Reserved on 5

th

September, 2022

Delivered on 30

th

September, 2022

A.F.R.

Court No. - 43

Case :- JAIL APPEAL No. - 147 of 2012

Appellant :- Sultan

Respondent :- State of U.P.

Counsel for Appellant :- From Jail,Arvind Kumar Mishra,Gaurav Kakkar

Counsel for Respondent :- A.G.A.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Delivered by Hon. Shiv Shanker Prasad, J.)

1.This jail appeal is by the appellant-Sultan against the judgment and

order dated 5

th

October, 2011 passed by the First Additional Sessions

Judge, Baghpat in Sessions Trial No. 132 of 2008 (State Vs. Sultan)

arising out of Crime No. 304 of 2007, under Sections 302, 504 I.P.C.,

Police Station-Singhawali Aheer, District Baghpat and in Sessions Trial No.

133 of 2008 (State Vs. Sultan) arising out of Crime No. 317 of 2007, under

Section 25 Arms Act, Police Station-Singhawali Aheer, District-Baghpat,

whereby the accused-appellant has been convicted and sentenced to

undergo (i) life imprisonment for the offence under Section 302 I.P.C. with

a fine of Rs. 50,000/-, in default thereof, he has to further undergo one

year additional simple imprisonment, (ii) six months imprisonment for the

offence under Section 504 I.P.C. and (iii) one year for the offence under

Section 25 of the Arms Act, that all the sentences were to run concurrently.

2. We have heard Ms. Archana Singh, learned Amicus Curiae on behalf

of the appellant and Mrs. Archana Singh, learned A.G.A. for the State as

also perused the entire materials available on record.

3.The prosecution story, as transpired from the records of the present

appeal, is as follows:

On the written report (Exhibit-Ka-1) given by the P.W.-1/informant

Aflatoon son of Bunddu Darji, a first information report (Exhibit-Ka-4) has

been lodged on 3

rd

November, 2007 at 10:30 a.m. against the accused-

appellant, which was registered as Crime No. 304 of 2007 under Sections

2

302 and 504 I.P.C. In the said report, it has been alleged that on 3

rd

November, 2007 at about 09:00 a.m. in the morning, when the brother of

the informant, namely, Jamil was coming to his house from Gher, on the

way the accused-appellant met Jamil and said that he has separated his

wife from him and started abusing him. After explaining that he is not

responsible for the same, he came to his house. After that when the

accused-appellant was on the roof of his house, he asked Jamil to come to

his roof stating that his behavior with him earlier was wrong for which he

was apologizing. Believing the accused Sultan, the brother of the informant

i.e. Jamil reached roof/terrace of one Iliyash and the accused-appellant

also came to roof/terrace of Iliyash, where the accused-appellant while

talking him, took out a Katta (country-made pistol) and shot Jamil in his

neck and fled. The time of occurrence was 09:30 a.m. and at that time the

younger sister of the informant, namely, Hazra also went behind his brother

Jamil on the terrace. The said incident occurred in her presence. The

younger brother of the informant, namely, Vakeel had also seen the

incident. The dead body of the informant was lying on the roof covered in

blood and he had come to the Police Station for lodging the first

information report. On registration of the said case, P.W.-6 Sub-Inspector

Rajeev Kumar Kaushik after mentioning the said report in the General

Diary, reached the place of occurrence on the identification of the

informant. P.W.-6 has also recorded the statement of the informant along

with other witnesses and prepared site plan. P.W.-6 has also recovered

blood stained and plain earth from the place of occurrence and prepared

recovery memo (Exhibit-Ka-12) on the same day i.e. 3

rd

November, 2007.

4.The inquest of the deceased was conducted on the same day at

1330 hours in the presence of P.W.-6 and the statements of witnesses

were taken on the inquest report (Exhibit-Ka-2) by P.W.-6. The inquest

witnesses opined that since the cause of death of the deceased was due

to gun shot, the post-mortem was necessary.

5. Thereafter the dead body of the deceased was sealed and sent to

Mortuary. The autopsy of the deceased was conducted on the same day

i.e. 3

rd

November, 2007 at 04:10 p.m. by Dr. Yatish Kumar (P.W.-3). In the

3

opinion of P.W.-3, the cause of death of deceased Jamil was shock and

haemorrhage due to following ante-mortem injuries:

“(1) Gun shot wound of entry of size 1.75 cm. x 1.5 cm. on

right side of neck just above the clavicle right side margins

everted, tattooing present on the right side of the face and

neck in the area of 13 cm x 11 cm.

(2) Gun shot wound of exist of size 2.5 cm. x 2 cm on the

back just medial to right scapula upper inner border margins

everted.

Injury no.1 and 2 are correspond to each other by prolong on

resection blood vessels of right side of the neck are damaged

due to injury no.1”

6.The investigation proceeded and on 21

st

November, 2007, the

accused-appellant was arrested from the tube-well of one Mool Chand

Sharma and from whose possession a country-made pistol 315 bore, two

live cartridges 315 bore and one empty cartridge of 315 bore have been

recovered by the Police and in that regard the arrest-cum-recovery memo

has been prepared by P.W.-5 (Exhibit-Ka-11). After completion of statutory

investigation in terms of Chapter XII Cr.P.C., the Investigating Officer

submitted the charge-sheet dated 2

nd

January, 2008 (Exhibit-Ka-13)

against the accused-appellant. The Magistrate concerned took cognizance

of the offence on the charge-sheet and as the case was triable by the court

of sessions, committed the case to the court of Sessions Judge

resultantly, the same were registered as Sessions Trial No. 132 of 2008

(State Vs. Sultan) arising out of Crime No. 304 of 2007, under Sections

302, 504 I.P.C., Police Station-Singhawali Aheer, District Baghpat and

Sessions Trial No. 133 of 2008 (State Vs. Sultan) arising out of Crime No.

317 of 2007, under Section 25 Arms Act, Police Station-Singhawali Aheer,

District-Baghpat.

7.On 3

rd

May, 2008, the learned Trial Court framed following charges

against the accused-appellant for the offence under Sections 302 and 504

I.P.C.:

4

"मै, एस.के.सिंसह, प्रथम, अपर सत्र न्यायाधीश, बागपत, आप सुल्तान को निनम्न

आरोपो से आरोनिपत करता हूँः-

1. यह निक नि#नांक 03.11.07 को समय 9.30 बजे सुबह, स्थान, ग्राम रामनगर, कस्बा

व थाना सिंसघावली अहीर, जिजला बागपत के क्षेत्राधिधकार मे आपने वा#ी के भाई जमील

की गोली मारकर साशय हत्या कारिरत की और इस प्रकार आपने ऐसा अपराध काय6

निकया है, जो निक भा०#०सं० की धारा 302 के अधीन #ण्डनीय है और इस न्यायालय

के प्रसंज्ञान मे है।

2. यह निक उपरोक्त समय, नि#नांक व स्थान पर आपने वा#ी के भाई जमील को इस

साशय से अपमानिनत निकया निक ऐसे प्रकोपन से वह लोक शान्तिन्त भंग करेगा। इस

प्रकार आपके द्वारा ऐसा अपराध कारिरत निकया गया है, जो निक भा०#०सं० की धारा

504 के अधीन #ण्डनीय है तथा इस न्यायालय के प्रसंज्ञान मे है।

एतद्द्वारा आपको निन#Aशिशत निकया जाता है निक आपके निवरूद्ध उक्त आरोपों

का निवचारण इस न्यायालय द्वारा निकया जायेगा।"

8.On 3

rd

May, 2008, the court below has framed charge against

the accused-appellant for the offence under Section 25 of Arms

Act. For ready reference, the same reads as under:

"यह निक नि#नांक 21/11/07 को समय करीब 20.15 बजे, स्थान-ग्राम लुहारा से ग्राम

रामनगर कच्चा रास्ता मूल चन्# शमा6 की ट्यूबैल के पास जंगल ग्राम रामनगर, थाना

सिंसघावली अहीर, जिजला बागपत से थाना सिंसघावली अहीर की पुलिलस द्वारा आप

पकडे गये तथा आपके कब्जे से एक तमंचा 315 बोर, #ो जिजन्#ा व एक खोखा

कारतूस 315 बोर के नाजायज बराम# हुये, जिजनको अपने पास रखने के लिलये आपके

पास कोई वैधानिनक अधिधकार अथवा लाईसेंस नही था। इस प्रकार आपके द्वारा ऐसा

अपराध कारिरत निकया गया है, जो निक आयुद्ध अधिधनिनयम की धारा - 25/27 के अधीन

#ण्डनीय है तथा इस न्यायालय के प्रसंज्ञान में है।

9.In order to prove its case, the prosecution also relied upon

documentary evidence, which were duly proved and consequently marked

as Exhibits. The same are catalogued herein below:-

“i). Written report dated 3

rd

November, 2007 prepared on the dictation of

the informant-P.W.1 has been marked as Exhibit Ka -1 ;

ii). The first information report dated 3

rd

November, 2007 has been marked

as Exhibit Ka-4;

iii). The inquest report dated 3

rd

November, 2007 has been marked as

Exhibit-Ka-2;

iv). The post-mortem/autopsy report dated 3

rd

November, 2007 has been

marked as Exhibit-Ka-3;

5

v). Recovery memo of blood stained earth and plain earth prepared on 3

rd

November, 2007 has been marked as Exhibit Ka-12;

vi) Site plan with index;

vii). Recovery memo of country-made pistol, empty cartridge and live

cartridges said to have been recovered on 21

st

November, 2009 has been

marked as Exhibit Ka-11; and

viii). Charge-sheet dated 2

nd

January, 2008 has been marked as Exhibit

Ka-13.”

10.The prosecution also examined total nine witnesses in the following

manner:-

“i).P.W.-1/informant, namely, Aflatoon, brother of the deceased Jamil;

ii).P.W.-2, namely, Vakil elder brother of the deceased and informant,

who is alleged to be an eye-witness; ;

iii) P.W.-3, namely, Dr. Yatish Kumar, who conducted autopsy of the

deceased;

iv) P.W.-4, namely, Head Constable-90 Ompal Singh, who proved the chik

first information;

v). P.W.-5, namely, Smt. Hazara sister of deceased and informant, who is

also alleged to be an eye witness of the incident;

vi). P.W.-6, namely, Sub-Inspector Rajiv Kumar Kuashik, who has

investigated the case;

vii). P.W.-7, namely, Sub-Inspector Kunwar Pal Singh, who has also

investigated the case after P.W.-6;

viii). P.W.-8, namely, Sub-Inspector Kapil Kumar Bhardwaj, who has also

investigated the case before P.W.-6; and

ix). P.W.-9, namely, Constable-1048 Kishan Singh, who has proved the

original copy of first information report.

11.After recording of the prosecution evidence, the incriminating

evidence were put to the accused-appellant for confronting with the same

under Section 313 Cr.PC. In their statement recorded U/s 313 Cr.P.C. the

accused appellant denied his involvement in the commissioning of the

offence under Sections 302 and 504 I.P.C. Accused appellant Sultan has

specifically stated before the trial court that he has been falsely implicated

6

in this case. He has further stated that the statement of the informant-P.W.-

1 is false. Since P.W.-2 to P.W.-3, are the family members of the deceased

and due to rivalry, they have given false statements against the accused-

appellant. He has further stated that since P.W.-3 to P.W.-7 are government

employees, therefore, they have given false statements against the

accused-appellant. Though it has been stated before the court that

evidence shall be produced in support of the plea of the defence that the

accused-appellant has been falsely implicated, but no such evidence has

been produced before the conclusion of trial. No witness has been

adduced from the defence.

12.The trial court after relying upon the evidence adduced by the

prosecution and recording its finding, has come to the conclusion under

the impugned judgment of conviction that the prosecution has been able to

fully prove that the accused-appellant committed the murder of Jamil on

the roof of Iliyash. On the cumulative strength of the aforesaid, the trial

court has held that the accused-appellant is guilty of offence punishable

under Sections 302 I.P.C. and 504 I.P.C. for the murder of the deceased,

namely, Jamil. As such, the trial court convicted and sentenced the

accused-appellant for the aforesaid offences. The trial court has also held

the accused-appellant guilty of the offence punishable under Section 25 of

the Arms Act. It is against this judgment and order of conviction passed by

the trial court that the present jail appeal has been filed on the ground that

conviction is against the weight of evidence on record and against the law

and the sentence awarded to the accused-appellant is too severe.

13.Assailing the impugned judgment and order of conviction, Ms.

Archana Singh, learned Amicus Curiae appearing for the accused-

appellant submits that the entire prosecution version is based upon the

statement of P.W.-5. Since P.W.-5 in her examination has stated that she is

resident of Police Station and District Baghpat, whereas P.W.-1 who

happens to be the real brother of P.W.-5 has stated in his examination that

P.W.-5 is resident of District-Ghaziabad, therefore, the recognition of P.W.-

5 is doubtful. Further Ms. Singh submits that Nasiruddin, who is an

independent eye witness of the incident and could narrate the incident

correctly, has not been adduced by the prosecution nor any explanation in

that regard has been given by the prosecution. Next submission is that

7

only interested witnesses i.e. P.W.-1, P.W.-2 and P.W.-5, who are real

brothers and sister of the deceased have been adduced by the prosecution

and no independent witness has been adduced, such evidence of

prosecution has no value under the Evidence Act. Argument is that though

the Investigating Officer (P.W.-6) has prepared the site plan, but the trial

court has not examined the same correctly so as to reach a just

conclusion. Further argument is that nobody was present at the place of

incident, meaning thereby that neither P.W.-2 nor P.W.5 saw the incident

with their own eyes. It is also urged that since the deceased was a person

with bad character, as is evident from the cross-examination of P.W.-

1,P.W.2 and P.W.-5, therefore, it is possible that his murder was committed

by someone else. There is no single iota of evidence available on record to

prove the motive of the case.

On the cumulative strength of the aforesaid, learned counsel

appearing for the accused-appellant submits that the impugned judgment

and order of conviction cannot legally be sustained and is liable to be

quashed.

14.On the other-hand, Mrs. Archana Singh, learned A.G.A. for the State,

supporting the judgment and order of conviction, submits that the first

information report has been lodged promptly naming the accused person;

there is clinching evidence to support the prosecution’s case; the incident

in which the deceased Jamil is alleged to have been murdered by the

accused-appellant, occurred at 09:30 a.m. i.e. in broad day light; there are

two eye witnesses of the alleged incident; the places of occurrence has not

been disputed by the defence; and the accused-appellant has strong

motive and the same has also been explained by the evidence of

prosecution. Therefore, the prosecution has proved the charge levelled

against the accused-appellant beyond reasonable doubt.

15.To bolster the aforesaid submissions, learned A.G.A. has invited the

attention of the Court to the latest judgment of the Apex Court in the case

of Mekala Sivaiah vs. State of Andhara Pradesh reported in 2022 SCC

Online SC 887, whereby the Apex Court in paragraph nos.25 and 26 has

held as follows:

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“25. The facts and evidence in present case has been

squarely abefornalyzed by both Trial Court as well the High Court

and the same can be summarized as follows:

i. The prosecution has discharged its duties in proving the guilt of

the appellant for the offence under Section 302 I.P.C. beyond

reasonable doubt.

ii. When there is ample ocular evidence corroborated by medical

evidence, mere non-recovery of weapon from the appellant would

not materially affect the case of the prosecution.

iii. If the testimony of an eye witness is otherwise found trustworthy

and reliable, the same cannot be disbelieved and rejected merely

because certain insignificant, normal or natural contradictions

have appeared into his testimony.

iv. The deceased has been attacked by the appellant in broad

daylight and there is direct evidence available to prove the same

and the motive behind the attack is also apparent considering

there was previous enmity between the appellant and PW-1.

26. Having considered the aforesaid facts of the present case in

juxtaposition with the judgments referred to above and upon

appreciation of evidence of the eyewitnesses and other material

adduced by the prosecution, the Trial Court as well as the High

Court were right in convicting the appellant for the offence under

Section 302 I.P.C. Therefore, we do not find any ground

warranting interference with the findings of the Trial Court and the

High Court.”

(Emphasis added)

On the cumulative strength of the aforesaid submissions, learned

A.G.A. submits that as this is a case of direct evidence, the impugned

judgment and order of conviction does not suffer from any illegally and

infirmity so as to warrant any interference by this Court. As such the

present jail appeal filed by the accused appellants who committed heinous

crime by murdering the deceased Jamil, is liable to be dismissed.

16.We have considered the submissions made by the learned counsel

for the parties and have examined the original records of the court below

as well as the impugned judgment and order of conviction challenged

before us.

17.The only question which is required to be addressed and determined

in this jail appeal is whether the conclusion of guilt arrived at by the learned

trial court and the sentence awarded is legal and sustainable under law

and suffers from no infirmity and perversity.

9

18.Before entering into the merits of the case set up by the learned

counsel for the appellant and the learned A.G.A. for the State qua

impugned judgment and order of conviction passed by the trial court

referred to above, it is desirable for us to record statements of the

prosecution witnesses in brief.

19.P.W.-1/Informant, namely, Aflatoon brother of the deceased has

reiterated the same facts as have been narrated in the first information

report and in the statement recorded under Section 161 Cr.P.C. In his

examination he has stated that he did not see the incident, after hearing

gunshots he reached the place of occurrence, where he saw that the

deceased was lying dead on the roof. He has further stated that at the

time of incident, P.W.-2 was standing on the ground below the roof of

Iliyash and P.W.-5 was standing on the roof of her house. They saw the

incident with their own eyes. He has also stated that the altercation which

took place between the accused-appellant and the deceased at 09:00 a.m.

on the same day was seen by him. It has also been stated that the name

of the wife of the accused-appellant is Hasina. The accused-appellant has

three children. The accused-appellant got divorced from his wife eight to

nine months before the incident. There is no relationship with Hasina either

of his family or himself nor is there any reconciliation between their family.

He has also stated in his cross-examination that the Iliyash has two

houses. Iliyash lives in another house and in the house of which roof the

incident occurred, he keeps his buffaloes. The house of the accused is

adjacent to the said house of Iliyash. The roof of Iliyash's house is below

the roof of the accused's house but the roofs of porches of their houses are

same in the height. In the cross-examination, P.W.-1 has stated that it is

wrong to say that Jamil used to flirt with Ilyash's wife and because of that

flirting, Iliyash got Jamil killed by unknown people.

20.P.W.-2 Vakil has stated that the deceased Jamil was his younger

brother. Accused-appellant is his cousin brother (son of sister of his father).

The accused appellant was having quarrel with his wife Haseena. There

was no relation between the deceased Jamil and Haseena but the

accused-appellant used to think that his wife Haseena had illegitimate

relation with the deceased. On 21

st

October, 2007, the deceased got

10

married and in the said marriage Rukhsana, brother in law's wife (sarhaj)

of his brother Ali Sher had come. The accused-appellant thought that she

is his wife Haseena. On 02.11.07, the accused-appellant came to his

house and asked his father to get his wife Haseena and in reply the father

of P.W.-2 told him that when he has divorced his wife six to eight months

ago, why would she come now. After that the accused-appellant went

back to his house. On 03.11.07, the brother of P.W.-2, namely, Jamil was

going to his house, then on the way the accused-appellant met him and

asked the deceased to get his wife or else it will not be good. On the

persuasion of the deceased, the accused-appellant went back. However,

at 9:30 a.m. in the morning, when P.W.-2, the deceased and P.W.-5 were

standing on the vacant land in front of their house the accused-appellant

came on his terrace and told the deceased that as the deceased was son

of his maternal uncle and he misbehaved with him, he asked the deceased

to come on his terrace expressing remarks. Hearing this, the deceased

went to the roof of accused-appellant. When the deceased was two steps

away from accused-appellant, he took out the country made pistol (katta)

while threatening. Seeing the pistol, the deceased tried to turn back and

run away, then the accused-appellant shot the deceased which hit him in

the back of the neck and he died on the spot. On hearing the sound of

bullet, when he reached the terrace, and that he saw the accused-

appellant running away after shooting him. The accused-appellant stepped

out of his house and ran away. In the cross-examination, P.W.-2 has stated

that about the incident, his statement has been recorded by the

Investigating Officer. He has further stated that the accused-appellant

thought that the deceased had illegitimate relations with his wife Haseena.

P.W.-2 has also denied in his cross-examination that the deceased was

murdered by unidentified persons because of his vagabondage and that

the accused-appellant has been falsely implicated with the intention of

grabbing money.

21.P.W.-3 who conducted the autopsy of the deceased, has stated that

the injury No.2- found on the body of the deceased was gunshot wound of

exit of size 2.5cm x 2cm on the back just medial to scapula upper inner

border, margins everted. He has further stated that inquiry No.1 and No.2

are correspond to each other. Blood vessels of right side of the neck are

11

found to be damaged at the incision of the wound. Further he has

submitted that on internal examination, large vessels of blood were found

mutilated on the right side of the neck of the dead body. The cause of

death of the dead body is likely to be about (6) six hours before the time of

post-mortem due to excessive trauma and bleeding. P.W.3 has proved the

autopsy report which has been marked as Exhibit-Ka-3. Lastly, P.W.-3 has

stated that the deceased was hit by the bullet from the front right side.

22.P.W.-4 Head Constable-90 Ompal Singh has stated that he has

written the first information report and he has also proved the chik first

information report before the court below.

23.P.W.-5 Hazara has stated in her examination that on the day of the

incident, at around nine o'clock in the morning, the accused-appellant had

called his brother i.e. deceased from his terrace and the deceased went to

Iliyas's terrace and that she also went there with him. The accused-

appellant had also come from his roof to the terrace of Iliyas. After coming

there, the accused-appellant said the deceased that due to his behaviour

he suffered a lot earlier but will not suffer more. After saying this, the

accused-appellant took out a country made pistol and shot the deceased

and that the deceased had died after being shot. He was shot in the lower

part of his right neck and after shooting him, Sultan fled from the spot.

P.W.-5 has further stated that she used to go to her maternal home mostly

for a day or two as her children were in school. She has further stated that

she and the deceased were present at home for almost an hour on the day

of the incident. When the accused-appellant called her brother i.e. the

deceased from the terrace, she did not stop him. She was two steps away

from the deceased when he was shot. The accused-appellant shot the

deceased from a distance of two steps. The deceased was standing with

his hands folded when the bullet was fired. The accused-appellant had

shot saying that earlier he (deceased) was saved and he will not leave him

today. The deceased had fallen as soon as he was shot. P.W.-5 could not

save him as she was behind while shooting. The deceased died after

falling. The head of the deceased was towards the west and the feet were

towards the east. The deceased was wearing a grey colored pant. P.W.-5

has also stated that her brother i.e. informant went to Baghpat on the day

12

of the incident. She has also stated that her statement has been recorded

by the Investigating Officer. P.W.-5 has again stated that the accused-

appellant from a height of one yard, shot the deceased.

24.P.W.-6 Sub-Inspector Rajiv Kumar Kaushik, who has initially

investigated the case, has stated that on an information of an informer, he

along with other Police personnels and informant reached the Tube-well of

one Mool Chand Sharma, where the accused-appellant was hiding and

arrested him. P.W.-6 has further stated that one country-made pistol of 315

bore, one empty cartridge and two live cartridges of 315 bore have also

been recovered from his possession. P.W.-6 has also prepared Arrest and

Recovery memo which has been marked as Exhibit-Ka-11. He has further

stated that the recovery memo of plain and blood stained soil collected

from the spot by him has been prepared by him as Exhibit-Ka 12. P.W.-6

has also proved the site plan prepared by him. He has then stated that the

roofs of the accused-appellant and the house Iliyas have been found to be

adjoining.

25.P.W.-7 Sub-Inspector Kunwar Pal Singh who has investigated the

case after P.W.-6, has proved the charge-sheet. P.W.-8 Sub-Inspector

Kapil Kumar Bhardwaj, who has investigated the case under Section 25

Arms Act and submitted the charge-sheet before the court below and

proved the same as P.W.8.

26.From the testimony of the aforesaid nine prosecution witnesses, it is

apparently clear that there are two eye witnesses of murder of the

deceased Jamil, namely, Vakil (P.W.-2) and Smt. Hazra (P.W.-5) and they

have fully supported the prosecution version. It is no doubt true that they

being brother and sister of informant and deceased, are interested

witnesses but their consistent statements made under Section 161 Cr.P.C.,

in their examination-in-chief as well as in their cross-examination, cannot

be discredited only on the ground that they are interested witnesses. The

same is required to be read as a whole prosecution evidence i.e. autopsy

report, police reports including recovery memo of arrest of the accused-

appellant, country-made pistol of 315 bore, one empty cartridge and two

live cartridges of 315 bore from his possession and the site plan of the spot

etc.

13

27.For examining the correctness or otherwise of the judgment and

order of conviction, the version of prosecution as well as defence and the

submissions made by the learned counsel for the parties, it is necessary

for us to refer certain case laws laid down by the Apex Court on the

subject.

28.In the case of Kartik Malhar V State of Bihar reported in 1996 CRL.

L.J. 889, the Apex Court has held as under:-

"We may also observe that the ground that the witness being a

close relative and consequently, being a partisan witness, should

not be relied upon, has no substance. This theory was repelled by

this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in

which this Court expressed its surprise over the impression which

prevailed in the minds of the members of the Bar that relatives

were not independent witnesses."

29.The Apex Court in the case of State of U.P. Vs. Kishan Chand &

Others reported in (2004) 7 SCC 629, has opined that just because the

witnesses are related to the deceased would be no ground to discard

their testimony, if otherwise, their testimony inspire confidence.

(Reference-paragraph nos. 9 and 10 of the aforesaid judgment of the

Apex Court).

30.The Apex Court in the case of State of Jammu and Kashmir vs. S.

Mohan Singh & Others reported in (2006) 9 SCC 272, the Apex Court

has observed that it is well settled that in a murder trial, merely because

a witness is interested or inimical, his evidence cannot be broadly

discarded unless the same is otherwise found to be not trustworthy. In

the said case, the view of the Apex Court was that the evidence of these

two witnesses is credible more so when witness Ram Lal received

injuries. For ready reference, relevant paragraph of the said judgment

reads as follows:

“Other two eyewitnesses are the informant Ram Lal and his

brother Babu Ram. Ram Lal is father of deceased Yush Paul

Singh whereas witness Babu Ram is uncle of deceased Yush Paul

Singh. These two witnesses have supported the prosecution case

disclosed in the first information report in all material particulars

and consistently stated that respondent No. 1 caught hold of the

deceased and respondent No. 2 inflicted injuries upon him with

knife. We have been taken through the evidence of these two

eyewitnesses in extenso. Their evidence is quite consistent,

natural and both the witnesses have stood the test of lengthy

14

cross-examination broadby the defence. Out of these two

witnesses, Ram Lal was the informant and an injured witness as

the doctor who examined him on the date of occurrence itself

found that he received injuries by hurling of stone. Nothing could

be pointed out on behalf of defence to show that the evidence of

these two eyewitnesses is not credible, excepting this that they

were interested witnesses. The High Court was not justified in

disbelieving them on the sole ground that they were interested

persons. It is well settled that in a murder trial, merely because a

witness is interested or inimical, his evidence cannot be discarded

unless the same is otherwise found to be not trustworthy. In the

present case, we are of the view that the evidence of these two

witnesses is credible more so when witness Ram Lal received

injuries…...”

(Emphasis added.)

31.Further in Namdeo V State of Maharashtra, reported in (2007) 14

SCC 150, the Apex Court held as under:-

“In the leading case of Shivaji Sahebrao vs. State of Maharashtra,

(1973) 2 SCC 793, this Court held that even where a case hangs

on the evidence of a single eye witness it may be enough to

sustain the conviction given sterling testimony of a competent,

honest man although as a rule of prudence courts call for

corroboration. "It is a platitude to say that witnesses have to be

weighed and not counted since quality matters more than quantity

in human affairs."In Anil Phukan Vs. State of Assam, (1993) 3 SCC

282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction

can be based on the testimony of a single eye witness and there is

no rule of law or evidence which says to the contrary provided the

sole witness passes the test of reliability. So long as the single

eyewitness is a wholly reliable witness the courts have no difficulty

in basing conviction on his testimony alone. However, where the

single eye witness is not found to be a wholly reliable witness, in

the sense that there are some circumstances which may show that

he could have an interest in the prosecution, then the courts

generally insist upon some independent corroboration of his

testimony, in material particulars, before recording conviction. It is

only when the courts find that the single eye witness is a wholly

unreliable witness that his testimony is discarded in toto and no

amount of corroboration can cure that defect.”

32.In the case of Shyam Babu V State of UP reported in AIR 2012 SC

3311, The Apex Court has held as under:-

"Where the presence of the eye-witnesses is proved to be natural

and their statements are nothing but truthful disclosure of actual

facts leading to the occurrence, it will not be permissible for the

Court to discard the statement of such related or friendly

witnesses. There is no bar in law on examining family members

or any other person as witnesses. In fact, in cases involving

family members of both sides, it is a member of the family or a

friend who comes to rescue the injured. If the statement of

witnesses, who are relatives or known to the parties affected is

credible, reliable, trustworthy and corroborated by other

15

witnesses, there would hardly be any reason for the court to

reject such evidence merely on the ground that the witness was a

family member or an interested witness or a person known to the

affected party or friend etc"

33.It has again been observed by the Apex Court in the case of Kuna @

Sanjaya Behera V State of Orrisa, reported in 2017 SCC Online Supreme

Court 1336 that the conviction can be based on the testimony of single eye

witness if he or she passes the test of reliability and that it is not the

number of witnesses but the quality of evidence that is important.

34.From the above mentioned pronouncements of the Apex Court, it is

apparently clear that the evidence of interested or inimical witnesses is to

be scrutinised with care but can not 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 relying on the

said evidence. It is well settled that interested evidence is not necessarily

unreliable evidence. All that is necessary is that the evidence of interested

witnesses should be subjected to careful scrutiny and accepted with

caution. 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.

35.It is settled law that in case of direct evidence the motive would not

be relevant and only in case of circumstantial evidence, motive assumes

great significance. In a case in which the evidence is clear and

unambiguous and the circumstances proved the guilt of the accused, the

same would not get weakened even if the motive is not a very strong one.

The motive loses all its importance in a case where direct evidence of eye

witnesses is available.

36.In Suresh Chandra Bahri Vs. State of Bihar reported in 1995 Supp

(1) SCC 80, the Apex Court has opined that a motive is something which

prompts a person to form an opinion or intention to do certain illegal act or

even a legal act but with proof of motive for the commission of the crime it

affords added support to the finding of the court that the accused was

guilty of the offence charged with.

16

37.In the present case motive as well as direct evidence of two eye

witnesses i.e. P.W.-2 and P.W.5 are available. From the records, it is

apparent that before half an hour i.e. at about 09:00 a.m. on the date of

incident, an altercation took place between the deceased Jamil and the

accused-appellant in which the accused-appellant also abused Jamil on

the ground that the accused-appellant suspected that his wife Haseena

had love affair with the deceased and that is why she took divorce from

him and the said relationship between his wife and the deceased was still

continued. For the said reason the accused-appellant was angry with the

deceased and wanted to take revenge from him. Therefore, it is clear that

the accused-appellant had the motive to murder the deceased.

38.Before coming to the conclusion, it is necessary for us to deal with

the submissions made by the learned Amicus Curiae, appearing for the

accused-appellant and the learned A.G.A. for the State for litmus test. The

first submission that the presence of P.W.-5 sister of deceased and

informant is doubtful when as a matter of fact, the entire prosecution case

is based on her statement, does not appeal to us. We may record that in

the examination in chief as well as in the cross-examination, P.W.-5 has

stated that she used to go to her maternal home mostly for a day or two

days as her children were studying in school. The said submission has

also been supported by P.W.-2. She has further stated that at the time of

incident, informant was not present as he went to Baghpat and just after

the incident, he reached the spot. The same version is also reiterated by

P.W.-2. The other evidence also supports the presence of P.W.-5 at the

time and place of incident.

39.The next submission made by the learned counsel for the appellant

that one Nasiruddin who is an independent witness of incident, who could

narrate the correct facts regarding incident, has not been adduced by the

prosecution nor any explanation has given for the same by the

prosecution, also does not appeal to us. If it is assumed as per the

defence that that Nasiruddin is an independent witness of the incident but

if he does not want to testify then he cannot be compelled to testify. Even if

the defence believed that Nasiruddin was an independent witness who

could give correct information about the incident, during the course of trial,

17

the defence should have adduced him as defence witness but it failed to

do the same.

40The submission of the learned Amicus Curiae that since the P.W.-1,

P.W.-2 and P.W.-5, who being real brothers and sister of the deceased, are

interested witnesses, therefore, their testimony has no value, does not

inspire confidence. It is no doubt true that the informant-P.W.-1 and eye

witnesses i.e. P.W.-2 and P.W.-5 are real brothers and sister of the

deceased but where the presence of the eye-witnesses is proved to be

natural and their statements are nothing but truthful disclosure of actual

facts leading to the occurrence, it will not be permissible for the Court to

discard the statement of such related or friendly witnesses. There is no bar

in law on examining family members or any other person as witnesses.

41.The next contention advanced by the learned Amicus Curiae that

neither P.W.-2 nor P.W.5 was present at the time and place of occurrence

counsel, does not impress us. From the prosecution evidence, the

presence of P.W.-2 and P.W.5 has been proved.

42.The last submission made by the learned Amicus Curiae is that

since the deceased was a vagabond person, therefore, it was quite

possible that deceased was murdered by unidentified persons because of

his vagabondage and that the accused-appellant has been falsely

implicated with the intention of grabbing money, does not impress us. No

evidence or material has been led by the defence to prove that the

deceased was a vagabond person and as to why the accused-appellant

has been falsely implicated.

43.From the aforesaid facts, which have been noted herein above, we

find substance in the submissions made by the learned A.G.A. that this is a

case of direct and clinching evidence like two eye witnesses of the

incident, namely, P.W.-2 and P.W.-5.The medical evidence fully supports

the prosecution evidence. The incident occurred in broad day light i.e. at

09:30 a.m. The first information report lodged by the informant is prompt,

which was lodged within a hour of the incident i.e. 3

rd

November, 2007. The

accused-appellant had also motive to commit such offence. The incident

and the place of incident were not disputed by the defence side.

18

44.As already discussed above, we find that both the eye-witnesses

i.e. P.W.-2 and P.W.5 have satisfactorily explained about their presence

at the places of occurrence. They were subjected to lengthy cross-

examination but nothing could be elicited to discredit their testimony. The

police documents and statements of Investigating officer including arrest

of accused-appellant and recovery of country-made pistol along with

cartridges from his possession as well as medical evidence fully support

the prosecution version.

45.Taking cumulative effect of the evidence, we are of the view that the

trial court was fully justified in convicting the appellant. Accordingly, we

confirm the order of trial court.

46.The appeal has no substance and the same is dismissed. The

appellant is reported to be on bail. His bail bonds stand cancelled and he

be taken into custody for serving the remaining sentence.

47.The dismissal of this criminal appeal however shall not prejudice the

rights of the accused-appellant to apply for remission, which shall be dealt

with in accordance with law on merits.

48.We record out appreciation for the able assistance rendered in the

case by Ms. Archana Singh, learned Amicus Curiae, who would be entitled

to her fee from the High Court Legal Service Authority.

49.Let a copy of this judgment be sent to the Chief Judicial Magistrate,

Baghpat, who shall transmit the same to the Jail Superintendent

concerned for information of the accused-appellant henceforth.

(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)

Order Date :-30.9.2022

Sushil/-