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Raja Ram & Others v/s State of U.P.

    Criminal Appeal No. 5307 of 2008

    Decided On, 11 January 2019

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PRITINKER DIWAKER & THE HONOURABLE MR. JUSTICE RAJ BEER SINGH

    For the Appellants: Apul Misra, Advocate. For the Respondent: J.K. Upadhya, AGA.



Judgment Text

Raj Beer Singh, J

1. This criminal appeal has been preferred against the judgement and order dated 30.07.2008 passed by the learned Sessions Judge, Badaun in ST No. 499 of 2002 (State Vs. Raja Ram and others) arising out of Case Crime No. 61 of 2002, under Section 148, 302/149 IPC, P.S. Dataganj, District- Badaun, whereby the accused/appellants Raja Ram, Rajesh, Subhash, Ram Pal, Sheo Dayal and Gyanwati have been convicted under Sections 148, 302/149 of IPC and have been sentenced to rigorous imprisonment for two years under Section 148 of IPC and imprisonment for life under Sections 302/149 of IPC.

2. The prosecution version in brief is that on 16.02.2002 complainant Vedram has submitted a written complaint exhibit Ka-1 at P.S. Dataganj, Badaun alleging that on 16.02.02 at 11.00 AM while he along with his brother Surender was sitting near the well of his village, the accused Raja Ram and Rajesh having tamanchas, Subhash and Ram Pal having country made guns, Sheo Dayal having spade (farsa) and wife of Raja Ram having a knife came there. Raja Ram exhorted that Surender be killed and asked Rajesh to take revenge of his father. Thereafter, Raja Ram, Rajesh, Subhash and Ram Pal fired at complainant's brother Surender, resultantly he sustained fire arm injuries. Sheo Dayal attacked him by spade and wife of Raja Ram cut the neck of Surender. Hearing cries of the complainant, his father and neighbours Jagdish, Ram Singh and some other residents of the village came there and saw the incident. Thereafter, the accused persons fled from the spot.

3. On the basis of the written complaint Exhibit Ka-1, the case was registered on 16.02.2002 at 14.30 hours vide FIR exhibit Ka-2 under Sections 147, 148, 149, 302 of IPC against the accused persons and an entry was recorded in the general diary vide exhibit Ka-3.

4. The Investigating Officer conducted inquest proceedings and the inquest report exhibit ka-5 was prepared and other related documents exhibit ka- 6 to ka- 10 were also prepared and the dead body of the deceased was sealed and sent for postmortem. The Investigating Officer also took samples of simple as well as blood stained soil from the spot vide memo Exhibit Ka-11 and after inspecting the spot prepared site plan Exhibit Ka-12.

5. The postmortem of the deceased Surender was conducted on 17.02.2002 by PW-4 Dr. Rajeev Kumar Rohtagi.

6. During investigation, statements of witnesses were recorded and after completion of the investigation, the accused persons namely Raja Ram, Rajesh, Subhash, Ram Pal, Sheo Dayal and Gyanwati were charge sheeted for the offences under Sections 147, 148, 149, 302 of IPC by charge sheet Exhibit Ka-13.

7. Learned Sessions Judge framed the charges u/s 148, 302/149 IPC against all the accused persons. The accused persons pleaded not guilty and claimed trial.

8. In support of its case, the prosecution has examined five witnesses. Out of these, PW-1 Vedram is complainant of the case and PW-2 Jagdish is eye witness of the alleged incident. PW-3 has recorded FIR and GD entry while PW-4 Dr. Rajeev Kumar Rohtagi has conducted postmortem and PW-5 Shrikant Mishra is investigating officer. After prosecution evidence, the accused persons were examined under Section 313 CrPC, wherein they denied the prosecution evidence and claimed false implication on account of murder of Karanpal. However, no evidence was led by the accused persons in their defence.

9. The trial culminated into conviction vide judgement and order dated 30.07.2008 passed by the learned Sessions Judge, Badaun and the accused/appellants Raja Ram, Rajesh, Subhash, Ram Pal, Sheo Dayal and Gyanwati were convicted and sentenced u/s 148, 302/149 IPC as stated above.

10. The above stated judgement and order dated 30.07.08 is being impugned in the present criminal appeal.

11. We have heard learned counsel for the appellants as well as the learned Government Counsel for the State and perused the record.

12. As per the postmortem report, the deceased Surender has sustained following injuries:

1. IW on posterior aspect of Rt. arm area 5.0 cm x 2.0 cm x muscle deep just above wrist.

2. IW on the outer aspect of mid of neck 9.0 cm x 3.0 cm x vertebra deep.

3. IW on the posterior aspect of left sleeve area 1.0 cm x 0.5 cm x muscle deep 11 cm below elbow.

4. IW on the posterior aspect of left sleeve area 3.0 cm x 0.5 cm x muscle deep 6.0 cm above wrist.

5. IW on the left side 8.0 cm x 8.0 cm x muscle deep and 1.0 cm below lip.

6. LW on the right side upper lip 2.0 cm x 0.5 cm x muscle deep.

7. LW Fire arm wound of entry on the right side chest 4.0 cm x 3.0 cm x cavity and 8.0 cm above the right nipple blackening present around wound.

8. LW on the top of right side of skull 4.0 cm x 2.0 cm x scalp deep 10 cm above the right ear.

9. Contusion on the left side of face 7.0 cm x 2.5 cm and 3.0 cm to ear.

On opening of injury No. 7 one weeded piece 16 pallets recovered from Rt lung, heart chest cavity.

The cause of death was shock and haemorrhage as a result of anti mortem injuries.

13. In evidence, PW-1 Vedram has stated that his brother Surender was facing trial of the murder of father of accused Rajesh. On the day of incident at around 11 AM he along with his brother Surender was sitting near well while his father was at the roof. Accused/ appellants Raja Ram and Rajesh having tamanchas, Subhash and Ram Pal having guns, Sheo Dayal having spade and Gyanwati having knife came there and Raja Ram exhorted co-accused Rajesh saying that kill the deceased Surender. Thereafter, accused Raja Ram, Rajesh, Ram Pal and Subhash fired shots at the deceased Surender while

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Shiv Dayal gave a spade blow and Gyanwati gave a knife blow at the neck of the deceased. Hearing cries of the complainant, Ram Singh, Jagdish and some villagers reached there and thereafter accused fled away from the spot. PW-1 has proved the written complaint submitted by him at the Police Station as Exhibit Ka-1.

14. PW 2 Jagdish has stated that about four years back at 11 AM while he was passing by the house of Banwari, he saw that in front of house of Banwari, accused Rajesh and Subhash having tamancha, Raja Ram and Ram Pal having country made guns, Sheo Dayal having a spade and Gyanwati having knife have encircled Surender and fired at him and Sheo Dayal gave spade blow and Gyanwati cut his neck by knife. As per PW-2, this incident was also witnessed by Ram Singh, Chet Ram, Nanhe Lal, Ved Ram, Shyam Veer and Santosh Kumari.

15. PW-3 is a formal witness, who has recorded FIR and the GD entry and has proved the same as Exhibit Ka-2 and Ka-3.

16. PW-4 Dr. Rajeev Kumar Rohtagi has conducted postmortem of the deceased and has proved the postmortem report as Exhibit Ka-4.

17. PW-5 Shrikant, the then SHO of PS Dataganj has investigated the case. He has stated that after registration of the case, he reached at the spot and conducted the inquest proceedings. The inquest report was proved as Exhibit Ka-5 and other related documents were proved as Exhibit Ka-6 to Ka-10. Samples of simple as well as blood stained soil were taken from the spot vide Exhibit Ka-11. At the pointing out of the complainant, the site plan of the spot was prepared vide Exhibit Ka-12. After completion of the investigation charge sheet Exhibit Ka-13 was filed against accused persons.

18. Sri Apul Mishra, learned counsel for the appellants has raised following points:

(i). That the presence of alleged eye witnesses PW 1 Vedram at the spot is highly doubtful. PW-1 Ved Ram was also an accused in the murder of the father of accused Rajesh but as per prosecution version he was not assaulted by the accused persons. PW-1 has not sustained any injury. He being brother of the deceased is an interested witness. PW-1 has made improvements in his cross-examination that two of the accused persons have fired in air while accused Rajesh and Raj Ram fired at the deceased.

(ii) PW-2 Jagdish is a chance witness and his presence at the time of offence is unnatural and improbable as there is nothing to show that why he was present there. His statement was recorded on the next day of the alleged incident.

(iii). That there are major contradictions and inconsistencies in the statements of the witnesses i.e. PW 1 and PW 2. It was pointed out that in his cross-examination, PW 1 has stated that at the time of the incident he was sitting on one cot while deceased was sleeping on other cot but at the spot only one cot was found by the I.O. Further PW 2 has also stated that there was only one cot. In his cross-examination, PW has stated that the accused persons have fired from the distance of 5-7 steps while PW 2 stated that the accused have fired from the distance of about 20 yards.

(iv) That there is variance between the oral testimony and the medical evidence. As per prosecution version appellant Gyanwati has given knife blow on the neck of the deceased and as per postmortem report, the deceased has sustained lacerated wound of 9.0 cm x 3 cm and injury of such size is not possible by the knife while other injuries caused by sharp edged weapon were not on the vital parts of the deceased and thus the same were not possible by spade, which is attributed to accused Sheo Dayal. As per the FIR four persons have fired at the deceased while the deceased has sustained only one gun shot injury. It was stated that as per the postmortem report there was blackening around the fire arm injury which shows that alleged injury was caused by a close range while PW-2 has stated that the fires were shot by the accused persons at a distance of 20 yard.

(v). There was no motive on the part of the accused persons to commit the murder of the deceased. Even as per the prosecution version it is not clear that why the other accused persons except Rajesh and Subhash would commit the murder of the deceased. It was again stated that PW-1 Vedram was also facing trial of the murder of the father of accused Rajesh but no injury was caused to him nor any attempt was made to kill or to cause any injury to him.

(vi). That no weapon of offence i.e. country made guns, spade, or knife has been recovered. Had the alleged weapons might have used by the accused persons, it was quite possible that at least some of them might have recovered but no recovery at all has been made and therefore this fact also makes the prosecution version doubtful.

(vii). That the FIR is ante timed and it was lodged after consultation. It was stated that in the FIR exhibit ka-2 the distance of the police station from the spot was shown 4 km while in the inquest report (panchnama) this distance was shown 5 km. It was argued that if the FIR was in existence at the time of the inquest report, the distance in the inquest report must also have been same i.e. 4 km.

(viii). That the involvement of the appellant Gyanwati is highly improbable as she being a lady would not have joined five other accused persons in committing the murder of the deceased with a knife particularly when there was no motive on her part to commit his murder.

19. Learned counsel for the State has argued that the testimony of PW 1 and PW 2 is consistent and reliable. No such fact could be pointed out in their cross-examination so as to doubt their presence at the spot or to affect their credibility. It was argued that there was strong motive on the part of the accused persons to commit the murder of the deceased. The conviction is based on direct testimony of the eye witnesses and no major contradiction could be shown.

20. So far as this contention is concerned that the presence of eye witness PW 1 Vedram at the spot is doubtful as he was also an accused in the murder of the father of accused Rajesh but as per prosecution version he was neither assaulted nor he sustained any injury, it may be stated that human conduct can not be ascribed to a set pattern. The degree of grudge may differ qua each of the person accused for the murder of Rajesh. It is not necessary that if the deceased Surender was attacked on the ground that he was involved in the murder of the father of accused Rajesh, the accused persons might have necessarily attacked every person involved in the murder of father of accused Rajesh. The argument raised by the learned counsel for the appellants appears hypothetical. So far as this contention, that the witness is interested, is concerned, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spear the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Hon'ble Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. In Dilip Singh Vs State of Punjab, A.I.R. 1983, S.C. 364, it was held by the Hon'ble Supreme Court that the ground that the witnesses being the close relatives and consequently being the partition witness would not be relied upon has no substance. Similar view has been taken by the Hon'ble Supreme Court in Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629.

21. The contention about branding the witnesses as interested witness and credibility of close relationship of witnesses has been examined by Hon'ble Apex court in a number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held by the Hon'ble Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. Similar view was taken in State of Gujrat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839.

22. In the present case, the incident took place in the village at 11.00 AM. It is also clear that the house of the PW 1 was also situated nearby. It was winter season. At the time of the incident, the presence of PW 1 at the scene of offence appears natural. The FIR has been lodged by PW 1 without any undue delay. No such fact could emerge in his cross-examination, so as to create any doubt about his presence at the spot. The statement of PW 1 is consistent with the FIR as well with his statement recorded during investigation. Merely because he stated that the accused persons might have fired at the distance of 5-6 steps, it can not be said that it is contradictory with medical evidence, rather this fact finds support from the medical evidence. No major contradiction or infirmity could be pointed out in the testimony of PW 1. Relationship is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, AIR 1976 SC 2304. There is no rule of law that a Court cannot act on the evidence of interested witnesses. The only thing is that a Court should be careful and cautious in accepting that evidence and if after due scrutiny it is found that their evidence does not suffer from any infirmities, in that case, there is no reason why a conviction should not follow on that evidence also. In the present case, as stated above, the presence of PW 1 scene of offence was quite natural. In view of these facts and circumstances, merely because PW 1 is related to the deceased, it can not be ground to discard his testimony. As stated above, it is well settled that evidence of interested witnesses cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. 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. In view of the evidence on record, the evidence of PW 1 can not be disbelieved on ground that he is brother of the deceased. So far this fact is concerned that in his cross-examination, he stated that only two of the accused namely Rajesh and Rajaram have fired at the deceased while accused Subhash and Rampal have fired in the air, it may be stated that in the FIR, in statement u/s 161 CrPC as well in his examination-in-chief, PW 1 has stated that all the four accused have fired with their respective weapons but in cross-examination, when asked to specify, he clarified that the accused Rajesh and Rajaram have fired at the deceased while accused Subhash and Rampal have fired in the air. It can not be termed an improvement of such a nature so as to affect the credibility of PW 1. Here it would be pertinent to mention that the defence has not confronted the witness with the FIR or with his statement recorded u/s 161 CrPC. In view of the above facts, it is clear that the contention of the learned counsel for the appellants has no force.

23. The testimony of PW 2 was assailed on the ground that his presence at the spot is unnatural and improbable as he is a chance witness and therefore his testimony is liable to be rejected.

24. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, the Hon'ble Apex Court held as under:

"...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 passers-by 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."

25. Keeping in view the above stated position in mind, in the present case it may be seen that the version of PW 2 Jagdish has stated that on the day of the incident at 11 AM while he was passing by the house of Banwari, he saw the accused persons armed with weapons and thereafter witnessed the incident. It is not disputed that he is a resident of the same village. In his cross-examination, he has stated that at that time he was going to his pond. Even in his statement u/s 161 Cr.P.C, he has stated that at that time he was going to see his fishes in his pond. It is correct that in his cross-examination, he stated that when he was returning from the pond he saw the incident but it is a minor inconsistency and can not be given much importance. It is correct that he has admitted that the complainant is his friend but it would also not make his presence at thee scene doubtful. In fact in his cross-examination, he candidly accepted the fact that Vedram is his friend. Though his statement u/s 161 of the Code was recorded on the next day of the incident but here it has to be kept in mind that he was named as a witness in the written report Ex. ka-1 submitted by the complainant, on the basis of which the FIR Ex. ka-2 was registered without any undue delay. Thus, the delay of one day in recording his statement by the Investigating Officer can not be given much importance. No major improvement or infirmity could be pointed out in his statement. In his cross-examination, he has given vivid details regarding his presence at the scene of the offence. In view all these facts, the deposition of PW 2 can not be rejected on the contention that he is a chance witness.

26. So far as this contradiction is concerned that PW 1 has stated that at the time of the incident he was sitting on one cot while deceased was sleeping on other cot but the second cot was not found by the I.O and PW 2 has also stated that there was only one cot, it can not be termed as a major contradiction so as to affect the testimony of these witnesses. PW 1 has clarified in his cross-examination, that the second cot might have taken away. No doubt there are contradictory statements of these witnesses on the point as to from what distance the accused persons have fired at the deceased. In his cross-examination, PW 1 has stated that the accused have fired from the distance of 5-7 steps while PW 2 stated that the accused have fired from the distance of about 20 yards. In view of the medical evidence that there was blackening around the injury No 7 caused by fire arm, this statement of PW 2 that the accused have fired from the distance of about 20 yards does not appear reliable, however it has to be kept in mind that PW 2 is a rustic illiterate villager and was examined after four years of the incident. He was not expected to tell all these details with mathematical precision. In view of the attending facts and circumstances of the case this contradiction can not be termed as material so as to reject the deposition of PW 2 in its entirety. The contradictions pointed out by the ld counsel do not go to the root of the matter. The above mentioned contradictions and inconsistencies are not so material so as to create any doubt about the involvement of the accused persons in the incident. It may be pointed out that 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. Exaggerations per se do not render the evidence brittle. But it can be one 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. [Vide:Mahender Pratap Singh V State of UP (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. V. State of Maharashtra, JT 2010 (12) SC 287]. In the present case all the above mentioned contradictions and inconsistencies are of normal nature and same do not erode the substance of the testimony of the witnesses. 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. Further even if a witness is found false on a point, it does not mean his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the chaff. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. A witness may be speaking untruth in some respect and it has to be appraised in each case as to what extent the evidence is worthy of acceptance. (Ram Rahis V State of UP 2008 (61) ACC 925 All). Thus, in view of the above discussed law and facts of the matter the contention that the alleged contradictions, inconsistencies and improvements make the testimony of PW 1 and PW 2 doubtful, has to be rejected.

27. Much thrust was given by learned counsel for the appellants to the contention that there is variance between the oral testimony and the medical evidence. As per prosecution version, appellant Gyanwati has given knife blow on the neck of the deceased but the deceased has sustained incised wound of 9.0 cm x 3 cm size, which as per the ld counsel is not possible by a knife. It was further pointed out that the other injuries caused by sharp edged weapon were not on the vital parts of the deceased and thus the same were not possible by spade, which is attributed to accused Shiv Dayal.

28. It is now well settled by a series of decisions of the Hon'ble Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. 29. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, the Hon'ble Supreme Court observed as under:

"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

30. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.

31. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, the Hon'ble Apex Court reiterated the aforementioned position of law and stated that in any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. From the above stated authorities, it is clear that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, but when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

32. In the present case, it may be stated that size of injuries caused by knife or spade depends on the factors like from what angle and force the alleged weapons were used. There can be no set proposition that the injuries of such size are not possible by the knife and spade. Such type of minor inconsistency can not be given importance. It is correct that as per the FIR four persons have fired at the deceased while the deceased has sustained only one gun shot injury, but this fact would not give rise to such a major contradiction so as to disbelieve the version of PW 1 and PW 2. The fact remain that the witnesses have stated that the four of the accused persons have fired at the deceased while two attacked the deceased with knife and spade. The deceased has sustained fire arm injury as well as injuries caused by sharp edged weapon. In his cross-examination, the PW 1 has tried to explain that only one- two fires were shot at the deceased and that accused Subhash and Rampal have fired in the air but no such version was stated in the statement recorded during investigation. Be that as it may, considering the evidence as a whole it can not be said that there is any such contradiction between the oral evidence and the medical evidence, which goes to the root of matter. The evidence on record clearly attracts the applicability of Section 149 IPC. It was further pointed out that as per the postmortem report there was blackening around the fire arm injury which shows that alleged injury was caused by a close range while PW-2 has stated that the fires were shot by the accused persons from the distance of 20 yards. No doubt the blackening was not possible if deceased might have fired from the distance of 20 yards but this inconsistency too can not be given much importance particularly when there is nothing to doubt the presence of these witnesses at the spot. Such error in distance is a normal discrepancy. Such type of errors are bound to crept in every case even in the statement of truthfulness witness. Here it would be relevant to mention that PW 1 has stated that the deceased was fired from the distance of 5-7 steps. Thus, the statement of PW 1 is consistent with the medical evidence. It is clear the evidence of PW 1 and PW 2 can not be said totally irreconcilable with the medical evidence so as to make their testimony doubtful. The contention raised by the learned counsel for the appellants has no force.

33. So far as this contention is concerned that here was no motive on the part of the accused persons to commit the murder of the deceased, it is settled position of law that clear proof of motive lends additional assurance to other evidence. Absence of motive does not lead to contrary conclusion but in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, 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. Reference may be made to the case law pronounced in the case of State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

34. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance as held in Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).

35. In the present case the prosecution has put up a consistent case that the deceased was involved in the murder of Karanpal, who was father of accused Rajesh and Subhas and uncle of accused Rajaram, Sheo Dayal and Rampal. Accused Gyanwati is wife of accused Rampal. As per prosecution version, accused Rajaram has exhorted to kill the deceased to take revenge of murder of father of accused Rajesh. Thus, it is clear that all the accused persons have a motive to commit murder of deceased. It is not unnatural that the family members of accused Rajesh and Subhash would join them in committing murder of deceased, who was facing trial for the murder of their father. Merely because the accused persons did not attack PW 1 Vedram, who was also facing trial for the murder of father of accused Rajesh, it can not be said that there was no motive to commit the murder of the deceased. The contention of the learned counsel has no force.

36. So far as this argument is concerned that no weapon of offence i.e. country made guns, spade, or knife has been recovered, it would be relevant to mention that recovery of weapon might have further strengthen the prosecution case but it is not sine qua non for sustaining conviction. In fact it was the duty of the Investigating Officer to recover the weapons used in the incident. If there is any laxity on the part of the investigating officer in this regard, it can not be ground to doubt the testimony of PW 1 and PW 2, which is clear and cogent. The consistent and reliable testimony of PW 1 and PW 2 can not be disbelieved merely on the ground that the recovery of weapons has not been made, particularly when evidence clearly suggests that the injuries sustained by the deceased were caused by the weapons attributed to the accused persons.

37. As far as this argument is concerned that the FIR is ante timed, it is correct that in the FIR exhibit ka-2 the distance of the police station from the spot was shown 4 km while in the inquest report this distance was shown 5 km, but there is no rule that the Police officer conducting inquest is bound to mention the same distance. The FIR was recorded by PW 3 Narayan Singh while the inquest report was prepared by the PW 5 Inspector Shrikant Mishra, who has investigated the case. Both have noted the distance as per their own conclusions. PW 5 clearly stated that after registration of the case he has proceeded to the spot and conducted inquest proceedings. There are no reasons to disbelieve the evidence of PW 5, who is public servant and has no grudge with either party. In view of the entire facts of the case, it can not be held that the FIR is ante timed or that it was lodged after consultation.

38. It is correct that as per the prosecution version, the appellant Gyanwati has joined five other accused persons in committing the murder of the deceased but no such presumption can be raised that a lady would not join or participate in commission of such offence. She is named in the FIR and she was assigned specific role. Both the witnesses have consistently spoken that she was armed with a knife and she has given a knife blow at the neck of the deceased. This version is supported by the medical evidence. From the postmortem report exhibit ka-4 it is clear that the deceased has sustained an incised wound of 9 cm x 3 cm size at his neck. Here it may be added that she is wife of accused of the appellant Rajaram, who as the prosecution version has exhorted to kill the deceased and he himself participated in the attacking the deceased by using country made gun. All the accused persons belong to one and the same family. In view of all these facts and evidence the participation of accused Gyanwati can not be doubted merely on the ground that being a lady, she would not have joined other accused persons in the murder of the deceased.

39. Considering entire evidence on record, we are of the view that the testimony of PW 1 and PW 2 inspires confidence and the trial court was justified in convicting the appellants. The appeal has no substance and the same is accordingly dismissed. Appellant Raja Ram, Rajesh, Sheo Dayal and Smt Gyanwati are stated in judicial custody. They shall serve out the remaining sentence. Appellant Subhash and Rampal are on bail. Their bail bonds are cancelled and they be taken into custody forthwith to serve out the remaining sentence.

Dated: 11.01.2019 ujjawal (Raj Beer Singh, J) (Pritinker Diwaker, J)istance of 5-6 steps, it can not be said that it is contradictory with medical evidence, rather this fact finds support from the medical evidence. No major contradiction or infirmity could be pointed out in the testimony of PW 1. Relationship is not a ground to discredit testimony of witness, if it is otherwise found to be consistent and true, as held by the Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, AIR 1976 SC 2304. There is no rule of law that a Court cannot act on the evidence of interested witnesses. The only thing is that a Court should be careful and cautious in accepting that evidence and if after due scrutiny it is found that their evidence does not suffer from any infirmities, in that case, there is no reason why a conviction should not follow on that evidence also. In the present case, as stated above, the presence of PW 1 scene of offence was quite natural. In view of these facts and circumstances, merely because PW 1 is related to the deceased, it can not be ground to discard his testimony. As stated above, it is well settled that evidence of interested witnesses cannot be discarded on the sole ground of interestedness, but their evidence should be subjected to a close scrutiny. Interested witnesses are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. 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. In view of the evidence on record, the evidence of PW 1 can not be disbelieved on ground that he is brother of the deceased. So far this fact is concerned that in his cross-examination, he stated that only two of the accused namely Rajesh and Rajaram have fired at the deceased while accused Subhash and Rampal have fired in the air, it may be stated that in the FIR, in statement u/s 161 CrPC as well in his examination-in-chief, PW 1 has stated that all the four accused have fired with their respective weapons but in cross-examination, when asked to specify, he clarified that the accused Rajesh and Rajaram have fired at the deceased while accused Subhash and Rampal have fired in the air. It can not be termed an improvement of such a nature so as to affect the credibility of PW 1. Here it would be pertinent to mention that the defence has not confronted the witness with the FIR or with his statement recorded u/s 161 CrPC. In view of the above facts, it is clear that the contention of the learned counsel for the appellants has no force.

23. The testimony of PW 2 was assailed on the ground that his presence at the spot is unnatural and improbable as he is a chance witness and therefore his testimony is liable to be rejected.

24. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, the Hon'ble Apex Court held as under:

"...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 passers-by 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."

25. Keeping in view the above stated position in mind, in the present case it may be seen that the version of PW 2 Jagdish has stated that on the day of the incident at 11 AM while he was passing by the house of Banwari, he saw the accused persons armed with weapons and thereafter witnessed the incident. It is not disputed that he is a resident of the same village. In his cross-examination, he has stated that at that time he was going to his pond. Even in his statement u/s 161 Cr.P.C, he has stated that at that time he was going to see his fishes in his pond. It is correct that in his cross-examination, he stated that when he was returning from the pond he saw the incident but it is a minor inconsistency and can not be given much importance. It is correct that he has admitted that the complainant is his friend but it would also not make his presence at thee scene doubtful. In fact in his cross-examination, he candidly accepted the fact that Vedram is his friend. Though his statement u/s 161 of the Code was recorded on the next day of the incident but here it has to be kept in mind that he was named as a witness in the written report Ex. ka-1 submitted by the complainant, on the basis of which the FIR Ex. ka-2 was registered without any undue delay. Thus, the delay of one day in recording his statement by the Investigating Officer can not be given much importance. No major improvement or infirmity could be pointed out in his statement. In his cross-examination, he has given vivid details regarding his presence at the scene of the offence. In view all these facts, the deposition of PW 2 can not be rejected on the contention that he is a chance witness.

26. So far as this contradiction is concerned that PW 1 has stated that at the time of the incident he was sitting on one cot while deceased was sleeping on other cot but the second cot was not found by the I.O and PW 2 has also stated that there was only one cot, it can not be termed as a major contradiction so as to affect the testimony of these witnesses. PW 1 has clarified in his cross-examination, that the second cot might have taken away. No doubt there are contradictory statements of these witnesses on the point as to from what distance the accused persons have fired at the deceased. In his cross-examination, PW 1 has stated that the accused have fired from the distance of 5-7 steps while PW 2 stated that the accused have fired from the distance of about 20 yards. In view of the medical evidence that there was blackening around the injury No 7 caused by fire arm, this statement of PW 2 that the accused have fired from the distance of about 20 yards does not appear reliable, however it has to be kept in mind that PW 2 is a rustic illiterate villager and was examined after four years of the incident. He was not expected to tell all these details with mathematical precision. In view of the attending facts and circumstances of the case this contradiction can not be termed as material so as to reject the deposition of PW 2 in its entirety. The contradictions pointed out by the ld counsel do not go to the root of the matter. The above mentioned contradictions and inconsistencies are not so material so as to create any doubt about the involvement of the accused persons in the incident. It may be pointed out that 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. Exaggerations per se do not render the evidence brittle. But it can be one 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. [Vide:Mahender Pratap Singh V State of UP (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. V. State of Maharashtra, JT 2010 (12) SC 287]. In the present case all the above mentioned contradictions and inconsistencies are of normal nature and same do not erode the substance of the testimony of the witnesses. 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. Further even if a witness is found false on a point, it does not mean his entire testimony has to be disbelieved, rather it is duty of the court to separate the grain from the chaff. The maxim 'falsus in uno, falsus in omnibus' is not applicable in India. A witness may be speaking untruth in some respect and it has to be appraised in each case as to what extent the evidence is worthy of acceptance. (Ram Rahis V State of UP 2008 (61) ACC 925 All). Thus, in view of the above discussed law and facts of the matter the contention that the alleged contradictions, inconsistencies and improvements make the testimony of PW 1 and PW 2 doubtful, has to be rejected.

27. Much thrust was given by learned counsel for the appellants to the contention that there is variance between the oral testimony and the medical evidence. As per prosecution version, appellant Gyanwati has given knife blow on the neck of the deceased but the deceased has sustained incised wound of 9.0 cm x 3 cm size, which as per the ld counsel is not possible by a knife. It was further pointed out that the other injuries caused by sharp edged weapon were not on the vital parts of the deceased and thus the same were not possible by spade, which is attributed to accused Shiv Dayal.

28. It is now well settled by a series of decisions of the Hon'ble Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. 29. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, the Hon'ble Supreme Court observed as under:

"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

30. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.

31. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, the Hon'ble Apex Court reiterated the aforementioned position of law and stated that in any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy. From the above stated authorities, it is clear that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, but when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

32. In the present case, it may be stated that size of injuries caused by knife or spade depends on the factors like from what angle and force the alleged weapons were used. There can be no set proposition that the injuries of such size are not possible by the knife and spade. Such type of minor inconsistency can not be given importance. It is correct that as per the FIR four persons have fired at the deceased while the deceased has sustained only one gun shot injury, but this fact would not give rise to such a major contradiction so as to disbelieve the version of PW 1 and PW 2. The fact remain that the witnesses have stated that the four of the accused persons have fired at the deceased while two attacked the deceased with knife and spade. The deceased has sustained fire arm injury as well as injuries caused by sharp edged weapon. In his cross-examination, the PW 1 has tried to explain that only one- two fires were shot at the deceased and that accused Subhash and Rampal have fired in the air but no such version was stated in the statement recorded during investigation. Be that as it may, considering the evidence as a whole it can not be said that there is any such contradiction between the oral evidence and the medical evidence, which goes to the root of matter. The evidence on record clearly attracts the applicability of Section 149 IPC. It was further pointed out that as per the postmortem report there was blackening around the fire arm injury which shows that alleged injury was caused by a close range while PW-2 has stated that the fires were shot by the accused persons from the distance of 20 yards. No doubt the blackening was not possible if deceased might have fired from the distance of 20 yards but this inconsistency too can not be given much importance particularly when there is nothing to doubt the presence of these witnesses at the spot. Such error in distance is a normal discrepancy. Such type of errors are bound to crept in every case even in the statement of truthfulness witness. Here it would be relevant to mention that PW 1 has stated that the deceased was fired from the distance of 5-7 steps. Thus, the statement of PW 1 is consistent with the medical evidence. It is clear the evidence of PW 1 and PW 2 can not be said totally irreconcilable with the medical evidence so as to make their testimony doubtful. The contention raised by the learned counsel for the appellants has no force.

33. So far as this contention is concerned that here was no motive on the part of the accused persons to commit the murder of the deceased, it is settled position of law that clear proof of motive lends additional assurance to other evidence. Absence of motive does not lead to contrary conclusion but in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, 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. Reference may be made to the case law pronounced in the case of State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

34. In Shivji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance as held in Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91).

35. In the present case the prosecution has put up a consistent case that the deceased was involved in the murder of Karanpal, who was father of accused Rajesh and Subhas and uncle of accused Rajaram, Sheo Dayal and Rampal. Accused Gyanwati is wife of accused Rampal. As per prosecution version, accused Rajaram has exhorted to kill the deceased to take revenge of murder of father of accused Rajesh. Thus, it is clear that all the accused persons have a motive to commit murder of deceased. It is not unnatural that the family members of accused Rajesh and Subhash would join them in committing murder of deceased, who was facing trial for the murder of their father. Merely because the accused persons did not attack PW 1 Vedram, who was also facing trial for the murder of father of accused Rajesh, it can not be said that there was no motive to commit the murder of the deceased. The contention of the learned counsel has no force.

36. So far as this argument is concerned that no weapon of offence i.e. country made guns, spade, or knife has been recovered, it would be relevant to mention that recovery of weapon might have further strengthen the prosecution case but it is not sine qua non for sustaining conviction. In fact it was the duty of the Investigating Officer to recover the weapons used in the incident. If there is any laxity on the part of the investigating officer in this regard, it can not be ground to doubt the testimony of PW 1 and PW 2, which is clear and cogent. The consistent and reliable testimony of PW 1 and PW 2 can not be disbelieved merely on the ground that the recovery of weapons has not been made, particularly when evidence clearly suggests that the injuries sustained by the deceased were caused by the weapons attributed to the accused persons.

37. As far as this argument is concerned that the FIR is ante timed, it is correct that in the FIR exhibit ka-2 the distance of the police station from the spot was shown 4 km while in the inquest report this distance was shown 5 km, but there is no rule that the Police officer conducting inquest is bound to mention the same distance. The FIR was recorded by PW 3 Narayan Singh while the inquest report was prepared by the PW 5 Inspector Shrikant Mishra, who has investigated the case. Both have noted the distance as per their own conclusions. PW 5 clearly stated that after registration of the case he has proceeded to the spot and conducted inquest proceedings. There are no reasons to disbelieve the evidence of PW 5, who is public servant and has no grudge with either party. In view of the entire facts of the case, it can not be held that the FIR is ante timed or that it was lodged after consultation.

38. It is correct that as per the prosecution version, the appellant Gyanwati has joined five other accused persons in committing the murder of the deceased but no such presumption can be raised that a lady would not join or participate in commission of such offence. She is named in the FIR and she was assigned specific role. Both the witnesses have consistently spoken that she was armed with a knife and she has given a knife blow at the neck of the deceased. This version is supported by the medical evidence. From the postmortem report exhibit ka-4 it is clear that the deceased has sustained an incised wound of 9 cm x 3 cm size at his neck. Here it may be added that she is wife of accused of the appellant Rajaram, who as the prosecution version has exhorted to kill the deceased and he himself participated in the attacking the deceased by using country made gun. All the accused persons belong to one and the same family. In view of all these facts and evidence the participation of accused Gyanwati can not be doubted merely on the ground that being a lady, she would not have joined other accused persons in the murder of the deceased.

39. Considering entire evidence on record, we are of the view that the testimony of PW 1 and PW 2 inspires confidence and the trial court was justified in convicting the appellants. The appeal has no substance and the same is accordingly dismissed. Appellant Raja Ram, Rajesh, Sheo Dayal and Smt Gyanwati are stated in judicial custody. They shall serve out the remaining sentence. Appellant Subhash and Rampal are on bail. Their bail bonds are cancelled and they be taken into custody forthwith to serve out the remaining sentence.
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