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2014 DIGILAW 2510 (ALL)

Roshan Singh v. State of U. P.

2014-08-14

RANJANA PANDYA, RAVINDRA SINGH

body2014
JUDGMENT Mrs. Ranjana Pandya, J. This appeal has been filed by the appellant accused against the Judgment dated 10.1.1983 passed by Sessions Judge, Fatehpur in Sessions Trial No. 115 of 1982, State Vs. Roshan Singh and three others whereby he convicted the accused persons, namely, Purai, Roshan Singh, Ram Sumer @ Jabar and Ram Autar under Section 302 read with Section 34 I.P.C. and sentenced all of them to undergo life imprisonment. 2. Appellant Ram Sumer @ Jabar Singh died during the pendency of appeal, hence, his appeal was abated, vide order dated 23.3.2012 passed by the Court. 3. The prosecution story in nutshell is that about six or seven months prior to the unfortunate incident, the brother of Ganga Din was got murdered by Ram Sumer @ Jabar Singh who kept Ganga Din's widow as his mistress. Thereafter, accused Roshan Lal and his relative Ramesh got some land of Ganga Din transferred in their name by Ganga Din's widow. The complainant Durga, brother of the deceased filed an objection in the mutation court due to which accused were having inimical terms with him, and as such, Durga being frightened with said enmity used to not sleep at his own house. On the fateful day, i.e., 8.1.1982, the complainant Durga had gone to the house of Ram Pyari, who was residing the in the same locality some houses away from his own house where he was warming his hands. Suddenly, he heard and observed that somebody was axing the doors of his house. He also heard gun shots and shrieks of his sister Bodhni (deceased) and wife Raj Kali (P.W. 4). He rushed toward his house and Bachchoo Singh, Ram Singh and others, who were armed with lathis and torches and Raja Singh and Bachchu Singh, who was having torches in his hand, reached near his house and raised alarm. Meanwhile, Bodhan Teli, who was living opposite the house of the complainant, fired three shots from his house. At this the accused persons fled away from the house of the complainant. Accused Roshan and Ram Sumer @ Jabar Singh were armed with country made pistols whereas Ram Autar was armed with an axe and Purai was armed with gun. The complainant along with the other witnesses recognized all the accused persons in the moon-light and in the light of torches. Accused Roshan and Ram Sumer @ Jabar Singh were armed with country made pistols whereas Ram Autar was armed with an axe and Purai was armed with gun. The complainant along with the other witnesses recognized all the accused persons in the moon-light and in the light of torches. Thereafter, the complainant along with the witnesses entered into his house and found his sister Bodhni lying dead in the thatch 'Chhappar'. His wife Raj Kali (P.W. 4) narrated him that all the four accused, after axing the door, entered into the house and inquired about Durga, and when complainant's wife told that Durga was not in the house, they thought that Durga was running away in disguise. Meanwhile deceased Bodhni caught hold of Ram Sumer @ Jabar Singh tightly, upon which accused Purai fired on the deceased Bodhni, who fell down dead. 4. A written report of the occurrence was lodged on 9.1.1982 at 11 a.m. by Durga (P.W. 2) at police station Sultanpurghosh, which was 17 kolo meters north to the place of the incident. This case was registered at Crime No. 5 of 1982. The investigation was conducted by the Investigating Officer, who prepared the memo of wooden pieces of the door as Ext. Ka-6; memo of blood-stained earth and ordinary earth as Ext. Ka-7; memo of lantern as Ext. Ka-8; and memo of torch as Ext. Ka-9. Since the formal proof of these papers was dispensed with by the defence. P.W. 3 R.K. Mishra proved the chik report (Ext. Ka-3) and copy of G.D. (Ext. Ka-4). On 10.1.1982 at about 12.30 p.m. Dr. Swatantra Singh (P.W.1) conducted autopsy upon the dead body of Bodhni and proved the post mortem report as Ext. Ka-1. P.W. 1- Dr. Swatantra Singh found that the deceased was an average built lady of about 50 years of age. Eyes were closed. Rigoros mortis was present in both the lower limbs and passed off from the upper limbs. Dr. Swatantra Singh found the following ante-mortem injuries on the person of the deceased. 1.Gun shot wound of entry 2½" x 1½ x thorasio cavity deep. Margins inverted and muscle coming out with blackening and tattooing present on the right side of chest 4" below post axillary fold with fracture of 7th, 8th and 9th ribs on the right side. Direction from right to left. 1.Gun shot wound of entry 2½" x 1½ x thorasio cavity deep. Margins inverted and muscle coming out with blackening and tattooing present on the right side of chest 4" below post axillary fold with fracture of 7th, 8th and 9th ribs on the right side. Direction from right to left. 2.Lacerated wound right upper arm middle 1/3 of medial surface 4" x3" x muscle deep. Margins irregular with loss of muscle and skin of the wound. 5. In internal examination, the doctor found 22 pellets of different sizes and shapes and one wadding piece in the dead body which was sealed and sent to the S.P., Fatehpur through proper channel. The doctor opined that the death of the deceased was caused due to shock and haemorrhage as a result of the injuries mentioned above. 6. The Magistrate took cognizance against all the four accused persons on the police charge-sheet and the case was committed to the court of sessions where it was registered as S.T. No. 115 of 1982 against the accused under Section 302 read with Section 34 I.P.C. 7. After committal of the case to the court of sessions, the learned Sessions Judge framed charges against the accused persons under Section 302 read with Section 34 I.P.C. The accused persons pleaded not guilty and claimed trial. 8. In order to bring home the guilt to the accused persons, the prosecution had examined five witnesses-P.W.1-Dr. Swatantra Singh, who conducted the post mortem report; P.W. 2- Durga, who is the complainant and who saw the accused persons running away from his house after committing the offence and who has proved the written report as Ext. Ka-2; P.W. 3- Head Constable Raj Kumar Mishra, who proved the chick report (Ext. Ka-3) and copy of G.D. (Ext. Ka-4); P.W. 4 Smt. Raj Kal I, who is the wife of complainant Durga (P.W. 2) and sister-in-law (bhabhi) of the deceased Bodhni and is also said to be an eye witness. P.W. 5 Raja Singh, who is said to be a witness who saw the accused person fleeing away from the house of the complainant in moonlight and in torch-light. The genuineness of the site plan was also dispensed with, hence, it was marked as Ext. Ka-7. 9. In the statement recorded under Section 313 Cr.P.C., all the four accused persons have again denied the prosecution story. The genuineness of the site plan was also dispensed with, hence, it was marked as Ext. Ka-7. 9. In the statement recorded under Section 313 Cr.P.C., all the four accused persons have again denied the prosecution story. The accused Purai has stated that he has falsely been implicated because the accused Durga and Kailash were having litigation about a field. The accused Roshan Singh denied the allegations of the prosecution story and stated that he has been implicated due to the enmity of Durga's party. The accused Ram Sumer @ Jabar denied the prosecution story taking a plea of alibi and has stated that he is nephew of Kailash as such he has been falsely implicated in the case. The accused Ram Autar also denied the prosecution story stating that he has been implicated due to enmity. No defence evidence has been adduced by the accused persons. 10. We have heard Sri R.B. Sahai, Sri Rahul Mishra and Sri Raja Singh, counsel for the appellants and the learned A.G.A. 11. Learned counsel for the appellants have vehemently argued that: - The First Information Report is inordinately delayed and has been lodged after due consultation and deliberations. That there was no motive for the accused to have killed the deceased and no plausible motive has been assigned in the First Information Report. The witnesses produced are not reliable. That there is contradiction in the medical and ocular evidence. Source of light is inadequate. 12. As far as the First Information Report is concerned, The occurrence is said to have been committed on 08.01.1982 at about 10.00 p.m. whereas the report was lodged at police station on 09.01.1982 at 11.00 a.m. i.e. after a lapse of about more than 12 hours, the distance of police station from place of occurrence being 17 k.m. 13. To start with, as to whether, in the facts of the present case, there is inordinate delay in lodging the First Information Report which makes the prosecution case doubtful, is an issue to be answered. It is well settled that the First Information Report is not an encyclopaedia of the prosecution case. 14. It has been argued on behalf of the defence that there is inordinate delay in lodging the First Information Report. An early reporting of the occurrence by the informant with all its details gives an assurance regarding its true versions. It is well settled that the First Information Report is not an encyclopaedia of the prosecution case. 14. It has been argued on behalf of the defence that there is inordinate delay in lodging the First Information Report. An early reporting of the occurrence by the informant with all its details gives an assurance regarding its true versions. It is true that in case there is some delay in lodging the First Information Report, the complainant must give explanation for the same. Undoubtedly, the delay in lodging the First Information Report does not make the complainant's case improbable when such delay is properly explained. However, the delay in lodging the complaint may prove to be fatal in cases delay is not explained. In each case of delay, it cannot be presumed that the allegations were an afterthought or had given the coloured version. The Court has to carefully examine the facts before it. If the complainant party initiates criminal proceedings just to harass the other side with mala fide intention for ulterior motive wrecking vengeance. The Court proceeding ought not to be permitted to generate into a weapon of harassment of persecution. In such a case, wherein First Information Report is lodged with a view to spite the other party because of a private and personal grudge and to enmesh the other party in criminal proceeding, the Court should look into the matter. 15. Coming to the present case, the scribe of the First Information Report is Yashpal Singh, who has not been examined but Durga, Complainant PW-2 has been examined. A perusal of the statement of Durga PW-2 would help in analysing the delay in lodging the First Information Report. PW-2, Durga has stated that he saw the accused persons running out of his house; he reached his house and he saw his sister lying there dead, meaning thereby that as soon as he reached his house at 10.00 p.m., the occurrence had occurred and since his sister was dead, I don't think that there was any occasion for the complainant to take anybody to the hospital, since admittedly there is no injured in this case. It is admitted legal position that delay in lodging the First Information Report cannot be a ground by itself for throwing away the prosecution evidence but the Court has to see an explanation and check truthfulness of the version put-forward. 16. It is admitted legal position that delay in lodging the First Information Report cannot be a ground by itself for throwing away the prosecution evidence but the Court has to see an explanation and check truthfulness of the version put-forward. 16. As far as the examination-in-chief of PW.2, Durga, the complainant is concerned, this witness did not utter a word about reason for delay in lodging the First Information Report, what to say of any plausible explanation. In fact perusal of the record shows that there is no explanation at all given as regards the delay in lodging the First Information Report is concerned. 17. The learned AGA has argued that the occurrence took place on a very cold winter night and generally the mornings are also cold, hence if the complainant reached the police station, which was 17 km away at 11.00 a.m. and lodged the report it could not be said that there was delay in lodging the First Information Report. 18. Delay in lodging the First Information Report cannot be used as a ritualistic formula for doubting the prosecution case, and discarding the same solely on the ground of delay in lodging the First Information Report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. We cannot ignore the Indian conditions as they are and cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. 19. Learned counsel for the defence has placed reliance on Anant Ram Vs. State of U.P., 1985 AcrJ 75, in which the Hon'ble High Court has laid down as under: - "10. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. 19. Learned counsel for the defence has placed reliance on Anant Ram Vs. State of U.P., 1985 AcrJ 75, in which the Hon'ble High Court has laid down as under: - "10. There is also undue delay in lodging of the F.I.R. at the police station, i.e., the next day at 12.00 P.M. though the village Risauli is at a distance of only 9 miles from the police station Bilsi. P.W. Thakuri after seeing the firing at his son Khubi Singh at about 8 or 9 P.M did not rush to the police station for lodging the report not for taking the help from the police in finding out his son. He also did not sent anybody on his behalf or any member of his family for lodging the report at the police station. Early in the next morning, he could also have gone for lodging the report at the police station but it appears that it was not purposely done on account of consultation and deliberation by Thakuri and this undue delay in lodging the first information report has not been explained and, therefore, the prosecution case is doubtful." 20. We have examined this aspect of the matter. Although the Court can take notice of the fact that in January generally the weather is extremely cold, but what was the reason why the complainant did not proceed for the police station in the dawn of the day has not come forth. In his deposition before the court he has failed to state whether he went to the police station on any vehicle or on foot. Thus, I conclude that there is delay in lodging the First Information Report, which has not been satisfactorily explained, which is fatal for the prosecution. 21. Coming to the motive, as far as the motive is concerned, in the First Information Report it has been mentioned that the accused persons were searching the complainant in his house, suddenly the deceased caught hold of Jabar Singh and was not leaving him then Purai fired at her and she died. 21. Coming to the motive, as far as the motive is concerned, in the First Information Report it has been mentioned that the accused persons were searching the complainant in his house, suddenly the deceased caught hold of Jabar Singh and was not leaving him then Purai fired at her and she died. Besides it has also been mentioned that the litigation regarding land was pending between the complainant and Kailash Yadav due to which Jabar Singh as well as Ram Sumer were having inimical terms with him. We have no doubt that motive is a double edged weapon which on one hand proposes the accused to commit the crime and on the other hand it works as a catalyst in falsely roping the accused in the case. It is only the perpetrator of the crime, who knows what are the circumstances and cause of action leading to the commission of the crime. Different persons react different under giving circumstances. Murder can be committed even on very trivial issues. It is also difficult to say that hard and fast rule as to how and in what manner a person would react and could go to extent to achieve his motive in the commission of the crime under a particular circumstance. It is not possible to measure the extent of his feeling, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a giving circumstances. The Hon'ble Apex Court in the case of Ranganayaki vs. State (2004) 12 SCC 521 has held as under: " The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. One cannot normally see into the mind of anther. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered." In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Terriotiry of Chdndigarh 2003 (47) ACC 7 (SC) are also relevant: "There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved." 22. It has also been argued by the learned counsel for the defence that it has been laid down in 2012 (77) ACC 125, Nanhoon and others vs State of U.P. that if the motive for crime is not established or the motive is very week it may be of no importance. But the Hon'ble Apex Court in Mangaru and others vs. State of U.P. 2008 (62) ACC 40 has laid down that motive may be of importance in the cases of circumstantial evidence and it is well settled principle of law that in the case of direct evidence, motive looses its value. 23. Coming to the oral evidence adduced by the prosecution on this issue in this case, PW-2, Durga, the complainant has stated in his deposition before the court that his wife told him that the accused were searching him (the complainant). She further stated that the accused were saying that the complainant was running away by distinguishing himself as a woman and the deceased was killed in mistaken identity. He has further stated that the accused Ram Sumer has got the complainant's brother Gangadin murdered and had kept the widow of Gangadin as his mistress and the accused Roshan and his relatives had got written the fields of Gangadin. He has further stated that the accused Ram Sumer has got the complainant's brother Gangadin murdered and had kept the widow of Gangadin as his mistress and the accused Roshan and his relatives had got written the fields of Gangadin. Further he has stated that he filed objection in the Tehsil, due to which the accused had inimical terms with him and this was also a reason that he did not sleep at his house. The eye-witness PW-4, Raj Kali has also said about this matter, but has said that due to danger of life her husband used to sleep at the house of Ram Piyari. In cross-examination she has stated that there were inimical terms due to dispute of land between Durga and Kailash, father of the accused Roshan. Witness Raja Singh, PW-5, who has been arrayed as a witness by the defence has stated that he was also a witness from the side of the complainant in the case, in which complainant had filed objection in the Tehsil. Thus, P.W. 5 cannot be termed to be an independent witness but he is a pocket witness of the complainant. 24. It is principle of law that in cases of direct evidence, motive loses its value but when the prosecution case comes with a definite motive in the First Information Report and in the prosecution case that it is expected that the prosecution in the ordinary course of things should prove that motive. It has come in the prosecution story that the brother of the complainant Gangadin was got murdered by Ram Sumer and it has also been alleged that Ram Sumer had kept the widow of Gangadin as his mistress and even in the revenue records the name of Kailash had found place in which the complainant had filed objections. These features point out that accused party was satisfied because they had achieved what they wanted to and it was the complainant party who was dissatisfied with things. Thus, the prosecution has miserably failed to prove the motive against the accused to commit the crime. 25. It has been argued that there is only one eye-witness in the case, who is said to have seen the murder and two witness, who are alleged to have seen the accused running away immediately after the occurrence. 26. Referring back to the First Information Report (Ext. 25. It has been argued that there is only one eye-witness in the case, who is said to have seen the murder and two witness, who are alleged to have seen the accused running away immediately after the occurrence. 26. Referring back to the First Information Report (Ext. Ka-2), it is clear that a thorough perusal of the First Information Report shows that according to the First Information Report, the axe, which was said to have been carried by Ram Autar, is not said to have been used by him and there is no mention of assault by axe either using it in the ordinary course of manner or from the reverse blunt side in the F.I.R. The use of axe from its blunt side has only been stated by the eye witness Raj Kali (P.W. 4). P.W. 2- Durga complainant has narrated the incident as told to him by his wife Raj Kali (P.W. 4). For the first time, the fact that axe was used from the blunt side came in the statement of P.W. 2 Durga. Of course, as regards the manner of assault is concerned, he got the first hand information from his wife Raj Kali. Confronted with this position as to why assault from the blunt side of the axe does not find place in the First Information Report, the prosecution could not assign any plausible and reasonable explanation for the same which creates a doubt on the prosecution theory as stated in the First Information Report. 27. As far as related and interested witness is concerned in the case of Dalip Singh and others vs. State of Punjab ( AIR 1953 SC 364 ), it has been laid down as under by the Hon'ble Apex Court: - "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts." 28. Observations of the Hon'ble Apex Court Masalti and others vs. State of U.P., A.I.R. 1965 SC 202, are worth mentioning: - "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 29. The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698 , in which Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in Israr vs. State of U.P. [2005(51) ACC 113] in para-12 of the judgement are also important: - ".... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.: 30. The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.: 30. The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. In this context, I may refere to the case of Sucha Singh and another vs. State of Punjab (2003) 7 SCC 643 wherein their Lordships of the Hon'ble Apex Court observed as under: - "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity agaisnt the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feeling run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Out observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 31. The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses has observed as under: "...... By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.: 32. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.: 32. In para-8 their Lordships have further observed: " The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..." 33. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. 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 and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses. 34. Apex Court in the case of Dharnidhar v. State of Uttar Pradesh [ (2010) 7 SCC 759 ] took the following view : "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) "23. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill- treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. AIR 1954 SC 704 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 11. Similar view was taken by this Court in the cases of Mano Dutt & Anr. v. State of UP [( 2012 (3) SCALE 219 ] and Satbir Singh & Ors. v. State of Uttar Pradesh [ (2009) 13 SCC 790 ]." 35. Law on the subject is thus, clear that in reference to appreciation of evidence of interested witnesses, version of interested witness cannot be thrown out but the same has to be examined carefully before accepting the same. 36. With this caution statement of witnesses are being examined. 37. It has further been contended by the learned counsel for the defence that according to the story as set forth by Raj Kali PW-4, it was not possible for her to see the occurrence. The statement of the witness PW-4 Raj Kali coupled with the site plan Exhibit-Ka-13 has to be looked into. Raj Kali, PW-4 has stated that initially the accused persons were axing the door at this time she was lying in the Barotha along with the deceased where there was no light. Both the ladies were afraid. She further said that there was another Barotha, adjoining the Borotha in which both the ladies were lying. After the second Barotha, there was Angan and there was a door and in the second Barotha opening towards the Angan. This witness has further stated that when the doors were being axed, the deceased opened the door towards the Angan, which was bolted because both the ladies were feared. This witness has further stated that the deceased caught hold of Jabar near the door of the second Barotha. A perusal of the site plan, Exhibit Ka-13 shows that this witness PW-4 Raj Kali was lying at place "A" shown in the site plan. Although the Investigating Officer has not shown the distance of the door from the place where this witness lying out. A perusal of the site plan, Exhibit Ka-13 shows that this witness PW-4 Raj Kali was lying at place "A" shown in the site plan. Although the Investigating Officer has not shown the distance of the door from the place where this witness lying out. But any how if the deceased was caught at the door of second Barotha, it was not possible for this witness PW-4 Raj Kali to see the incident because the wall of the first Barotha would definitely have blocked her view. The story does not end here because PW-4 has further stated that when Jabar was caught hold of by the deceased near the door of the second Barotha then two miscreants were standing there near PW-4 Raj Kali. Although, she has not named the miscreants, who were standing by her guard. This witness further stated that when the deceased caught hold of Jabar then both the miscreants went inside the house and the deceased was dragged under the Chappar, which was in the Angan, Ram Avtar assaulted the deceased with the back side of the axe and Purai fired at her with the gun, meaning thereby that the assault by the back side of the axe and firing by Purai was done under the Chappar in the Angan. Again coming to the site plan, the dead body of Bodhni was lying at the place shown in the "X" in the site plan Ex. Ka-13, but by no stretch of imagination how the person lying at "A" could view the place "X" from that place. Besides this the conclusion drawn is supported by the evidence, of the star witness Raj Kali, who has stated that " eS tc rd cnek'k gR;k dj pys ugh x;s Mj ds ekjs [kkV ij iMh jgh D;ksafd xkyh nsdj mBus ls euk dj fn;k Fkk vkSj esSa Mj xbZ Fkh " 38. Thus, it is clear that during the whole incident, this witness did not get up from her cot and kept lying there. Although her presence in her house is not doubted but her seeing the incident is doubted. 39. Thus, it is clear that during the whole incident, this witness did not get up from her cot and kept lying there. Although her presence in her house is not doubted but her seeing the incident is doubted. 39. As far as the presence of P.W. 2 Durga is concerned, he is said to be present at Ram Pyari's house warming his hands when he heard the door of his house axed and heard a fire shot and shrieks of his sister and wife Raj Kali, he rushed to his house. He has stated that his house is 75 yards from Ram Pyari's house. There he saw the accused persons fleeing away from his house. P.W. 5 Raja Singh also states that when the house of Durga was axed, he rushed to the house of Durga accompanied with Bachchu, Durga and other villagers. His house is three houses away from Durga's house. He along with Durga reached Durga's house when all of them saw the accused persons fleeing away from Durga's house. He said the miscreants fired two shots-one inside the house and one outside the house. There is no explanation why Durga would not hear and see which of the accused fired the shot outside his house. Even assuming that in such situation, it is not expected that witnesses should count the number of shots fired but the witness P.W. 4 Raj Kali demolished the evidence of P.W.2 Durga and P.W. 5 Raja Singh by saying that the miscreants remained inside her house for 45 minutes. This statement of P.W. 4 Raj Kali belies the presence of P.W. Durga & P.W. 5 Raja Singh in as much as Raja Singh (P.W. 5) would have covered the distance of three houses and complainant Durga Singh (P.W. 2) could have covered the distance of 75 yards running in a maximum time of 30 minutes. Then what was the reason why these witnesses kept waiting for 15 minutes outside the house of Durga especially when alarm was raised by all including Bodhan Teli who fired some shots from the roof of his house. 40. Thus, the evidence of P.W. 4 Raj Kali is unworthy of credit and the presence of P.W. 2 Durga and P.W. 5 Raja witnessing the running away of the accused is wholly doubtful. 41. 40. Thus, the evidence of P.W. 4 Raj Kali is unworthy of credit and the presence of P.W. 2 Durga and P.W. 5 Raja witnessing the running away of the accused is wholly doubtful. 41. Medical and ocular evidence are relevant and should be looked into at this point of time. 42. In 2003 (6) SCC 380 , Thaman Kumar vs. State of Union of Territory of Chandigarh, the Hon'ble Apex Court has laid down that the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to have taken into consideration in judging the reliability of ocular testimony. 43. It is well settled rule that if there is conflict between the ocular and medical evidence ocular evidence should be relied upon subject to certain tests. 44. Perusal of the post mortem report shows that only one gun shot entry was present with blackening and tattooing and 22 pellets of different size and shapes and one wadding piece was recovered from the body. 45. It has bee argued that according to the F.I.R., there were two fire shots inside the house. 44. Perusal of the post mortem report shows that only one gun shot entry was present with blackening and tattooing and 22 pellets of different size and shapes and one wadding piece was recovered from the body. 45. It has bee argued that according to the F.I.R., there were two fire shots inside the house. The evidence forthcoming as regards the firing of shots is otherwise. Inasmuch as Durga (P.W.2) stated that he heard one shot from inside the house whereas Raja Singh stated that one shot was fired inside the house of the complainant and other one from outside. 46. As far as injury no. 1 is concerned, there were blackening and tattooing present. Injury no. 2 was lacerated wound of 2-3 inches on the right arm in the middle. In the statement, the doctor opined that Injury No. 2 can be caused by an axe if it is used from the blunt side causing 2-3 blows. He has stated that the margins of injury no. 2 were irregular and was caused by blunt object. It is no where the case of the prosecution that the axe was used two or three times but in fact the witnesses have only mentioned the axe being used from the blunt side once. Thus, as far as injury no. 2 is concerned, the ocular and medical evidence do not corroborate each other and if the ocular evidence is given weightage as compared to the medical evidence then prosecution evidence has no legs to stand because it is not the case of the prosecution that more than one blow was inflicted on the deceased from the blunt side of the axe. 47. Coming to the injury no. 1, perusal of the post mortem report shows that blackening and tattooing were present. To corroborate about this injury, the eye witnesses P.W.4-Raj Kali has stated that Ram Sumer fired with his gun when he was 3 to 4 hands away. This means that when the accused Ram Sumer was 2-6 feet away from the deceased, he fired shot. Although the measurement of the barrel of the gun is not on record but this injury can also be caused by the gun. This means that when the accused Ram Sumer was 2-6 feet away from the deceased, he fired shot. Although the measurement of the barrel of the gun is not on record but this injury can also be caused by the gun. If a fire arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjancent hairs are singed and the clothes covering the part are burnt by the flame. But, this aspect of the matter has not been examined by the doctor. Besides, 22 pellets of different sizes and one wadding piece were also recovered from the person of the deceased. But, all these things also depend upon the weather coupled with the velocity of the projectile. 48. It has also been argued that the deceased had caught hold of Ram Sumer @ Jabar and she was dragged into the Angan where she was shot dead. In this regard, P.W.4-Raj Kali has explained as under: - " dksbZ cnek'k viuk psgjk fNik;s ugha FkkA tcj ds lkFk esjh uun NIij rd f?kflV xbZ FkhA tehu ij fxj dj ugha f?klVh FkhA mldks NqMkus dh dksf'k'k esa cgqr f?klVrh pyh xbZA " 49. Thus, to some extent, injury no. 1 has been explained but since injury no. 2 has not been explained and the ocular version is not reliable, hence, I think the prosecution story has collapsed like a heap of cards. 50. Coming to the source of light, although the torches, whose memo has been prepared was not produced before the Court, but before coming to the factual position, it would be proper to make little discussion about what would be the probability to see and recognise a known person in the moon light and in the light of lantern and torch flashes. 51. It is appropriate here to call attention to what has been said about the distance at which we can recognise persons. 51. It is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise: (a)Persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional case up to 165 yards. (b)Persons one does not know very well and has not often seen, from twenty-eight to thirty-three yards. (c)People one has only seen once, sixteen yards. 52. By moonlight one can recognise, when the moon is at the quarter persons at a distance of from twenty-one feet, in bright moonlight at from twenty-three to thirty-three feet; and at the very brightest period of the full moon, at a distance of from thirty-three to thirty-six feet. In tropical countries the distances for moonlight may be increased. 53. These are only approximate indications; in practice they are of but slight value. In the fist place, the statements concerning good normal eyesight and good light are vague and in addition certain supplemental circumstances often have decisive influence. The gaseous air of the town compared with the limpid atmosphere of the mountains diminishes the range of vision by at least 10 per cent.; the position of the sun, the background, the wind and the temperature, also combine to affect it to perhaps the same extent; and our faculty of combination which unconsciously comes into play, may corroborate our perception so that we may be completely let into error. If a person at a distance of, say, 220 yards sees a man first come out and then go into the house of A, and knows that A lives alone in that house, he will suppose, if the man he has seen resembles to a certain extent the exterior aspect of A, that the man is indeed A and will maintain the fact, as if he had seen him very distinctly. But he has not seen him properly and his perception is entirely the result of conclusions which may be false. In such cases verification must always, in important and serious cases, be carried out on the spot, whereas in less important cases it may be carried out elsewhere but under conditions as similar as possible. 54. But he has not seen him properly and his perception is entirely the result of conclusions which may be false. In such cases verification must always, in important and serious cases, be carried out on the spot, whereas in less important cases it may be carried out elsewhere but under conditions as similar as possible. 54. It is well settled law that if the accused persons belonged to the same village and are known then the villagers can recognize such persons by their physique , their voice etc. as they can recognize each other in very dim-light by the voices, by the way they walk, stand etc. Although P.W. 2 has stated that his sister was killed due to enmity of litigation of the land but this reason is not very plausible because P.W. 4 Raj Kali has stated that the deceased was killed due to mistaken identity. 55. Durga (P.W. 2) has stated that the house of Ram Pyari where he was sitting and warming his hand was about 25 paces from his own house meaning thereby 75 yards from his house. 56. As far as the evidence of PW-2 Durga and PW-5, Raja are concerned, they saw the accused persons running away from the house in the moon light and in the light of torch that has to be analysed. PW-2, Durga has said that he was accompanied by Raja, Bachchu and Ram Sumer, he saw Roshan and Ram Sumer with country made pistol, Ram Avtar with an axe and Purai with a gun fleeing away from his house. He entered his house and saw that his sister was murdered. He has said that at the time of incident, he was sitting at the house of Ram Piyari and Investigating Officer has not shown the house of Ram Piyari in the site plan. Thus, the distance as shown by this witness is not such at which even a known person can be identified in the late night of January. The statement of this witness can be read with the statement of Raja, PW-5, who has said that he saw Jabar and Rajan with a country made pistol, Purai with a gun and Ram Avtar with an axe coming out of the house of the complainant it was moon light and he was carrying a torch. He has denied the Investigating Officer having recorded his statement. He has denied the Investigating Officer having recorded his statement. He has not produced the torch in the court. Perusal of the site plan Exhibit Ka-13 shows that the witnesses saw the accused running away from the point marked as "C". Even presuming in the full moon light. How this witness could see and recognise the accused in the winter night. As I have said earlier that winter nights are foggy and gas air and the limpid atmosphere diminishes the range by at least 10%. This witness P.W. 5 Raja has further said that he heard two fire shots being fired from the house, one from inside the house and one outside the house. This is a story foreign to the prosecution story. 57. As I have discussed earlier, there were torches in the light of which the accused persons were said to have been seen fleeing away. There was light of lantern where the incidents is alleged to have occurred. In Anant Kumar (supra) submitted on behalf of the defence, it has been held that if there is undue delay in lodging the F.I.R. and the torches had not been produced before the Investigating Officer then it creates a doubt. It has also been held in this case that the witnesses were at the distance of 37-55½ feet from the accused at the time of firing, as such, they could not have recognized the assailants in the moon light but, as has been said earlier that the presence of the witnesses is doubtful, the question of recognizing the persons fleeing away becomes insignificant. But, in this particular case, it has been said that the accused persons were recognized by the witnesses in the moon-light, lantern light and flashes of torches. In this regard, counsel for the defence has also placed reliance on 2008 (1) CAR (SC) 36, Kapildeo Mandal & others Vs. State of Bihar, in which it has been held that if identification of accused is alleged to have been made in light of either torch or lantern, which has not been seized by the Investigating officer or produced before the court, then it would be difficult to believe the prosecution story. In this case, although lantern and torch were not produced before the court but they were produced before the Investigating officer. In this case, although lantern and torch were not produced before the court but they were produced before the Investigating officer. But, again since the prosecution version as stated in the F.I.R., the prosecution version as stated by the witnesses and the medical versions are going on different directions and prosecution has totally failed to consolidate its case to end the case in conviction of the accused persons, thus, what has been said above, leads to the irresistible conclusion that the prosecution has not been able to bring home the guilt of the accused persons and the trial court has not rightly convicted the appellants. In the result, the appeal is liable to be allowed and accused persons are entitled to acquittal. 58. Accordingly, the appeal is allowed and the Judgment and order of the lower court convicting the accused is set aside. 59. The accused, namely, Purai, Roshan Singh and Ram Autar are acquitted of the offence under Section 302 I.P.C. read with Section 34 I.P.C. As the accused persons are on bail, they need not surrender. Their bonds are cancelled and sureties are discharged.