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2014 DIGILAW 216 (ALL)

PARVEZ v. STATE OF U. P.

2014-01-17

AMAR SARAN, SUNITA AGARWAL

body2014
Mrs. Sunita Agarwal,J.:- Heard Shri S.M.N. Abaas Abbadi, learned counsel for the appellant and learned A.G.A. 2. Two persons namely appellant Parvez and his brother Riyasat were committed to trial in the court of Additional District and Sessions Judge ( F.T.C.) Court no.1 Saharanpur under Sections 302 and 307 I.P.C. Riysast was acquitted by giving him benefit of doubt of having committed the offences under Sections 302 and 307 I.P.C.. 3. The appellant Parvez was found guilty and was convicted under Section 302I.P.C. and punished for life imprisonment along with fine of Rs. 3,000/-. Under Section 307I.P.C., he was punished for seven years R.I. and fine of Rs. 2000/-. In default, the appellant has to undergo six months additional imprisonment. All the sentences were to run concurrently. 4. The prosecution case is that the informant Asgari wife of Abdul Hamid resident of Peer Bazeshah Wali Gali no. 3, Thana Jankpuri submitted a written application dated 2.9.1997 in the police station Janakpuri. It was stated in the First Information Report that Parvez the appellant was the husband of her daughter Sanoo. However prior to the incident they had separated and divorced. Three children born out of the marriage were living with Parvej. Only one ,daughter, namely Rubi was with Sanoo at her Maika. After divorce, Sanoo was living with the informant. There is some whisper of a dispute going on between the parties in the court as Parvej had eloped with Sanoo six years prior to the incident and married her. 5. Parvej was pressuring Sanoo to handover their daughter Rubi to him for a long time and was angry as she had refused, to give her only daughter living with her. 6. On the fateful day i.e. 2.9.1997 at around 8 A.M., Parvej along with his brother Riysat came to the house of Asgari and some altercation occurred between him and Sanoo over the custody of Rubi( their daughter). Thereafter he along with his brother Riyasat started stabbing Sanoo with ''Ustura'( Knife). The informant Asgari and her younger daughter Sabbo aged about fourteen years tried to save Sanoo and they were also assaulted with ''Ustura' by the appellant and his brother. Sabbo the younger daughter of the informant Asgari received fatal injuries on her person. She ran out of the house crying in an injured condition and fell down on the Kharanja outside the house. Sabbo the younger daughter of the informant Asgari received fatal injuries on her person. She ran out of the house crying in an injured condition and fell down on the Kharanja outside the house. She died on the spot on account of the fatal injury received on her neck. During the incident the neighbours came on the spot hearing the cries of the deceased and the injured. One Rasihda wife of Jamaludeen along with other neighbours also witnessed the incident. 7. On the said information, a case under Sections 302 and 307 I.P.C. was registered against the appellant and his brother Riyasat on 2.9.1997 at 9.05 A.M. After lodging the First Information Report, Asgari and Sanoo were sent to the District hospital by the police for their medical examination. Dr. T.R. Sharma, who entered in the witness box examined both the injured, namely, Asgari and Sanoo and also conducted postmortem of the deceased Sabbo. 8. The informant Asgari was medically examined at 9.30. A.M. and as per the injury report the informant was having two injuries of incised wounds on the left and lower side of her neck and middle chin. Apart from these two injuries, contusions and abrasions were also found on her person. The nature of the injuries have been described as simple and caused by some sharp edged object. Similar injuries were also found on the person of Sanoo who was examined at 9.45 A.M. The injuries reported are three incised wounds on the left back and front side of the neck and outer edge of left eyebrow. The remark is that the injuries were caused by some sharp edged object. Both the injury reports are dated 2.9.1997 itself . 9. The injuries of the deceased are incised wound on the right and front side of the neck which was bone deep and carried from right ear to half portion of the neck diagonally cutting trachea and artery of right side of the neck from the middle. Cause of death was due to shock and haemorrhage on account of antemortem injuries. 10. The appellant Parvej was arrested on 8.9.1997 and on the disclosure statement made by him ''Ustura' the murder weapon was recovered near four electric poles near the over-bridge, covered under the grass. As per the recovery memo dated 8.9.1997 blood was found on the ''Ustura' at the butt and front sharp portion. 10. The appellant Parvej was arrested on 8.9.1997 and on the disclosure statement made by him ''Ustura' the murder weapon was recovered near four electric poles near the over-bridge, covered under the grass. As per the recovery memo dated 8.9.1997 blood was found on the ''Ustura' at the butt and front sharp portion. As per the serologist report the blood found on the murder weapon ''Ustura' was disintegrated. 11. P.W. 1 Smt. Raseeda, the neighbour of the informant was declared hostile and was cross examined by the prosecution. Smt. Raseeda P.W.1 though she turned hostile however admitted that she had reached on the spot and saw the dead body of Shabbo lying on the road and injured Asgari and Sanno but she denied the presence of Parvej and Riyasat. In her cross examination she tried to suggest that the residents of Mohalla gave an application against Asgari and Sanoo making allegations of prostitution. 12. P.W 2 the injured witness and informant Smt. Asgari had reiterated her version in the First Information Report. 13. The injured witness Sanoo P.W.6 stated that the report was lodged by her mother at the police station and thereafter their medical examination was done at the District hospital. She and her mother were admitted in the hospital. While narrating the incident she stated that the appellant Parvej along with his brother Riyasat came to their house and attacked her with ''Ustura' after snatching Rubi her daughter from her lap. No injury was inflicted on Rubi. The appellant first attacked her and then her mother Asgari. In the meantime her younger sister Shabbo came to save her, she was also attacked and received fatal injuries. The incident occurred at the Sahan of the house. The appellant along with co-accused ran away from the door of the room which opened in the "Gali" ( lane). 14. P.W.3 Dr. T.R Sharma, who had examined the injured Asgari and Sanoo and also conducted postmortem on Shabbo stated on oath that all the injuries received by Asgari and Sanoo were fresh and he proved the postmortem and injury reports given by him. 15. P.W.4 constable Vijendra Singh and P.W.7 constable Rajendra Singh were witnesses of the inquest. 16. P.W. 5 constable Harendra Singh was witness of recovery of murder weapon ( ''Ustura'). He affirmed that the weapon was recovered on 8.9.97 after arrest of the accused Parvej at his pointing out. 15. P.W.4 constable Vijendra Singh and P.W.7 constable Rajendra Singh were witnesses of the inquest. 16. P.W. 5 constable Harendra Singh was witness of recovery of murder weapon ( ''Ustura'). He affirmed that the weapon was recovered on 8.9.97 after arrest of the accused Parvej at his pointing out. 17. P.W.8 S.I. K.P. Singh was the investigating officer. 18. P.W.8 S.I. K.P. Singh, the Investigating Officer in his examination in chief stated that the site plan was prepared by him and inspection was made in the presence of the informant Asgari. He further described that blood was found scattered from the house of the informant to the place where the dead body of Sabbo was lying. He affirmed the recovery of the bloodstained earth and plain earth from the site of the incident and the recovery of Ustura at the pointing out of the accused from the place concealed under the grass and rags near four electricity poles near the over bridge. Inquest was prepared by him in the presence of the Panch witnesses as also P.W.4 and P.W.7 i.e constables Vijendra Singh and Rajendra Singh whose signatures have been obtained on the inquest report. Murder weapon was sent to the forensic laboratory for chemical examination. He also stated that at the time of recovery of the murder weapon he found blood on it. 19. The statement of the accused under Section 313 Cr.P.C. was recorded and all the incriminating circumstances were put to him which he denied. 20. The submission of the learned counsel for the appellant is that there is inconsistency in the statement of injured witness i.e. informant P.W.2 Asgari, and P.W. 6 Sanoo regarding the place of occurrence of the incident. The P.W. 2 informant said that Sabbo was attacked by the appellant inside the room when she came to save her and Sanoo. She ran out of the room crying and died at the road outside the house of the informant whereas P.W. 6 in her statement said that the entire incident occurred in the Sahan adjacent to the room which opens in the "Gali" outside the house of the informant. He further stated that the time of the incident as narrated is incorrect in view of the statement of P.W.2. The incident is said to have occurred at around 8 A.M. whereas Dr. He further stated that the time of the incident as narrated is incorrect in view of the statement of P.W.2. The incident is said to have occurred at around 8 A.M. whereas Dr. T.R. Sharma, who had conducted postmortem stated that rigor mortis was present over the upper portion of the hands of the deceased, therefore, there is possibility of the incident having occurred six hours prior to the time mentioned in the First Information Report and thus between 3 to 4 A.M. 21. The further submission is that the First Information Report is ante-timed as the crime number has not been mentioned in the letter ( Chitthi Majroobi) written for medical examination of the injured Asgari and Sanno. The statement of the witnesses is that the injured witnesses went to the police station and after the report was lodged they were sent along with letter for medical examination. The fact that the crime number has not been mentioned in the letter addressed to the doctor for medical examination clearly shows that the First Information Report is ante-timed and it was lodged after inquest was prepared and postmortem was conducted. He further submits that the inquest was alleged to have been prepared by the Investigating Officer, S.I. K.P. Singh, however he did not put his signature on the inquest, rather the signatures of two other constables Vijendra Singh and Rajendra Singh were taken on the inquest . 22. 0Moreover S.I. K.P. Singh Investigating Officer in his statement said that the site plan was prepared in the presence of informant Smt. Asgari whereas Asgari had deposed that she remained hospitalized after lodging the First Information Report when she was sent along with Sanno for medical examination. The inquest of the deceased was prepared in her presence and at the time of preparation of site plan neither she nor her daughter, injured witness went to the spot. The site plan was prepared in the presence of neighbours, she gave the key of her house. 23. Much stress has been laid by the learned counsel for the appellant on the said inconsistency in the statement of the informant Asgari and the Investigating Officer and on that basis it was submitted that the site plan was not prepared on the spot. 24. 23. Much stress has been laid by the learned counsel for the appellant on the said inconsistency in the statement of the informant Asgari and the Investigating Officer and on that basis it was submitted that the site plan was not prepared on the spot. 24. He lastly submits that the alleged murder weapon i.e. "Ustura" was found from an open place and it was implanted on the appellant. The said fact further established from the statement of P.W.5 that on the cloth in which the alleged murder weapon was kept and sealed was carrying the name of Liyakat Police station Nakor, Saharanpur. Though it contains the slip of F.S.L where it was sent for chemical examination. The alleged weapon cannot be connected with the present crime and it was some other weapon which was sent for chemical examination. On account of these discrepancies the entire prosecution story falls as the inconsistencies/discrepancies found are fatal to the prosecution case. 25. Learned A.G.A. per contra submits that discrepancies as pointed out by the learned counsel of the appellant are minor discrepancies. It is the case of circumstantial evidence and each instance of incriminating circumstance, by way of reliable and clinching evidence, has been established by the prosecution. The chain of events is complete on the basis of which, no conclusion other than one of the guilt of the accused-appellant can be reached. 26. There was motive to commit the crime. It is an undisputed fact that the appellant and Sannoo P.W. 6 the injured witness were husband and wife and on account of their strained relationship they had divorced two years prior to the incident. However a dispute remained on account of one daughter being born out of their wedlock after divorce in the house of the parents of Sannoo. The appellant wanted to get his daughter in his custody and earlier also an altercation had taken place over the custody of the child. On the date of incident the appellant came to the house of the informant, again altercation took place between the appellant and Sannoo over custody of their daughter Rubi. After some altercation, the appellant inflicted injuries on the neck of his ex-wife Sannoo and the informant Asgari. On the date of incident the appellant came to the house of the informant, again altercation took place between the appellant and Sannoo over custody of their daughter Rubi. After some altercation, the appellant inflicted injuries on the neck of his ex-wife Sannoo and the informant Asgari. When he was attacking them with Ustura, the younger daughter of Asgari came to their rescue and the appellant also inflicted fatal injures on her neck, which sliced the trachea and artery of her neck from the middle. The deceased Sabbo ran out crying on account of the injuries on her person and succumbed to the injuries on the road in front of the house. P.W.1 one of the neighbours who was stated to be the witness of the incident though she denied the presence of the accused appellant at the place of occurrence and also the time of incident being around 8 A.M., however, she admitted in her examination in chief that she saw the two injured persons with blood oozing out of their wounds,namely, Asgari and Sannoo and the deceased Sabbo lying on the road outside the house. 27. We have considered the submissions of the learned counsel for the parties and perused the record. 28. Insofar as the submission of the learned counsel for the appellant regarding the discrepancies about the place of occurrence of the incident is concerned it will be seen that there is no inconsistency. 29. In fact, the site plan prepared by the Investigating Officer signed by him shows that the body of the deceased Sabbo was found at the place marked as "S" which is a road/"Gali" outside the house of the informant. "X" is the place inside the house where blood was found. It has also been mentioned in the site plan that blood was found scattered from place "X" i.e. place of occurrence and the place "S" where the body of the deceased was lying . The distance from "X" to "S" was mentioned as 24 steps. 29. Further the informant also stated on oath that the incident occurred in the house and the deceased ran after getting injury on her person and died outside the house on the road. The distance from "X" to "S" was mentioned as 24 steps. 29. Further the informant also stated on oath that the incident occurred in the house and the deceased ran after getting injury on her person and died outside the house on the road. The mere one line in the statement of P.W.6 that the entire incident occurred in the "Sahan" whereas she also said that after they were attacked by the appellant and blood fell on the ground in the room is not sufficient to accept the contention of the learned counsel for the appellant. The Investigating Officer took a sample of bloodstained earth and plain earth from the place of occurrence. In the serologist report human blood was found in the bloodstained earth sent for chemical examination. 30. A reference may be made to the judgment of the Apex Court in State of Rajasthan Vs. Teja Ram and others ( 1999) 3 SCC 507wherein discrepancy in the evidence as between two sets of witnesses was considered. The Apex Court in paragraph 18 of the judgment held that there was little justification of the High Court for blowing up such a mote discrepancy to the size of a mountain and then to reject the whole evidence by depicting it as a material discrepancy. In the said case, the discrepancy in the evidence of two sets was that two witnesses said that assailants were seen going out from the western gate of the house while other two witnesses said that assailants went out through the eastern gate. It was held that in the circumstances of the case, no adverse inference can be drawn against such witnesses. 31. In the case of Appabhai and another Vs. State of Gujarat, 1988 ( Supp.) SCC, 241, the Apex Court in paragraphs 13 and 14 of the judgement has held that minor discrepancies to the testimony should not be given undue importance. The injured victim, the victim assaulted must be considered as the best eye-witness. Paragraphs no. 13 and 14 of the judgement are quoted as under :- "13.On the second contention, the learned Counsel highlighted many of the contradictions in the evidence of Devji ( PW-4) as against his previous statement ; one recorded by the Executive Magistrate ( Exh. 66) and another by the police during the investigation. We have, however, also examined the relevant evidence. 66) and another by the police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed : This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered. "14. "14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, M.P. Thakkar, J. observed : A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses." 32. The contention of the learned counsel for the appellant is that the First Information Report is ante-timed cannot be accepted for the reason that the time of the incident mentioned in the First Information Report is around 8 A.M. The chik F.I.R was prepared at 9.05 A.M. After lodging of the First Information Report, the injured witnesses were sent to the District hospital and were examined at 9.30 A.M. and 9.45 A.M. The statement of the injured witnesses is that they first went to the police station, lodged the First Information Report and then were sent by the police to the District hospital along with a letter of medical examination. Time of chik F.I.R. mentioned in the inquest was 9.05 A.M. Time of commencement of the inquest was mentioned as 10.15 A.M. and completion was 11.15 P.M. and postmortem was conducted on the same day at 5 P.M.. Thus, there is no missing link in the sequence of events and the time mentioned in the First Information Report does not suggest that the First Information report is ante-timed. There are consistent statements of the informant and other injured witnesses and the Investigating Officer that the injured first went to the police station, lodged the First Information Report and then were sent for medical examination in the District hospital. There are consistent statements of the informant and other injured witnesses and the Investigating Officer that the injured first went to the police station, lodged the First Information Report and then were sent for medical examination in the District hospital. Merely because crime number was not mentioned in the letter sent to the doctor along with the injured witnesses for medical examination in the District hospital, it cannot be inferred that the First Information Report is ante-timed. 33. The Apex Court in ( 2002) 4 SCC, 426 Rajesh alias Raju Chandulal Gandhi and another Vs. State of Gujarat; ( 2006) 2 SCC, 450, Radha Mohan Singh alias Lal Saheb and others Vs. State of U.P. and ( 2011) 6 Supreme Court Cases, 288, Brahm Swaroop and another Vs. State of Uttar Pradesh has discussed the discrepancies and omissions in the inquest report and held that such discrepancies or omissions are not sufficient to put the prosecution out of the court and such omission would not necessarily led to an inference that the First Information Report is ante-timed. 34. In the case of Jaishree Yadav Vs. State of U.P. ( 2005) 9 Supreme Court Cases, 788. In paragraph 16 it was held that merely because the requisition sent by the investigating officer to the doctor, to conduct the postmortem, did not accompany all the particulars found in the inquest report and the complaint like the particulars of the case, the contention of the learned counsel for the accused that when the dead body was sent for postmortem the investigating agency did not know the full particulars of the case. It was held that :- "............ We do not think that these omissions, if any, would lead to the conclusion that the FIR is anti-timed. It is a settled principle in law that though it is necessary to give the gist of the information collected during the course of inquest proceedings and from the material available in the FIR to the doctor conducting the post mortem, it is not necessary to give all the particulars as contained in either of the above said documents. This is clear from the judgment of this Court in the case of Mahendra Rai vs. Mithilesh Rai & Ors." 35. This is clear from the judgment of this Court in the case of Mahendra Rai vs. Mithilesh Rai & Ors." 35. This apart the fact that inquest has not been signed by the Investigating Officer is not fatal to the prosecution case for the reason that there are other two witnesses of the inquest P.W. 4 and P.W.7 who stated on oath that they were present and signed the inquest which was prepared by the Investigating Officer. Moreover the purpose of the inquest is to ascertain the condition of the body of the deceased at the time of inspection. The signatures of the Panch witnesses and two constables namely P.W. 4 and P.W.7 are on the inquest. 36. The recovery of murder weapon "Ustura" was at the pointing out of the appellant. The recovery cannot be said to be from an open place as the "Ustura" was found hidden beneath grass and rags from a place which was disclosed by the appellant though it was described an open place being under the over bridge between four electricity poles. As the appellant guided the Investigating Officer to the specific place mentioned in his disclosure statement and the bloodstained "Ustura" was recovered which was concealed by him under the grass and rags, it cannot be described as a recovery from an open place. The seizure memo was prepared and marked as exhibit Ka 5. A perusal of the same indicates the facts discovered from the statement of the accused-appellant and the recovery of Ustura a weapon was concealed by him. While dealing with the recovery on the basis of disclosure statement made by the accused the Apex court in Teja Ram ( supra) wherein the axes hidden beneath the rags were recovered with the help of the information elicited from the accused, the Apex Court has held that normally the above circumstance should have been given weighty consideration in the evaluation of the circumstantial evidence. 37. Further in the serological report on account of the blood having been found disintegrated that does not mean that the blood stuck on the axe would not have been human blood at all. 38. The Apex court in the case of Sunil Clifford Daniel Vs. State of Punjab reported in ( 2012) 11 SCC 205has considered the fact that blood found to have disintegrated on the recovered article in detail. 38. The Apex court in the case of Sunil Clifford Daniel Vs. State of Punjab reported in ( 2012) 11 SCC 205has considered the fact that blood found to have disintegrated on the recovered article in detail. After consideration of various judgments the Apex Court had observed in paragraph 46 which is quoted below-: "In view of the above, the Court finds it impossible to accept the submission that, in the absence of the report regarding the origin of the blood, the accused cannot be convicted, upon an observation that it is only because of lapse of time that the classification of the blood cannot be determined. Therefore, no advantage can be conferred upon the accused, to enable him to claim any benefit, and the report of dis-integration of blood etc. cannot be termed as a missing link, on the basis of which, the chain of circumstances may be presumed to be broken." 39. While coming to the said conclusion Teja Ram ( supra) was also considered wherein it was held that merely due to disintegration of the serum and absence of specific report regarding presence of human blood on the weapon, it cannot be imagined that the blood would be of some other origin. 40. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. 41. The court finds, in the present case, that there was strong motive for commission of the crime. Though the appellant had divorced Sannoo, his ex-wife two years prior to the incident and they were living separately, however, he was insisting for the custody of their daughter born after the divorce at the house of the informant. Admittedly three children born out of their wedlock were living with the appellant. Thus there is little possibility of doubt regarding existence of motive. Thus an inference may be drawn that the appellant in fact wanted to get back his daughter at any cost. 42. His wife Sannoo was strongly resisting and not prepared to give custody of the female child Ruby. On account of it, some altercation had taken place between them prior to the incident. 43. Thus an inference may be drawn that the appellant in fact wanted to get back his daughter at any cost. 42. His wife Sannoo was strongly resisting and not prepared to give custody of the female child Ruby. On account of it, some altercation had taken place between them prior to the incident. 43. The Apex Court in Sunil Cliffored Daniel( supra) considered the case of Suresh Chandra Bahri vs. State of Bihar reported in 1995 Supp ( 1) SCC page 80 to come to the conclusion that the entire evidence on record suggest that the appellant has sufficient/necessary motive to commit the crime. 44. The suggestion of the defence is that the informant was a person of loose character and a complaint was made by the neighbours that she had indulged in prostitution along with her two daughters, therefore, there is strong possibility of the crime being committed by any of the customers of the three females in the house. The said suggestion is a remote possibility and there is no basis for making the said statement. Even otherwise from the evidence on record it is clear that the incident occurred around 8 A.M. as stated by the informant. The neighbours rushed to the spot after hearing the cries of the deceased and injured, however, no one has come forward to give such a statement. One neighbour P.W.1 though she stated in her examination that she saw the deceased lying in a pool of blood on the road having an injury on the neck when she rushed to the spot. She however turned hostile and stated that she did not see the appellant and his brother at the place of occurrence. The incident happened in the dwelling house of the informant and the most natural witnesses would be the inmates of the house. Only for the reason that some independent witnesses turned hostile and did not support the prosecution case, the court cannot castigate the prosecution as it was not possible to examine any independent witness who had witnessed the events. Normally the neighbours and other independent witnesses do not come forward in such matters. Experience reminds us that the people are generally insensitive when a crime is committed even in their presence. They keep themselves away from the court unless it is inevitable. But the prosecution case cannot be thrown out or doubted on that ground alone. Normally the neighbours and other independent witnesses do not come forward in such matters. Experience reminds us that the people are generally insensitive when a crime is committed even in their presence. They keep themselves away from the court unless it is inevitable. But the prosecution case cannot be thrown out or doubted on that ground alone. See Appabhai and another Vs. State of Gujarat ( supra). 45. So far as the contention of the learned counsel for the appellant that the incident occurred in the odd hours of night and not in the morning of 2.9.1997 is concerned, it may be noted that the basis of the said contention is the statement of P.W.3 Dr. T.R. Sharma, who conducted the postmortem. The doctor in his cross examination submitted that as rigor mortis was present over the upper portion of the hands of the deceased, therefore, there was a possibility of the incident having occurred six hours prior to the time mentioned in the First Information Report. Dealing with the submission of learned counsel for the appellant we may refer to the relevant portion from the Modi's Medical Jurisprudence and Toxicology, 23rd Edition which is quoted as under :- "In the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities." In Mangu Khan Vs. State of Rajasthan ( 2005) 10 SCC 374the Apex court observed in paragraph-8 that :- "The contention urged by reference to textbooks on Forensic Medicine to show the time within which rigor mortis develops all over the body also has no factual basis. It depends on various factors such as constitution of the deceased, season of the year, the temperature in the region and the conditions under which the body has been preserved. The record indicates that the body was taken from the mortuary. We notice that there is no cross examination, whatsoever, of the doctor so as to elicit any of the material facts on which a possible argument could have been based. The record indicates that the body was taken from the mortuary. We notice that there is no cross examination, whatsoever, of the doctor so as to elicit any of the material facts on which a possible argument could have been based. If these are the circumstances, then the presence of rigor mortis all over the body by itself cannot warrant the argument of the learned counsel that the death must have occurred during the previous night. Acceptable ocular evidence cannot be dislodged on such hypothetical basis for which no proper grounds were laid." 46. Moreover it is settled legal proposition that the ocular evidence would have primacy unless the oral evidence available is totally irreconcilable with the medical evidence. More so ocular testimony of a witness will have greater evidentiary value vis-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence . It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. 47. So far as the opinion of the doctor is concerned that incident might have occurred six hours prior to the time mentioned in the First Information Report i.e. 8 A.M. and the suggestion of the appellant that it occurred in the night does not mean that Dr. T.R. Sharma P.W.3 was able to fix the exact time of death. 48. Issue raised by the learned counsel for the appellant has been considered and decided in umpteen number of judgements of the Apex Court. Reference may be taken to ( 2006) 13 SCC, 65 Baso Prasad Vs. State of Bihar ( 2011) 9 SCC 698Rakesh and another Vs. State of Madhya Pradesh; ( 2012) 10 SCC 476 , Darbara Singh Vs. State of Punjab; and ( 2013) 4 SCC 360Umesh Singh Vs. State of Bihar. 49. In the present case the doctor on the basis of postmortem conducted by him only gave a suggestion that the time of occurrence might be prior to 8 A.M. 50. In view of the above, it is evident that the incident occurred at about 8. AM. State of Bihar. 49. In the present case the doctor on the basis of postmortem conducted by him only gave a suggestion that the time of occurrence might be prior to 8 A.M. 50. In view of the above, it is evident that the incident occurred at about 8. AM. The injured Asgari and Sannoo went to the police station, lodged the First Information Report and were taken to the hospital where they were examined by the doctor. The motive was also disclosed in the First Information Report itself. It is, therefore, improbable that the appellant has been falsely implicated as promptness in lodging of the First Information Report shows that there was no time for manipulation. 51. Further it does not appeal to reason as to why injured witnesses would falsely implicate the appellant when he had already divorced Sannoo and they were living separately for almost two years prior to the occurrence of the incident and spare the real culprits to go scot free. 52. There is no discrepancy in the statement of two injured witnesses and even if there are minor discrepancies between the narrations of the witnesses when they speak on details, unless contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. 53. Other circumstances, particularly the nature of the injuries inflicted on the person of the injured witnesses and the deceased, arrest of the accused, recovery of weapon, his disclosure statement prove the prosecution case. There is no reason not to believe the statements of the injured eye witnesses. 54. In a feeble attempt learned counsel for the appellant submits that this is a case where the offence, if any, said to be committed by the appellant would not go beyond Section 304 I.P.C. as it was a case of sudden provocation and appellant did not intend to commit the crime. 55. The said confession does not stand to reason as it is evident that the appellant was carrying a 'Ustura" with him when he went to meet Sannoo and moreover he did not attack Sannoo only but two other persons also who came to save her. He ran away only after causing serious injuries to Sabboo who died on the spot. The fact of carrying weapon with him, clearly shows that the appellant had intention to settle the dispute for ever at any cost. 56. He ran away only after causing serious injuries to Sabboo who died on the spot. The fact of carrying weapon with him, clearly shows that the appellant had intention to settle the dispute for ever at any cost. 56. In view of the above we reach an inescapable conclusion that the appellant is guilty of the commission of the offence for which he has been charged. We do not find any force in the present appeal. The appeal lacks merit and is dismissed accordingly. 57. The judgment and order dated 15.2.2007 convicting and sentencing the accused-appellant with rigorous imprisonment for life is affirmed. The accused-appellant Parvej is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us. 58. The certified copy of the judgment be sent to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Saharanpur within four weeks from date of receiving the copy of this order.