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AFR

Reserved on: 15.10.2019

Delivered on: 24.10.2019

CRIMINAL APPEAL No. 238 of 1988

1.Ram Naresh

2.Kunwar ---------Appellants

Vs

State of Uttar Pradesh ---------Respondent

WITH

CRIMINAL APPEAL No. 260 of 1988

1.Rajendra

2.Basant Lal } (dead)

3.Dangar } (dead)

4.Nirju ---------Appellants

Vs

State of Uttar Pradesh ---------Respondent

___________________________________________________________

For Appellants : Sri Sangam Lal Kesharwani, Sri B.D.

Nishad, Sri Rajesh Kishore Srivastava,

Advocates.

For Respondent/State: Sri J.K. Upadhyay, AGA

___________________________________________________________

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Raj Beer Singh, J.

1.These criminal appeals have been preferred against the common

judgment and order dated 28.01.1988 passed by the Sessions Judge,

Mirzapur in Sessions Trial No. 240 of 1986 (State vs. Kunwar & five

Ors), under Sections 148 and 302/149 of Indian Penal Code and Sections

3/4/5 Explosive Substances Act, P.S. Kotwali Dehat, District Mirzapur,

whereby accused-appellants namely, Kunwar, Ram Naresh, Nirju, Dangar,

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Basant Lal and Rajendra have been convicted under Sections 148 and

302/149 of IPC and sentenced to imprisonment for life under Section

302/149 of IPC and two years rigorous imprisonment under Section 148

of IPC. Accused appellant Kunwar was further convicted under Section 3

of Explosive Substance Act and sentenced to three years rigorous

implication along with fine of Rs. 500. All the sentences were directed to

run concurrently.

2.Accused-appellants Basant Lal and Dangar have expired during

pendency of appeal, thus, appeal in their respect stands abated.

3.According to prosecution case, on account of some previous

litigation, accused Basant Lal and Nirju etc. were having enmity with

family of complainant Mishrilal (PW-1). It is alleged that on 14.05.1986

deceased Munnar, who was brother of complainant, had gone to river to

collect sand, while complainant (PW-1), his brother Lal Chand, one Shiv

Dhari and Mason Shitla Prasad (PW-3) were present in southern side of

complainant's house and were waiting for Munnar, as some construction

was going on in the house of complainant. At around 8:30 a.m. when

deceased Munnar was carrying sand on his bicycle, they heard noise and

commotion and saw that accused-appellants Kunwar, Ram Naresh, Nirju,

Dangar, Basant Lal and Rajendra were making exhortation to kill

deceased. Deceased Munnar left his bicycle and ran towards western side

but accused Kunwar thrown a bomb, which burst near him. Thereafter, all

the six accused persons encircled Munnar near land of Basant Lal and

started assaulting him with barcha (spears). Complainant and his above

stated companion ran to save deceased but accused persons threatened to

kill them too. Thereafter, all the accused persons ran away towards

northern side. Complainant and his companion went near Munnar and

found that he has died due to injuries.

4.Complainant Mishri Lal reported the matter to police by submitting

written complaint Ex. Ka-1 and on that basis case was registered under

Sections 147, 148, 149, 302 of IPC and Sections 3/4/5 of Explosive

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Substances Act against all the six accused persons on 14.05.1986 at 10:30

hours vide first information report Ex. Ka-8.

5.Inquest proceedings regarding death of the deceased were

conducted by Vinay Chandra Shukla (PW-5) and the dead body of

deceased was sealed and sent for postmortem.

6.The postmortem on the dead body of deceased Munnar was

conducted by PW-6 Dr. P.K. Verma vide postmortem report Ex. Ka-17

and following injuries were found on the person of the deceased:

“(i) Incised wound 2 cm x 1 cm x scalp deep just above right

ear.

(ii) Abrasion in an area of 2 cm x 2 cm just above left eye.

(iii) Stabbed wound 3 cm x 1 cm muscle deep on the right side

of neck.

(iv) Stabbed wound 2 cm x 1 cm x bone deep on the left side

of neck 3 cm below left ear.

(v) Punctured wound 3 cm x 2.5 cm x shoulder joint cavity

deep on the top of right shoulder.

(vi) Incised wound 3 cm x 2 cm x muscle deep on the outer

aspect of right upper arm 5 cm above elbow.

(vii) Incised wound 3 cm x 2 cm x muscle deep on the back of

right shoulder joint.

(viii) Incised wound 2.5 cm x 1.5 cm x muscle deep on the

inner aspect of right arm 10 cm above elbow.

(ix) Abrasion on the outer aspect of right elbow.

(x) Contusion in an area of 2 cm x 1 cm on the outer aspect of

left arm.

(xi) Lacerated wound 3 cm x 2 cm x muscle deep on the

dorsum of left hand.

(xii) Punctured wound 2 cm x 1 cm on the cavity deep just

above sternum.

(xiii) Punctured wound 2 cm x 1 cm x cavity deep on the

chest.

(xiv) Punctured wound 4 cm x 3 cm x chest cavity deep 7 cm

below and to the right left nipple.

(xv) Punctured wound 3 cm x 2 cm x cavity deep on the right

side of chest 8 cm below armpit (axilla).

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(xvi) Punctured wound 2.5 cm x 1 cm x cavity deep 4 cm

below to injury no.15.

(xvii) Punctured wound 1 cm x 1 cm x abdominal cavity deep

just below cartilage on the right side.

(xviii) Punctured wound 1.5 cm x 1 cm x abdominal cavity

deep 3 cm below and to the right of injury no.17.

(xix) Incised wound 2 cm x 1 cm x muscle deep 3 cm below to

injury no.18.

(xx) Lacerated wound 1 cm x 1 cm x muscle deep on left side.

(xxi) Incised wound 1.5 cm x 1 cm x muscle deep in post of

left thigh 10 cm below injury no.20.

(xxii) Punctured wound 3 cm x 2 cm x cavity deep on the back

of the chest just below right scapula bone.

(xxiii) Punctured wound 3 cm x 2.5 cm x cavity deep 10 cm

below injury no.22.

(xxiv) Punctured wound 3.5 cm x 2 cm x cavity deep just

adjacent to injury no.23.

(xxv)Punctured wound 3 cm x 2 cm x cavity deep, 1 cm away

from injury no.24.

(xxvi)Punctured wound on the right side of chest 3 cm x 2 cm

cavity deep 5 cm below and to the right of injury no.25.

As per Autopsy Surgeon, the cause of death of thedeceased was

shock and hemorrhage as a result of ante-mortem injuries.

7.Investigation was taken up by Vinay Chandra Shukla (PW-5) and

further investigation was conducted by (PW-4) Ziv Bodhan Rai. After

completion of investigation, all the six accused persons were charge-

sheeted.

8.Learned trial Court has framed charges under Sections 148,

302/149 of IPC against accused-appellants Ram Naresh, Nirju, Dangar,

Basant Lal and Rajendra. Accused Kunwar was charged under Section

3/4/5 Explosive Substances Act and under Sections 148, 302/149 of IPC.

They pleaded not guilty and claimed trial.

9.In order to bring home the guilt of accused-appellants, prosecution

has examined seven witnesses. After prosecution evidence, accused

persons were examined under Section 313 of Cr.P.C., wherein, they have

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denied the prosecution evidence and claimed false implication. In defence

accused persons have examined six defence witnesses.

10.After hearing and analyzing the evidence on record, learned trial

court convicted accused-appellants Ram Naresh, Nirju, Rajendra and

Kunwar under Sections 148, 302/149 of IPC and accused Kunwar was

further convicted under Section 3 of Explosive Substances Act vide

impugned judgment and order dated 28.01.1988 and sentenced as stated

in paragraph no.1 of the judgment.

11.Being aggrieved by their conviction and sentence, accused

appellants Ram Naresh, Kunwar have preferred Criminal Appeal No. 238

of 1988 and accused-appellants Nirju, Dangar, Basant Lal and Rajendra

have preferred Criminal Appeal No. 260 of 1988. Dangar and Basant Lal

have expired during pendency of appeal.

12.Heard Sri Sangam Lal Kesharwani, Sri B.D. Nishad, Sri Rajesh

Kishore Srivastava, learned counsel for the appellants and Sri J.K.

Upadhyay, learned A.G.A. for the State and perused the record.

13. Learned counsel for the appellants submitted:

(i) that PW-1 Mishri Lal and PW-2 Kanhaiya Lal are

interested witnesses and their presence at the spot is

highly doubtful. Presence of PW-3 Shitla Prasad is also

doubtful. It was submitted that as per prosecution

version, PW-3 Shitla Prasad was working as mason at

the house of complainant and the incident took place at

8:30 a.m. while generally mason do not turn up for work

before 9:30 to 10:00 am.

(ii)that first information report is ante-timed. It was pointed

out that in inquest report, no section of Explosive Act

was mentioned, which indicate that by that time first

information report was not in existence.

(iii)that ocular testimony is not consistent with medical

evidence. It was submitted that deceased has sustained

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incised wounds, stabbed wounds, punctured wounds,

lacerated wounds and abrasions and all these injuries

were not possible by only one type of weapon.

(iv)that there are material contradictions and discrepancies

in prosecution case. The conduct of PW-1, PW-2 and

PW-3 is not natural as they did not try to saw the

deceased. Further, as per prosecution, deceased has

fallen in ‘Kyari’ of Basant Lal but there is no evidence

that he sustained any mud. It has come in evidence that

two constables were on patrolling duty and they have

reached at spot but they were not examined.

(v)that defence evidence led by accused persons shows that

accused-appellant Ram Naresh was working as Clerk of

one Gyanendra Prasad Chaubey, Advocate at Mirzapur

and at the time of alleged incident, he was present at the

seat of Advocate at Mirzapur. Similarly, accused

Kunwar was also working as Clerk of one Prem Nath

Gupta at Mirzapur while accused Rajendra was working

as Typist in the Collectorate, Mirzapur and, at the time

of incident, these three accused persons were present in

Court campus at Mirzapur.

14.Per contra, it has been submitted by the learned State Counsel that

all the three eye-witnesses have made clear and consistent statemnets

regarding involvement of all the accused appellants. FIR has been lodged

by PW-1 Mishri Lal, without any undue delay, naming all the accused-

appellants. All these witnesses have subjected to cross-examination, but

they remained stick to prosecution version and no such fact could emerge

so as to doubt their presence at the spot or to affect their testimony. The

trial court has appreciated whole evidence in accordance with law and the

accused appellants have rightly been convicted.

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15.We have considered the rival submissions and perused the record.

16.PW-1 Mishri Lal is complainant of the case. He has stated that all

the accused persons were known to him. One year prior to the incident,

brother of Ram Naresh, namely, Shyam Naresh was murdered, in which

complainant’s brother Munnar (deceased), Chote Lal, Tikori Lal,

Markandey and Mool Chand were accused but in that case they were

acquitted. Due to this, the accused-appellants and deceased-accused were

nurturing enmity against family of complainant (PW-1) Mishri Lal and

even the proceedings under Sections 107 and 116 Cr.P.C. were also

initiated between the parties. On the day of incident, at about 8:30 a.m.

his brother Munnar (deceased) has gone to river by bicycle to bring sand

as some construction was going on at their house. While Munnar was

bringing two bags of sand on bicycle and reached near grove and PW-1

Mishri Lal and others were sitting near their house, they saw that accused

Ram Naresh, Nirju, Rajendra and deceased accused Basant Lal and

Dangar made exhortation to kill Munnar. Accused-appellant Kunwar was

having bomb in a bag while remaining five accused persons were having

spears. Munnar left his bicycle there and ran towards western side but

accused-appellant Kunwar has thrown a bomb, which has fallen near

Munnar. Thereafter, all the accused persons encircled Munnar near field

of Basant Lal and assaulted him with spears. Munnar fell down but even

then accused persons continued to assault him. PW-1 and others ran to

save Munnar but accused Kunwar took out a bomb and threatened that if

they tried to save the deceased, he would kill them too. After that accused

persons ran away towards northern side. When PW-1 Mishri Lal and his

companion reached there, deceased has died due to injuries. Thereafter,

PW-1 has reported the matter to the police by submitting written

complaint Ex. Ka-1.

17.PW-2 Kanhaiya Lal, stated that there was enmity between Munnar

and accused persons. Earlier, brother of accused Ram Naresh was

murdered, in which Munnar, Mishri and others were accused. On the day

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of incident at 8:30 a.m., he (PW-2) was going to western side from

village to attend call of nature and while he was returning back, he heard

commotion and voice of bomb. He (PW-2) ran towards the field of Basant

Lal and saw that Munnar was lying in land of Basant Lal and accused-

appellants Nirju, Ram Naresh, Rajendra and deceased accused Basant Lal

and Dangar were assaulting him with spears (barchi). Shiv Dhari, Lal

Chand, Mishri Lal and Shitla came to save Munnar but accused Kunwar

took out a bomb from his bag and threatened that if they proceeded

further, he would kill them. After murdering Munnar, accused persons ran

towards northern side.

18.PW-3 Shitla Prasad stated that on the day of incident he was

working as mason at the house of complainant since last 2-3 days. On the

day of incident at 8:30 a.m. he was sitting with Lal Chand, Shiv Dhari

and Mishri Lal in southern side of the house of the deceased and deceased

Munnar has gone to bring sand. Suddenly, they heard noise and saw that

accused-appellants Ram Naresh, Nirju and Rajendra along with deceased

accused Dangar and Basant Lal having spears, while Kunwar having a

bag ran to kill Munnar. Munnar left his bicycle and started running, but

accused persons chased him and accused-appellant Kunwar has thrown a

bomb towards Munnar which burst near him. They encircled Munnar in

the land of Basant Lal and started assaulting him. PW-2 Kanhaiya Lal and

his companion including PW-1 Mishri Lal, ran to save him but accused

Kunwar took out a bomb from his bag and threatened that if they

proceeded further, he would kill them. Munnar fell down but accused

persons continued to assault him and after murdering him, they have

made blood inoculated on their forehead.

19.PW-5 S.I. Vinay Chandra Shukla, conducted investigation of the

case. He has also prepared site plan Ex. Ka.15. PW-4 Inspector Ziv

Bodhan Rai has conducted further investigation and has filed charge-

sheet.

20.PW-6 Dr. P.K. Verma has conducted postmortem on the dead body

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of the deceased.

21.PW-7 Constable Subhash Kumar Tiwari took the dead body of the

deceased for postmortem.

22.In defence, DW-1 Gyanendra Prasad Chaubey, Advocate has stated

that accused Ram Naresh was working as his clerk since last 7-8 years

and on 14.05.1986, he remained present in Court since 6:00 a.m. to 6:00

p.m. and did his routine work.

23.DW-2 Prem Nath Gupta, Advocate, has stated that accused Kunwar

was working as his clerk since last five years and on 14.05.1986 he

remained present in Court from 6:00 a.m. to 6:00 p.m.

24.DW-3 Baghwan Das Sonekar, Advocate has stated that accused

Kunwar was working as clerk with Prem Nath Gupta, Advocate and on

14.5.1986 accused Kunwar has come to Court at 7:00 a.m. and did his

work. Similarly, accused Ram Naresh was also working as clerk and

remained present in Court compond.

25.DW-4 Kali Shankar Jaisawal stated that he is working as a typist in

Collectorate, Mirzapur since 18-19 years. Accused Rajendra is also

working as a typist and he used to sit near him. On 14.05.1986 accused

Rajendra has come to Court at 6/7 a.m. and worked there till 10/10:30

a.m.

26.DW-5 Harishchandra Tripathi, Advocate Collectorate Mirzapur, has

stated that he is working as Assistant of Sri Keshav Dutta Tripathi,

Advocate. Accused Rajendra is a typist and he used to sit in adjoining

seat of DW-5. On 14.05.1986 accused Rajendra reached at Collectorate at

6/6:30 a.m. and remained present there till 10/10:30 a.m.

27.DW-6 Chhangur Singh, Advocate, Collectorate Mirzapur, stated

that accused Ram Naresh is working as clerk of Gyanendra Chaubey,

Advocate, whereas accused Kunwar was working as clerk of Prem Nath

Gupta, Advocate. On 14.05.1986 at 6:00 a.m. he has found accused Ram

Naresh and Kunwar present at their respective seats and they did work

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there till 10:00 a.m.

28.So far the contention, that PW-1 Mishri Lal and PW-2 Kanhaiya

Lal are interested witnesses, is concerned, it is correct that PW-1 is

brother of deceased Munnar but mere relationship cannot be a factor to

doubt the testimony of a witness, which otherwise inspires confidence. It

is well settled that a natural witness may not be labelled as interested

witness. Interested witnesses are those who want to derive some benefit

out of the litigation/case. In case the circumstances reveal that a witness

was present on the scene of the occurrence and had witnessed the crime,

his deposition cannot be discarded merely on the ground of being closely

related to the victim. Generally close relations of the victim are unlikely

to falsely implicate anyone. Relationship is not sufficient to discredit a

witness unless there is motive to give false evidence to spear the real

culprit and falsely implicate an innocent person is alleged and proved. A

witness is interested only if he derives benefit from the result of the case

or as hostility to the accused. In case of State of Punjab Vs Hardam

Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Hon’ble Apex

Court that ordinarily the near relations of the deceased would not depose

falsely against innocent persons so as to allow the real culprit to escape

unpunished, rather the witness would always try to secure conviction of

real culprit. In case of Dilip Singh Vs State of Punjab, A.I.R. 1953, S.C.

364, it was held by the Hon’ble Supreme Court that the ground that the

witnesses being the close relatives and consequently being the partition

witness would not be relied upon has no substance. The contention about

branding the witnesses as interested witness and credibility of close

relationship of witnesses has been examined by Hon'ble Apex court in a

number of cases. A close relative, who is a very natural witness in the

circumstances of a case, cannot be regarded as an 'interested witness', as

held by the Hon'ble Supreme Court in Dalbir Kaur V. State of Punjab,

AIR 1977 SC 472. The mere fact that the witnesses were relations or

interested would not by itself be sufficient to discard their evidence

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straightway unless it is proved that their evidence suffers from serious

infirmities which raises considerable doubt in the mind of the court.

Similar view was taken in case of State of Gujrat v. Naginbhai Dhulabhai

Patel, AIR 1983 SC 839.

Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977

SC 2274 (1977) 4 SCC 452, the Apex Court held:

"It is well settled that the evidence of interested or inimical

witnesses is to be scrutinised with care but cannot be rejected

merely on the ground of being a partisan evidence. If on a

perusal of the evidence the Court is satisfied that the evidence

is creditworthy there is no bar in the Court relying on the said

evidence."

In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh,

(1981) 3 SCC 675, a three-judge Bench of the Court observed: "

“it is well settled that interested evidence is not

necessarily unreliable evidence. Even partisanship by itself is

not a valid ground for discrediting or rejecting sworn

testimony. Nor can it 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."

Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498,

the following observations were made by the Court:

"The requirement of law is that the testimony of inimical witnesses

has to be considered with caution. If otherwise the witnesses are true and

reliable their testimony cannot be thrown out on the threshold by

branding them as inimical witnesses. By now, it is well-settled principle

of law that enmity is a double- edged sword. It can be a ground for false

implication. It also can be a ground for assault. Therefore, a duty is cast

upon the court to examine the testimony of inimical witnesses with due

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caution and diligence."

A survey of the judicial pronouncements of the Hon'ble Apex Court

on this point leads to the inescapable conclusion that the evidence of a

closely related witnesses cannot be doubted on the ground that he is

related to deceased or complainant, however, evidence of such witnesse is

required to be carefully scrutinised and appreciated before any conclusion

is made to rest upon it, regarding the convict/accused in a given case.

Thus, the evidence cannot be disbelieved merely on the ground that the

witnesses are related to each other or to the deceased. In case the

evidence has a ring of truth to it, is cogent, credible and trustworthy, it

can, and certainly should, be relied upon. (See Anil Rai Vs. State of

Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC

456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206;

Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @

Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701;

Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298;

Jodhan Vs. State of M.P., (2015) 11 SCC 52).

29.In the instant case, it is apparent that alleged incident took place at

08.30 AM near house of PW-1 Mishri Lal and thus, at that time his

presence at his house or near his house is quite natural. Further, it is

consistent case of prosecution that at that time, some construction work

was going on in the house of PW-1 and deceased has gone to collect sand,

therefore, presence of PW-1 along with mason PW-3 Shitla Prasad is

quite probable. PW 1 has made clear and cogent statement and his version

is consistent with first information report, which was lodged without any

undue delay. The incident took place in broad day light and all the

accused persons were known to him since before the incident. There are

no grounds to believe that PW 1 would depose falsely against accused-

appellants, sparing the actual assailants of his brother. In view these facts,

testimony of PW 1 cannot be doubted on the ground that he is brother of

deceased.

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So far as PW-2 Kanhaiya Lal is concerned, there is nothing on

record to indicate that he is an interested witness or related to the

complainant or deceased. Though he admitted that witness Shiv Dhari is

his uncle, but this fact would not render him as an interested witness. A

suggestion was made to PW-2 Kanhaiya Lal that deceased Munnar was

his maternal brother but he has denied the same and stated that only by

distant relationship, deceased falls in the category of maternal brother. No

such fact could be pointed out in the cross examination of PW-2

Kanhaiya Lal so as to indicate that he is an interested or related witness.

He has consistently deposed that at the time of incident, he was coming

back after attending call of nature and after hearing commotion he

reached near spot and witnessed the incident. This witness has been

subjected to cross-examination, but no such fact could emerge so as to

doubt his presence at the spot.

Testimony of PW-3 Shitla Prasad has been mainly assailed on the

ground that his presence at the spot is doubtful as he is a resident of

another village and that generally mason do not turn up before 09.30-10

AM for work. In this connection it may be seen that it is consistent case

of prosecution as well as of PW-3 Shitla Prasad that he (PW-3) was

working as mason at the house of deceased since last 2-3 days. This fact

also finds support from the fact that at the time of incident deceased

Munnar has gone to river to bring sand, which was required for

construction work. The argument that generally mason do not turn up for

work before 9:30 a.m, cannot be accepted. It was the month of May and

in summer season, it is quite common in villages that mason or farmers

start their work early morning. PW-3 Shitla Prasad has been subjected to

lengthy cross-examination, but he remained stick to prosecution version

and no such fact could come out in his cross-examination so as to doubt

his presence at the spot.

30.Scrutiny of evidence shows that all the three eye-witnesses have

made clear and cogent statements. The version of PW-1 Mishri Lal has

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been amply corroborated by PW-2 Kanhaiya Lal and PW-3 Shitla Prasad.

A perusal of site plan Ex. Ka-15 shows that spot of incident shown as

point 'B' is clearly visible from the southern side of house of complainant

and deceased, from where these eye witnesses claim to have seen the

incident. It is consistent case of all the three eye-witnesses that they were

sitting in southern side of the house of deceased and have witnessed the

alleged incident which took place in field of Basant Lal. This version

finds corroboration form site plan of spot. As stated earlier, first

information report was lodged without any undue delay. Merely because

of some minor contradiction like, that PW-3 Shitla Prasad has stated that

after murdering the deceased, accused persons have made blood

inoculated on their forehead, while PW-1 Mishri Lal and PW-2 Kanhaiya

Lal have not made any such statements, would not render their testimony

doubtful. Such minor inconsistencies are bound to crept in every criminal

case. Similarly, the presence of these witnesses cannot be doubted on the

ground that they did not try to save the deceased. These witnesses have

seen the incident from some distance and when they tried to save him,

accused-appellant Kunwar has threatened to kill them by bomb. The five

accused persons were armed with spear (barchi) while another accused

was having bomb, whereas these witnesses were unarmed and three in

number. Considering all these attending facts and circumstances, the

presence or credibility of eye-witnesses, PW-1 Mishri Lal, PW-2

Kanhaiya Lal and PW-3 Shitla Prasad cannot be doubted on the ground

that they did not try to save the deceased.

31.It was next argued that first information report is ante-timed. It was

pointed out that as per prosecution version first information report was

registered under Sections 147, 148, 149, 302 of IPC and 3/4/5 of

Explosive Substances Act, but in the inquest report, no section of

Explosive Act was mentioned, which indicate that by that time first

information report was not in existence. Learned counsel has cited case of

Mehraj Singh V State of U.P. 1994 SCC (Cri) 1370 and Sudarshan and

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Anr V State of Maharashtra (2014) 5 Supreme court cases (cri) 94. In

case of Sudarshan (supra) quoting the observations of case of Mehraj

Singh (supra), it was observed as under:

“12. FIR in a criminal case and particularly in a murder case is

a vital and valuable piece of evidence for the purpose of

appreciating the evidence led at the trial. The object of insisting

upon prompt lodging of the FIR is to obtain the earliest

information regarding the circumstance in which the crime was

committed, including the names of the actual culprits and the

parts played by them, the weapons, if any, used, as also the

names of the eyewitnesses, if any. Delay in lodging the FIR

often results in embellishment, which is a creature of an

afterthought. On account of delay, the FIR not only gets bereft

of the advantage of spontaneity, danger also creeps in of the

introduction of a coloured version or exaggerated story. With a

view to determine whether the FIR was lodged at the time it is

alleged to have been recorded, the courts generally look for

certain external checks. One of the checks is the receipt of the

copy of the FIR, called a special report in a murder case, by the

local Magistrate. If this report is received by the Magistrate late

it can give rise to an inference that the FIR was not lodged at

the time it is alleged to have been recorded, unless, of course

the prosecution can offer a satisfactory explanation for the

delay in despatching or receipt of the copy of the FIR by the

local Magistrate. Prosecution has led no evidence at all in this

behalf. The second external check equally important is the

sending of the copy of the FIR along with the dead body and its

reference in the inquest report. Even though the inquest report,

prepared under Section 174 Cr.PC, is aimed at serving a

statutory function, to lend credence to the prosecution case, the

details of the FIR and the gist of statements recorded during

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inquest proceedings get reflected in the report. The absence of

those details is indicative of the fact that the prosecution story

was still in an embryo state and had not been given any shape

and that the FIR came to be recorded later on after due

deliberations and consultations and was then ante-timed to give

it the colour of a promptly lodged FIR. In our opinion, on

account of the infirmities as noticed above, the FIR has lost its

value and authenticity and it appears to us that the same has

been ante- timed and had not been recorded till the inquest

proceedings were over at the spot by PW 8.” Neither the trial

court nor the High Court has appreciated the aforesaid

circumstances which go to the root of the matter and raise

sufficient doubt about the involvements of the appellants in the

present case''.

In the instant case, alleged incident took place 08.30 AM and first

information report was lodged at 10.30 AM and distance of police station

from spot was shown 7 miles and thus, it could not be said that first

information report was lodged with delay. It is correct that first

information report was registered under Sections 147, 148, 149, 302 of

IPC and 3/4/5 of Explosive Substances Act where as in the inquest report

no section of Explosive Act was mentioned, but merely on the basis of

this inconsistency it cannot be said that by the time of inquest

proceedings, first information report was not in existence, particularly

when, crime number of first information report was mentioned in the

inquest report. Further, it is also mentioned in inquest report that besides

other related documents, copy of first information report was being sent

to autopsy surgeon. In view of these facts and circumstances, it is clear

that facts of the instant case are on different footing and the observations

made in above stated cases are of no help to the appellants.

32.It was next argued that medical evidence is not consistent with oral

evidence. It was pointed out that deceased has sustained some incised

17

wound, some stabbed wound, some punctured wound, some lacerated

wound and abrasions and all these injuries were not possible by same

type of weapon, while case of prosecution is that all the accused persons

were having barchi, which is also call ballam (spear). It was submitted

that contradiction between oral and medical evidence not only makes

testimony of PW-1 Mishri Lal, PW-2 Kanhaiya Lal and PW-3 Shitla

Prasad, doubtful but also affects at the core of prosecution case.

It is trite that oral evidence has to get primacy as medical evidence

is basically opinionative. It is only when the medical evidence especially

rules out the injury as claimed to have been inflicted as per the oral

testimony, then only in a given case, the Court has to draw the adverse

inference. It is well settled by a series of decisions of the Apex Court that

while appreciating variance between medical evidence and ocular

evidence, oral evidence of eyewitnesses has to get primacy as medical

evidence is basically opinionative. But when the court finds inconsistency

in the evidence given by the eyewitnesses which is totally inconsistent to

that given by the medical experts, then evidence is appreciated in a

different perspective by the courts. The Apex Court has consistently taken

the view that except where it is totally irreconcilable with the medical

evidence, oral evidence has primacy. In the case of Abdul Sayeed v. The

State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held

as under:

“ In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court reiterated the

aforementioned position of law and stated that: ''In any event unless the oral

evidence is totally irreconcilable with the medical evidence, it has primacy.’

Thus, the position of law in cases where there is a contradiction between

medical evidence and ocular evidence can be crystallised to the effect that

though the ocular testimony of a witness has greater evidentiary value vis-à-vis

medical evidence, when medical evidence makes the ocular testimony

improbable, that becomes a relevant factor in the process of the evaluation of

evidence. However, where the medical evidence goes so far that it completely

18

rules out all possibility of the ocular evidence being true, the ocular evidence

may be disbelieved.

In the instant case as referred to hereinabove, a very large number of assailants

attacked one person, thus the witnesses cannot be able to state as how many

injuries and in what manner the same had been caused by the accused. In such a

fact- situation, discrepancy in medical evidence and ocular evidence is bound to

occur. However, it cannot tilt the balance in favour of the appellants.”

Similar view was taken by the Court in the case of Baso Prasad & Ors. v.

State of Bihar [2006 (13) SCC 65] wherein it was held as under :

“27. In some cases, medical evidence may corroborate the prosecution

witnesses; in some it may not. The court, however, cannot apply any

universal rule whether ocular evidence would be relied upon or the

medical evidence, as the same will depend upon the facts and

circumstances of each case.’

28..No hard and fast rule can be laid down therefore. It is axiomatic,

however, that when some discrepancies are found in the ocular evidence

vis-a-vis medical evidence, the defence should seek for an explanation

from the doctor. He should be confronted with the charge that he has

committed a mistake. Instances are not unknown where the doctor has

rectified the mistake committed by him while writing the post-mortem

report.”

In the case of Krishnan v. State [(2003) 7 SCC 56], the Court held as

under:

“ Coming to the plea that the medical evidence is at variance

with ocular evidence, it has to be noted that it would be

erroneous to accord undue primacy to the hypothetical answers

of medical witnesses to exclude the eyewitness account which

had to be tested independently and not treated as the

“variable”, keeping the medical evidence as constant.

It is trite that where the eyewitnesses’ account is found

credible and trustworthy, medical opinion pointing to

alternative possibilities is not accepted as conclusive.

Witnesses, as Bentham said, are the eyes and years of

justice. Hence, the importance and primacy of the quality of

trial process. Eyewitnesses’ account would require a careful

independent assessment and evaluation for its credibility

which should not be adversely prejudged making any other

evidence, including medical evidence, as the sole touchstone

19

for the test of such credibility. The evidence must be tested for

its inherent consistency and the inherent probability of the

story; consistency with the account of other witnesses held to

be credit worthy;

consistency with undisputed facts, the “credit” of the

witnesses; their performance in the witness box; their power of

observation etc. Then, the probative value of such evidence

becomes eligible to be put into the scales for a cumulative

evaluation.”

In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC

484, the Hon'ble Supreme Court observed as under:

“Ordinarily, the value of medical evidence is only

corroborative. It proves that the injuries could have

been caused in the manner alleged and nothing more.

The use which the defence can make of the medical

evidence is to prove that the injuries could not possibly

have been caused in the manner alleged and thereby

discredit the eye-witnesses. Unless, however the

medical evidence in its turn goes so far that it

completely rules out all possibilities whatsoever of

injuries taking place in the manner alleged by

eyewitnesses, the testimony of the eye-witnesses

cannot be thrown out on the ground of alleged

inconsistency between it and the medical evidence.”

From the above stated authorities, it is clear that though the ocular

testimony of a witness has greater evidentiary value vis-a-vis medical

evidence, but when medical evidence makes the ocular testimony

improbable, that becomes a relevant factor in the process of the evaluation

of evidence. In the instant case, deceased has sustained as many as 26

injuries on his body. It is correct that all the eye-witnesses have stated that

deceased was attacked with barchis, which has also been referred as

spears and no other weapon was used but much depends on the manner

and force with which, barchi or spear has been used. PW 6 Dr P.K.

Verma, who conducted postmortem, stated that injury number

1,3,4,5,6,7,8,12,13,14,15,16,17,18,19,21,22,23,24,25 and 26 were

20

possible by 'barcha, where as injury number 2,9,10,11 and 20 are possible,

if victim falls on ground after sustaining injuries and such injuries were

also possible if spear is used like a 'lathi. Thus, it is apparent that there is

no material contradiction between ocular version and medical evidence.

The opinion of doctor cannot be termed without logic. If pointed spear is

pierced straight into some part of the body, such victim may suffer

punctured wounds. Similarly incised wounds and stabbed wounds are also

not improbable by use of barchi. PW-1 Mishri Lal has clarified in his

cross-examination that wood stick side of barchi was also used by the

accused-appellants while attacking the deceased. If barchhi or spear is

used from wood stick side, lacerated wounds and abrasions are also

probable. Considering the nature of injuries sustained by deceased

Munnar, it is apparent that these injuries were possible by the alleged

weapons attributed to the accused-appellants. In view of these facts, it

cannot be said that oral evidence is not consistent with medical evidence.

At any rate, it cannot be said that the oral evidence is totally irreconcilable

with the medical evidence. Further, oral evidence has primacy over the

medical evidence. The medical evidence does not make the ocular

testimony improbable, nor the alleged inconsistency is of such nature that

it completely rules out all possibility of the ocular evidence being true.

There is no material discrepancy in the medical and ocular evidence and

there is no reason to interfere with the judgment of the Court below on

this ground. In any event, it has been consistently held by the Apex Court

that the evidentiary value of medical evidence is only corroborative and

not conclusive and, hence, in case of a conflict between oral evidence and

medical evidence, the former is to be preferred unless the medical

evidence completely rules out the oral evidence. [See Solanki Chimanbhai

Ukabhai Vs. State of Gujarat, (1983) 2 SCC 174; Mani Ram Vs. State of

Rajasthan, 1993 Supp (3) SCC 18; State of U.P. Vs. Krishna Gopal &

Anr., State of Haryana Vs. Bhagirath, (1999) 5 SCC 96; Dhirajbhai

Gorakhbhai Nayak Vs. State of Gujarat, (2003) 5 SCC 223; Thaman

21

Kumar Vs. State of U.T. of Chandigarh, (2003) 6 SCC 380; Krishnan Vs.

State, (2003) 7 SCC 56; Khambam Raja Reddy & Anr. Vs. Public

Prosecutor, High Court of A.P., (2006) 11 SCC 239; State of U.P. Vs.

Dinesh, (2009) 11 SCC 566; State of U.P. Vs. Hari Chand, (2009) 13 SCC

542; Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 and Bhajan

Singh @ Harbhajan Singh & Ors. Vs. State, 2011) 7 SCC 421].

33.Learned counsel for the appellants has further submitted that there

are material inconsistencies and discrepancies in prosecution case. It was

stated that witnesses have stated that alleged incident took place in ‘kyari’

of Basant Lal, but there is nothing to indicate that the deceased has

sustained any mud, that it has come in evidence that two police constables

were patrolling in the area since before the incident and after incident,

they have reached at spot but they were not examined and that

investigating officer has not verified whether any construction work was

being done at the house of the complainant. In this connection, it may be

mentioned that there is absolutely no evidence that there was water at the

alleged spot or that it was wet place and thus, it cannot be considered as

discrepancy or infirmity. Other alleged discrepancies cited by learned

counsel are not of such nature so as to affect the pith and substance of

testimony of eye witnesses. It is well settled in law that the minor

discrepancies are not to be given undue emphasis and the evidence is to

be considered from the point of view of trustworthiness. The test is

whether the same inspires confidence of the Court. If the evidence is

incredible and cannot be accepted by the test of prudence, then it may

create a dent in the prosecution version. If an omission or discrepancy

goes to the root of the matter and ushers in incongruities, the defence can

take advantage of such inconsistencies. It needs no special emphasis to

state that every omission cannot take place of a material omission and,

therefore, minor contradictions, inconsistencies or insignificant

embellishments do not affect the core of the prosecution case and should

not be taken to be a ground to reject the prosecution evidence. The

22

omission should create a serious doubt about the truthfulness or

creditworthiness of a witness. It is only the serious contradictions and

omissions which materially affect the case of the prosecution, but not

every contradiction or omission. (See Rammi @ Rameshwar Vs. State of

M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State

of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs.

Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State

of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of

Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West

Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti

Biswas and Anr., (2013) 12 SCC 796).

34.Much thrust was given to the argument that learned trial Court has

ignored defence evidence and that in view of evidence of DW-1

Gyanendra Prasad Chaubey, DW-2 Prem Nath Gupta, DW-3 Bhagwan

Das Sonker, DW-4 Kali Shanker Jaiswal, DW-5 Harish Chandra Tripathi

and DW-6 Chhangur Singh, it is established that accused-appellant Ram

Naresh, Kunwar and Rajendra were working with advocates as clerk and

typist and that on the day and time of incident they were present in

Collectorate, Mirzapur doing their work.

Plea of alibi has been put forward on behalf of accused-appellant

Ram Naresh, Kunwar and Rajendra. It is well settled that the onus of

proving a plea of alibi is on the accused (vide 1978 Cr. L. J. 141 [State of

Uttar Pradesh, vs. Sughar. Singh & Ors.). Therefore, the appellants must

prove the plea of alibi to the satisfaction of the Court by producing cogent

and consistent evidence so that the court comes affirmatively to the

conclusion that the appellants could not have participated in the

commission of horrendous crime at alleged spot. However, the plea of

alibi can also be spelt out from the prosecution evidence, if it is available

therefrom. True it is that when a plea of alibi is taken, it is open to him to

establish such plea by preponderance of probabilities and to make it

'probably reasonable'. But the fact remains that such plea of alibi must be

23

proved with absolute certainty so as to completely exclude the

possibilities of the appellants at the scene of the crime. Reliance can also

be placed in this regard upon two rulings of the Apex Court reported in

1984 Cr. L. J.187 [Purna & Anr. vs State of U.P.,] and 1997 Cr. L.J. 2242

[Rajesh Kumar Vs. Dharam Vir.].

The Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of

Delhi), reported in (2015) 4 SCC 749 has held as under : ..

"25. At this juncture, we think it apt to deal with the plea of

alibi that has been put forth by the appellant. As is

demonstrable, the trial court has discarded the plea of alibi.

When a plea of alibi is taken by an accused, burden is upon him

to establish the same by positive evidence after onus as regards

presence on the spot is established by the prosecution. The said

principle has been reiterated in Gurpreet Singh v. State of

Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar

v. State of Haryana."

The Supreme Court in the case of Sk. Sattar v. State of

Maharashtra, reported in (2010) 8 SCC 430 has held as under :

"35. Undoubtedly, the burden of establishing the plea of alibi

lay upon the appellant. The appellant herein has miserably

failed to bring on record any facts or circumstances which

would make the plea of his absence even probable, let alone,

being proved beyond reasonable doubt. The plea of alibi had to

be proved with absolute certainty so as to completely exclude

the possibility of the presence of the appellant in the rented

premises at the relevant time. When a plea of alibi is raised by

an accused it is for the accused to establish the said plea by

positive evidence which has not been led in the present case.

Thus, the burden to prove the plea of alibi is heavy on the

accused and the plea of alibi cannot be proved by

24

preponderance of probabilities. Viewed in the light of sound

proposition of law discussed in above referred foregoing

paragraphs, it can be said that the burden on the accused is

heavy as required under section 103 of the Indian Evidence Act

which provides that the burden of proof as to any particular fact

is on that person who wishes the court to believe in its

existence. Therefore, the strict proof is required for establishing

the plea of alibi. The burden to prove the plea of alibi is heavy

on the accused and the plea of alibi cannot be proved by

preponderance of probabilities. It is well-settled that it is for the

accused to prove the case of alibi to the hilt.’’

In the instant case, no doubt DW-1 Gyanendra Prasad Chaubey and

DW-6 Chhangur Singh, Advocates have spoken about the presence of

Ram Naresh at the Collectorate, DW-2 Prem Nath Gupta, Advocate and

DW-3 Bhagwan Das Sonker Advocates have stated about the presence of

accused-appellant Kunwar at Collectorate, whereas DW-4 Kali Shanker

Jaiswal and DW-5 Harish Chandra Tripathi, Advocates have spoken about

the presence of accused-appellant Rajendra at Collectorate, but there is

nothing on record to indicate that why these witnesses did not take any

such plea during investigation before concerned police authorities. There

is nothing to show that these witnesses have raised any such plea that

these accused-appellants were not present at the spot before the concerned

police authorities. It may also be observed that though, a suggestion was

made to PW-1 Mishri Lal that accused Ram Naresh, Kunwar and

Rajendra used to work at the time of alleged incident, but he has denied

the same. Further, no such suggestion regarding alleged plea of alibi was

made to PW-2 Kanhaiya Lal. Suggestion made to PW-3 Shitla Prasad, is

also quite vague and merely it was suggested to these witnesses that

accused Kunwar, Ram Naresh and Rajendra were not present at the spot

and that they were present at Mirzapur Kutchhery. But again no specific

suggestion was made that with whom they used to work. Here it would be

25

relevant to mention that spot of incident was stated merely 7 miles away

from Mirzapur. A close look to DW's testimony reveals that the same

lacks relevant particulars, minute details and credibility which are

essentially required for strengthening the appellants' claim of alibi. On the

contrary, there are corroborative evidence and circumstances on record to

conclusively prove their presence at the scene of occurrence at the

material point of time. There is clear and cogent testimony of PW-1

Mishri Lal, PW-2 Kanhaiya Lal and PW-3 Shitla Prasad, which

establishes presence of these witnesses at the spot. Examining entire

evidence, it cannot be said that plea of alibi put forward on behalf of the

accused-appellants Ram Naresh, Kunwar and Rajendra has been

established.

So far as the motive aspect is concerned, it is well-settled that if a

case is based on direct evidence, the motive has no much significance.

Clear proof of motive lends additional assurance to other evidence but the

absence of motive does not lead to contrary conclusion, however, in that

case, other evidence has to be closely scrutinized. If positive evidence is

clear and cogent the question of motive is not important. However, this is

relevant to lend assurance the other evidence. Motive is not a sine qua non

for the commission of a crime. Moreover, failure to prove motive or

absence of evidence on the point of motive would not be fatal to the

prosecution case when the other reliable evidence available on record

unerringly establishes the guilt of the accused. Reference may be made to

the case law pronounced in case of State of U.P. V Nawab Singh, 2005

SCC (Criminal) 33. In fact, motive is a thing which is primarily known to

the accused himself and it may not be possible for the prosecution to

explain what actually prompted or excited him to commit a particular

crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55,

the Hon'ble Supreme Court has held that in case the prosecution is not

able to discover an impelling motive, that could not reflect upon the

credibility of a witness proved to be a reliable eye-witness. Evidence as to

26

motive would, no doubt, go a long way in cases wholly dependent on

circumstantial evidence. Such evidence would form one of the links in the

chain of circumstantial evidence in such a case. But that would not be so

in cases where there are eye- witnesses of credibility, though even in such

cases if a motive is properly proved, such proof would strengthen the

prosecution case and fortify the court in its ultimate conclusion. But that

does not mean that if motive is not established, the evidence of an eye-

witness is rendered untrustworthy. Therefore, in case there is direct

trustworthy evidence of witnesses as to commission of an offence, the

motive part loses its significance as held in Bikau Pandey & Ors. V. State

of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. V. State of Tamil

Nadu, (2010) 5 SCC 91).

In the instant case, there is evidence that one year prior to the

incident, brother of accused-appellant Ram Naresh, namely, Shyam

Naresh was murdered, in which complainant’s brother Munnar

(deceased), Chote Lal, Tikori Lal, Markandey and Mool Chand were

accused, however in that case they were acquitted. Thereafter, even the

proceedings under Sections 107 and 116 Cr.P.C. were also initiated

between the parties. As per prosecution version accused-appellants and

deceased accused were nurturing enmity against family of complainant

and deceased. No doubt, enmity is a double edged weapon as it cuts both

way. On the one hand, it may provide motive for commission of offence,

while on other hand, it may be a reason for false implication, however, in

the instant case ocular testimony is quite cogent and credible and it finds

support from other factors like prompt first information report and

corroboration from medical evidence. In view of entire evidence, it can

not be said that there was no motive on the part of the accused-appellants

to commit murder of the deceased. We may add here that the benefit of

doubt can not be extended by resorting to surmises, conjectures or fanciful

considerations, as has been held by the Apex Court in the case of State of

Punjab Vs. Jagir Singh, (1974) 3 SCC 277 It was observed by the

27

Hon'ble Apex Court that a criminal trial is not like a fairy tale wherein one

is free to give flight to one's imagination and fantasy. It concerns itself

with the question as to whether the accused arraigned at the trial is guilty

of the offence with which he is charged. Crime is an event in real life and

is the product of interplay of different human emotions. In arriving at the

conclusion about the guilt of the accused charged with the commission of

a crime, the court has to judge. The evidence by the yardstick of

probabilities, its intrinsic worth and the animus of witnesses. Every case

in the final analysis would have to depend upon its own facts. Although

the benefit of every reasonable doubt should be given to the accused, the

courts should not, at the same time, reject evidence which is ex facie

trustworthy, on grounds which are fanciful or in the nature of conjectures.

35.Closescrutiny of the evidence shows that statement of PW-1 Mishri

Lal is cogent and credible. He has lodged the FIR within two hours of

alleged incident, while police station is situated at a distance of seven

miles from spot and thus, he has lodged a prompt FIR, which further

supports his version. All the accused persons were named in the FIR.

Version of PW-1 Mishra Lal has been amply corroborated in all material

particulars by PW-2 Kanhaiya Lal and PW-3 Shitla Prasad. Version of

these witnesses is further supported by the fact that after incident the

bicycle of deceased along with bags of sand was seized from near the

spot. The remaints of bomb burst were also seized from spot. All these

witnesses have been subjected to cross-examination but no major

contradiction or any other infirmity could be shown. Substantially, the

ocular testimony of these eye-witnesses is supported by medical evidence.

36.Considering all these aspects of case, testimony of PW-1 Mishri

Lal, PW-2 Kanhaiya Lal and PW-3 Shitla Prasad has been found credible.

It is also apparent that murder of the deceased was committed in

furtherance of common object of unlawful assembly which was

comprising of accused-appellants and deceased accused. Considering the

entire evidence on record, we are satisfied that conviction of accused

28

appellants, namely, Kunwar, Ram Naresh, Nirju, and Rajendra under

section 148 and 302/149 of IPC is based on evidence and the trial court

was fully justified in convicting them.

37.In view of aforesaid, conviction and sentence of accused appellants

under Section 148, 302/149 is affirmed. All these appellants are on bail,

they be taken into custody forthwith to serve out the remaining sentence.

38.Appeal is accordingly dismissed.

39.Let a copy of this judgment be sent to the concerned court below

for necessary compliance.

Date :24.10. 2019/A. Tripathi

(Raj Beer Singh, J) (Pritinker Diwaker, J)