(AFR)

Reserved on : 29.04.2019

Delivered on : 20.09.2019

Court No. - 34

Case :- JAIL APPEAL No. - 2935 of 2013

Appellant :- Rajesh

Respondent :- State of U.P.

Counsel for Appellant :- From Jail,Mamta Maurya A.C, Saurabh

Sachan (A.C.), Surendra Bir Maurya, Surendra Bir Maurya (A.C.)

Counsel for Respondent :- P.C. Joshi (A.G.A.)

Hon'ble Sudhir Agarwal, J.

Hon'ble Rajendra Kumar-IV, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1.This jail appeal under section 383 Cr.P.C. has been filed by

accused-appellant, Rajesh through Senior Superintendent of Police,

Meerut against judgement and order dated 31.05.2013 passed by Sri

Ajay Kumar, Additional District and Sessions Judge, Court No. 16,

Meerut. By the impugned judgement, Rajesh has been convicted

under Section 302 I.P.C. and sentenced to life imprisonment along

with fine of Rs. 10,000/-. In case of default in payment of fine, he

has to further undergo one year additional imprisonment.

2.The prosecution case in short may be stated as under:-

3.On 28.01.2002, a written report (Exhibit Ka-1) was presented

by Informant PW-1, Laxmi, at Police Station Nauchandi, District-

Meerut, stating that she along with her husband, Dinesh were residing

in Sector-4, Shastri Nagar, Meerut, in a rented house of Sharda

Sharma. Informant's husband used to pull rickshaw. Smt. Manglo i.e.

Dayawati, Bua of Informant's husband resided in House No.114,

Sector-3, Shastri Nagar, Meerut. She was ailing. Informant had gone

to see her in Sector-3, Shastri Nagar. In the night at about 10:15 PM,

her husband Dinesh went to Sector-3 to take her (Informant) back to

home. When they reached near Water Tank (Pani ki tanki) situated in

Sector-3, accused Rajesh, brother in distant relation, who was hidden

in bushes near the corner house situated on road leading to Sector-4,

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suddenly came out and inflicted knife blow on the neck of Informant's

husband by a knife held in his hand. Resultantly, Dinesh fell on the

ground. Rajesh again assaulted him with knife. Rajesh had murdered

Informant's husband by knife. When she raised alarm, accused

threatened and chased her. She ran and reached back to house of her

husband's Bua and apprised her of incident. F.I.R. further says that

Rajesh and his elder brother, Natthi used to reside with Informant

about 9-10 months prior to lodging of F.I.R. Rajesh and Natthi after

consuming liquor used to quarrel with Informant's husband. For that

reason, Informant's husband evicted both of them from his house.

Since then, Rajesh bore enmity and while leaving the house, he also

held threat to Informant's husband Dinesh that he would settle the

score. Rajesh committed murder of informant's husband in her

presence. She had seen and recognised Rajesh very well in the electric

light. F.I.R. further states that her husband's dead body was lying at

the spot.

4.On the basis of written report (Exhibit Ka-1), chik report

(Exhibit Ka-2) was prepared by Head Muharrir, Ram Bahadur on

28.01.2002 at 23:45 P.M. He also made an entry of incident in General

Diary at Report no. 32, a copy of which is Exhibit Ka-13 on record.

After registration of F.I.R, initially case was investigated by PW-6

S.I., Arun Kumar Chauhan, who was then S.O. of Police Station

Nauchandi. After obtaining necessary documents, he recorded

statement of PW-1, Informant and witnesses. He visited spot and on

pointing out of PW-1, prepared site plan (Exhibit Ka-5). He got

inquest (Exhibit Ka-2) prepared by S.I. Manish Kumar Sharma, who

also took blood stained and simple soil from place of occurrence and

prepared recovery memo in respect thereof as well as other relevant

documents for sending dead body to post mortem, marked as Exhibit

Ka-6 to Ka-11.

5.Autopsy on dead body of deceased Dinesh was conducted by

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PW-5, Dr. R.K. Gupta, on 29.01.2002 at 4:00 PM. According to him

deceased was aged about 35 years and duration of death at the time of

post-mortem, was about one day. Deceased was of average body built

and rigor mortis found present all over the body. There was no

decomposition. He found following ante-mortem injuries on the body

of deceased:-

“i. Incised wound 13 cm x 4 cm x bone cut on outer and

joint of right side neck, 4

th

cervical vertebra cut, blood

vessels, trachea and oesophagus cut, incised wound 5.5.

cm below the chin.

ii. Stab wound 3 cm x 1 cm x chest cavity deep on front

of chest (left side), 5 cm medial to left nipple at 11 O'

clock positive.

iii.Incised wound 2 cm x 1 cm x muscle deep on outer

side of just upper arm upper part, 8 cm below left

shoulder.”

(emphasis added)

6.On internal examination, membranes of head and neck were

found pale; pleura was lacerated on left side; both lungs were pale and

upper lobe of left lung was lacerated; right side heart contained blood

weighing 250 gm; left thoracic cavity contained 700 ml blood. In the

opinion of Doctor, death had occurred due to shock and haemorrhage

as a result of ante-mortem injuries. Doctor prepared post mortem

report (Exhibit Ka-4).

7.Despite search, accused could not be arrested and thereafter

PW-3 second Investigating Officer was transferred. It appears from

the statement of PW-4 S.I. Mahipal Singh, the second Investigating

Officer that since accused could not be arrested, earlier S.O. Shiv

Pooran Singh had submitted final report in Court. On 30.11.2011 PW-

1 Informant had made an application (Exhibit Ka-3) to Police Station,

Nauchandi, that accused Rajesh was residing near Maliyana Phatak,

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Meerut and pulling on rickshaw. On the said application of PW-1,

investigation was undertaken by PW-4 Sri Mahipal Singh after

obtaining requisite permission from Court. On 05.12.2011 accused

was arrested. Thereafter investigation was undertaken by Smt. Alka

Singh, PW-7. After concluding investigation, she submitted charge

sheet (Exhibit Ka-14). On charge sheet, cognizance was taken by

Chief Judicial Magistrate, Meerut against accused-appellant under

Section 302 I.P.C. on 27.01.2012.

8.As the case was exclusively triable by Court of Sessions,

learned C.J.M. committed matter to Court of Sessions which was

registered as Sessions Trial No. 350 of 2012. Sessions Trial was

transferred to Additional District & Sessions Judge, Court No.16,

Meerut, who framed charge against accused-appellant on 14.08.2012,

which reads as under:-

“eSa vt; dqekj] vij ftyk ,oa l= U;k;k/kh'k] d{k la0 16] vki vfHk;qDr

jkts'k dks fuEufyf[kr vkjksiksa ls vkjksfir djrk gwa%&

;g fd fnukad & 28-01-2002 le; jkf= ds 11 cts LFkku lSDVj 3

ikuh dh Vadh ds ikl lSDVj 4 dks tkusokyh lM+d ij 'kkL=h uxj Fkkuk

{ks= ukSpUnh ftyk esjB esa vkius oknuh Jherh y{eh ds ifr fnus'k

dks pkdqvksa ls ?kk;y djds tkucw>dj LosPN;k mldh gR;k

dj nh FkhA bl izdkj vkius ,slk vijk/k dkkfjr fd;k tks /kkjk 302 Hkk-

n-la- ds v/khu naMuh; gS vkSj bl U;k;ky; ds laKku esa gSA

vkSj eSa ,rn~}kjk vkidks funsZf'kr djrk gwa fd mijksDr vkjksi ds

fy;s vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA”

“I Ajay Kumar District & Sessions Judge, Court No. 16

Meerut charge you accused Rajesh as under:-

That on 28.01.2002 at about 11:00 PM in the night on

the road heading towards Sector-4 near Water Tank (Pani ki

Tanki) in Sector-3 Shastri Nagar, Police Station Nauchandi,

District Meerut, you intentionally and voluntarily by

causing injuries to deceased with knife, killed Dinesh,

husband of informant, Smt. Laxmi. Thereby you committed

such an offence which is punishable under Section 302 I.P.C.

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and within the cognizance of this Court.

I had directed you that will be tried for the aforesaid charge

by this Court.” (emphasis added)

(English translation by Court)

9.Accused-appellant pleaded not guilty and asked for trial.

10.In support of prosecution, as many as seven witnesses were

produced, out of whom, PW-1 Laxmi and PW-2 Ram Pal are

witnesses of fact. Rest are formal witnesses of Police and Department

of Health.

11.PW-6 S.I. Arun Kumar Chauhan was the first Investigating

Officer who initiated investigation after lodging of F.I.R. and has

proved site plan (Exhibit Ka-5). He has also proved inquest (Exhibit

Ka-2) and other documents Exhibit Ka-6 to Ka-11 pertaining to

sending of dead body to hospital for post-mortem. Thereafter

investigation was undertaken by PW-3, S.I. Pooran Singh on

27.05.2002, who tried to arrest accused but could not succeed and

accordingly submitted final report in the matter. Thereafter

investigation was resumed by PW-4 S.I. Mahipal Singh, who has

proved application filed by Informant (Exhibit Ka-3) to the effect that

accused-appellant was residing in Meerut and pulling on rickshaw.

PW-7, Smt. Alka Singh, is the third Investigating Officer, who has

proved charge sheet (Exhibit Ka-14).

12.After closure of prosecution evidence, accused-appellant was

examined under Section 313 Cr.P.C, who has denied the charge and

claimed that he has been falsely implicated and witnesses are

deposing against him on account of enmity. He said that he is innocent

and had been pulling rickshaw and had not committed any crime.

13.On appreciation of evidence on record and hearing counsel for

both the parties, Trial Court convicted and sentenced accused-

appellant as mentioned above. Trial Court has convicted the accused-

appellant by recording its findings that:

I- There is no delay in lodging FIR inasmuch as incident is

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said to have taken place at 11:00 PM on 28.01.2002 and

report was lodged at 23:45 on the same date, i.e., within 45

minutes.

II- The Informant is eye witness and mere fact that she is

wife of deceased would not be sufficient to discard her

otherwise trustworthy ocular evidence.

III- There was no difficulty in identification of accused

appellant by Informant since she knew her from earlier

time.

IV- Production of no independent witness by prosecution

was duly explained by Informant that the place at which

incident occurred, at relevant time, there was none present

and her submission looking to the time and place was

natural and trustworthy.

V- PW-2, Ram Pal Saini, another witness of fact, has stated

that on the date of incident, deceased and his wife had

gone to his residence to meet his ailing wife. Deceased

went for his work of Rickshaw pulling after leaving

Informant at the residence of PW-2 at around 4-4:30 PM

and came back at around 9-10 PM. They left his residence

at around 10:45 PM and after 15-20 minutes, Informant

came back in a frightened condition and narrated entire

incident. Thereafter, PW-2 and other family members went

to the spot where they found Dinesh lying dead and

accused-appellant had run away. Police prepared

Panchayatnama after seizing dead body of Dinesh at the

place of incident. Post-mortem report proves that injuries

may have been sustained by a sharp edged weapon which

supports the manner of death of deceased as explained by

PW-1.

VI- Formal witnesses proved documents and no adverse

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factor could be extracted from their cross examination by

defence.

VII- Though, the motive was not relevant in a case where

there is ocular evidence but motive was explained by the

Informant and nothing otherwise could be extracted in her

cross examination by the defence.

VIII- Though investigation has not been properly

conducted in the case but for that reason no benefit can be

taken by the accused.

14.Feeling dissatisfied with the judgment of conviction and

sentence, accused-appellant has preferred this Jail Appeal through

Senior Superintendent of Jail, Meerut.

15.We have heard Sri Saurabh Sachan, learned Amicus Curiae, Sri

P.C. Joshi, learned A.G.A. and perused record carefully with valuable

assistance of learned counsel for parties.

16.Learned counsel for the appellant has challenged conviction and

sentence by Trial Court, raising following issues:-

I- The entire prosecution against appellant is founded on

the statement of Informant, PW-1, who is the wife of

deceased. She had illicit relation with the younger brother

of deceased and this fact came to be detected by deceased

whereupon they both murdered deceased and have falsely

implicated appellant. This aspect has not been properly

examined by Court below.

II- Informant had motive to commit murder of deceased

and, therefore, her conduct ought to have been properly

examined in the matter but that has not been done by

Court below.

III- The sole ocular evidence of Informant could not have

been relied to convict appellant since she was close

relative of deceased and had reason to falsely implicate

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appellant.

IV- Appellant never resided at the residence of deceased

and Informant, hence there was no occasion of his

eviction by deceased for the alleged reason that he

quarreled with deceased in drunken condition and for that

reason, accused-appellant in revenge, committed murder.

V- Even, PW-2 is relative of deceased and was not present

at his house on the date and time of incident. He was a

tubewell operator and had gone to attend his duty in the

night, but falsely stated in his statement that on the date of

incident, he had not gone to attend his duty and was

present at his residence. In this regard, no evidence could

be adduced by him to prove that he had not gone to attend

his duty on that date. The statement of PW 2 that he had

not gone on duty is false for the reason that in cross-

examination, he could not tell as to what was the time of

his duty to attend tubewell which is unbelievable.

VI- Incident took place on 28.01.2002 while appellant was

arrested by police on 05.11.2012 alleging that during

checking at Shashtri Nagar Crossing he was arrested as

stated by PW 4, S.I. Mahipal Singh. The story of arrest

given by PW-4 that on the information of Informant,

appellant was arrested is concocted.

VII- Post-mortem report does not support the manner in

which deceased has been murdered. No weapon of crime

has been recovered from appellant.

VIII- Prosecution has failed to prove its case beyond

reasonable doubt.

17.Per contra, learned A.G.A. contended that it is a simple case of

hit and run. Informant and her husband, while returning from the

residence of PW-2, where they had gone to see his ailing wife, when

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reached the place of incident, accused-appellant, who was well known

to Informant and her husband, and was hiding thereat, appeared and

attacked Informant's husband with knife on his neck and thereafter on

his body and when she raised alarm, he pushed her. She turned to go

towards residence of PW-2. Thereupon accused-appellant ran after her

also for some time but could not catch her. She reached residence of

PW-2 and narrated the entire incident. Therefrom PW-2, his two sons

and younger brother of deceased alongwith Informant came back to

the place of incident and found deceased, dead. Appellant thereafter

ran away and could be arrested after a long time, i.e., in 2011. Only

thereafter, Police could submit charge-sheet and therefore, statements

of witnesses have been recorded after more than a decade which may

have shown some inconsistencies or contradictions but the same are

minor and do not impact the otherwise trustworthy ocular evidence of

PW-1, Informant.Further the manner in which appellant attacked and

committed murder and various injuries found on the dead body as

reported in post-mortem report fortify statement of PW-1. Hence

appellant has been rightly convicted and awarded adequate sentence

by Court below. The judgment is based on evidence and prosecution

succeeded in proving guilt of appellant beyond doubt, therefore, no

interference is called for in this appeal and it deserves to be dismissed.

18.We have heard arguments of learned counsel for both parties

and relevant authorities relied by both the side.

19.As per F.I.R., as also the statement of PW-1, Informant, the

incident had taken place near water tank in Sector 3 on road coming

towards Sector 4. Panchayatnama (Ex.Ka-2) also shows the place of

incident as mentioned in F.I.R. lodged by Informant, PW-1. Time of

recording of F.I.R. mentioned in Panchayatnama is 23:45, i.e. 11:45

PM, in the night on 28.01.2002. Panchayatnama was prepared at

02:05 AM on 29.01.2002 i.e. within two hours twenty minutes of

recording of F.I.R. The statements of PW-1 and PW-2 also mention

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the same place, date and time of incident and this is fortified by

statement of PW-5, Dr. R.K. Gupta who conducted post-mortem and

stated that the time of death could have been 11:00 PM on 28.01.2002.

PW-6, S.I., Arun Kumar Chauhan, is Investigating Officer who

initially commenced investigation in this case after recording of F.I.R.

He has also supported the date, time and place of the incident. He has

also proved site plan which supports place of incident as well as date

and time. In these facts and circumstances, date, time and place of

occurrence and death of deceased is duly proved by evidence

available on record. In facts it is also not seriously disputed by learned

counsel for appellant. He, however, submitted that he has been falsely

implicated in the case inasmuch as murder has been committed by

Informant herself in conspiracy with one Lokesh with whom, she had

illicit relations and appellant has been implicated falsely.

20.Now, the question for consideration is “whether prosecution has

proved guilt of accused-appellant beyond reasonable doubt by

adducing adequate and trustworthy evidence and he (appellant) has

rightly been convicted by Court below or not?”

21.In order to examine the aforesaid issue, it would be appropriate

to go through the evidence on record.

22.As we have already said, in this case, star witness is Informant

herself, who is eye witness of the incident. It is her statement which is

foundation of findings of guilt against appellant. PW-1, wife of

deceased, Dinesh, has stated that she and her husband were residing in

Sector 4, Shashtri Nagar, Meerut. Her husband's Bua, Smt. Manglo

(wife of PW-2, Rampal Saini) was residing in Sector 3. She was

calling husband and wife for last few days since she was unwell. On

the date of incident, around 10:45 or 11:00 PM, Informant and her

husband Dinesh both were returning from the house of husband's Bua.

When they reached near Water Tank in Sector 3, from the bushes

standing on side of road, Rajesh, accused-appellant, came out and

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attacked her husband with knife on chest and neck. At that time, road

light was glowing in which she could see Rajesh, accused-appellant,

clearly. She knew Rajesh since earlier. She tried to protect her

husband but Rajesh, accused-appellant pushed her away. When she

raised alarm, none came. She started to move towards house of Bua,

Smt. Manglo, whereupon Rajesh, accused-appellant ran after her with

knife upto some distance but she did not look back and came running

to the residence of husband's Bua and narrated entire incident.

Thereupon, Fufa of Informant's husband, i.e., Ram Pal Saini, his two

sons and younger brother of deceased alongwith Informant came to

the place of incident and found Dinesh, husband of Informant, dead.

Rajesh came alongwith Informant's husband from Kanpur about 9-10

months back and stayed in Informant's house for about two months.

He was accompanied by his brother. Informant's husband told her that

Rajesh was son of his uncle. On one day, Rajesh and his brother came

after taking liquor and quarreled with her husband whereupon they

were thrown away from house. While going, Rajesh threatened P.W.-

1's husband that he will see him. For this reason, Rajesh committed

murder of her husband.Report was lodged by Informant through

younger brother of deceased, i.e., Lokesh. At the time when incident

took place, none else was present. She identified Rajesh in Court and

stated that he had committed murder of her husband and he is the

same person who stayed in her house for about two months. She

categorically stated that she was residing in Sector-4, Shastri Nagar

while her husband's Bua was residing in Sector-3, Shastri Nagar and

the incident took place near Water Tank of Sector- 3, Shashtri Nagar.

In cross-examination, she stated that she married Dinesh about seven

years prior to the incident. Her husband were five brothers and two

sisters. Dinesh was eldest and thereafter Jitendra, Brijendra, Rajendra

and youngest one Lokesh. At the time of incident, Lokesh was

working as a doctor. Her father-in-law and mother in law both died

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earlier. Brothers of her husband used to visit residence of Informant.

At the time of incident, Lokesh was unmarried. Rajesh was son of

uncle of deceased but not real uncle. She was not aware whether

Rajesh and his brother were residing at Kanpur or not. When they

came, her husband told that they were residing at Kanpur. Her

husband was a rickshaw puller. On the date of incident also, he had

gone to do his work of rickshaw pulling and came to residence of his

Bua in Sector 3 in the night around 10:00 or 10:30 PM. Distance from

house of Bua to PW-1's house was not known in kilometers but she

said that it is 15 minutes' walk. Her husband when came to take her,

had not brought rickshaw since it was parked at the residence.

Rickshaw was on hire and in the night, it used to be parked at her

residence. She had gone to residence of Bua on the date of incident at

around 3:45-4:00 PM. Her husband had gone for Rickshaw pulling the

in morning at 10:00 AM and came in the night at around 10:00-10:30

PM to take her from the residence of Bua, Smt. Mango, i.e., wife of

PW-2, Rampal Saini. Lokesh had not visited Informant's house but

had come to residence of Bua. Incident took place on main road and

on both sides, there were houses and shops. People were residing in

the houses. She was not able to tell as to how much time she took to

reach from the place of incident to residence of Bua. At that time,

Fufa, i.e., PW-2, Ram Pal Saini, his two sons and younger brother of

deceased were present and Bua was sleeping on upper storey. When

Informant and other people reached Police Station, there was none

present and they waited. Thereafter Inspector came. Report was

scribed by Lokesh in the Police Station itself. She had no issue from

Dinesh. Her parents were residing at Khurja. After cremation and

other rituals, she went to stay at her parents' residence. After one year,

she solemnized another marriage with a person residing near Kanpur,

and from said wedlock, she has a son. Her second husband also died

in an accident. At the time of statement recorded in Trial Court, i.e.,

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September, 2012, she was residing with her father. Younger brothers

of her husband, Dinesh, after his death, never came to meet her at

Khurja. When accused-appellant was arrested, Police visited residence

of Informant alongwith younger brother of her husband and then she

came from Khurja to Meerut Police Station. She specifically denied

suggestion of illicit relations with Lokesh, youngest brother of her

husband and further suggestion of herself committing murder of

Dinesh in conspiracy with Lokesh.

23.Thus, PW-1 in her examination-in-chief, very categorically

stated about manner of death, time and place of incident. She has

stated that it is accused-appellant who has committed murder of her

husband, Dinesh, by inflicting injuries with knife on chest and neck.

F.I.R. was scribed by Lokesh on being told by her and she signed the

same and proved said F.I.R. marked as Exhibit Ka-1.

24.There is long cross-examination of PW-1 but we do not find any

substantial material which could have been extracted by defence to

discredit ocular version of PW-1. Hence, we find no reason to

disbelieve her. In our view, statement of PW-1 is natural, pure and

trustworthy. The fact that she is directly a close relative of deceased

and therefore her statement should not be relied to hold accused-

appellant guilty, has no substance inasmuch as law is now well settled

that statement of relatives merely on the ground that he or she is

relative, cannot be discredited or rejected.

25.Normally, when incident takes place in presence of relatives, it

is only they who come forward to depose against accused since they

are the persons who would like to see that person who has committed

crime, is given due punishment in a Court of law. Such witnesses

would not like to give a wrong statement against a person who has not

committed crime, and, try to save actual accused. Mere relationship,

therefore, is no ground to reject an otherwise trustworthy deposition

of such witnesses unless there are other factors to taint such

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statements providing some reason to doubt the witness.

26.In a catena of judgments Supreme Court has repeatedly held

that a close relative would be the last to screen the real culprit and

falsely implicate an innocent person.

27.In Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54

at page 59, Court held as under:

"A witness is normally to be considered independent unless he or

she springs from sources which are likely to be tainted and that

usually means unless the witness has such as enmity against the

accused, to wish to implicate him falsely. Ordinarily, a close

relative would be the last to screen the real culprit and falsely

implicate an innocent person."

(emphasis added)

28.In Masalti Vs. State of U.P., AIR 1965 SC 202, Court said:

"Normally close relatives of the deceased would not be

considered to be interested witnesses."

29.In Hari Obula Reddi and others v. The State of Andhra

Pradesh, AIR 1981 SC 82, a three-Judge Bench of Supreme Court

has held:

"Evidence of interested witnesses is not necessarily unreliable

evidence. Even partisanship by itself is not a valid ground for

discrediting or rejecting sworn testimony. It cannot be laid down

as an invariable rule that interested evidence can never form the

basis of conviction unless corroborated to a material extent in

material particulars by independent evidence. All that is

necessary is that the evidence of interested witnesses should be

subjected to careful scrutiny and accepted with caution. If on

such scrutiny, the interested testimony is found to be intrinsically

reliable or inherently probable, it may, by itself, be sufficient, in

the circumstances of the particular case, to base a conviction

thereon."

(emphasis added)

30.In Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614 Court

has opined as under:-

"A close relative who is a natural witness cannot be regarded as

an interested witness, for the term ''interested' postulates that the

witness must have some interest in having the accused, somehow

or the other, convicted for some animus or for some other

reason."

(emphasis added)

31.In Pulicherla Nagaraju alias Nagraja Reddy Vs. State of

15

Andhra Pradesh, AIR 2006 SC 3010, Court has observed as follows:

"It is well settled that evidence of a witness cannot be discarded

merely on the ground that he is either partisan or interested or

close relative to the deceased, if it is otherwise found to be

trustworthy and credible. The said evidence only requires scrutiny

with more care and caution, so that neither the guilty escapes nor

the innocent is wrongly convicted. If on such careful scrutiny, the

evidence is found to be reliable and probable, then it can be acted

upon."

(emphasis added)

32.In Harivadan Babubhai Patel vs. State of Gujarat (2013) 7

SCC 45, Court observed as under:-

"In view of our aforesaid analysis, we are unable to accept the

submission of the learned counsel for the appellant that the

evidence of the eye witnesses should be rejected solely on the

ground that they are close relatives and interested witnesses."

33.Oral and ocular testimony of PW-1 is supported by PW-2, who

is not an eye witness to the incident himself but he corroborates other

facts that PW-1 after attack upon her husband (Dinesh) by Rajesh,

came back to residence of Bua and Fufa and told them about incident

and thereafter Fufa of deceased alongwith his two sons and younger

brother of deceased, went to the place of incident and found Dinesh,

dead. His dead body was lying at site of incident. Statement of PW-2,

therefore, is corroborating statement in respect of other facts i.e. first

narration of incident by Informant to PW-2 and other persons at his

residence and thereafter their visit to place of incident and finding

dead body of Dinesh.

34.PW-2 has said that not real but in relation, he is Fufa of

deceased Dinesh. One Manglu, who, in relation, is brother-in-law of

PW-2, was married in family of Dinesh and from that relation, he

became Fufa of Dinesh. At the time when incident took place, his wife

Dayawati was ill. Deceased and his wife came to see her around 4-

4:30 PM, in evening, whereafter deceased left his wife at residence of

PW-2 and himself went to do his work of rickshaw pulling. He came

back in the night around 9:30-10:00 PM to take his wife and at around

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10:45 PM, they both walked towards their house. After 15 to 20

minutes, PW-1, Laxmi came back. She was frightened. She told that

Rajesh has murdered Dinesh by knife near Water Tank. Thereupon,

PW-2 and other family members went to the place of incident and

found Dinesh lying dead and Rajesh was not present on the spot.

Thereafter, PW-1, Laxmi, wife of deceased, lodged report in Police

Station and Police came and prepared Panchayatnama in presence of

PW-2. He also signed Panchayatnama and proved said document

which was marked as Exhibit Ka-2. In cross-examination, PW-2

stated that he was residing in House No.114, Sector 3, Shashtri Nagar,

Meerut. At the time of incident also, he was residing at the same

address. His wife was ill at that time. His family comprised of his

sons, namely, Subhas and Kiran Pal, their wives and wife of PW-2. All

were residing with PW-2 in the said house. His wife remained ill for

about 5 years and more but exact disease could not be diagnosed.

Dinesh, at the time of incident, was residing in Sector 4, Shashtri

Nagar. He was 5 brothers. Dinesh used to reside alone and his other

brothers were residing at some other places, not known to him. Dinesh

never took wife of PW-2 to any doctor for treatment. Dinesh was

earning livelihood by pulling rickshaw. On the date of incident,

Dinesh and his wife had come to see wife of PW-2 and no other

relative of PW-2 had come on that date. Laxmi, PW-1 came to the

house of PW-2 on date of incident at around 4:00 PM and went in

night. PW-2 was working as Tubewell Operator in Nagar Nigam.

Tubewell was in Sector 2, Shashtri Nagar. On the date of incident,

PW-2 had not gone on duty and was present at his residence. In the

night, Dinesh alone came to take his wife and stayed for about half an

hour. He came about 10-10:15 PM, in night. He came on foot. After

Dinesh and his wife left residence of PW-2, he ,i.e., PW-2 and his

family had not gone to sleep. Question of sleeping does not arise since

Laxmi came with information of incident just within 15 to 20 minutes.

17

She came alone. When she came, both sons and their wives, PW-2

and Lokesh were present. Lokesh had come to house of PW-2 in the

night at around 9:30 PM. On the date of incident, Lokesh and Dinesh

had met at residence of PW-2. After information given by PW-1 about

incident, PW-2, his two sons and Lokesh, all went to the place of

incident and saw dead body of Dinesh. He has also proved

Panchayatnama and in cross-examination, has clarified that Police

came to place of incident during his presence and prepared

Panchayatnama whereupon he had also signed. He has also stated that

street light was present at the place of incident and light was glowing.

This part also fortifies statement of PW-1 regarding presence of light

in the manner stated by PW-1. Suggestion made on behalf of defence

that Laxmi, PW-1 and Lokesh were having illicit relations and

therefore, may have caused murder of Dinesh has been specifically

denied by him. In fact in long cross-examination, defence has

completely failed to make out any material contradiction or

inconsistencies or otherwise fact to discredit statement of PW-2 which

supports that part of deposition of PW-1 that she had gone to

residence of PW-2 to see his ailing wife, came back around 10:45 or

11:00 PM from his house and within 15 to 20 minutes, entire incident

took place and she went back, gave information to PW-2 and then

PW-2 and other family members came to place of incident and found

dead body of deceased lying on place of incident in respect whereto

Panchayatnama was also prepared. Therefore, we find that statement

of PW-2 in this regard, is also clear and trustworthy.

35.Amongst the remaining witness, who are formal, we find that

witnesses, who themselves had some information in connection with

incident, are PW-3, PW-4, PW-5, PW-6 and PW-7. Reason being that

incident took place on 28.01.2002 but accused was arrested on

05.12.2011, charge was framed on 18.08.2012 and trial commenced

thereafter. There was a gap of about 10 to 12 years from date of

18

incident and time when witnesses were examined. On account of this

lapse of long time, some dates have been given wrongly by some

witnesses.

36.PW-3, S.I. Pooran Singh was posted as Station House Officer in

Police Station Nauchandi on 07.05.2002. He took over investigation

of case from earlier Investigating Officer, Ajay Kumar, Sub-Inspector.

He deposed that he tried to find out accused on various dates but when

failed, submitted final report. In cross-examination, he admitted of

having not visited spot and said that it must have been done by earlier

investigating officer. He has also not taken any statement. He said that

he only made investigation by searching out accused but when failed

to do so, submitted final report. He did not make any investigation

with respect to said incident.

37.PW-4, S.I. Mahipal Singh, Police Officer, who alongiwth

Investigating Officer, Alka Singh and other Police Officers arrested

accused on 05.12.2011, has proved this fact. He was posted as Sub-

Inspector in Police Station Nauchandi on 30.11.2011. Due to non

arrest of accused, earlier Investigating Officer, Pooran Singh Chauhan

had submitted final report. But, on 30.11.2011 Informant gave a tehrir

that accused Rajesh was residing near Maliyana Gate, Meerut and

pulling rickshaw. Thereafter, PW-4 took permission from Court to

proceed with investigation and on 05.12.2011, arrested accused-

appellant near Shashtri Nagar Crossing. Accused was identified by

Jitendra Saini, brother of deceased. Information given by Informant

regarding presence of accused at Meerut, was proved by PW-4 and it

was marked as Exhibit Ka-3. In cross-examination, he has also said

that after arrest, accused told that knife by which he committed

murder of Dinesh, was thrown by him in Sector 3 near Tubewell

whereupon PW-4 alongwith accused came to the said place and made

attempt to find out weapon of murder but since it was 10 years old

incident, there was no chance of recovery and it could not be

19

recovered. On the aspect of arrest though lot of cross-examination has

been made but we do not find any substantial material extracted by

defence to discredit this part of statement of PW-4.

38.PW-5, Dr. R.K. Gupta, posted as Medical Officer in mortuary of

Medical College, conducted post-mortem on 29.01.2002 at 4:00 PM.

He has noted injuries on dead body as we have already noticed. He

said that all the three injuries could have been possibly caused due to

a sharp edged weapon like knife and death could have taken place at

around 11:00 in the night on 28.01.2002. In a short cross-examination,

he said that his duty commenced at 8:00 AM in the morning on

28.01.2002 and injury also could have been possibly sustained in the

morning at 7:00 AM on 29.01.2002. He also said that Investigating

Officer did not record his statement.

39.PW-6, S.I. Arun Kumar Chauhan is the Officer who was posted

as Police Station (Incharge) of Police Station, Nauchandi, on

29.01.2002 and commenced investigation himself. He has proved site

plan which is marked as Exhibit Ka-5 and also Panchayatnama which

was prepared under his direction by S.I. Manish Kumar Sharma and

marked as Exhibit Ka-2. He has also proved other documents which

were marked as Exhibit Ka-6 to Ka-11. He was transferred

subsequently and therefore could not continue with investigation.

F.I.R. was registered by Constable Ram Bahadur Singh but he had

died and since he was posted with PW-6, he identified his signatures

on documents i.e. Chik and Carban G.D. which are marked as Exhibit

Ka-12 and Ka-13. In the cross-examination, he admitted that in site

plan, he has not mentioned name of accused. When he reached the

spot of incident, Informant and Rampal were present thereat. Other

persons were also present. He did not enquire about their details.

Informant did not tell about knife attack on the chest of deceased but

told that road side electric pole was glowing. He recorded statement of

Informant and her relative during investigation but made no inquiry

20

from residents of houses, near the place of incident.

40.Thus Investigating Officer proved place of incident and other

documents and no material fact otherwise could have been extracted

in cross-examination. Mere fact that some other persons were not

enquired or investigated may show some laxity in investigation but

would not discredit the witness concerned in respect of documents he

has proved and in particular, the manner in which he conducted

investigation.

41.PW-7, Smt. Alka Singh, was a Police Officer posted at

Nauchandi Police Station. On 05.12.2011, she took over investigation

of matter from earlier Investigating Officer, Mahipal Singh. During

checking, she arrested accused. She also submitted charge-sheet and

proved it which is marked as Exhibit Ka-14. Accused was arrested at

10:30 in the morning at a public place but she did not record

statement of any member of public. She is the witness in respect of

arrest of accused and submission of charge-sheet on the basis of

material collected by earlier Investigating Officer. On this aspect, we

find nothing material which could be extracted by defence in cross-

examination.

42.Above discussion of evidence on record, in our view, proves

following facts:

(1) Deceased and Informant, PW-1 were residing in Sector

4, Shashtri Nagar while Fufa and Bua (in relation, not real)

of deceased, were residing in House No.114, Sector 3,

Shashtri Nagar, Meerut.

(2) Husband of Informant as also accused-appellant were

rickshaw pullers.

(3) Accused-appellant alongwith his brother had stayed for

about 2 months at the residence of deceased and

Informant. They were turned out by deceased when some

altercation took place between accused and his brother

21

with deceased and thereupon, accused had threatened

deceased that he will see him later.

(4) On 28.01.2002 around 4-4:30 PM, Informant came to

residence of Bua and Fufa in Sector 3 to see ailing Bua i.e.

wife of PW-2.

(5) In the night, around 9-9:30, Lokesh, youngest brother

of deceased also came to residence of PW-2. Two sons of

PW-2 and their wives were also present in his house.

(6) Deceased came to house of PW-2 at around 10:00-

10.30, in the night, to take Informant to their residence and

stayed for about half an hour and at around 10:45-11:00

PM, left residence of PW-2 and proceeded towards their

own residence. Distance between houses of deceased and

PW-2 was just 15 minutes by walk.

(7) When couple i.e. deceased and Informant reached near

Water Tank in Sector 3, from behind bushes standing on

road side, Rajesh came out and attacked upon neck and

chest of Informant’s husband who fell on the ground.

(8) Informant tried to save her husband but accused pushed

her away. Then she raised alarm whereupon accused run

towards her alongwith knife. Informant running came back

to residence of PW-2. Accused chased her for a short while

and thereafter left.

(9) On information given by Informant to PW-2, he, his

two sons and Lokesh alongwith Informant reached place

of incident and found dead body of deceased lying on spot.

(10) Manner of injuries caused by accused-appellant upon

person of Dinesh by knife on chest and neck, is duly

fortified by injuries reported in post-mortem report.

(11) Dead body of deceased was recovered by police from

the place of incident and Panchayatnama was also

22

prepared within about two and half hours from the time of

incident. This has been proved by PW-2 and PW-6.

(12) Though, a suggestion was made by defence that there

was illicit relations between Informant- (PW-1) and

youngest brother of deceased i.e. Lokesh but it has been

denied by PW-1 and PW-2 both, who are witnesses of fact

and in defence, no evidence has been adduced by appellant

to prove the said defence. Therefore, the defence has no

substance. It has rightly been rejected by Court below as is

evident from the findings recorded in paragraph 20 of

judgment under appeal.

43.These facts collectively show and leave no manner of doubt that

it is only appellant, who has committed murder of deceased in the

manner as stated in F.I.R. and oral and ocular testimony of PW-1

which is duly fortified by PW-2 and PW-5. The submission that only

witness of crime is PW-1 and her statement is not corroborated by

anyone and therefore only on her statement, conviction of appellant is

not justified has no legs to stand for the reason that in criminal trial, it

is not the a number which counts but the quality of evidence which is

material. Even solitary witness, if otherwise trustworthy, is sufficient

and can be relied for conviction.

44.It is now well settled that it is quality and not the quantity of

witnesses, which is important. Time honoured principle is that the

evidence has to be weighed and not to be counted. The test is whether

evidence has a ring of truth, cogent, credible and trustworthy or

otherwise.

45.In Namdev Vs. State of Maharashtra (2007) 14 SCC 150,

Court has said:

"Our legal system has always laid emphasis on value, weight

and quality of evidence rather than on quantity, multiplicity or

plurality of witnesses. It is, therefore, open to a competent

court to fully and completely rely on a solitary witness and

record conviction. Conversely, it may acquit the accused in

23

spite of testimony of several witnesses if it is not satisfied

about the quality of evidence."

46.Further in Veer Singh & Ors. Vs. State of U.P.; 2014 (84)

ACC 681, Court said:

“legal system has laid emphasis on value, weight and quality

of evidence, rather than on quantity, multiplicity, or plurality

of witnesses. It is not the number of witnesses, but quality of

their evidence, which is important. As there is no requirement

under the law of evidence that particular number of witness is

to be examined to prove / disprove a fact. Evidence must be

weighed and not counted. It is quality and not quantity, which

determines. The adequacy of evidence as has been

propounded under Section 134 of Evidence Act. As a general

rule, Court can and may act on the testimony of a single

witness, provided he is wholly reliable. Testimony of witness,

cogent, credible and trustworthy having ring of truth, deserves

its acceptance.”

47.Therefore, the submission that on solitary statement of PW-1

who is only witness of incident and that too relative of deceased,

accused-appellant should not have been convicted, has no force and is

rejected.

48.Further submission that investigation has not been done

carefully inasmuch as persons residing in houses near place of

incident, have not been examined; Police made no sincere effort to

find out weapon of murder; PW-2 could not prove his presence at his

residence on the date of incident and therefore, investigation is faulty,

also have no force. It is true that investigation has not been conducted

in a more systematic and planned manner but these aspects are not

material when there is an ocular testimony to prove crime committed

by appellant and it is duly proved by other evidences i.e. post-mortem

report and another witnesses of fact. Any minor lapse in investigation

will not help accused.

49. As regards omissions, contradictions and laches on the part of

Investigating Officer, it has been repeatedly held by Apex Court that a

defective investigation cannot be fatal to prosecution where ocular

testimony is found credible and cogent. In State of Karnataka Vs.

24

Suvarnamma, (2015) 1 SCC 323, Apex Court in para 11 held as

under:

“It is also well settled that though the investigating agency is

expected to be fair and efficient, any lapse on its part cannot

per se be a ground to throw out the prosecution case when

there is overwhelming evidence to prove the offence.”

50.Similar view has also been taken by Apex Court in Hema Vs.

State, 2013 (81) ACC 1 (SC) (Three Judge Bench) and C.

Muniappan Vs. State of TN, 2010 (6) SCJ 822.

51.The above authorities makes it very clear that any lapse on the

part of Investigating Agency per se cannot be a ground to throw

prosecution case ignoring overwhelming credible and trustworthy

evidence sufficient to prove the guilt of accused. Thus the above

argument is rejected.

52.The last submission is that there are contradictions in the

statement of witnesses.

53.We have gone through the entire evidence very carefully, as

have also discussed above, and find no material contradiction, so as to

disbelieve the prosecution case or the individual witness. Minor

contradictions are bound to occur but the same will not be fatal to

prosecution who has otherwise produced trustworthy witness to prove

the guilt of accused.

54. In Sampath Kumar v. Inspector of Police, Krishnagiri,

(2012) 4 SCC 124, Court has held that minor contradictions are bound

to appear in the statements of truthful witnesses as memory sometimes

plays false and sense of observation differs from person to person.

55. In Sachin Kumar Singhraha v. State of Madhya Pradesh in

Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019,

Supreme Court has observed that Court will have to evaluate evidence

before it keeping in mind the rustic nature of depositions of the

villagers, who may not depose about exact geographical locations

with mathematical precision. Discrepancies of this nature which do

not go to the root of the matter do not obliterate otherwise acceptable

25

evidence. It need not be stated that it is by now well settled that minor

variations should not be taken into consideration while assessing the

reliability of witness testimony and the consistency of the prosecution

version as a whole.

56. Lest we forget that no prosecution case is foolproof and the

same is bound to suffer from some lacuna or the other. It is only when

such lacunae are on material aspects going to the root of the matter, it

may have bearing on the outcome of the case, else such shortcomings

are to be ignored. Reference may be made to a recent decision in Smt.

Shamim v. State of (GNCT of Delhi), 2018(10) SCC 509.

57. When such incident takes place, one cannot expect a scripted

version from witnesses to show as to what actually happened and in

what manner it had happened. Such minor details normally are neither

noticed nor remembered by people since they are in fury of incident

and apprehensive of what may happen in future. A witness is not

expected to recreate a scene as if it was shot after with a scripted

version but what material thing has happened that is only noticed or

remembered by people and that is stated in evidence. Court has to see

whether in broad narration given by witnesses, if there is any material

contradiction so as to render evidence so self contradictory as to make

it untrustworthy. Minor variation or such omissions which do not

otherwise affect trustworthiness of evidence, which is broadly

consistent in statement of witnesses, is of no legal consequence and

cannot defeat prosecution.

58. In all criminal cases, normal discrepancies are bound to occur in

the depositions of witnesses due to normal errors of observations,

namely, errors of memory due to lapse of time or due to mental

disposition such as shock and horror at the time of occurrence. Where

the omissions amount to a contradiction, creating a serious doubt

about truthfulness of the witness and other witnesses also make

26

material improvement while deposing in the court, such evidence

cannot be safe to rely upon. However, minor contradictions,

inconsistencies, embellishments or improvements on trivial matters

which do not affect the core of the prosecution case, should not be

made a ground on which the evidence can be rejected in its entirety.

Court has to form its opinion about the credibility of witness and

record a finding, whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle, but can be one

of the factors to test credibility of the prosecution version, when entire

evidence is put in a crucible for being tested on the touchstone of

credibility. Therefore, mere marginal variations in the statement of a

witnesses cannot be dubbed as improvements as the same may be

elaborations of the statements made by the witnesses earlier. Only

such omissions which amount to contradictions in material particulars

i.e. go to the root of the case/materially affect the trial or core of the

prosecution's case, render the testimony of the witness liable to be

discredited. [Vide: State Represented by Inspector of Police v.

Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR

2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh,

(2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta &

Ors. v. State of Maharashtra, JT 2010 (12) SC 287].

59. Thus after analysing entire evidence with the settled principle of

law as discussed above, we are of the view that contradiction pointed

out are not fatal to prosecution case and do not affect the veracity of

prosecution witnesses therefore, above arguments also have no

substance.

60.In view of above discussion, we are satisfied that prosecution

has succeeded to prove that accused-appellant has committed murder

of Dinesh on the date, time and place and the manner, as stated in

F.I.R. as also oral deposition of PW-1, and the guilt having been

proved beyond reasonable doubt, appellant has rightly been convicted

27

for offence under Section 302 I.P.C.

61. So far as sentence is concerned, it is always a difficult task

requiring balancing of various considerations. The question of

awarding sentence is a matter of discretion to be exercised on

consideration of circumstances aggravating and mitigating in the

individual cases.

62. It is settled legal position that appropriate sentence should be

awarded after giving due consideration to the facts and circumstances

of each case, nature of offence and the manner in which it was

executed or committed. It is obligation of court to constantly remind

itself that right of victim, and be it said, on certain occasions person

aggrieved as well as society at large can be victims, never be

marginalized. The measure of punishment should be proportionate to

gravity of offence. Object of sentencing should be to protect society

and to deter the criminal in achieving avowed object of law. Further, it

is expected that courts would operate the sentencing system so as to

impose such sentence which reflects conscience of society and

sentencing process has to be stern where it should be. The court will

be failing in its duty if appropriate punishment is not awarded for a

crime which has been committed not only against individual victim

but also against society to which criminal and victim belong.

Punishment to be awarded for a crime must not be irrelevant but it

should conform to and be consistent with the atrocity and brutality

which the crime has been perpetrated, enormity of crime warranting

public abhorrence and it should 'respond to the society's cry for justice

against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and

others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC

731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of

Rajasthan, (1996) 2 SCC 175].

63. In view of above propositions of law, the paramount principle

that should be the guiding laser beam is that punishment should be

28

proportionate to gravity of offence.

64. Hence, applying the principles laid down by Supreme Court in

the aforesaid judgments and having regard to the totality of facts and

circumstances of case, nature of offence and the manner in which it

was executed or committed in the case in hand, we are clearly of the

view that punishment imposed upon accused-appellants is

proportionate to gravity of offence and, therefore, impugned judgment

of Court below does not deserve to be interfered on this score also.

65. In the result, appeal is dismissed. Impugned judgment and

order dated 31.05.2013 passed by Sri Ajay Kumar, Additional District

and Sessions Judge, Court No. 16, Meerut convicting Appellant-

Rajesh, under Sections 302 IPC is hereby confirmed/affirmed.

66. Copy of this order along with lower Court record be sent to

Court concerned forthwith.

67. A copy of this order be also sent to Appellant through

concerned Jail Superintendent.

68.Sri Saurabh Sachan, learned Amicus Curiae has assisted the

Court very diligently. We provide that he shall be paid counsel's fee as

Rs.11,000/-. State Government is directed to ensure payment of

aforesaid fee through Additional Legal Remembrancer posted in the

office of Advocate General at Allahabad to Sri Saurabh Sachan,

Amicus Curiae, without any delay and, in any case, within 15 days

from the date of receipt of copy of this judgment.

Order Date :20.09.2019

Vivek Kr.