The appellant accused has called in question the judgment and order dated 19.3.1983 whereby the learned IV Additional District and Sessions Judge, Kanpur has convicted the appellant accused in S.T. ...
1
A.F.R.
Chief Justice's Court
Case : CRIMINAL APPEAL No. 693 of 1983
Appellant : Amar Singh
Respondent : State Of U.P.
Counsel for Appellant : Satya Prakash Srivastava,Lalit
Singh,S.P.Srivastava,Sarvesh,Yashpal Yadav
Counsel for Respondent : Satya Prakash,AGA
Hon'ble Govind Mathur,Chief Justice
Hon'ble Saurabh Shyam Shamshery,J.
[Per : Hon'ble Saurabh Shyam Shamshery, J.]
1.Heard learned counsel for the parties and perused the
record.
2.The appellantaccused has called in question the judgment
and order dated 19.3.1983 whereby the learned IV Additional
District and Sessions Judge, Kanpur has convicted the appellant
accused in S.T. No.58 of 1982 (State vs. Amar Singh and others) for
the offence under Section 302 IPC and sentenced to life
imprisonment. The rest of three coaccused were however,
acquitted.
3.The background aspect so far as relevant for the present
appeal could be noticed in brief as follows :
(i) PW1 Sunil Dutt, minor son of deceased submitted a
written complaint to the effect that on 12.10.1981, he along with
his sister namely Sunita Verma (PW2), minor daughter of the
deceased were going on two separate bicycles to their school at
'about 9 a.m. along with their father (since deceased) who was
teacher by profession. When they reached near the patri of Nehar,
appellantaccused along with other three coaccused, who were
hiding in the bushes, suddenly came out and attacked his father.
The appellantaccused and coaccused Kripal Singh were armed
with pistol and other two coaccused namely Mardan Singh and
Sultan Singh were armed with lathi. The father of appellant (since
CRIMINAL APPEAL No. 693 of 1983
Neutral Citation No. - 2019:AHC:144541-DB
2
deceased) got down from the bicycle. PW1 and PW2 ran towards
one side and hid themselves. Both PW1 and PW2 witnessed the
occurrence wherein, appellantaccused fired the deceased with fire
arm on the right side of his chest. Coaccused Kripal Singh also
fired from country made pistol on the left cheek of the deceased.
Due to assault, father of PW1 fell down and other coaccused
Mardan Singh and Sultan Singh, who were armed with lathi
assaulted the deceased. Seeing the occurrence, PW1 and PW2
started crying. At that time, their uncle – Lala Ram s/o Shiv Pal,
Nathu Ram s/o Shiv Ram and Santosh Kumar (PW3) s/o Govind
Prasad of the village came to the spot. It was further mentioned in
the written complaint that earlier there was some dispute between
the deceased and appellantaccused regarding the cutting of drain
and an FIR was lodged against the appellantaccused by the
deceased and due to this enmity, accused persons killed the
deceased.
(ii) The FIR was lodged at about 3:15 p.m. on 12.10.1981
i.e. on the day of occurrence. The distance between the place of
occurrence and the police station was ten miles (about 16 km).
(iii) The prosecution in order to bring the guilt of accused
persons home, examined the following witnesses :
Sunil Dutt (PW1), Sunita Verma (PW2), Santosh Kumar
(PW3), Jagmohan Lal (PW4), Ram Sewak Singh (PW5), Babu
Ram (PW6), Mahendra Singh (PW7), Suraj Prasad Agnohotri
(PW8), Mahadeo Singh (PW9), Dr. P.C. Chaurasia (PW10).
(iv) PW1 is the minor son of deceased and was around 14
years old, when the incident took place, his evidence was recorded
on 27.7.1982. In his testimony, he repeated the version as
mentioned in the written complaint. PW1 was subjected to detail
crossexamination.
CRIMINAL APPEAL No. 693 of 1983
3
(v) PW2, daughter of the deceased was around 15 years of
age, also supported the testimony of PW1. She was also cross
examined in detail. Both PW1 and PW2 were eye witnesses to the
occurrence.
(vi) PW3 Santosh Kumar has stated in his testimony that
on 12.1.1981 around 9 a.m., he heard the sound of firing and
when he came near the place of occurrence, which was at a
distance of 100 steps, he saw the accused Amar Singh and co
accused Kripal Singh having armed with country made pistol. The
other coaccused namely Mardan Singh and Sultan Singh were
assaulting the deceased with lathis at that time. On chasing, the
accused ran away. He was also crossexamined in detail.
(vii) PW5 Ram Sewak Singh SubInspector, who was
Investigating Officer of the case, stated in his testimony that he
recorded the written complaint of PW.1 on 12.10.1981 and
thereafter, he proceeded to the place of occurrence, however due
to night, no further investigation could take place. On the next day
i.e. 13.10.1981, panchayatnama was prepared. The body of the
deceased was seized in presence of the witnesses. Site plan was
prepared, sample of plain as well as blood stained earth was taken.
This witness was also crossexamined in detail.
(viii)PW8 Suraj Prasad Agnihotri, who was appointed as
SubDeputy Inspector of Schools, was examined for the purpose of
temporary transfer of deceased.
(ix) PW10 Dr. P.C. Chaurasia, who conducted the post
mortem of the deceased, was also examined. The following
injuries were found on the body of deceased :
(i) Gun shot wound 1 c.m x 1 c.m. x chest cavity deep on
right side of chest in its outer aspect 6 c.m. below the right axilla
and 6 c.m. outer to the right nipple in intercoastal space between
CRIMINAL APPEAL No. 693 of 1983
4
5
th
and 6
th
rib. Blacking and charing were not present. Margins
were inverted.
(ii) Lacerated wound 2.5 c.m. x 1.5 c.m. x muscle deep or
inner aspect of right upper arm 5.6 c.m. below the centre of axilla.
The Doctor had opined that the death of deceased took place
about 2 or 2
½ days before the postmortem and death was caused
due to shock and hemorrhage as a result of the fire arm injuries.
This witness was also crossexamined.
4.After the prosecution evidence was over, statement of
appellantaccused was recorded under Section 313 Cr.P.C wherein
he denied the evidence put against him. No defence witness was
examined.
5.The IVth Additional District and Sessions Judge, Kanpur
after considering the evidence on record and arguments raised by
prosecution as well as from the defence side, convicted the
appellantaccused under Section 302 IPC, however, acquitted the
other coaccused namely Kripal Singh, Sultan Singh and Mardan
Singh, vide judgment and order dated 19.3.1983. On the same
day, sentence was also pronounced and the accusedappellant was
sentenced to undergo imprisonment for life. The judgment and
order dated 19.3.1983 is impugned in the present criminal appeal.
6.Learned counsel for the appellantaccused has challenged
the impugned judgment mainly on the following grounds :
(i) FIR is antitimed Learned counsel has pointed out that
the occurrence took place on 12.10.1981 at about 9 A.M.,
however, the FIR was lodged on the same day at about 3:50 P.M.
The distance between place of occurrence and police station was
ten miles. According to learned counsel, delay of about more than
six hour was fatal for the entire prosecution story. He further
submitted that the written complaint, submitted by the PW1 was
CRIMINAL APPEAL No. 693 of 1983
5
tutored and was not written by PW1. It was further submitted
that the FIR was antitimed and tainted. The genesis of the
occurrence was withheld.
Learned counsel also submitted that there is no G.D. entry
about the recording of the written Tehrir. Learned counsel relying
upon evidence of P.W5 submitted that Investigating Officer was
not even sure about the time of leaving police station and the time
of reaching the place of occurrence.
Learned counsel has relied upon the judgment of the
Supreme Court in Mehraj Singh vs. State of U.P., 1994 (5) SCC
188, wherein it has been held in para 12 that :
“12. FIR in a criminal case and particularly in a murder
case is a vital and valuable piece of evidence for the
purpose of appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the FIR is to
obtain the earliest information regarding the circumstance
in which the crime was committed, including the names of
the actual culprits and the parts played by them, the
weapons, if any, used, as also the names of the
eyewitnesses, if any. Delay in lodging the FIR often results
in embellishment, which is a creature of an afterthought.
On account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of the
introduction of a coloured version or exaggerated story.
With a view to determine whether the FIR was lodged at
the time it is alleged to have been recorded, the courts
generally look for certain external checks. One of the
checks is the receipt of the copy of the FIR, called a special
report in a murder case, by the local Magistrate. If this
report is received by the Magistrate late it can give rise to
an inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation for the
delay in despatching or receipt of the copy of the FIR by
the local Magistrate. Prosecution has led no evidence at all
in this behalf. The second external check equally
important is the sending of the copy of the FIR along with
the dead body and its reference in the inquest report. Even
though the inquest report, prepared under Section 174
Cr.P.C. is aimed at serving a statutory function, to lend
CRIMINAL APPEAL No. 693 of 1983
6
credence to the prosecution case, the details of the FIR and
the gist of statements recorded during inquest proceedings
get reflected in the report. The absence of those details is
indicative of the fact that the prosecution story was still in
an embryo state and had not been given any shape and
that the FIR came to be recorded later on after due
deliberations and consultations and was then antetimed
to give it the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed above, the
FIR has lost its value and authenticity and it appears to us
that the same has been 'antetimed and had not been
recorded till the inquest proceedings were over at the spot
by PW 8.”
(ii) Testimony of the child witnesses cannot be relied :
It has been argued by learned counsel for the appellant
accused that PW1 and PW2, the alleged eyewitnesses were child
witnesses, therefore, it was not safe to have relied upon their
testimonies. From the evidence of PW1 and PW2, learned
counsel for the appellantaccused submitted that the presence of
these alleged eyewitnesses at the place of occurrence was
doubtful. Further conduct of the PW1 and PW2 was not even
natural as they had not rushed to save their father rather they ran
away from the place of occurrence. To buttress his argument,
learned counsel has relied upon the judgment passed by the
Supreme Court in Digamber Vaishnav and another vs. State of
Chattisgarh, 2019 4 SCC 522, wherein it has been held in para
22 and 23 that :
22. This Court has consistently held that evidence of a child
witness must be evaluated carefully as the child may be
swayed by what others tell him and he is an easy prey to
tutoring. Therefore, the evidence of a child witness must find
adequate corroboration before it can be relied upon. It is
more a rule of practical wisdom than law. [See Panchhi and
others v. State of U.P., (1998) 7 SCC 177, State of U.P. v.
Ashok Dixit and another, (2000) 3 SCC 70, and State of
Rajasthan v. Om prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil
CRIMINAL APPEAL No. 693 of 1983
7
Nadu, (2012) 10 SCC 451, this Court has emphasized the
need to accept the testimony of a child with caution after
substantial corroboration before acting upon it. It was held
that:
"36. It is a settled principle of law that a child witness can be
a competent witness provided statement of such witness is
reliable, truthful and is corroborated by other prosecution
evidence. The court in such circumstances can safely rely
upon the statement of a child witness and it can form the
basis for conviction as well. Further, the evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which the
court should bear in mind while assessing the evidence of a
child witness is that the witness must be a reliable one and
his/her demeanour must be like any other competent witness
and that there exists no likelihood of being tutored. There is
no rule or practice that in every case the evidence of such a
witness be corroborated by other evidence before a
conviction can be allowed to stand but as a rule of prudence
the court always finds it desirable to seek corroboration to
such evidence from other reliable evidence placed on record.
Further, it is not the law that if a witness is a child, his
evidence shall be rejected, even if it is found reliable."
(iii)Accusedappellant is entitled of benefit of acquittal
of other three coaccused
Learned counsel for the appellantaccused pointed out on the
basis of the prosecution evidence, three coaccused were acquitted
as the prosecution evidence was not found to be sufficient to prove
the guilt of the said three coaccused. Since the prosecution
evidence was found not sufficient to convict the other three co
accused, therefore, same set of evidence could not be sufficient to
prove the guilt of appellantaccused also. In this regard, learned
counsel has relied upon paragraph 43 of the impugned judgment,
which is quoted hereinafter :
43.As already stated above, the presence of P.W.1 and
P.W.2 at the time and place of occurrence is natural and
cannot be doubted. No dobut there are exaggerations in
their statements which appears to be solely because they
CRIMINAL APPEAL No. 693 of 1983
8
were made in the F.I.R. Itself in consultation with the
police so as to include accused Kripal Singh, Mardan
Singh and Sultan Singh in the commission of the offence.
In view of the fact that the statement of P.W.1 and
P.W.2 to the effect that accused Kripal Singh had also
fired at the deceased which struck him in the left cheek;
and that accused Mardan Singh and Sultan Singh were
pressing the neck of the deceased, are in contradiction
with the medical evidence and, therefore, the
participation of these three accused in the commission of
the offence is not without reasonable doubt and
suspicion.”
(iv)No motive and no recovery Learned counsel for the
appellantaccused also submitted that there was no motive of the
appellantaccused to cause death of the deceased and prosecution
was failed to recover even the weapon used in the crime. Absence
of motive and absence of alleged recovery of weapon used in
occurrence was fatal for entire prosecution case.
7.Per contra, learned counsel appearing on behalf of the State
supported the impugned judgment.
8.Heard learned counsel for the parties and perused the
materials available on record.
9.Our discussions on the submissions raised by learned counsel
for the parties are as follows :
(i) Whether or not the First Information Report was anti
timed ?
From the evidence on record, it is evident that the
occurrence took place on 12.10.1981 around 9 a.m. and the FIR
was lodged at police station Mangalpur, District Kanpur Nagar on
the same day at about 3:15 in the evening. The distance between
the place of occurrence and the police station was about ten miles
i.e. about 16 kms. In the present case, deceased was the father of
PW1 and PW2, who witnessed the assault on their father. Both
CRIMINAL APPEAL No. 693 of 1983
9
PW1 and PW2 were minor on the date of incidence. Delay of
about six hours in lodging the FIR at the police station, which is
about 16 kms. from the place of occurrence, by the minor child,
whose father was shot and died on the spot, cannot be said to be
unreasonable delay and the FIR cannot be held to be antitimed.
Considering mental position of PW1 when his father was
assaulted to dead before him, delay of six hours in lodging an FIR
was very well explained.
In the facts and circumstances of the case, lodging of the FIR
was prompt. It is also relevant to note here that the PW1 in his
crossexamination has specifically stated that the Tehrir (report)
was scribed by him after taking out a leaf from his biology copy. At
the time of scribing the report, he was also weeping and it took
about 1
½ hour in writing the report. Therefore, the submission
made on behalf of the learned counsel for the appellantaccused
regarding the FIR to be antitimed is rejected.
It would be relevant to quote para 26, 27 and 28 of the
recent judgment passed by the Apex Court in the matter of Satya
Raj Singh vs. State of Madhya Pradesh reported in (2019) 3
SCC 615 that :
“24. So far as the next argument of the learned counsel for
the appellant, that since there was delay in filing of FIR, the
prosecution case should not be believed, is concerned, it was
also rightly repelled by the High Court..
27. It is not in dispute that the incident in question occurred
around 7.30 p.m. on 19.09.1999, whereas the FIR was
lodged by PW1 on the next day, i.e., 20.09.1999 at around 9
a.m. It is also not in dispute that the Police Station was
around 25 KM away from the place of occurrence.
28. In our opinion, since Bhaiya died after few hours of the
incident and by that time it was dark night, it was, therefore,
not possible for the complainant to go to the Police Station
which was around 25 KM away from the place of occurrence
immediately in the night to lodge the report/FIR. In these
circumstances, if PW1 left for lodging report/FIR on the next
CRIMINAL APPEAL No. 693 of 1983
10
day morning and lodged the report/FIR around 9.30 a.m. it
cannot be said that there was delay in lodging the
report/FIR.”
The Apex Court has also held in para 14 and 15 of the
judgment passed in Ravinder Kumar and Another vs. State of
Punjab reported in (2001) 7 SCC 690 that :
14. When there is criticism on the ground that FIR in a
case was delayed the court has to look at the reason why
there was such a delay. There can be a variety of genuine
causes for FIR lodgment to get delayed. Rural people
might be ignorant of the need for informing the police of a
crime without any lapse of time. This kind of
unconversantness is not too uncommon among urban
people also. They might not immediately think of going to
the police station. Another possibility is due to lack of
adequate transport facilities for the informers to reach the
police station. The third, which is a quite common
bearing, is that the kith and kin of the deceased might
take some appreciable time to regain a certain level of
tranquillity of mind or sedativeness of temper for moving
to the police station for the purpose of furnishing the
requisite information. Yet another cause is, the persons
who are supposed to give such information themselves
could be so physically impaired that the police had to
reach them on getting some nebulous information about
the incident.
15. We are not providing an exhausting catalogue of
instances which could cause delay in lodging the FIR. Our
effort is to try to point out that the stale demand made in
the criminal courts to treat the FIR vitiated merely on the
ground of delay in its lodgment cannot be approved as a
legal corollary. In any case, where there is delay in
making the FIR the court is to look at the causes for it and
if such causes are not attributable to any effort to concoct
a version no consequence shall be attached to the mere
delay in lodging the FIR. [Vide Zahoor vs. State of UP
(1991 Suppl.(1) SCC 372; Tara Singh vs. State of Punjab
(1991 Suppl.(1) SCC 536); Jamna vs. State of UP (1994
(1) SCC 185). In Tara Singh (Supra) the Court made the
following observations:
"It is well settled that the delay in giving the FIR by itself
cannot be a ground to doubt the prosecution case.
Knowing the Indian conditions as they are we cannot
expect these villagers to rush to the police station
immediately after the occurrence. Human nature as it is,
CRIMINAL APPEAL No. 693 of 1983
11
the kith and kin who have witnessed the occurrence
cannot be expected to act mechanically with all the
promptitude in giving the report to the police. At times
being griefstricken because of the calamity it may not
immediately occur to them that they should give a report.
After all it is but natural in these circumstances for them
to take some time to go to the police station for giving the
report."
(emphasis supplied)
In order to prop up the above view, we feel called to rely
upon the decision in Sheikh Hasib alias Tabarak Vs. State of
Bihar reported in 1972 (4) SCC 773 on the issue of relevancy of
First Information Report. Part of Para 4 being relevant is
abstracted below.
“The legal position as to the object, value and use of first
information report is well settled. The principal object of
the first information report from the point of view of the
informant is to set the criminal law in motion and from
the point of view of the investigating authorities is to
obtain information about the alleged criminal activity so
as to be able to take suitable steps for tracing and bringing
to book the guilty party. The first information report, we
may point out, does not constitute substantive evidence
though its importance as conveying the earliest
information regarding the occurrence cannot be doubted It
can, however, only be used as a previous statement for the
purpose of either corroborating its maker Under Section
157 of the Indian Evidence Act or for contradicting him
Under Section 145 of that Act. It cannot be used for the
purpose of corroborating or contradicting other witnesses.”
(Emphasis supplied)
(ii) Testimony of the child witnesses (PW1 and PW2) are
reliable or not ? : We have carefully gone through the evidence
of PW1 Sunil Dutt and PW2 Sunita Verma. Both the witnesses
who were the eyewitnesses had fully supported the prosecution
version in their examinationinchief. Both the witnesses remained
consistent and unshattered even during their detailed cross
examination. They also described the manner of assault. Both the
witnesses, had seen the occurrence from a short distance of 1012
CRIMINAL APPEAL No. 693 of 1983
12
steps. The witnesses were going along with their father to attend
their school, and it has come very specifically in the evidence that
they were following the normal route for their school. Both the
witnesses have also mentioned about the prior enmity between the
accusedappellant and the deceased and lodging of FIR by the
deceased against the appellantaccused under Section 352, 504,
506 IPC. Even before recording of the testimony of the child
witnesses, the learned trial court had ascertained the mental
intelligence for the purpose of recording of evidence of the child
witnesses. In the Digambar Vaishnav (Supra), the Apex Court
has emphasized the need to accept the testimony of the child with
caution. The Apex Court in the matter of Yogesh Singh vs.
Mahabeer Singh and others reported in (2017) 11 SCC 195 has
considered the issue of testimony of the child witnesses in para 22
and 23 that :
“22. It is wellsettled that the evidence of a child witness
must find adequate corroboration, before it is relied upon
as the rule of corroboration is of practical wisdom than of
law. (See Prakash Vs. State of M.P., (1992) 4 SCC 225;
Baby Kandayanathi Vs. State of Kerala, 1993 Supp (3)
SCC 667; Raja Ram Yadav Vs. State of Bihar, (1996) 9
SCC 287; Dattu Ramrao Sakhare Vs. State of Maharashtra,
(1997) 5 SCC 341; State of U.P. Vs. Ashok Dixit & Anr.,
(2000) 3 SCC 70; Suryanarayana Vs. State Of Karnataka,
(2001) 9 SCC 129).
23. However, it is not the law that if a witness is a child,
his evidence shall be rejected, even if it is a found reliable.
The law is that evidence of a child witness must be
evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others
tell him and thus a child witness is an easy prey to tutoring.
[Vide Panchhi Vs. State of U.P., (1998) 7 SCC 177].”
(emphasis supplied)
For ready reference, relevant part of the testimony of PW1
and PW2 (crossexamination) are reproduced hereinafter :
CRIMINAL APPEAL No. 693 of 1983
13
PW1 (Sunil Dutt) :
“11& esjs xkao ls 1 Qjykax ugj nf{k.k dh vksj gSA ugj if'pe ls iwjc
dks cgrh gSA vius xkao ls ugj fiUMkFkZw iqy gksdj vkrs gSA bl iqy ls
FkksM+h nwj gVdj ugj dh cEch fudyh gS tks nf{k.k dks tkrh gSA 4&5
Qjykax ckn eqxy jksM+ ls fey tkrh gSA ;gh lM+d if'pe vkSjb;~;k
tkrh gSA cEch ls vkSjb;~;k 6&7 ehy gS eqxy jksM+ ds jkLrk lsA ml
iqy ds if'pe nwljk iqy fiUMkFkZw dk iqjkuk gSA bu nksuksa iqyksa esa 3&4
Qjykax dk vUrj gSA bl iqjkus iqy ds if'pe rjQ dlksyj dk [kkjtk
gSA bl [kkjtk ij dksbZ fuekZ.k ugha py jgk gSA iqjkus iqy ls ,d ehy
ij rqrqok iqj dk iqy gSA esjs firk rqrqokiqj esa i<+krs gSA rqrqok iqj iqy ls
o Ldwy nf{k.k ekStk rqrqvkiqj esa gSA ugj ds nf{k.k rqrqok iqj dh rjQ
cEch pyrh gSA ekStk rqrqvkiqj cEoh ds nf{k.k feyk gqvk gSA ugj o
cEch ds chp esa 100&125 xt dk Qklyk gSA rqrqokiqj ds if'pe
xkthiqj dk iqy yxHkx 1 ehy ds Qklys ij gSA xkthiqj ds iqy ls
if'pe HkaMkjhiqj dk iqy djhc 1&1½ ehy gSA HkMkjhiqj ds iqy ds
if'pe fejtkiqj dk iqy 5&6 Qjykax nwj gSA fetkZiqj ds iqy ls
jkgriqj dk iqy ,d ;k Lok ehy if'pe esa gSA bl iqy ls esjk Ldwy
2&3 Qjykax gSA xkao ls Ldwy igqpus esa djhc ,d ;k ikSu ?kUVk yxrk
gSA ;g xyr gS fd eSa ;k esjh cgsu eekus :d tkrs FksA
11& ?kVuk ds fnuksa jch dh tqrkbZ py jgh FkhA lqcg 4&5 cts ls 11
cts fnu rd [ksrksa dh tqrkbZ djrs FksA ml fnu jkLrs esa [ksrksa esa tqrkbZ
ugha gks jgh Fkh ?kVuk LFky rd b/kj&m/kj dks vkneh tqrkbZ djrs ugha
ns[kkA dlksyk [kkjtk ls ,d Qjykax if'pe esa firk ds xksyh yxhA
14& fjiksVZ eSaus vius vki ls fy[kh Fkh fdlh dh enn ls ughaA blds
igys eSa us fjiksVZ ugha fy[khA ekSds ij fdlh us dgk Fkk fd fjiksVZ
fy[kdj ys tkoksA fjiksVZ yk'k ds 2&4 dne nwj cSBdj fy[kh FkhA
dkxt dkih ls QkM+ fy;k FkkA fjiksVZ fy[krs le; jksuk ihVuk epk FkkA
fjiksVZ fy[krs le; esjs vkalw cgs jgk FkkA okyksth ds dkih ls dkxt
QkM+dj fjiksVZ fy[kh FkhA og dkih nksuks rjQ lknh FkhA fjiksVZ fy[kus
esa ,d 1&1&1@2 ?kaVk yxs FksA fjiksVZ QkmUVsu isu ls fy[kh FkhA fQj
dgk MkVisu ls fy[kh FkhA fjiksVZ esa ;g lgh fy[kk Fkk fd yk'k ds ikl
vius ?kj okyksa o xkao okyksa dks NksM+ dj vk;k gwWA
Vw ch dkUVhU;wM iqV vi Vwekjks
dksVZ lfVZfQdsV
g0v0
iape ,fM0 fMfLVªDV ,.M
ls'ku tt dkuiqj
15& 28&7&82
dkUVhU;wM vku vksFk-
fjiksVZ esa eSaus fy[k fn;k Fkk fd ge yksxksa us lkbfdy fxjk fn;k
CRIMINAL APPEAL No. 693 of 1983
14
firkth vkxs c<+ x;s ge yksx ihNs jg x;sA njksxk th dks vius cLrs
ugha fn[kk;s FksA cLrs ekSds ij NksM+ x;s FksA firk th dh o viuh
lkbfdy njksxk th dks ugha fn[kkbZ njksxk th us lkbfdy o oLrs dh
okor iwaNk Fkk ekSds ijA pwWfd oLrs o lkbfdys ekSds ij ugha Fkh blfy;s
ugha fn[kkbZA ckn esa lkbfdy o cLrs eq>s ugha feys irk ugha dgka x;sA
15&20 dne nwj ls eqyfteku dks igyh ckj ns[kkA ml le; eqyfteku
cEcs dh iVjh ds mRrj 10&12 gkFk ij FksA og txg cEcs dh iVjh ls
2&1@2 QqV uhps FkhA esjh utj vejflag ds fpYykus ij eqyfteku ij
iM+h FkhA vejflag ds yydkjus ij eqyfteku ds gfFk;kj Hkh ns[ks FksA
mUgsa ns[kdj geys dk Hk; Hkh yxk FkkA lkbfdy NksM+dj firkth if'pe
dh vksj c<+sA 10&12 dne c<+s rHkh geyk gqvk FkkA eqyfteku us vkxs
ls if'pe dh vksj ls ?ksjk fQj dgk ?ksjk ugha rqjUr ugj iVjh ls Qk;j
fn;kA eqyfteku iVjh ij esjs firk ds mRrj Fks 2 eqyfte if'pe esa vk
x;s 2 mRrj dh rjQ Fks mRrj esa d`iky flag o vejflag FksA if'pe esa
eqyfteku esjs firk ls gkFk 2 gkFk nwj FksA mRrj okys Hkh bruh nwj ij
FksA eqyfteku us vkrs gh firk th ij Qk;j dj fn;kA xksyh pykus ds
fy;s eqyfteku ihNs ugha gVs FksA reUpksa dh ukysa djhc 2&1@2 bap
eksVh FkhA ekywe ugha d`iky flag dh xksyh firkth ds yxh ;k ughaA
d`iky flag us mRrj ls Qk;j fd;k ml le; esjs firk dk eqag nf{k.k
vksj Fkk vkSj vejflag ds Qk;j djrs le; esjs firk dk eqag if'pe rjQ
FkkA fjiksVZ esa ;g fy[kk Fkk fd d`iky flag us Qk;j fd;k tks esjs firk
ds ckabZ xky ij yxk ftlls og fxj x;sA njksxk th dks c;ku fn;k Fkk
fd d`iky flag us reUpk ls Qk;j fd;k tks firk ds ckabZ xky ij yxk
vkSj og fxj x;sA fjiksVZ esa eSaus ;g ckr lgh fy[kh FkhA iwjh ?kVuk
1 ;k 2 feuV esa gks xbZ FkhA ykBh ls xyk nckus ls xys esa xM~<k cu
x;k FkkA iapk;rukek ds le; eSa ekStwn FkkA ;g xyr gS fd eSaus dksbZ ?
kVuk ugha ns[kh vkSj fl[kkus ls >wB cksy jgk gwWA
PW2 (Sunita Verma)
“rqrok iqj xkao ls nks ehy gSA jkgriqj xkao ls 6&7 ehy gSA ugj ls
frrok djhc 2] 3 Qjykax gS iqfyl lsA frrokiqj ls firk th lkbfdy
ls pykdj ys tkrh FkhA eSa lkbfdy ij ihNs cSBh FkhA
?kj ls pyus ij ekSds rd dbZ yksx feys FksA tku igpku dsA dksbZ ugha
FkkA vkl ikl ds [ksrksa esa tqrkbZ ugha gks jgh FkhA tqrkbZ lw;Z fudyus ls
igys gh cUn gks tkrh gSA
eqfYteku dks eSaus igys igsy 6&7 dne dh nwjh ls ns[kk FkkA eqyfteku
mRrj ls vk, FksA eqyfteku yydkjrs gq, ugj dh iVjh ij p<+ x,
FksA eqyfteku ft/kj ge tk jgs Fks mlls vkxs FksA ;g lgh gS fd
lkbZfdyks ls mrjrs mrjrs ;g yksx iVjh ij vk x, FksA lgh gS fd
eqyfteku us gesa if'pe ls ?ksj fy;k FkkA rc firkth dqN ifPNe dks
Hkkxs vkSj ge iwoZ dks gV x,A firkth 10&12 dne if'pe Hkkxs Fks
yydkjus dh txg ls xksyh ekjus ls igys ugha ?ksjk;kA ,slk ugha Fkk fd
xksyh ekjus ls igys ?ksjdj [kM+s gks x, gksA ge eqyfteku ds yydkjus
ij iwoZ dks gks x, Fks firk th ds ?ksjus ij ughaA eSaus njksxk th dks ;g
c;ku Fkk fd ^^ugj ij vkdj pkjks ?ksjdj [kM+s gks x, ge nksuksa HkkbZ
cgu Mj ds ekjs nwj tkdj [kM+s gks xbZ vejflag us esjs firk th ij
Qk;j fd;kA njksxkth us esjk o;ku ,slk dSls fy[k fy;k ugha dg
ldrhA
d`iky flag dk Qk;j firk th dks dgka yxk Fkk yxk fd ugha
CRIMINAL APPEAL No. 693 of 1983
15
eSaus ugha ns[kkA eSaus d`ikyflag dk Qk;j firk dh duiVh ij yxrs ugha
ns[kkA eSaus dsoy ,d xksyh yxrs ns[kk FkkA eSaus nks xksyh yxrs ugha ns[kk
FkkA eSaus njksxkth dks ;g ugha dgk Fkk fd d`iky flag dk Qk;j
duiVh ij yxkA njksxkth dks eSaus nks xksyh yxuk ugha crk;k FkkA
vxj esjs o;ku esa duiVh ij Qk;j yxuk o nks xksyh yxuk dSls fy[k
fy;k ugha dg ldrhA
ykBh ls xyk 1] 2 lsdsUM\ ds fy, nok;k gksxkA rc rd
ey[kku flag o nwljh rjQ lqyrkuflag ykBh nok jgs FksA esjs firkth
[kwu ls yriFk gks x, FksA
dqy ?kVuk esa 1] 2 feuV yxs gksaxsA gekjs fpYykus ds rqjUr ckn
ykykjke vkfn vk x, FksA eSaus bUgsa 35&40 dne dh nwjh ls ns[kk
FkkA ;g yksx if'pe rjQ ls vk, FksA ,slk ugha fd ¼vi0½ iwoZ rjQ ls
vk, gksaA tc xokgku dks eSaus ns[kk rc eqyfteku ykBh ls xyk nok jgs
FksA rhuksa xokgku rc lkbfdy ij FksA mUgksaus lkbfdy ogha NksM+ nh
tgka eSaus mUgsa igys igy ns[kkA lkbfdy NksM+dj firkth dh rjQ bZVk
ysdj nkSM+s FksA 15&20 dne firkth ls nwj Fks fd eqyfteku us xyk
nokuk NksM+ fn;k vkSj HkkxsA bZV iRFkj Qsadk fd ugha /;ku ugha yydkjk
FkkA bZV iRFkj gkFk esa ysdjA
xokgku us [kqn ekjrs gq, ns[k fy;k Fkk geus mUgsa fdllk ugha
crk;kA xokgku us ekjus okyksa dh ryk'k ugha dhA ihNk Hkh ugha fd;kA
eSaus o HkkbZ us firk th dks ugh Nqok xokgku us Nwus ugha fn;kA
eSaus /;ku ugha fn;k fd firkth ds lkbfdy dk gSf.My VsgM+k gks x;k
Fkk fd ughaA iqfyl ds vkus rd eSa ?kVuk LFky ij gh jgh FkhA iqfyl
jkr 10&1@2] 11 cts vkbZ FkhA mtkyh jkr Fkh dksbZ xSl ykyVsu ugha
tykbZ FkhA iqfyl ds vkus ij Hkh dksbZ jks'kuh ugha dh xbZA
From the above, it is clear that the child eyewitnesses (PW1
and PW2) were reliable and truthful as well as they were not
tutored as they stood unshaken even during their long and
gruelling crossexamination. The witnesses have described the
entire incident in very specific terms. The appellantaccused
belonged to the same village, therefore, there was no difficulty in
recognizing him by PW1 and PW2.
In view of the above, the submission made by learned
counsel for the appellantaccused that the evidence of the child
witnesses are liable to be rejected, cannot be accepted. We have
scanned carefully the testimony of the both the child witnesses and
we are of the definite view that both the child witnesses had seen
the incident and are reliable and truthful. Both the witnesses had
in very specific words stated in their crossexamination that
CRIMINAL APPEAL No. 693 of 1983
16
accusedappellant fired on chest of their father. They saw the
entire incident from a short distance. Their presence at the place
of occurrence was natural as they were going to school as per their
daily routine. Argument of the appellantaccused cannot be
sustained.
(iii) Whether or not non recovery of weapon is fatal for
prosecution ?Argument is raised on behalf of appellant
accused that in the present matter, neither weapon used in the
occurrence nor bicycle on which deceased was travelling were
recovered. Therefore, in the absence of such recovery, conviction
of the appellantaccused was untenable. In this regard, judgment
passed by the Hon'ble Supreme Court Mritunjoy Biswas Vs
Pranab aslias Kuti Biswas and another reported in 2013 (12)
SCC 796 is relevant wherein it has been held that :.
“33. The learned counsel for the respondent has urged before
us that there has been no recovery of weapon from the
accused and hence, the prosecution case deserves to be
thrown overboard and, therefore, the judgment of acquittal
does not warrant interference.
34. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC
198 : (AIR 2002 SC 3119 : 2002 AIR SCW 3596)], this
Court has ruled that
“Undoubtedly, the identification of the body, cause of death
and recovery of weapon with which the injury may have
been inflicted on the deceased are some of the important
factors to be established by the prosecution in an ordinary
given case to bring home the charge of offence under Section
302 IPC. This, however, is not an inflexible rule. It cannot be
held as a general and broad proposition of law that where
these aspects are not established, it would be fatal to the case
of the prosecution and in all cases and eventualities, it ought
to result in the acquittal of those who may be charged with
the offence of murder”.
35. In Lakhan Sao v. State of Bihar and Another [(2000) 9
SCC 82 : (AIR 2000 SC 2063 : 2000 AIR SCW 1955)], it
has been opined that the nonrecovery of the pistol or spent
CRIMINAL APPEAL No. 693 of 1983
17
cartridge does not detract from the case of the prosecution
where the direct evidence is acceptable.
33. In State of Rajasthan v. Arjun Singh and Others
[(2011) 9 SCC 115 : (AIR 2011 SC 3380 : 2011 AIR SCW
5295)], this Court has expressed that:
“18........ mere nonrecovery of pistol or cartridge does not
detract the case of the prosecution where clinching and
direct evidence is acceptable. Likewise, absence of evidence
regarding recovery of used pellets, bloodstained clothes, etc.
cannot be taken or construed as no such occurrence had
taken place”.
Thus, when there is ample unimpeachable ocular evidence
and the same has been corroborated by the medical
evidence, nonrecovery of the weapon does not affect the
prosecution case.”
As held by Apex Court, nonrecovery of weapon or other
relevant material will not be fatal for the prosecution, as in the
present case, testimony of the eyewitnesses was consistent and
reliable. Thus, the argument raised on behalf of appellantaccused
cannot be accepted.
(iv)Whether or not absence of motive is fatal for
prosecution ? :In the evidence of PW1 and PW2, it has come
that there was prior enmity between the deceased and the
accusedappellant. There was no crossexamination to discredit the
version of the child witnesses on this issue. It is also well settled
even in the absence of motive where there was sufficient evidence
available on record against the accused, the same could be relied
upon and order for conviction could be passed. Even absence of
motive could end up in conviction. In the present case, it had came
on record that deceased had lodged an FIR against the appellant
accused on 11.11.1980, therefore, prosecution had proved motive
of the accusedappellant to commit the offence. The Hon'ble in
State of U.P. Vs Babu Ram, 2000 (4) SCC 515 has stated in para
CRIMINAL APPEAL No. 693 of 1983
18
12 that :
“12. In this context we would reiterate what this court has
said about the value of motive evidence and the
consequences of prosecution failing to prove it, in Nathuni
Yadav vs. State of Bihar {1998 (9) SCC 238} and State of
Himachal Pradesh vs. Jeet Singh {1999 (4 SCC 370}.
Following passage can be quoted from the latter decision:
"No doubt it is a sound principle to remember that every
criminal act was done with a motive but its corollary is
not that no criminal offence would have been committed
if the prosecution has failed to prove the precise motive
of the accused to commit it. When the prosecution
succeeded in showing the possibility of some ire for the
accused towards the victim, the inability to further put
on record the manner in which such ire would have
swelled up in the mind of the offender to such a degree
as to impel him to commit the offence cannot be
construed as a fatal weakness of the prosecution. It is
almost an impossibility for the prosecution to unravel
the full dimension of the mental disposition of an
offender towards the person whom he offended."
(v)Effect of acquittal of other three coaccused :
Learned counsel for the appellantaccused has vehemently argued
that since prosecution evidence was not found to be sufficient to
convict the other three coaccused, therefore, on the basis of same
set of evidence, conviction of the appellantaccused was
unsustainable. This argument is also bereft of merit as from the
careful perusal of the evidence on record, it is evident that the
prosecution story was completely corroborated by the ocular as
well as medical evidence towards the role of the appellant
accused. So far as, the acquittal of other three coaccused is
concerned, the learned trial court has come to the conclusion that
the evidence on record was not sufficient to convict the other three
coaccused.
The main thrust of the argument submitted by learned
CRIMINAL APPEAL No. 693 of 1983
19
counsel for appellantaccused is that since on the same set of
prosecution evidence, three coaccused were acquitted, therefore,
only the appellantaccused could not be convicted on the basis of
said evidence.
It is well settled that entire testimony from the witnesses
cannot be discarded only because in certain aspects or part of the
statement was not believed. The maxim 'falsus in uno falsus in
omnibus' has no application in India and the witnesses cannot be
termed as liers. This issue has been dealt by the Hon'ble Supreme
Court on many occasions. In Sheesh Ram vs. State of Rajasthan
reported in (2014) 3 SCC 689, the Apex Court has held in para
11 that :
“11. It is trite that the maxim 'falsus in uno falsus in
omnibus' has no application in India. It is merely a rule of
caution. It does not have the status of rule of law. In Balaka
Singh v. State of Punjab[2], this Court has said that where it
is not feasible to separate truth from falsehood, because the
grain and the chaff are inextricably mixed up, and in the
process of separation, an absolutely new case has to be
reconstructed by divorcing essential details presented by the
prosecution completely from the context and background
against which they are made, the Court cannot make an
attempt to separate truth from falsehood. But, as we have
already noted, this is not a case where the grain and chaff are
inextricably mixed up. The evidence of eyewitnesses is not
discrepant on the material aspect of the prosecution case.
Reliance can, therefore, be placed on them. In this connection,
reliance placed by the counsel for the State on Rizan is apt.
The same principle is reiterated by this Court in Rizan. We
may quote the relevant paragraph from Riza :
"12. Even if a major portion of evidence is found to be
deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other co
accused persons his conviction can be maintained. It is the
duty of the court to separate the grain from the chaff. Where
the chaff can be separated from the grain, it would be open
to the court to convict an accused notwithstanding the fact
that evidence has been found to be deficient to prove guilt of
other accused persons. Falsity of a particular material
witness or material particular would not ruin it from the
beginning to end. The maxim falsus in uno falsus in omnibus
has no application in India and the witnesses cannot be
CRIMINAL APPEAL No. 693 of 1983
20
branded as liars. The maxim falsus in uno falsus in omnibus
has not received general acceptance nor has this maxim come
to occupy the status of a rule of law. It is merely a rule of
caution. All that it amounts to, is that in such cases
testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of
weight of evidence which a court may apply in a given set of
circumstances, but it is not what may be called "a mandatory
rule of evidence". (See Nisar Ali v. State of U.P AIR 1957 SC
366.)"
(emphasis supplied)
The Apex Court in a recent judgment of Mahendran vs.
State of Tamil Nadu reported in (2019) 5 SCC 67 has observed
in para 39, 40, 41 and 42 that :
“39. Therefore, the entire testimony of the witnesses cannot
be discarded only because, in certain aspects, part of the
statement has not been believed.
40. The judgment referred to by learned counsel for the
appellants in Ram Laxman's case is not applicable to the
facts of the present case, as in that case, the Court found the
testimony of the witnesses as undependable and unreliable
so as to grant benefit to some accused while maintaining the
conviction of the others. The Court noticed that the maxim
"falsus in uno, falsus in omnibus" is not applicable.
Therefore, if the witness is reliable and dependable then the
entire statement cannot be discarded.
41. Similarly, in the case of Noushad the Court found that
the statement of PW11 that he has witnessed the incident
with much of exactitude as to which accused assaulted his
brother with what weapon cannot be said to have been
really witnessed by him. Again, in Suraj Mal's case, the
Court was examining the legality of conviction under the
provisions of Prevention of Corruption Act, 1947. It was
found that the evidence of witnesses against the two accused
was inseparable and indivisible, when on such evidence one
of the accused was acquitted and not the other accused.
42. All these judgments are in respect of appreciation of
evidence of witnesses in the facts being examined by the
Court. The general principle of appreciation of evidence is
that even if some part of the evidence of witness is found to
be false, the entire testimony of the witness cannot be
discarded.”
(emphasis supplied)
Accordingly, argument of learned counsel for appellant
CRIMINAL APPEAL No. 693 of 1983
21
accused that entire evidence of PW1 and PW2 should be
discarded, cannot be accepted. It is reiterated here that the
evidence of eyewitnesses PW1 and PW2 was consistent and had
fully supported the prosecution case in regard to appellant
accused. Further the testimony remained consistent even during
their long cross investigation.
(vi)Other arguments :
Argument is also raised to term the entire investigation to be
tainted and for that, learned counsel for the appellantaccused has
relied upon the findings of the learned trial court that the FIR was
tainted as the same was written at the police station only. In this
regard, it is apposite to refer the judgment passed by the Apex
Court in Karan Singh vs. State of Haryana, 2013 12 SCC 529
specifically paragraph 18, 19 and 20 which are reproduced
hereinafter :
18. Furthermore, in Ram Bali v. State of Uttar Pradesh, AIR
2004 SC 2329, it was held by this Court that the court must
ensure that the defective investigation purposely carried out
by the Investigating Officer, does not affect the credibility of
the version of events given by the prosecution.
19. Omissions made on the part of the Investigating Officer,
where the prosecution succeeds in proving its case beyond any
reasonable doubt by way of adducing evidence, particularly
that of eyewitnesses and other witnesses, would not be fatal
to the case of the prosecution, for the reason that every
discrepancy present in the investigation does not weigh upon
the court to the extent that it necessarily results in the
acquittal of accused, unless it is proved that the investigation
was held in such manner that it is dubbed as "a dishonest or
guided investigation", which will exonerate the accused. (See:
Sonali Mukherjee v. Union of India, (2010) 15 SCC 25;
Mohd. Imran Khan v. State Government (NCT of Delhi),
(2011) 10 SCC 192; Sheo Shankar Singh v. State of
Jharkhand & Anr., AIR 2011 SC 1403, Gajoo v. State of
Uttarakhand, (2012) 9 SCC 532; Shyamal Ghosh v. State of
West Bengal, AIR 2012 SC 3539; and Hiralal Pandey & Ors.
v. State of U.P., AIR 2012 SC 2541).
20. Thus, unless lapses made on the part of Investigating
CRIMINAL APPEAL No. 693 of 1983
22
authorities are such, so as to cast a reasonable doubt on the
case of the prosecution, or seriously prejudice the defence of
the accused, the court would not set aside the conviction of
the accused merely on the ground of tainted investigation.”
10.In the instant case, the trial court has examined the
grievance raised by the accusedappellant regarding the tainted
investigation and and not found any circumstance which could
cast reasonable doubt on the case of prosecution. The ocular and
medical evidence are credible towards the role assigned to the
accusedappellant and the learned counsel for the appellant
accused has failed to show that how the appellantaccused was
prejudiced due to any lapse on the part of Investigating Officer.
11.It is trite to know that on the basis of minor discrepancies in
the testimony not touching the case of core of the case, would not
result in rejection of the evidence as a whole. In view of the above
discussion, this ground is also liable to be rejected, accordingly,
rejected.
12.Conclusion :
(i) Death of Awadh Narian was a culpable homicide
amounting to murder who died due to shock and hemorrhage, as a
result of fire arm injury .
(ii) It was natural for PW1 and PW2 to accompanied his
deceased father at 9 a.m. on the day of occurrence going towards
their School on bicycle.
(iii) PW1 and PW2 had witnessed the entire occurrence
from a short distance and recognized the appellantaccused. PW1
and PW2 though were child witnesses, however, their testimony
was reliable and truthful. The ocular evidence and medical
evidence corroborates the role of the appellantaccused. Testimony
regarding motive was corroborated by the documentary evidence
CRIMINAL APPEAL No. 693 of 1983
23
of lodging an FIR against the appellantaccused by deceased.
(iv) The maxim 'falsus in uno falsus in omnibus' is not
applicable in India in the strict sense and is applicable only as
principle of caution, as such, conviction of the appellantaccused
could be based on reliable and truthful testimony of PW1 and PW
2 qua to accusedappellant, though same set of evidence was
disbelieved for other three accused who were acquitted by trial
court.
(v) Learned counsel for the appellantaccused has failed to
point out any error on facts as well as on law in the impugned
judgment.
(vi) The tainted investigation, if any, would not be fatal in
the present case as there was sufficient ocular as well as medical
evidence to prove the guilt of the appellantaccused. Mere non
recovery of weapon used in the occurrence would not be fatal for
prosecution case.
13.In view of the above and the reasons stated hereinabove, we
are of the considered opinion that there is no force in the present
appeal. We, therefore, see no reason to interfere in the matter. The
appeal, is accordingly, dismissed.
Order Date : 26.8.2019
Rishabh
(Saurabh Shyam Shamshery,J.) (Govind Mathur,C.J.)
CRIMINAL APPEAL No. 693 of 1983
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