No Acts & Articles mentioned in this case
RESERVED
A.F.R.
Court No. - 29
Case :- CRIMINAL APPEAL No. - 5013 of 2012
Appellant :- Pratap Singh And Others
Respondent :- State of U.P.
Counsel for Appellant :- Apul Misra,Noor Mohammad
Counsel for Respondent :- Govt. Advocate,Ram Babu Sharma
Hon'ble Munishwar Nath Bhandari, Acting Chief Justice
Hon'ble J.J. Munir,J.
(Delivered by : Hon'ble J.J. Munir, J.)
1.The appellants here, who are four in number, have been
convicted by Mr. S.N. Tripathi, the then Additional Sessions Judge,
Court No. 6, Budaun of an offence under Section 302 read with Section
34 of the Indian Penal Code, 1860
1
and sentenced to suffer
imprisonment for life, and a fine of Rs. 40,000/- each. In the event of
default, the appellant concerned has been ordered to suffer an
additional simple imprisonment for a period of ten months. The aforesaid
judgment has been passed by the learned Additional Sessions Judge in
Sessions Trial No. 213 of 2006, State v. Pratap Singh and others (arising
out of Case Crime No. 212 of 2003), under Section 302/34 of the Penal
Code, Police Station - Kadar Chowk, District - Budaun, decided on
27.11.2012.
2.The First Information Report
2
leading to the prosecution, that has
since culminated in the impugned conviction, was lodged on 11.11.2003
at 12:25 in the afternoon hours by one Sirajuddin, son of Bajruddin, a
native of Village Nauli Fatuabad, Police Station - Ushait, District -
Buduan. It reported an occurrence that took place earlier in the day at
10:30 a.m. It was said in the F.I.R. that about a year and a half ante-
dating the occurrence, the informant's son, Riazuddin and another
resident of the village, Pratap Singh, had both applied for the position of
a Shiksha Mitra. The informant's son, Riazuddin, was selected. Pratap
Singh and his family allegedly harboured animosity on this score against
1for short “the Penal Code”
2for short “F.I.R.”
2
the informant's son. It is claimed that Pratap Singh had told the
informant's son that though the latter had succeeded in becoming a
Shiksha Mitra, but Pratap would not spare his life. On 11.11.2003, the
informant's son was riding a tonga (described as a buggi) to Kadar
Chowk. The horse-driven carriage had on board Hasanuddin, son of
Basaruddin and Fisauddin, son of Waziruddin, both natives of the
informant's village. As the party reached between Mahmurganj and a
place called Gadhiya, they were intercepted and waylaid by the four
appellants, who came along riding a tractor. They are said to have
forced down the informant's son from the carriage, saying that “Lets
make him into a Shiksha Mitra”. The informant's son was forced down
the carriage at about 10:30 a.m. and dragged by the appellants through
a distance, abusing him. He was thrown in front of the tractor. The other
three appellants are said to have exhorted Pratap Singh to run him over.
Pratap Singh is alleged to have run over and crushed the informant's
son to death under the wheels of the tractor. It is reported that
Hasanuddin and Fisauddin, besides the driver of the carriage, witnessed
the incident. The informant too said that he proceeded to the spot and
had seen his son’s dead body lying in situ, where a large crowd had
congregated.
3.On the basis of the written report lodged by the informant, Ex.Ka1,
the chik F.I.R. Ex.Ka.3, also dated 11.11.2003, giving rise to Case Crime
No. 212 of 2003, under Section 302 of the Penal Code was registered at
Police Station - Kadar Chowk, District - Budaun. The crime aforesaid
was registered vide G.D. entry no. 17 at 12:25 p.m. at the police station
last mentioned. A copy of the said G.D. is available on record.
4.The Police, after registration of the crime, proceeded to
investigate the same. The inquest was held on 11.11.2003, commencing
01:15 p.m. and ending at 03:30 p.m. The inquest is on record as
Ex.Ka.4. The dead body was sent for autopsy. The doctor undertook the
necessary postmortem examination and an autopsy report dated
12.11.2003 was submitted, that is on record as Ex.Ka.2. A site plan was
Criminal Appeal No. 5013 of 2012
3
drawn and statements of witnesses taken down. Samples of blood-
stained soil and unstained soil were also collected, besides a pair of
sandals that the deceased had worn.
5.All the accused, except Pratap Singh, surrendered in Court.
Pratap Singh is said to have been arrested on 21.12.2003 along with the
Tractor of Sonalika make bearing registration no. UP-24B-2647.
6.PW-5, Dr. D.S. Misra, who conducted the autopsy on 12.11.2003
found the following antemortem injuries on the body of the deceased:
“(1) A crush injury on Rt. side of skull size 7.5cm
x 6 cm underneath skull bone found fractured.
Meninges and brain matter found lacerated clotted
blood present in brain cavity.
(2) Contusion with abrasion in front of chest in an
area ranging 10cm x 5 cm. Both clavicles, 2
nd
, 3
rd
,
4
th
and 5
th
ribs on both sides found fractured. Liver
and lungs found lacerated.
(3) Multiple abrasions on whole of the right upper
limb size ranging from 2 x 1 cm to 4 x 2.2 cm.
(4) Multiple abrasions on whole of the left upper
limb size ranging from 2.5cm x 1.5cm to 3.5cm x 2cm.
(5) An abrasion on anterior aspect of right upper
leg sizing 2.5cm x 1.2 cm.
(6) An abrasion on anterior aspect of left knee
sizing 4cm x 2cm.
(7) An abrasion sizing 5cm x 2.2cm on posterior
aspect of the left thigh.”
7.The Investigating Officer, Devendra Pandey, PW-8, submitted two
charge sheet; the first bearing no.5 of 2004 dated 10.02.2004 against
the appellants, Pratap Singh, Sadhu and Devendra and the other,
bearing no.5A of 2004, dated 19.04.2004 against the appellant,
Srikrishna. The two charge sheets are marked as Ex. Ka-13 and Ka-14,
respectively. All the appellants were challaned for an offence punishable
under Section 302 of the Penal Code.
8.The case was committed to the sessions by the learned Chief
Judicial Magistrate, Budaun vide order dated 20.02.2006. Post
committal, the case came up before the Additional Sessions Judge,
Criminal Appeal No. 5013 of 2012
4
Court no.5, Budaun for framing of charges on 27.09.2006. The learned
Additional Sessions Judge, after hearing the learned Counsel for the
parties, proceeded to frame a charge against the appellants under
Section 302 read with Section 34 of the Penal Code. The appellant
pleaded not guilty and claimed trial.
9.In order to prove their case, the prosecution have examined the
following witnesses:
(1) PW-1, Sirajuddin (father of the deceased and informant of the
case, a witness of fact);
(2) PW-2, Fisauddin (uncle of the deceased, an eye witness of
the occurrence);
(3) PW-3, Hasanuddin (another uncle of the deceased, another
eye witness of the occurrence);
(4) PW-4, Anwar (the driver of the buggi, also an eye witness of
the occurrence);
(5) PW-5, Dr. D.S. Misra (the doctor who conducted postmortem
examination of the deceased's corpse);
(6) PW-6, HCP Shri Krishna Sharma (who registered the case,
drew up the chik and made the requisite G.D. Entry in the
Station Diary. He is a formal witness);
(7) PW-7, S.I. Gandhi Lal Sharma (who prepared the inquest and
other fard and sent the body for postmortem); and,
(8) PW-8, S.I. Devendra Pandey (Investigating Officer of the
case).
10.The prosecution have relied on the following documentary
evidences:
Sr.
No.
Exhibit No.Exhibited documents with brief
particulars
1.Ex. Ka-1Written report lodged with the Police Station
Kadar Chowk by PW-1, Sirajuddin, relating to
the occurrence.
2.Ex. Ka-2Postmortem report of the deceased dated
12.11.2003
3.Ex. Ka-3Chik F.I.R. dated 11.11.2003 scribed by PW-
6, HCP Shri Krishna Sharma
4.Ex. Ka-4Inquest report drawn up by PW-7, S.I.
Criminal Appeal No. 5013 of 2012
5
Gandhi Lal Sharma, dated 11.11.2003
5.Ex. Ka-5Sketch of the corpse (photo Lash), dated
11.11.2003
6.Ex. Ka-6Sample Seal
7.Ex. Ka-7Challan Lash (Police Form – 13), dated
11.11.2003
8.Ex. Ka-8Letter sent to RI, dated 11.11.2003
9.Ex. Ka-9Letter sent to C.M.O. for postmortem, dated
11.11.2003
10.Ex. Ka-10Recovery memo of slippers of the deceased
11.Ex. Ka-11Recovery memo of plain and blood-stained
earth
12.Ex. Ka-12Site plan of the place of occurrence, dated
11.11.2003
13.Ex. Ka-13Charge-sheet no.5 of 2003, dated
10.02.2004
14.Ex. Ka-14Charge-sheet no.5A of 2003, dated
19.04.2004
11.The appellants, Pratap Singh, Sadhu, Devendra and Srikrishna, in
their statements under Section 313 of the Code of Criminal Procdure,
1973
3
have denied the incriminating circumstances appearing against
them and said that they have been falsely implicated on account of
Village party-bandi and animosity. All the appellants said that they
wanted to enter defence. It must, however, be remarked that no
evidence in defence was led.
12.The learned Trial Judge, vide his judgment and order, proceeded
to convict the appellants, sentencing each of them in the manner
hereinbefore detailed.
13.Aggrieved, the instant appeal has been preferred.
14.Heard Mr. Apul Misra, learned Counsel for the appellants, Ms.
Kumari Meena, learned A.G.A. and Ms. Manju Thakur, learned A.G.A.
for the State-respondent.
15.It is submitted by Mr. Apul Misra, learned Counsel for the
3For short “Code”
Criminal Appeal No. 5013 of 2012
6
appellants, that the prosecution could not establish motive, enough for
the appellants, to do the deceased to death and that too, brutally. He
says that the motive assigned by the prosecution, that Pratap Singh
harboured animosity and ill-will against the deceased due to the fact that
the latter was selected as a Shiksha Mitra, whereas Pratap Singh was
unsuccessful, hardly affords a motive for a brutal murder, like the one
the prosecution seeks to establish.
16.The learned A.G.A., on the other hand, submits that both the
deceased and Pratap Singh had vied for the position of a Shiksha Mitra
and the deceased's appointment to the said position had left Pratap
Singh seething with anger. He had sworn revenge, which culminated in
this crime.
17.To our outstanding, motive is not very relevant in a case of direct
evidence, where a dependable ocular version is available. Once there is
evidence forthcoming on the basis of an eye-witness account, that is
consistently narrated by multiple witnesses, motive is hardly relevant. If
an unimpeachable ocular testimony is there to establish the prosecution
case, an investigation into the motive or the sufficiency of it to result in
the crime and the manner in which it has been perpetrated, would not at
all brook inquiry. The testimony of PW-2, PW-3 and PW-4, as would be
analyzed in greater detail later in this judgment, is broadly consistent
about the time, place and manner in which the deceased was done to
death by the appellants. All the three witnesses have stood by their
account of the occurrence in their cross-examination. There is a broad
consistency of version amongst all the three eye-witnesses, that is to
say, PW-2, PW-3 and PW-4. In a case that rests on ocular evidence
motive for the accused to have acted in the manner they did, is besides
the point. In this connection, there is authoritative statement of the law to
be found in the decision of the Supreme Court in Bipin Kumar Mondal
v. State of West Bengal
4
. In Bipin Kumar Mondal, it has been held:
“21. The issue of motive becomes totally irrelevant
4 (2010) 12 SCC 91
Criminal Appeal No. 5013 of 2012
7
when there is direct evidence of a trustworthy
witness regarding the commission of the crime. In
such a case, particularly when a son and other
closely related persons depose against the
appellant, the proof of motive by direct evidence
loses its relevance. In the instant case, the
ocular evidence is supported by the medical
evidence. There is nothing on record to show that
the appellant had received any grave or sudden
provocation from the victims or that the appellant
had lost his power of self-control from any action
of either of the victims.
Motive
22. 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.
23. In Shivji Genu Mohite v. State of Maharashtra
[(1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973
SC 55] this Court 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 eyewitness. 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
eyewitnesses 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 eyewitness is rendered untrustworthy.
24. It is settled legal proposition that even if the
absence of motive as alleged is accepted that is of no
consequence and pales into insignificance when direct
evidence establishes the crime. Therefore, in case
there is direct trustworthy evidence of witnesses as
to commission of an offence, the motive part loses its
significance. Therefore, if the genesis of the motive
of the occurrence is not proved, the ocular testimony
of the witnesses as to the occurrence could not be
discarded only by the reason of the absence of motive,
if otherwise the evidence is worthy of reliance. (Vide
Hari Shanker v. State of U.P.[(1996) 9 SCC 40: 1996
SCC (Cri) 913], Bikau Pandey v.State of Bihar [(2003)
12 SCC 616: 2004 SCC (Cri) Supp 535] and Abu Thakir v.
State of T.N. [(2010) 5 SCC 91: (2010) 2 SCC (Cri)
1258])”
18.Mr. Misra was at pains to impress upon us the fact that the motive
Criminal Appeal No. 5013 of 2012
8
attributed to the appellant, Pratap Singh, that is to say, his non-selection
for the position of a Shiksha Mitra and the deceased's selection instead,
does not afford a motive strong enough to kill the deceased, and that
too, in the brutal fashion the crime is said to have been committed. The
way a man would think and act is best known to him. We do not wish to
analyze the question of motive in this case any further for the good
reason that principle guides us not to investigate the motive, in a case
that primarily rests on direct evidence of eye-witnesses.
19.It is next submitted by Mr. Apul Misra, learned Counsel for the
appellants, that the presence of the three eye-witnesses at the scene of
crime is highly suspect. He submits that each of the three witnesses,
PW-2, PW-3 and PW-4 have not at all seen the occurrence. He moots
the point that these witnesses have spun a false story of murder around
an event involving Riazuddin's accidental death. To the above end, the
learned Counsel for the appellants submits that the unexplained delay in
lodging the F.I.R. is in itself an index of the absence of these eye-
witnesses. He submits that in the event any of these eye-witnesses had
been present along with the deceased when he was, as they say, forced
down the tonga and brutally murdered, at least one of them would have
immediately rushed to the police station and lodged an F.I.R. It is
pointed out that the distance of the police station from the place of
occurrence was just 4 kilometers, whereas the F.I.R. came to be lodged
some one hour and fifty-five minutes after the occurrence. And to add to
it, is the story that all the three eye-witnesses, instead of rushing to the
police station, behaved in a queer fashion, where PW-2, Fisauddin
rushed off to Riazuddin's father, Sirajuddin, then in his native village, to
inform him of his son's murder. This behaviour of the three witnesses
has been emphatically underscored by the learned Counsel for the
appellants to submit that none of these witnesses ever saw the incident.
The conduct of all the three eye-witnesses is castigated, as shown, to
submit that under the circumstances obtaining, their presence at the
scene of the crime has to be disbelieved.
Criminal Appeal No. 5013 of 2012
9
20.Dilating on the issue, Mr. Misra submits that PW-2, Fisauddin was
a relative of the deceased, the deceased being his nephew. The other
eye-witness, PW-3 is also said to be an uncle of the deceased. Given
this background of kinship between the two eye-witnesses, PWs-2 and
3, it is submitted that the inaction of these witnesses in not
endeavouring to save the deceased when he was forced down the
carriage, dragged through a distance and then crushed to death under
the wheels of the tractor, is unbelievable. If these witnesses had, in fact,
been present, the learned Counsel for the appellants says that they
would have done a lot to save the deceased, particularly given the fact
that the entire episode took about 10–15 minutes to reach its fatal
culmination.
21.It is also emphatically urged that the eye-witnesses have falsely
said for the first time in their dock evidence that the accused were
carrying firearms, which prevented them from rescuing the deceased.
This fact has never been mentioned by these witnesses in their
statements to the Police under Section 161 of the Code. In this
connection, our attention has been drawn to the cross-examination of
PW-2, Fisauddin, to which we will presently allude. The story about the
appellants being armed, that the witnesses have put forth for the first
time in their dock evidence, is also assailed by the learned Counsel for
the appellants on the foot of the reasoning that if this were true, the
appellants would have simply shot the deceased, instead of undertaking
that rather unconservative, cumbersome and inherently risky method of
doing Riazuddin to death.
22.The learned Additional Government Advocate has refuted the
above contentions advanced on behalf of the appellants. It is urged by
the learned A.G.A. that there is consistent eye-witness account, not of a
solitary witness, but three, all of whom have described the occurrence
consistently in all material particulars. There is no inherent contradiction
between the testimonies of PWs-2, 3 and 4 regarding the time, manner
and place of occurrence; and also about the identity and role of the
Criminal Appeal No. 5013 of 2012
10
appellants in the crime. The learned A.G.A. submits that the ocular
version is dependable, consistent and free from blemish. There is no
ostensible reason for three men – the three prosecution witnesses to
falsely implicate the appellants in a case that involves a heinous offence.
23.The fact that none of the three eye-witnesses immediately rushed
to the police station to lodge an F.I.R. is not a circumstance that may, by
itself, lead us to the conclusion that they never witnessed the
occurrence. The conduct of a person, who witnesses a morbid,
dangerous and bizarre occurrence, like a murder, particularly one
carried out in a dastardly fashion, like the one in hand, cannot be
expected to exhibit the copy-book conduct of a vigilant and educated
citizen proceeding to the police station to report a crime. The behaviour
of an individual in a life threatening situation, like the one these
witnesses were apparently exposed to, would much differ on an
individual basis governed by different parameters. The behaviour, in
expecting an eye-witness to hold his nerves calm and proceed
confidently to the police station to report a murder of this kind, would
depend on diverse factors like the personal mental makeup of the
individual concerned, his background and status in life, his personal
exposure to similar situations in the past and the associated
experiences, the outlook of an individual based on his profession and
the training or the age and maturity of the individual, to name but a few.
To illustrate these varying individualities of behaviour, one may, except a
policeman or an army-man, to remain unperturbed by the fatal violence
witnessed and proceed fearlessly to the police station to report the
matter. Likewise, an ordinary person, who is inherently endowed with
strong nerves and has not, in past, suffered any psychologically
debilitating experience, may react in the ideal way that Mr. Misra
submits, of walking the distance of four kilometers to report the incident
to the Police.
24.By contrast, a timid man may get so scared on witnessing an
occurrence of this kind that he may not share it with anyone, let alone
Criminal Appeal No. 5013 of 2012
11
report it to the Police. Also, in a situation of this kind, judicial notice must
be taken of the fact when evaluating evidence, that turns upon the
conduct of men, that the Police generally, and without casting any
stigma on them, have earned the reputation of often implicating the
man, who comes to them to report a crime involving a homicide or
accident; or at least detaining him and subjecting the person to
searching interrogation. It may be a necessary way for the Police to do
so, but it does act as a deterrent for many individuals to fearlessly step
into a police station to report an incident of murder. It is for this reason
that it is the closest of kin, who becomes the first informant even if he/
she is not an eye-witness. Here, if the one sees the two witnesses, PW-
2 and PW-3, who were related to the deceased, one nearer than the
other, what cannot be lost sight of is the fact that all these three men
came from a rural and ordinary background. There is nothing to show
that they were particularly resourceful or had any kind of training or
position in society, that would make them boldly move to the police
station and report the matter. Also, there is nothing to show that there
was any background of these men that would leave them unshaken and
free from fear for their own lives to make that move. If these ordinary
men from a village had witnessed the appellants, murdering a kindred or
an acquaintance in such a dastardly fashion, one can reasonably expect
them to steer clear of the prompt action of rushing to the police station,
where the one who did so could expect an immediate reprisal from the
appellants and an abominable fate, similar to the deceased's. It is in
these circumstances that the conduct of all the three witnesses in not
promptly moving to the police station has to be evaluated. Still, one
could have thought that the inaction of three men who had witnessed
the crime, two related to the deceased, was a factor with some weight to
doubt their presence. But, that would be so, if these witnesses were
confronted with their conduct about not promptly reporting the crime to
the police, shortly after the appellants' exit from the scene of crime.
25.A careful perusal of testimony of PW-2, that is to say, his cross-
Criminal Appeal No. 5013 of 2012
12
examination does not show that any question was put to him as to the
reason he did not proceed to the police station from the place of
occurrence and report the matter himself, instead of rushing back to the
deceased's village to inform his father. In the absence of this witness
being confronted about his conduct in not proceeding to the police
station straight from the place of occurrence, it does not much lie in the
appellants' mouth to urge at the hearing before us that this conduct of
PW-2 makes his presence doubtful. Likewise, is the case with PW-3,
where not a single word about the witness's failure to go over to the
Police has been put.
26.So far as PW-4 is concerned, he is an unrelated witness and a
professional driver of the tonga, that was carrying the deceased and
other witnesses, together with other passengers when the party were
waylaid. It does appear that some question was put to him about his
inaction of not reporting the matter to the Police. This witness, in
whatever manner confronted, has said that he did go to the Police and
report the matter. He has said that Darogaji there took down a written
information from him and made him thumb mark it. He also took this
witness's statement at the station. The Darogaji, after about two hours
and a half, proceeded to the place of occurrence, where he came across
the first informant, Sirajuddin. The relevant part of this witness's
testimony during cross-examination reads:
"थाने में जाकर मैंने सूचना दी दरोगा जी ने मेरी सूचना िलिखी मेरा
अंगूठा लिगवाया। मेरा ब्यान वहीं पर िलिया था िफिर दो ढाई घन्टे बाद
मुझे लिेकर दरोगा जी मौके पर चलिे गये उसके बाद मौके पर
िसराजउद्दीन पह
ुचे िफिर उसके बाद मैं िसराज उद्दीन व दरोगा जी थाने
आये थे।"
27.Now, this testimony of PW-4 does show that he went to the police
station and gave a written information of the occurrence. He was asked
to thumb mark it. He is apparently an illiterate man, who did not know
what was scripted there. No doubt, the factum of PW-4 reporting the
Criminal Appeal No. 5013 of 2012
13
incident to the police has been denied by the Investigating Officer, about
which Mr. Misra has something else to say in criticism of the
prosecution. But, that is quite another matter; that would be dealt with
later on in this judgment.
28.So far as the three eye-witnesses are concerned, in the opinion of
this Court, the mere fact that none of them actually lodged the F.I.R.
relating to this incident does not, in the circumstances, derogate from
the factum of their being eye-witnesses. The overall conduct of PW-2
and PW-3, in not directly proceeding to the police station and instead,
going back to the deceased's father in the village, also in the
circumstances, should not, in our opinion, cast suspicion about their
presence at the scene of crime. In this regard, reference may be made
to the observations of a Division Bench of the Delhi High Court in
Naresh Kumar v. State
5
. In Naresh Kumar, one Ashu, a prosecution
witness and a nephew of the deceased, Mukesh was an eye-witness of
the occurrence, who had made no efforts to save or report the matter to
the relatives or the Police. His conduct was, therefore, criticized by the
appellants as unnatural and unrealistic in order to discredit his eye-
witness account. In those circumstances, it was remarked by the
Division Bench:
“16. It is prudent to say that in normal
circumstances, it is quite grotesque of any person
who is a witness of a crime to not inform the
police or the relatives of the victim of the crime
reporting the incident and such a behavior on the
part of such eye witness normally would be
considered unnatural, abnormal and ludicrous.
Nevertheless, no straight-jacket formulae or
principle can be laid down as to how a particular
witness will react at such a situation. It may
depend upon couple of circumstances depending upon
the facts of each case. It is not always necessary
that at a given situation similarly placed person
will react in a same fashion. Much will depend on
the fact situation of each incident and also the
individual behavior of the person including his
psyche. One may be timid or may be very bold and it
is also possible that a person otherwise timid in
5 2013 SCC OnLine Del 3440
Criminal Appeal No. 5013 of 2012
14
his life may turn out to be bold at a particular
moment or vice versa. The prompt reaction or the
immediate outcry whether being bold or timid of the
person is an important aspect which has to be taken
care of while dealing with such terrifying
crimes…...”
29.On an overall view of the matter, therefore, the conduct of the
three eye-witnesses in not reporting the incident to the Police promptly,
after witnessing a ghastly murder, cannot lead to an inference, in our
considered opinion, that these witnesses never saw the crime or that
they were not present at the place of occurrence.
30.The next part of Mr. Misra’s submission, by dint of which he
assails the very presence of the three eye-witnesses, is the fact that
their conduct in not attempting to rescue the deceased is so unnatural
that their presence on the spot has to be ruled out; at least seriously
doubted. He has, particularly, emphasized the fact that PWs-2 and 3 are
kinsmen of the deceased and it cannot be imagined that they would
have allowed the deceased to be done to death by the appellants
through a course of violence that lasted 10-15 minutes, without demur.
The reason that they did not do so, according to the prosecution, is that
appellants were carrying firearms. This has been criticized by Mr. Misra
as an unbelievable story and afterthought. This part of the submission
would be dealt with a little later.
31.For the moment, we proceed on the assumption that the
appellants were not armed and did Riazuddin to death in the manner
alleged. The question is: Would it be correct to assume that the
prosecution witnesses’ inaction to move in and save Riazuddin from the
clutches of the assailants, as they perpetrated their fatal violence, over a
period of 10-15 minutes, is cause enough to disbelieve that these
witnesses were present at the scene of crime? The submission that the
prosecution witnesses’ failure, particularly that of PWs-2 and 3, to rush
in and act in defence of the victim, is based on an assumption about
some kind of a standard reaction of men, when placed in the
Criminal Appeal No. 5013 of 2012
15
circumstances that the prosecution witnesses were. It assumes a
standard reaction to come from a blood relative of the victim of a
murderous assault, where the relative is inevitably expected to rush in
and attempt a rescue.
32.To our mind, this submission is fallacious, because the
assumption of a standard behaviour, on the foundation of which it
proceeds, is imaginary. It has no basis to it, inferable from the
experience of mankind about individual behaviour. Quite contrary to
what the learned Counsel for the appellants submits, there is no
standard reaction of men when exposed to the situation, where they
witness another being brutally murdered. Even for a relative, generally
considered, witnessing a gruesome kind of crime, is a harrowing
experience that excites generally the emotion of fear or fright. A person,
depending on the individual’s traits of personality, may react very
differently to the situation, as said earlier. The individual’s reaction, on
witnessing a gruesome crime, like the present one, may vary according
to his psychological makeup, his professional training, his prior exposure
to like situations and the experience there. The causes that could
contribute to individually varying reactions could be innumerable; and,
so could be the variation in the reaction or the response of witnesses
when exposed to a ruthless crime, like murder. Therefore, to say that all
the three eye-witnesses, at least the two, who were related to the
deceased, ought to have attempted a rescue, is a hypothesis that does
not stand the test of human experience.
33.Assuming that the appellants were not armed with any deadly
weapons, the eye-witness account does show extreme violence
exhibited by the perpetrators, and, a particularly abominable mode of
doing the victim to death. It could have been a possibility for the three
witnesses to have rushed to the victim’s rescue and that would be quite
natural. The fact that they got a scare of their life and did not move to
rescue the deceased is a possibility that is equally likely and natural.
There is no element of incredibility about it. The reaction of one of the
Criminal Appeal No. 5013 of 2012
16
witnesses that shows him to be frightened into moving away from the
spot is well indicated in the cross-examination of PW-4, Anwar, where he
says:
"जैसे ही यह घटना ह
ुई मैं बुग्गी लिेकर भाग आया था दूर हट गया था
दो तीन िमनट के बाद मैं सवािरयों को लिेकर कादरचौक चलिा आया।"
34.This reaction of PW-4 upon witnessing the murder is one of the
many typical responses that are to be expected of a man,
circumstanced like him. PW-4 was not a relative of the deceased, but a
very natural witness. He was the driver of the tonga, that was carrying
passengers, amongst whom the deceased was one when the party was
waylaid. The other two witnesses, PWs-2 and 3 did not move in to
rescue the deceased. They were apparently scared into inaction. About
this possible variation in the response of men, when they witness a
gruesome crime, there is valuable guidance to be found in the decision
of the Supreme Court in Rana Partap and others v. State of Haryana
6
.
In Rana Pratap, it has been observed by their Lordships, thus:
“6. Yet another reason given by the learned
Sessions Judge to doubt the presence of the
witnesses was that their conduct in not going to
the rescue of the deceased when he was in the
clutches of the assailants was unnatural. We must
say that the comment is most unreal. Every person
who witnesses a murder reacts in his own way. Some
are stunned, become speechless and stand rooted to
the spot. Some become hysteric and start wailing.
Some start shouting for help. Others run away to
keep themselves as far removed from the spot as
possible. Yet others rush to the rescue of the
victim, even going to the extent of counter-
attacking the assailants. Every one reacts in his
own special way. There is no set rule of natural
reaction. To discard the evidence of a witness on
the ground that he did not react in any particular
manner is to appreciate evidence in a wholly
unrealistic and unimaginative way.”
35.In view of what has been said above, we are clearly of opinion
that the submission advanced on behalf of the appellants about the
6 (1983) 3 SCC 327
Criminal Appeal No. 5013 of 2012
17
absence of eye-witnesses at the place of occurrence urged to be
inferable from their inaction in attempting a rescue, deserves to be
negatived.
36.The next part of Mr. Misra’s submission, inviting us to disbelieve
the presence of the eye-witnesses, is a part of his submission that we
have just disposed of. It is about the incredibility of eye-witnesses’
explanation why they did not come to the aid of the deceased when
assaulted by the appellants. The explanation, why the eye-witnesses did
not come to the deceased’s rescue, that has fallen for Mr. Misra’s
criticism, is the fact that the perpetrators are said to have been armed. It
is said unanimously by all the witnesses that the appellants were
wielding country-made pistols, which deterred each of them from
rescuing Riazuddin. We have held, while disposing of the earlier part of
this submission, that assuming that the appellants were not armed,
there is no reason to expect the prosecution witnesses to behave in a
particular way, where their failure to rescue the deceased, must
inevitably lead to an inference about their absence from the scene of
crime. In view of the said finding, the fact whether the appellants were
armed or not, would not be very material. Nevertheless, once the
prosecution witnesses have come up with the assertion in their dock
evidence that has been much criticized by Mr. Misra, it must be taken
due note of also. Learned Counsel for the appellants, particularly
emphasizes that the fact that the appellants were armed with country-
made pistols etc., does not find mention in the F.I.R., which otherwise
carries wholesome detail of the occurrence.
37.Learned Counsel for the appellants also says that the fact that the
appellants wielded firearms, that they are said to have pointed at the
witnesses, does not find mention in the statements of PWs-2, 3 and 4
recorded by the Police. This particular feature of the prosecution case is
an improvement made by the witnesses during trial for the first time
when they have taken stand in the dock. It is true that the F.I.R. does not
mention the appellants’ wielding firearms. It is also true that the F.I.R.
Criminal Appeal No. 5013 of 2012
18
narrates the incident in some detail. But, as is well known, the law does
not expect the F.I.R. to mention every detail, particularly when it is an
information by a person, who is not an eye-witness. So far as absence
of the fact that the appellants were carrying firearms in the statements of
PWs-2, 3 and 4 is concerned, to our understanding, it is not very
decisive under the circumstances, though it may be a cause for
eyebrows to be raised. In the total scheme of the evidence, it can be
nothing more than that. PW-2, Fisauddin, who is the deceased’s father’s
brother, has stated thus in his cross-examination on the issue:
……….
“
मुलििजमान पर असलिहे थे इसिलिये छु ड़ाने का प्रयास नही
िकया हम लिोग बीस कदम द
ूर भाग गये थे। मुलििजमान पर तमँचे थे।
मैने दरोगा जी को यह बात बतायी थी िक मुलििजमान पर असलिहे थे
उन्होने िदखाये थे व हम लिोग बीस कदम भाग गये थे यिद यह बात
मेरे 161 के ब्यान में नही है तो वजह नही बता सकता।
यिद मुलििजमान पर असलिहे नही होते तो हम मृतक को बचा लिेते।
मुलििजमान पर असलिाह होने वालिी बात िदखाने वालिी बात मैने रपट
िलिखने से पहलिे िसराजुद्दीन व अब्द
ुलि स्लिाम भंद्रा वालिो की बतायी
थी।"
38.This witness has adequately asserted the fact about the
appellants wielding firearms and blamed the absence of a mention of
this fact in the statement under Section 161 on the Investigating Officer.
There is no reason to disbelieve him.
39.PW-3, on the other hand, has acknowledged the fact that he did
not disclose the information about the appellants carrying firearms to the
Investigating Officer, but that omission, as already said, in the totality of
circumstances, cannot lead us to doubt the prosecution in all its
complete detail.
40.PW-4 has again said in his cross-examination that he did tell the
Investigating Officer that one of the appellants was carrying a gun,
though he cannot say which of them was wielding it. He has also said
Criminal Appeal No. 5013 of 2012
19
that but for the gun pointed at them by the appellants, the witnesses
would have rescued the deceased. This witness, like PW-2, has said
that he did tell the Investigating Officer about the appellants carrying
firearms and also said that the reason why the said fact has not been
recorded by the Investigating Officer, is not known to him. As already
said, on the totality of the evidence, there is no reason to disbelieve the
eye-witnesses that the appellants were, in fact, carrying firearms.
41.Learned Counsel for the appellants has also strongly cajoled us
into disbelieving the fact that the appellants were carrying firearms, and,
in fact, the entire prosecution on the foundation of his reasoning that if
the appellants were carrying firearms, there was no necessity for them
to have resorted to the unconservative, cumbersome and gruesome
method of murdering the deceased by crushing him under the wheels of
a tractor. They could have simply shot him dead. The argument is,
indeed, attractive, but not one which holds no substance. The manner in
which the author of a crime would choose to perpetrate it, is known to
him alone. The factum of the crime cannot be discredited or doubted,
because the perpetrator had an easier way out to achieve the result.
Unless the modus operandi be so demonstrably absurd that it is
fantastic or incredible under the circumstances, there is no reason to
disbelieve a credible eye-witness account, banking on an unfamiliar,
rare or unconservative manner of perpetration of the crime. We do not
find from the eye-witness account, of the three witnesses, who are ad
idem about the manner in which the deceased was done to death, any
reason to doubt their version, merely because the appellants had an
easier way to eliminate the deceased. Here, the fact, that the medico-
legal evidence broadly supports the ocular version, would also be
relevant, which we shall presently dwell upon in this judgment.
Evaluating the evidence as a whole, we do not find any force in the
submission of the learned Counsel for the appellants that the three eye-
witnesses, PWs-2, 3 and 4 were not present at the scene of crime and
did not witness it.
Criminal Appeal No. 5013 of 2012
20
42.It is next submitted by the learned Counsel for the appellant that
there is irreconcilable discrepancy between the ocular version and the
medico-legal evidence, which renders the prosecution case utterly
unsustainable. He submits that the injuries received by the deceased
could never have been caused in the manner described by the eye-
witnesses. It is urged that the case about the tractor running over the
deceased does not explain the injuries caused to him on the head and
chest. Mr. Misra has, during the submissions, drawn our attention to the
testimony of PW-3, where he has said during his cross-examination that
the appellants, after forcing the deceased down from the tonga,
assaulted him employing sticks, delivering blows to his limbs, as they
dragged him across a distance to the tractor, where he was thrown
under its wheels. Learned Counsel points out that the injuries in the
autopsy report do not disclose anything that may be attributed to those
blows that the appellants are said to have inflicted, employing sticks
(danda). It is particularly emphasized that there are no contusions that
would inevitably be there in case of blows from a stick. Instead, there
are generally abrasions that are not compatible with an ante-mortem
assault by sticks that the deceased is said to have suffered. It is for this
reason, according to the learned Counsel for the appellants, that the
ocular version of the three witnesses deserves to be disbelieved.
43.Learned A.G.A. has refuted the appellants' contention on this
score and said that the crush injury on the skull is enough to establish
the prosecution case.
44.The three eye-witnesses, that is to say, P.Ws. 2, 3 and 4 are
consistent about the fact that the deceased was forced down the tractor
by the appellants and dragged through a distance. He was thrown under
the wheels of the tractor by appellant nos. 2, 3 and 4, whereas the first
appellant, Pratap Singh, drove the tractor, crushing the deceased under
its wheels. The most graphic description of the precise manner of
commission of this crime has come from PW-2 in his cross-examination,
where he has said :
Criminal Appeal No. 5013 of 2012
21
"ट््रैक्टर मृतक के िसर से चढाया था और पिहया िसर चेहरा से होता
ह
ुआ सीने से उतर गया। खून सब बाहर िनकलि गया था भेजा भी बाहर
िनकलि गया था। खून जमीन पर िगरा था काफिी खून जमीन पर िगरा।
दरोगाजी बटोर कर लिाये।"
45.In his examination-in-chief, this witness has described the incident
in the following words :
“जब हम लिोग गिढया व मामूर गंज के बीच में पह
ुंचे तो पीछे से एक
ट््रैक्टर आ रहा था िजसे प्रताप चलिा रहा था उसमे श्री कृ ष्ण देवेन्द्र
व साधू बैठे थे। यह लिोग मेरे गाँव नौलिी फितुहाबाद के थे। इन लिोगो ने
अनवार की वुग्गी र्ुकवा लिी और ट््रैक्टर स्टाटर्ट िकये ह
ुये प्रताप बैठा
रहा। वाकी तीनो लिोग उतर कर आये और कहा िक सालिे क्ो आज
िशिक्षा िमत्र बना दो। यह कहते ही िरयासउद्दीन को वुग्गी से उतार
िलिया व घसीटते ह
ुये लिाकर ट
््रैक्टर के नीचे पटक िदया और तीनो ने
कहा िक प्रताप चढा दे ट््रैक्टर इसके ऊपर। तभी प्रताप ने
िरयासउद्दीन के उपर ट््रैक्टर चढा िदया व ट््रैक्टर चढा कर मार
डालिा। िफिर मुलििजमान ट््रैक्टर लिेकर भाग गये।"
46.Likewise, PW-3 has described the incident in his examination-in-
chief thus:
“जब ताँगा मामूर गंज व गिढया के बीच में पह
ुँचा तो ट्रेक्टर प्रताप
चलिा रहे थे, प्रताप वुग्गी से आगे आये और कहा वुग्गी रोक लिो। उस
ट्रेक्टर पर श्री कृ ष्ण साधू देवेन्द्र भी थे। मुलििजमान वुग्गी में से
िरयासउद्दीन को पकड़ कर खेचते ह
ुये लिे आये। प्रताप ट्रेक्टर स्टाटर्ट िकये
खडे थे। गालिी गलिौच की और आज इसे िशिक्षा िमत्र बना दो व गाडी के
नीचे डालि दो। तभी श्री कृ ष्ण, साधू व देवेन्द्र ने ट्रेक्टर के आगे
िरयासउद्दीन को पटक िदया व प्रताप ने ट्रेक्टर चडा िदया हम हट गये
द
ूर से देखते रहे शिोर मचाया तो पडोस के मामूर गं
ज के लिोग आ गये
मुझे उनके नाम नही पता। िफिर मुलििजमान ट्रेक्टर लिेकर भाग गये।"
47.Particularly, this witness has described the assault prior to the
deceased being run over by the tractor, in his cross-examination, in
these words :
Criminal Appeal No. 5013 of 2012
22
“मुलििजमान मृतक को लिात घूँसे, डन्डो से मारते पीटते व घसीटते लिे
गये थे व पिहयों के नीचे डालि िदया था। हम डन्डे िगन नही पाये दस
पाँच डन्डे मारे होगे। डन्डे मारने वालिी बात आज पहलिी बार बता रहा
ह
ूँ। िसराजुद्दीन व दरोगा जी को नहीं बतायी थी। पैरों में
चूतड़ो पर व
हाथ में डन्डे मारे थे।"
48.PW-4 Anwar has narrated the occurrence in his examination-in-
chief in the following words :
"आज से करीब छै सालि पहलिे की बात है। िदन के साढ्े दस बजे की
बात है। जब मै अपने ताँगा बुग्गी से अपने गाँव के हसनुद्दीन,
िफिसाउद्दीन व िरयासुद्दीन को लिेकर कादरच्ौक होता ह
ुआ बदायू
् जा
रहा था िक जब हमारी बुग्गी मामूरगंज व गिडया के बीच में पह
ुची तो
पीछे से मुिल्जम प्रताप, श्रीकृ ष्ण, साधू व देवेन्द्र ट्रैक्टर से आ गये
िजसको प्रताप चलिा रहे थे िक जैसे ही बुग्गी के पास पह
ुचे तो
िरयासुद्दीन से बोलिे िक आज इसे िशिक्षािमत्र बना दो तभी श्रीकृ ष्ण साधू
व देवेन्द्र ने ट्रैक्टर से उतरकर िरयासुद्दीन को बुग्गी से उतार िलिया व
घसीटते ह
ुए व गालिी देते हुए ट्रैक्टर के सामने पटक िदया और प्रताप
से कहा िक इसके उपर ट्रैक्टर चढा दो तभी प्रताप ने िरयासुद्दीन के
उपर ट्रैक्टर चढाकर कु चलि िदया और उसकी मौके पर ही मृत्यु हो गयी
तभी मुिल्जमान िजधर से आये थे उधर ही अपने गाँव की तरफि चलिे
गये"
49.In his cross-examination, he has detailed the occurrence in the
following words :
“मृतक को घसीटकर मुिल्जमान िकतनी द
ूर लिे गये
5-6 कदम लिे गये
थे िफिर यह कहा मुिल्जमानों ने मृतक को जमीन पर िगरा िदया िफिर
खीचकर ट्रैक्टर के सामने लिे गये तीनो उसे पकड्े रहे हाथ पैर
िगराकर दाब िलिये थे हाथ पैर पकड़े रहे और िफिर एक ने ट्रैक्टर पर
जाकर ट्रैक्टर स्टाटर्ट कर ट्रैक्टर उस पर चढा िदया िफिर कहा ट्रैक्टर
स्टाटर्ट था प्रताप ट्रैक्टर पर बैठा था मुिल्जमानों ने मृतक को मेरी बुग्गी
से उतार िलिया और कहा िक आज तुझे पक्का िशिक्षा िमत्र बनाते है।
मृतक उनके हाथ से छू टकर नहीं भाग पाया था "पक्का िशिक्षािमत्र
बनाये देते हैं" यह बात मैंने दरोगा जी को बता दी थी यिद दरोगा जी
Criminal Appeal No. 5013 of 2012
23
ने पक्का शिब्द नहीं िलिखा है। तो इसकी वजह नहीं बता सकता।"
50.A perusal of the three versions about the occurrence, all by the
three eye-witnesses, makes it vivid that they are broadly consistent
about the place, time and the manner of occurrence. All of them say that
they were all riding the tonga, also described as buggi, from the parties'
native village to Budaun via a place called Kadar Chowk. The tonga was
driven by PW-4 Anwar. It had, on board, PW-2 Fisauddin, PW-3
Hasnuddin and deceased Riazuddin, amongst others. The party was
waylaid by the appellants, who came riding along a tractor driven by
Pratap Singh, appellant no. 1. The deceased was forced down from the
carriage and dragged through the distance between the stalled carriage
and the waiting tractor. He was thrown before the tractor, where the
appellant Pratap Singh was on the wheel. The deceased was crushed
under the wheels of the tractor by Pratap Singh. All the witnesses have
said that appellant nos. 2, 3 and 4 exhorted appellant no. 1 to run over
the deceased, employing the tractor.
51.It must be remarked that the witnesses testified in the dock
between 3-6 years after the occurrence. The earliest testimony of PW-2
was recorded on 29.11.2006, whereas the incident is one dated
11.11.2003. By the time PW-4 testified, it was already well into the
month of December, 2009, that is to say, six years from date of
occurrence. During all this while, the witnesses are to be given due
allowance for some inaccuracy, on account of fading memories. But,
still, the account is remarkably consistent.
52.Now, given the fact the the ocular testimony is broadly consistent,
the submission advanced on behalf of the appellants that it is
irreconcilable with the medico-legal evidence to an extent that the ocular
version must be rejected, requires careful consideration. The autopsy
report, Ex.Ka.2, shows that injury no. 1 is a crush injury that has led to a
fracture of the skull, rupture of the meninges and the brain matter torn
out, with clotting of blood. This kind of an injury is ex-facie compatible
Criminal Appeal No. 5013 of 2012
24
with the version about the wheel of the tractor crushing the deceased's
head. The second injury is located on the chest, which is a contusion
with abrasion. The dimensions are 10 cm. x 5 cm. Both the clavicles are
fractured and rib nos. 2, 3, 4 and 5 on both sides of the rib cage are also
fractured. If one were to go with the closest detail in the ocular version
about the crime, a description of it in the cross-examination of PW-2
shows that the wheel of the tractor went over the deceased's head, face
and chest. Ex-facie, in our opinion, the kind of injuries that one can
expect, compatible with this ocular version, are those described as injury
nos. 1 and 2 in the autopsy report. The doctor, testifying as PW-5 in the
dock, has faced a very brief cross-examination on behalf of the
appellants, where he has said :
“वाहन से कु चलिने पर इस प्रकार की चोटों की आने की संभावना
जयादा है। यह चोटें द
ुघर्टटना में वाहन से आने की संभावना है।”
53.The doctor does not, at all, rule out the injuries being caused by
being crushed under the wheels of a vehicle. He has not been subjected
to any further cross-examination on behalf of the appellants in order to
elicit whether the two injuries are, in any manner, fundamentally
incompatible with the ocular version.
54.Now, we may consider the other part of Mr. Misra's submissions
that there are no contusions consistent with that part of the ocular
testimony which says that the deceased was thrashed with sticks, where
blows were delivered to his limbs. This Court is of opinion that the
absence of contusions on the limbs or their mention in the autopsy
report, where the deceased was subjected to a violent death of this kind,
may not have been very consequential. Once the ocular version is
broadly compatible with the medico-legal injuries, some contradictions
about the absence of certain injuries that ought to have been there,
given the ocular version, would not lead to a consistent version of three
eye-witnesses, being rejected. A consistent and dependable ocular
version is generally to be preferred over medico-legal evidence, unless
Criminal Appeal No. 5013 of 2012
25
the two be so fundamentally repugnant that they cannot co-exist. There
is no such fundamental repugnance here in the ocular version and in the
medico-legal evidence. In our opinion, the absence of contusions on the
limbs of the deceased in the autopsy report is not an incompatibility of
such a fundamental kind which may render the ocular version liable to
be discarded. This question fell for consideration recently before the
Supreme Court in Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai
Vala & Others
7
. The issue there was that incompatibility between the
ocular version and medico-legal evidence had led the High Court to
acquit the appellant, because the testimony of witnesses described the
weapons of assault as iron pipes, steel rods and sticks, whereas the
injuries were three stab wounds and nine incised wounds. The nature of
the injuries found in the autopsy and the ocular version, describing the
weapons of assault, had led the High Court to acquit the appellant on
account of inconsistency between the ocular version and medical
evidence. In this connection, the following holding of their Lordships is
direct on the point under consideration here :
“18. Ocular evidence is considered the best
evidence unless there are reasons to doubt it. The
evidence of PW-2 and PW-10 is unimpeachable. It is
only in a case where there is a gross contradiction
between medical evidence and oral evidence, and the
medical evidence makes the ocular testimony
improbable and rules out all possibility of ocular
evidence being true, the ocular evidence may be
disbelieved. In the present case, we find no
inconsistency between the ocular and medical
evidence. The High Court grossly erred in
appreciation of evidence by holding that muddamal
no. 5 was a simple iron rod without noticing the
evidence that it had a sharp turn edge.
19. The aforesaid discussions leads us to the
conclusion that the acquittal by the High Court is
based on misappreciation of the evidence and the
overlooking of relevant evidence thereby arriving
at a wrong conclusion. It is not a case where two
views are possible or the credibility of the
witnesses is in doubt. Neither it is a case of a
solitary uncorroborated witness. The conclusion of
the High Court is therefore held to be perverse and
72021 SCC OnLine SC 493
Criminal Appeal No. 5013 of 2012
26
irrational. The acquittal is therefore held to be
unsustainable and is set aside. In the nature of
assault, Section 304 Part II, IPC has no
application. The conviction of respondent nos. 1 to
4 by the Trial Court is restored.”
55.To our understanding, the presence of witnesses at the scene of
crime not being found doubtful, there is no reason for us to doubt their
testimony, which, in our considered opinion, puts forth a dependable
eye-witness account. There is no such inherent inconsistency between
the ocular version and the medico-legal evidence that may persuade us
to reject the prosecution case on that score. We hold, accordingly.
56.It is next submitted by the learned Counsel for the appellants that
the Police have not fairly investigated the case and have suppressed the
earliest version of the occurrence that they received through PW-4,
Anwar, the tonga driver. He has drawn the attention of the Court to the
testimony of PW-4, where this witness has said that he went to the
police station and informed the Police about the incident. The witness
has also stated that the Daroga at the station took down the information
and got it thumb marked by him. He has further said that the Police also
took down his statement. About this testimony of PW-4, Mr. Misra
submits that the Police have not brought the information given by PW-4
on record. It is pointed out that the Investigating Officer, in his evidence,
has completely denied the fact that PW-4, Anwar, came over to the
police station and laid any information. It is submitted by the learned
Counsel further that the conduct of PW-4 going over to the police station
and informing the Police, was a natural and spontaneous conduct. The
Police, by keeping back the information that they received about the
occurrence from PW-4, have rendered the investigation tainted by
withholding vital facts and evidence from the Court.
57.The learned Counsel for the appellants submits that the fact that
the earliest information about the occurrence, received by the Police
from PW-4, has been hidden away from the eyes of the Court, throws a
cloud of doubt over the prosecution version. Mr. Misra has also drawn
Criminal Appeal No. 5013 of 2012
27
the attention of the Court to that part of the cross-examination, where
PW-4 has said that he had earlier given an affidavit in favour of the
appellants, and said in the next breath, during the cross-examination,
that he never did so. About this fact, Mr. Misra submits that this witness
is unreliable. We must remark here that the cross-examination of this
witness does not show that he was confronted with the affidavit or that it
was put to him. Largely, the submission, therefore, put forward by the
learned Counsel for the appellants, is that investigation done by the
prosecution is not fair and forthright. The earliest account of the
occurrence coming from PW-4 has been suppressed from the Court.
58.The learned Counsel for the appellants has also pointed out that
the Investigating Officer has not inquired into the angle of enmity
between parties that could have led to a patently false implication. It is
also urged that the failure of the Investigating Officer in not ensuring a
technical examination of the tractor, which is the weapon of offence in
this crime, or seizing and producing it as case property, is fatal to the
prosecution. It is also emphasized that the Investigating Officer has not
looked into the appointment letter of the deceased, appointing him to the
post of a Shiksha Mitra. The attention of the Court has also been drawn
by the learned Counsel for the appellants to that part of the Investigating
Officer's cross-examination, where he has acknowledged that there was
a discrepancy in the distance of the police station from the place of
occurrence given in the F.I.R. and the inquest report. Our attention has
been drawn to this discrepancy to show that the distance entered in the
F.I.R. is four kilometers, whereas, in the inquest report it is five
kilometers. To sum up, it is submitted by Mr. Misra that the prosecution
stands on shaky ground because of these discrepancies in investigation,
and that, therefore, the conviction should be overturned.
59.The learned A.G.A. has said that whatever has been pointed out
by the learned Counsel for the appellants is nothing more than some
discrepancies in investigation. The prosecution case is well established
by a dependable eye-witness account of the three witnesses, PWs-2, 3
Criminal Appeal No. 5013 of 2012
28
and 4.
60.We must remark at the outset that the submissions of Mr. Misra,
presently under consideration, can be divided into two parts. The first
part, though short, is distinct from the rest. That short submission is
about the veracity of PW-4, which has been sought to be impeached by
the appellants on ground that he had tendered some kind of affidavit,
disowning his statement to the Police, about which he has said, during
his cross-examination in the first go that he did give such an affidavit,
and in the next breath, disowned it. As already remarked by us, the
contents of the affidavit were not put to the witness, during his cross-
examination, and, therefore, it is no part of the evidence. PW-4 has been
acknowledged by the appellants to be an independent witness and to
our mind also, he is a natural witness. Though the contents of the
affidavit have not figured in the testimony, even if at some point of time,
the witness, on account of some consideration, spoke exculpatory on
affidavit tendered to some Authority or the Court prior to commencement
of trial, his clear and unequivocal evidence in the dock, cannot be
impeached on that account. During investigation, and some times during
trial, witnesses are known to vacillate and prevaricate owing to different
kinds of pressures and succumbing to myriad human feelings. What has
to be seen, however, particularly in the case of an eye-witness account,
is whether the witness is essentially truthful, consistent and dependable
in his account of the occurrence in the witness-box. If the witness has
not been fundamentally shaken during his cross-examination, there is
no reason to discard his testimony or to hold him discredited. As we
have already remarked, the testimony of PW-4 in his examination-in-
chief and cross-examination, is fairly consistent and inherently inspires
confidence. For the said reason, we are not inclined to doubt him on
account of the fact that at some point of time, prior to commencement of
trial, he might have said something on affidavit, not supportive of the
prosecution.
61.The next part of the appellants' submission can be conveniently
Criminal Appeal No. 5013 of 2012
29
dealt with under one head, and that is about failures on the part of the
Investigating Officer to produce relevant evidence, even keeping back
some evidence, that is said to be an instance of unfair investigation. It is
trite law that unless failures, discrepancies or even unfairness of
investigation prejudices the accused, mere lapses of investigation or
some taints there, cannot be permitted to get better of the law. A case,
that is well proven by evidence, that comes before the Court, cannot be
thrown out merely because the Investigating Officer, by incompetence or
design, produces some fallacies. To consider the failures of investigation
or what Mr. Misra says, clear instances of unfair investigation, this Court
may look into the specific instances. It is pointed out, amongst those
failures or instances of unfair investigation, that the Investigating Officer
has kept back the earliest written account of the occurrence, that the
Police received from PW-4. We may notice that PW-4 has not been
cross-examined at all on the point whether in his alleged written
information given to the Police at the station, had he come up with a
different version, other than the one that he has come up with in the
dock. We find that nothing has been asked of PW-4 as to what his
earliest version to the Police was. In the absence of that question, there
is no reason to believe that even if an information, that the witness says,
was given to the Police by him earliest in point of time, anything different
would have been said there. Also, the Investigating Officer has been
emphatic that no such information was given by PW-4 to the Police at
any point of time. We do not find anything in the testimony of the
Investigating Officer to disbelieve him on that count.
62.Now, so far as the question of the Investigating Officer not proving
the enmity that might have led to a false implication of the appellants is
concerned, by looking into the appointment letter of the deceased, which
is said to relate to his placement as a Shiksha Mitra, these are no more
than lapses of investigation, if at all. Likewise the more serious issue
about not seizing or producing the tractor by sending it for a technical
examination, also does not go beyond a mere lapse of investigation.
Criminal Appeal No. 5013 of 2012
30
Likewise, is the case with the varying mention of the distance between
the place of occurrence and the police station on the F.I.R. and the
inquest. It is, as already said, trite law that lapses in investigation or
failures of the Investigating Officer, or even deliberate manipulation at
his hands, cannot brook advantage to the accused, unless the lapse or
the taint in investigation be such that it has prejudiced the accused in his
defence. That is not the case here, because the eye-witness account of
the three witnesses, whose presence at the scene of crime, we have no
reason to doubt, is clear, unambiguous and inculpatory. The outcome
depends on what evidence comes before the Court and not the way the
investigating agency collects the evidence or reaches its conclusions.
The conclusions of the investigating agency are no more than a
proposal or a claim, the worth of which has to be judged by the Court,
on the evidence produced before it in the dock. Even if the investigating
agency has failed somewhere or corrupted the prosecution by its lapses,
incompetence or design, that cannot stand in the Court's way of
reaching its conclusion on the evidence before it. Here, whatever has
been pointed out on behalf of the appellants, does not, in any way,
derogate from the dependable and consistent account of the three eye-
witnesses. In this connection, reference may be made to the decision of
the Supreme Court in Dhanaj Singh v. State of Punjab
8
, where it has
been held:
“5. In the case of a defective investigation the
court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting
an accused person solely on account of the defect;
to do so would tantamount to playing into the hands
of the investigating officer if the investigation
is designedly defective. (See Karnel Singh v. State
of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )
6. In Paras Yadav v. State of Bihar [(1999) 2 SCC
126 : 1999 SCC (Cri) 104] it was held that if the
lapse or omission is committed by the investigating
agency or because of negligence the prosecution
evidence is required to be examined dehors such
omissions to find out whether the said evidence is
8 (2004) 3 SCC 654
Criminal Appeal No. 5013 of 2012
31
reliable or not, the contaminated conduct of
officials should not stand in the way of evaluating
the evidence by the courts; otherwise the designed
mischief would be perpetuated and justice would be
denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of
Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if
primacy is given to such designed or negligent
investigation, to the omission or lapses by
perfunctory investigation or omissions, the faith
and confidence of the people would be shaken not
only in the law-enforcing agency but also in the
administration of justice. The view was again
reiterated in Amar Singh v. Balwinder Singh [(2003)
2 SCC 518 : 2003 SCC (Cri) 641]. As noted in Amar
Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641]
it would have been certainly better if the firearms
were sent to the Forensic Test Laboratory for
comparison. But the report of the ballistic expert
would be in the nature of an expert opinion without
any conclusiveness attached to it. When the direct
testimony of the eyewitnesses corroborated by the
medical evidence fully establishes the prosecution
version, failure or omission or negligence on the
part of the IO cannot affect the credibility of the
prosecution version.
8. The stand of the appellants relates essentially
to acceptability of evidence. Even if the
investigation is defective, in view of the legal
principles set out above, that pales into
insignificance when ocular testimony is found
credible and cogent. Further effect of non-
examination of weapons of assault or the pellets,
etc. in the background of defective investigation
has been considered in Amar Singh case [(2003) 2
SCC 518 : 2003 SCC (Cri) 641]. In the case at hand,
no crack in the evidence of the vital witnesses can
be noticed.”
63.Again, in Ram Bali v. State of U.P.
9
, it was held in the context of
omissions, lapses or even negligence in investigation, thus:
“14. As was observed in Ram Bihari Yadav v. State
of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085]
if primacy is given to such designed or negligent
investigation, to the omission or lapses by
perfunctory investigation or omissions, the faith
and confidence of the people would be shaken not
only in the law-enforcing agency but also in the
administration of justice. The view was again
9 (2004) 10 SCC 598
Criminal Appeal No. 5013 of 2012
32
reiterated in Amar Singh v. Balwinder Singh [(2003)
2 SCC 518 : 2003 SCC (Cri) 641] . As noted in Amar
Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641]
it would have been certainly better if the firearms
were sent to the Forensic Test Laboratory for
comparison. But the report of the ballistic expert
would merely be in the nature of an expert opinion
without any conclusiveness attached to it. When the
direct testimony of the eyewitnesses corroborated
by the medical evidence fully establishes the
prosecution version, failure or omission or
negligence on the part of the IO cannot affect the
credibility of the prosecution version.”
64.The same principle finds eloquent mention in Abu Thakir and
others v. State of Tamil Nadu represented by Inspector of Police,
Tamilnadu
10
, where it has been observed:
“36. We may have to deal with yet another
submission made by the learned Senior Counsel for
the appellants that the investigation was not fair
as there were many missing links in the process of
investigation. This submission was made by the
learned counsel contending that the investigation
does not reveal as to how the investigating officer
came to know about the presence of PWs 2 to 4 at
the scene of occurrence and for recording their
statements in that regard.
37. This Court in State of Karnataka v. K. Yarappa
Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61] held
that: (SCC p. 720, para 19)
“19. … even if the investigation is illegal or
even suspicious the rest of the evidence must be
scrutinised independently of the impact of it.
Otherwise the criminal trial will plummet to the
level of the investigating officers ruling the
roost. … Criminal justice should not be made a
casualty for the wrongs committed by the
investigating officers in the case. In other
words, if the court is convinced that the
testimony of a witness to the occurrence is true
the court is free to act on it albeit the
investigating officer's suspicious role in the
case.”
The ratio of the judgment in that case is the
complete answer to the submission made by the
learned Senior Counsel for the appellants.”
10 (2010) 5 SCC 91
Criminal Appeal No. 5013 of 2012
33
65.Of particular relevance, there is the guidance of their Lordships of
the Supreme Court in Mritunjoy Biswas v. Pranab
11
, where there was
no recovery of the weapon of offence from the accused and that was
mooted as a fatal flaw in the prosecution. In that connection, it was held:
“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 v. State of U.P. [(2002) 7 SCC 198 :
2002 SCC (Cri) 1647] this Court has ruled that :
(SCC p. 205, para 16)
“16. 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 [(2000) 9 SCC
82 : 2000 SCC (Cri) 1163] it has been opined that :
(SCC p. 87, para 18)
“18. The non-recovery of the pistol or spent
cartridge does not detract from the case of the
prosecution where the direct evidence is
acceptable.”
36. In State of Rajasthan v. Arjun Singh [(2011) 9
SCC 115 : (2011) 3 SCC (Cri) 647] this Court has
expressed that : (SCC p. 122, para 18)
“18. … mere non-recovery 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.”
11 (2013) 12 SCC 796
Criminal Appeal No. 5013 of 2012
34
Thus, when there is ample unimpeachable ocular
evidence and the same has been corroborated by the
medical evidence, non-recovery of the weapon does
not affect the prosecution case.”
66.The evidence of eye-witnesses here is clear, consistent and
specific. It has not been shaken in any manner, during cross-
examination of the three prosecution witnesses, who, in our opinion,
have clearly established beyond all reasonable doubt, the place, manner
and the time of occurrence; particularly, the fact that it was the
appellants alone, who acting in furtherance of a common intention,
committed a premeditated murder, eliminating the deceased. The
discrepancies in investigation, whatever, have been pointed out by the
learned Counsel for the appellants, cannot vitiate the prosecution, that
has thoroughly succeeded in establishing the charge beyond reasonable
doubt.
67.We have carefully gone through the findings recorded by the
learned Sessions Judge and independently reappraised the entire
evidence. There is no reason for us to take a different view of the
evidence, which in our opinion, is clear, cogent and unimpeachable.
68.Here, it also requires mention that the appellants, in their
statements under Section 313 of the Code, have not assigned any
particular motive to the witnesses to falsely implicate them. There is a
stereotype answer in response to the question put to each of the
appellants, as to why the concerned appellant was prosecuted. The
answer is: 'village party-bandi and animosity'. There is not a whisper
there as to what are the particulars of the village party-bandi or the
animosity, vis-a-vis each of the appellants and the animus of the
prosecution witnesses. The appellants have indicated their inclination to
lead evidence in defence, but they did not enter defence, as already
said. Then in answer to a general question put to each of the appellants,
if the concerned appellants had anything else to say, the identical
answer is: 'No'. The right under Section 313 of the Code is very valuable
right of the accused, where he can say whatever he has to in his
Criminal Appeal No. 5013 of 2012
35
defence. It is open there for the accused to show, particularly, the reason
for a mala fide or false implication, which can then be established by
entering defence and leading evidence. Here, that opportunity was
amply afforded to the appellants, but not availed.
69.To sum up, this Court is of opinion that the prosecution have
established the charge beyond all reasonable doubt and there is no
warrant for us to interfere with the impugned judgment.
70.In the result, this appeal fails and is dismissed. The impugned
judgment passed by the learned Additional Sessions Judge is affirmed.
The appellants, Sadhu, Devendra and Srikrishna are on bail. They shall
surrender immediately before the Trial Court to serve out the sentences,
awarded to each of them. In the event of default, the Trial Court shall
take immediate steps to take them into custody and commit them to
prison.
71.Let this order be certified to the Trial Court by the office and
separately communicated by the Registrar (Compliance) through the
learned Sessions Judge, Budaun. Let a copy of this order be also
communicated to appellant no.1, Pratap Singh, who is in jail, through the
Jail Superintendent, Budaun, or wherever he is serving his sentence, by
the Registrar (Compliance).
72.The lower court records shall be sent down forthwith.
Order Date :- September the 15
th
, 2021
Anoop / I. Batabyal
(J.J. Munir, J.) (Munishwar Nath Bhandari, ACJ.)
**********
Criminal Appeal No. 5013 of 2012
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