripal Singh vs. State of Haryana, , AIR 2013 SC 286, (2) Sandeep vs. State of U.P., , (2012) 6 SCC 107 and (3) Mano Dutt and Another vs. State of U.P., , 2012 (77) ACC 209 (SC) has propounded that if a witness examined in the court is otherwise found reliable and trustworthy, the facts sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of testimony available on record, however natural, trustworthy and convincing it may be. It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on the statement of the sole witness even if he is relative of the deceased and non-examination of independent witness would not be fatal to the case of prosecution.

Lastly, it has been contended by the learned counsel for the appellants that PW 4 Umrao Singh and PW 5 Kalyan Singh are chance witnesses as PW 4 was allegedly going to his field with a basket of garbage and PW 5 was going to the house of Lajja Ram for borrowing a sieve before the occurrence. The above witnesses have not given the above statements to the Investigating Officer, therefore, their presence at the scene of occurrence is doubtful. It has been vehemently contended that PWs 4 and 5 were not present on the spot. To appreciate the above contention, a short narration of the statements of the above two eye-witnesses is indispensable.

PW 4 Umrao Singh corroborating the entire prosecution case, has stated that on the date of occurrence at about 6 p.m. while he was at the corner of the house of Lajja Ram and Janak Singh, he heard the alarm of his brother. He reached the spot along with Kalyan Singh, Shiv Singh and Brijendra Singh and witnessed that all the five appellants were assaulting the deceased Sarnam Singh. Accused Pritam and Sultan were equipped with ''pharsas'' and the rest three appellants namely Ranvir Singh, Ativir and Bhoori Singh were equipped with lathies''. On the hue and cry raised by the witnesses, all the accused-appellants fled away towards the east. He has further stated that at the time of incident, he was on way to his field.

PW 5 Kalyan Singh has stated that on the date of occurrence at about 6 p.m., he was near the house of Lajja Ram, heard the alarm of Sarnam Singh and reached the place of occurrence along with Umrao Singh, Shiv Singh and Brijendra Singh. All the accused/appellants inflicted injuries on the person of the deceased Sarnam Singh. Accused Pritam and Sultan were equipped with ''pharsas'' and the rest three appellants were equipped with lathies''. He has also stated that the occurrence took place at about 6 p.m. in the month of May before sunset. There was sufficient sunlight at the time of occurrence and the presence of witnesses shown in the site plan demonstrates that they had an occasion to see the place of occurrence from a distance also because there is no obstacle in between. They are residents of the same village and their presence appears to be quite natural.

The date, time, place of occurrence, the names and number of assailants and the weapons attributed to them have been specifically confirmed by each of the above two witnesses of fact. Although, they are family members but their testimony cannot be discarded on this count. In the post mortem report two incised wounds caused by sharp-edged weapon i.e. ''pharsa'', three lacerated wounds, three contusions and four abrasions caused by blunt object have been found on the person of the deceased. PW 3 Dr. M.K. Rawat, who conducted the autopsy, has opined that the injuries were sufficient for causing the death of the deceased. In the opinion of the doctor, the death occurred due to coma as a result of the ante-mortem head injuries. Thus, the death of the deceased is unnatural and the injuries found on his person have been caused by the weapons assigned to the appellants. In view of the above, the direct testimony of the eyewitnesses is strengthened by the medical evidence.

Referring to piecemeal statement of PW 5 Kalyan Singh that when he reached the place of occurrence, the accused had fled away and that is why he didn''t make any effort to catch them. It has been contended that PW 5 was not present on the spot. But a perusal of his statement as a whole negates the above contention. There was sufficient sunlight and the witness has deposed that the accused fled away towards the east.

In the testimony of PW 4 Umrao Singh, some inconsistencies in the statement recorded by the Investigating Officer and his statement before the court have been pointed out. It has been submitted that the use of spear did not find place in the FIR and in the statement on oath. It has been also mentioned that this witness is not sure whether the deceased Sarnam Singh had gone to Agra in pairvi of some civil case or to attend a date in a criminal case under Section 25 of the Arms Act. The Hon''ble Apex Court in the cases of Ashok Kumar Choudhary vs. State of Bihar, 2008 (61) ACC 972 and Dimpal Gupta (minor) Vs. Rajiv Gupta, , AIR 2008 SC 239 has propounded that if the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eyewitness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. The statements of the two witnesses of fact in this case have been recorded after a lapse of about one year and nine months from the date of occurrence and even after a searching and lengthy cross-examination nothing could be extracted otherwise.

The date, time and place of occurrence have not been disputed by the appellants. Only a half-hearted suggestion had been given to PW 4 Umrao Singh that the deceased was assaulted by some unknown hooligans. This mere suggestion has no merit and substratum to discredit the eyewitnesses-account.

No other argument was either pressed or raised before us.

To appreciate the testimony of an eyewitness, it has to be kept in mind whether the witness is credible and his presence on the spot is probable and he has seen the incident. In this background, the witnesses examined by the prosecution are consistent in their version despite searching cross examination and there is no material contradiction or inconsistency which may militate against their credibility or trustworthiness. Further, the evidence of the eyewitnesses is strengthened by the medical evidence on record as the cause of death is due to ante-mortem injuries as stated by PW 3 Dr. M.K. Rawat. The prosecution has proved its case beyond reasonable doubt and the verdict of conviction is legally and factually justified by the evidence on record.

Being the Court of first appeal, we have carefully scrutinized the case from every angle. The conscience of the Court is convinced of the commission of the crime by the culprits before us, the judgment of the trial court is perfectly correct and the appeal is sans merit. The appeal by appellants/accused Sultan, Ativir and Bhoori Singh is hereby dismissed. The conviction and sentence awarded by the trial court against the appellants/accused Sultan, Ativir and Bhoori Singh is confirmed.

So far as the appellants-accused Ranvir Singh and Pritam are concerned, they have died during the pendency of appeal and their appeal has been abated vide orders dated 24.10.2009 and 26.10.2015 respectively.

The appellants/accused Sultan, Ativir and Bhoori Singh shall surrender before the trial Court immediately to serve out the sentence awarded by the trial Court.

A copy of the Judgment and the entire records be transmitted back to the learned trial court for compliance.