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2015 DIGILAW 2974 (ALL)

Shyam Kumar v. State of U. P.

2015-09-17

RAGHVENDRA KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT : RAGHVENDRA KUMAR, J. 1. Heard learned counsel for the accused-appellant, learned A.G.A. for the State of U.P. and perused the record. 2. This criminal appeal is directed against the judgment and order dated 17.9.2003 passed by Additional District & Sessions Judge, Fast Track Court No. 17, Bulandshahr in Sessions Trial No. 1347 of 2001 (State vs. Shyam Kumar) convicting the accused-appellant Shyam Kumar for the offences u/s 302, 452, 504, 506 IPC in Case Crime No. 125 of 2001, P. S. B. B. Nagar, District-Bulandshahr and awarded life imprisonment with fine of Rs.20,000/- for offence u/s 302 IPC, rigorous imprisonment for three years with fine of Rs.5000/- for the offence u/s 452 IPC, rigorous imprisonment for one year for the offence u/s 504 IPC and rigorous imprisonment for two years for the offence u/s 506 IPC with default stipulation of two years additional imprisonment . 3. The FIR of this case was lodged with the police on 15.8.2001 at 7.15 am with respect to an incident that took place on 14.8.2001 at 9 pm. According to prosecution, the FIR of this case has been lodged by one Pradeep Kumar, who is brother of deceased Mamta and brother-in-law of deceased Dinesh. As per the FIR version, deceased Dinesh owned 65 bighas of agricultural land. Bhim and Sukhbir, who were cousin brothers of Dinesh, had also given their lands to Dinesh (brother-in-law of informant) on contractual basis for the purposes of agriculture. The same land was earlier given to accused Shyam Kumar, who is real brother of Dinesh and on this score accused Shyam Kumar felt annoyance and he developed animosity with Dinesh. Accused Shyam equipped with double barrel gun visited the place of his deceased brother and extended threats that he would see how he (Dinesh) performs agricultural work. In the meantime, Mamta, wife of Dinesh came forward to rescue her husband. The accused discharged a shot from his gun in presence of nephew and niece of informant. Then deceased Dinesh opened the door and said that Shyam has killed Mamta. As Dinesh turned back and came inside, accused Shyam discharged a fire shot upon him too. Both Mamta and Dinesh died on the spot. Thereafter, accused Shyam left the place extending threats to all by saying not to report the matter to the police. Then deceased Dinesh opened the door and said that Shyam has killed Mamta. As Dinesh turned back and came inside, accused Shyam discharged a fire shot upon him too. Both Mamta and Dinesh died on the spot. Thereafter, accused Shyam left the place extending threats to all by saying not to report the matter to the police. After leaving the dead bodies in the house, the informant went to the police station in the next morning for lodging FIR, which was scribed by one Pramod Kumar. 4. After lodging of FIR, the investigation proceeded in accordance with law. The inquest was prepared and certain documents were also prepared for the purposes of post mortem examination of the deceased persons. During course of investigation after recording the statements of witnesses and collection of evidence, the arrest of accused was effected along with weapon of assault. The weapon of assault was subsequently sent to the Forensic Science Laboratory for examination. The investigation culminated into filing of charge-sheet. 5. After complying with the procedure the learned trial Court proceeded with the trial and framed charge against accused Shyam Kumar for the offences under Sections 302, 452, 504, 506 IPC. 6. Accused has denied the prosecution case and claimed himself to be innocent and has stated that he has been falsely implicated by the informant so as to grab the landed property. 7. To substantiate the charges levelled against the accused person, the prosecution has examined PW-1 Nikhil Kumar, who is 8 years of age son of deceased and an eyewitness of the incident. PW-2 Pradeep Kumar, informant of this case, has proved the execution of written report (i.e. Ext Ka.1). He is also the eyewitness of the incident. PW-3 S.I. Mahaveer Singh has prepared and proved the inquest of deceased Dinesh and deceased Mamta and also executed the connected papers required for conducting autopsy on the corpuses of both the deceased. He has also executed the recovery memo of a torch, which was in the hands of deceased Dinesh. He has taken the sample of plain soil and blood stained soil and prepared the memo for the same. He has also executed the recovery memo of empty cartridges and parts thereof found from the spot and proved the execution of recovery memo. 8. PW-4 Dr. He has taken the sample of plain soil and blood stained soil and prepared the memo for the same. He has also executed the recovery memo of empty cartridges and parts thereof found from the spot and proved the execution of recovery memo. 8. PW-4 Dr. Anand Prakash is a formal witness and he has conducted autopsy on the corpus of deceased Dinesh on 15.8.2001 at 5 pm and he has made following observations in the autopsy report (i.e. Ext Ka.16): Dead body was average muscular build; rigor mortis had passed off from upper extremities but, was present in lower extremities. The doctor has noted following ante mortem injuries: (i) Fire arm wound of entry size 2.5 cm x 2.5 cm x chest cavity deep on right side of chest, ½ cm away from right nipple at 3 O'Clock position. On internal examination, the doctor has noted with respect of natural orifices, genitals, neck, scalp, membranes, brain and base as N.A.D. (i.e. nothing abnormal detected). Vertebrae-not open, spinal cord-not exposed. 4th and 5th ribs fractured on right side, pleura-right side lacerated and left side-N.A.D. Lung-right side lacerated and left side-N.A.D. Heart-empty and rest N.A.D. Right pleural cavity contained 1.5 litres blood. Oesophagus, small intestine, large intestine, liver, gall bladder, pancreas, spleen, kidneys, bladder, genital with respect to above all N.A.D. has been noted by the doctor. Stomach contained 300 g of semi digested food. The death was caused due to shock and haemorrhage as a result of ante mortem injuries. PW-4 has also conducted autopsy on the corpus of deceased Mamta on 15.8.2001 at 5.30 pm and he has made following observations in the autopsy report (i.e. Ext Ka.17): Dead body was average build; rigor mortis had passed off from upper extremities but, was present in lower extremities. The doctor has noted following ante mortem injuries: (i) Multiple fire arm wound of entry present on right side of face, neck and upper part of chest size .4 cm x .3 cm x skin to ½ cm x ½ cm x cavity deep. On internal examination, the doctor has noted with respect of natural orifices, genitals, neck, scalp, membranes, brain and base as N.A.D. (i.e. nothing abnormal detected). Vertebrae-not open, spinal cord- not exposed. Blood vessel on right side lacerated, pleura-lacerated on right side, Lung-right side lacerated and left side-N.A.D. Heart-empty and rest N.A.D. Right pleural cavity contained 1.8 litres blood. On internal examination, the doctor has noted with respect of natural orifices, genitals, neck, scalp, membranes, brain and base as N.A.D. (i.e. nothing abnormal detected). Vertebrae-not open, spinal cord- not exposed. Blood vessel on right side lacerated, pleura-lacerated on right side, Lung-right side lacerated and left side-N.A.D. Heart-empty and rest N.A.D. Right pleural cavity contained 1.8 litres blood. Oesophagus, small intestine, large intestine, spleen, kidneys, bladder, genital with respect to above all N.A.D. has been noted by the doctor. Liver and gall bladder-N.A.D. The stomach contained 350 g of semi digested food. The death was caused due to shock and haemorrhage as a result of ante mortem injuries. 9. PW-5 Jagat Singh, Head Constable has proved the Chik FIR and relevant G.D. entries made. PW-6 S.I. Mahendra Pal Singh has conducted the investigation. He visited the spot and prepared the site plan. He has also effected the arrest of accused along with weapon of assault. He has also proved material exhibits and execution of charge sheet. PW-6 has completed the remaining part of investigation. PW-7 Ram Ashrey Pandey is the Joint Director, In-charge of Forensic Science Laboratory, Agra. He has conducted the examination of fire arm used in the commission of offence. He has prepared the examination report with respect to the fire arm and cartridges used and proved its report. The ballistic expert of Forensic Science Laboratory, Agra has given the following conclusion in its report: ^^ifj.kke%& ¼1½ fOkokfnr dkjrwl bZlh&1 mijksDr 12 cksj MhŒchŒchŒ,yŒ xu uEcj 10542 ,@7 fpŒ1@2002 dh nk;h uky }kjk pyk;k x;k gSA ¼2½ fookfnr dkjrwl bZlh&2 mijksDr 12 cksj MhŒchŒchŒ,yŒ xu uEcj 10542 ,@7 fpŒ1@2002 dh ck;h uky }kjk pyk;k x;k gSA ¼3½ fookfnr oSbl fpŒ MCY;w&1 ls MCY;w&3 rd] mijksDr 12 cksj MhŒchŒchŒ,yŒ xu uEcj 10542 ,@7 fpŒ1@2002 ls pys 12 cksj ds yksM ds Hkkx gks ldrs gSA uksV && ¼1½ mijksDr ifj.kke ¼1½ o ¼2½ ewy Án'kksZ ds ekbØksLdksfid fujh{k.kksa ij vk/kkfjr gSA fp= Án'kZu gsrq rS;kj fd;s x;s gSA ¼2½ d`i;k Án'kZ okilh dk ÁcU/k 'kh?kz djsA** PW-8 Constable Kiran Pal has taken the materials sent to Forensic Science Laboratory for examination and has proved the relevant documents and G.D. entries thereof. 10. After conclusion of evidence, an opportunity was extended to accused by placing all the incriminating circumstances, which appeared during course of trial. With respect of question no. 1 to 8 he has denied as being false. 10. After conclusion of evidence, an opportunity was extended to accused by placing all the incriminating circumstances, which appeared during course of trial. With respect of question no. 1 to 8 he has denied as being false. With respect of question no. 9 he has simply stated that wrong report has been lodged. In reply to most of the questions, he disclaimed knowledge. FIR is alleged to have been ante timed. Wrong investigation has been conducted and wrong charge sheet has been filed. By way of additional statement, he has stated that dacoity was committed in the house of deceased in which Mamta and Dinesh were murdered. The informant was not present in the house of deceased. The informant has falsely implicated the accused-appellant just to grab the property. 11. DW-1 Vijendra Singh has been examined in this case as defence witness. He has stated that the incident took place at about 10 pm. He heard sound of fire and approached to the house of deceased. Thereafter, he tried to inquire about the matter. In response to his querry, threatening came from inside the house of deceased to go away. After 2-4 minutes, 4-5 persons equipped with gun and country made pistol left the place discharging fire shots in the air. Shyam Kumar, accused-appellant was not amongst them. He has also denied the presence of informant-complainant. 12. After scrutinizing and appreciating the evidence available on record, the learned trial Court vide its judgment and order dated 17.9.2003 convicted accused-appellant Shyam Kumar for the offences u/s 302, 452, 504, 506 IPC, hence, the instant appeal is before us for consideration. 13. It has been submitted by the learned counsel for the accused-appellant that the FIR is ante timed. The presence of informant-complainant has been denied and it is further submitted that neither there was any function nor, any ceremony ensuing in near future, hence, the presence of PW-2 was not probable. The FIR was not lodged in the night, which is also not a natural conduct of informant and raises finger upon his presence on the spot. Further submission is that the testimony of PW-1, who is a child witness, does not inspire confidence and it cannot be relied upon because he has given the statement on the basis of parcha, which was read over by him in the Court prior to his deposition. Further submission is that the testimony of PW-1, who is a child witness, does not inspire confidence and it cannot be relied upon because he has given the statement on the basis of parcha, which was read over by him in the Court prior to his deposition. Learned counsel for the accused-appellant has further contended that murder of deceased persons was committed during commission of dacoity in their house. He has submitted that there is long gap between recovery of weapon of assault and used cartridges and their examination by the Forensic Science Laboratory. In the instant case, recovery of used cartridges and weapon of assault were made on 15.8.2001 and 16.8.2001 respectively and the same were sent to Forensic Science Laboratory for examination on 15.10.2001. At last, the learned counsel for the accused-appellant contended that the lower Court has misappreciated the evidence available on record and committed error in recording conviction of accused-appellant. Hence, he has prayed for allowing this appeal and, acquitting the accused-appellant. 14. Learned A.G.A., refuting the arguments of the learned counsel for the accused-appellant, has submitted that it is a case of direct evidence. The motive has also been spelled out in the FIR. There is consistency in the statements of eyewitnesses of this case. There is no reason to disbelieve the testimonies of the witnesses available on record. The learned Court below has rightly recorded the findings of conviction of accused-appellant on the basis of evidence available on record. As such, the accused-appellant was not entitled for acquittal and the impugned judgment and order passed by the learned trial Court needs to be affirmed dismissing the instant appeal. 15. The matter of appreciation of evidence has come up before Hon'ble the Apex Court and the Hon'ble Court has been pleased to lay down the guidelines for exercise of appellate jurisdiction from time to time. The Hon'ble Apex Court has propounded the following principles in Padam Singh vs. State of U.P. 2000 (1) SCC 621 which is quoted here: “It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.” 16. Further guidelines have been issued by the Hon'ble Apex Court in case of Rama and Others vs. State of Rajasthan, 2002 (4) SCC 571 which is as under: “It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.” 17. The guidelines have been issued by three Judges Bench of the Hon'ble Apex Court in case of Majjal vs. State of Haryana, 2013 (6) SCC 798 which is as under: “It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to the root of the matter.” 18. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to the root of the matter.” 18. The aforesaid observations have been quoted by the Hon'ble Apex Court in a very recent judgment in the case of Kamlesh Prabhudas Tanna and Another vs. State of Gujarat, 2014 Cri. L.J. 443. 19. In view of the propositions of law cited above it can safely be deduced that while exercising the appellate jurisdiction, the High Court is required to scrutinize the evidence carefully and cautiously, which is available on record and to draw an inference about guilt or innocence of the accused without being influenced by the findings recorded by the learned Court below bearing in mind the basic principles of criminal jurisprudence about innocence of accused until otherwise is established from the materials available on record. 20. From testimony of PW-1 and PW-2 it is clear that PW-1 along with his brother and sister left the house after the incident. PW-2 has categorically admitted that he was terrified by the incident. He did not dare to lodge the FIR in the night or to inform about the incident to the police outpost. The explanation so advanced by way of oral evidence is plausible and reasonable explanation and appeals to reason. Thus, the delay in lodging the FIR stands well explained. 21. The inquest report contains the details of the crime and even if, it is conceded for argument sake that is does not contain the details, it is established in law that the purpose of preparation of inquest has been discussed under Section 174 of Code of Criminal Procedure, which has a limited scope. Hence, the non mentioning of any of the details, would have no adverse bearing on the prosecution case in the peculiar facts of this case. 22. It has been submitted by learned counsel for the accused-appellant that he has been falsely implicated in this case. Hence, the non mentioning of any of the details, would have no adverse bearing on the prosecution case in the peculiar facts of this case. 22. It has been submitted by learned counsel for the accused-appellant that he has been falsely implicated in this case. It has time and again been considered by various Courts and the principle of law is clear on the point that it is always the psychology of the relatives to implicate the actual culprit so that he may not go scot free or unpunished. When real culprit is punished, the feelings stands satisfied. 23. It has been contended that informant has falsely implicated the accused-appellant in order to grab the property of deceased. The question of grabbing the property would not arise. We are not convinced by this argument that for the purpose of grabbing the property of appellant, a false FIR has been lodged against the appellant. It is unbelievable that close relatives of the deceased would spare the real assailant. 24. The main emphasis has been laid by counsel for the defence about the presence of PW-2 Pradeep Kumar (informant-complainant). No function or ceremony was to take place, as such, there was no occasion for him to visit her sister's place. No efforts were made by the informant for lodging the FIR in the night. If the informant was present at the time of occurrence, he must have made efforts to save his sister and brother-in-law and would have tried to inform the incident at least to the police out post situated at a distance of 2 furlong from the place of occurrence. So far as the visit of the informant-complainant PW-2 to his sister's place is concerned, it would not become a suspicious case even if, there was no likelihood of any function or ceremony in near future. PW-2 is the real brother of deceased Mamta. His visit, as such, in absence of any function cannot be treated to be unnatural or unusual or suspicious. During course of submissions it has been conceded by the learned counsel for the appellant that the distance between village of place of occurrence i.e. Saidpur and Eitmadpur, the village of PW-2 is hardly two kilometer. As such, the distance between the two villages is so short which makes the frequent visit to her sister's house highly probable. During course of submissions it has been conceded by the learned counsel for the appellant that the distance between village of place of occurrence i.e. Saidpur and Eitmadpur, the village of PW-2 is hardly two kilometer. As such, the distance between the two villages is so short which makes the frequent visit to her sister's house highly probable. So simply because there was no function in the house of the deceased persons cannot be treated to be a ground to disbelieve the presence of PW 2. 25. The matter of behaviour of a person after an incident has also been considered by Hon'ble the Apex Court. How a person would react to a particular incident, would vary from person to person. There cannot be a cast iron formula regarding reaction of a person, who was a witness of such an incident. Different persons would react differently on seeing any such violence and their behaviour and conduct would be different. [Ref: Rammi @ Rameshwar vs. State of M.P. 1999 (8) SCC 649 ]. Hon'ble the Apex Court in the case of Main Pal and Another vs. State of Haryana, 2004 Cri. L.J. 2036 has observed that the post event conduct of a witness varies from person to person. It cannot be a cast iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. The conduct of witness cannot be regarded as abnormal. 26. Hon'ble the Apex Court in the case of Rana Pratap and Others vs. State of Haryana, AIR 1983 SC 680 has observed as under: “Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnessed on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.” 27. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnessed on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.” 27. The offence of murder is one of the most heinous offence defined in the Indian Penal Code. In the event of commission of murder in presence of a person, would certainly have an impact on the psychology of a witness. It is such an incident, which affects the peace and tranquillity of place of occurrence and the vicinity thereof and also the psychology of the person before whom it is committed or the persons of the vicinity. In the instant, case the murder of Mamta (sister of PW-2) and Dinesh (brother-in-law of PW-2) is alleged to have been committed in the presence of PW-2. This murder has greater consequence and greater impact on PW-2 because it has been committed by real brother of his brother-in-law. More so, PW-2 is directly related to deceased persons. More so, deceased Mamta was his real sister and deceased Dinesh was the real brother-in-law of PW-2. Relationship being so close that this murder must have a terrifying effect upon PW-2 as is evident from the admission made by PW 1 during his evidence before the Court that ^^xksyh pyrs le; ekek ?kj ds vanj ns[kdj fNi Xk;k Fkk** such conduct cannot be altogether denied rather its very natural. Mere not reporting the matter to police or even to the out post, would not be conclusive enough to deny the presence of PW-2. How much the eyewitness can be psychologically disturbed or terrified, would vary from person to person and mere not reporting of the incident in the night, would not be conclusive for determining the presence of PW-2 at the place of occurrence. Apart from it, if it had been a case of dacoity by unknown person, as pleaded by appellant in his defence, then the other persons of the village must have informed the police. 28. It has categorically been stated by the witnesses PW-1 and PW-2 that after sustaining gun shot injuries, both deceased Mamta and Dinesh succumbed to their injuries. Hence, any argument that no efforts were put in by PW-2 to save them, cannot be sustained. 29. 28. It has categorically been stated by the witnesses PW-1 and PW-2 that after sustaining gun shot injuries, both deceased Mamta and Dinesh succumbed to their injuries. Hence, any argument that no efforts were put in by PW-2 to save them, cannot be sustained. 29. The accused has stated in his statement under Section 313 Cr.P.C. that there was dacoity on the date, time and place and pursuant to the dacoity, Mamta and Dinesh became its victim and were murdered. This version of accused-appellant has been supported by DW-1 Vijendra Singh. Even if, for argument sake it is conceded that there was dacoity on the date, time and place as alleged by the accused, then it would have been natural that the house hold articles of the house of deceased must have been found disturbed and scattered. Nothing has been observed by the police personnel during course of execution of inquest or during course of execution of recovery memo of ordinary soil and blood stained soil or empty cartridges etc. and more so, if the dacoity is committed in the village, normally the villagers respond to it very seriously because they bear in mind that any one may be the victim of dacoity and more so, it is always treated to be an offence against the village or society where it happens. If it would have been a case of dacoity, the villagers must have united and they would have gone jointly to lodge the FIR with police even in the night. No such step has been taken by the villagers. Thus, the theory of these deaths being outcome of dacoity as suggested by the defence, does not inspire the least confidence. 30. One of the aspect relevant for consideration in the instant appeal is that PW-1 and PW-2 both are related to each other and both are closely related to deceased persons. Hon'ble the Apex Court has time and again considered the question of appreciation of evidence of related witness or interested witness and has been pleased to issue guidelines in this regard. 31. Hon'ble the Apex Court has opined in the case of Shiv Ram and Another vs. State of U.P. (1998) 1 SCC 149 that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. 31. Hon'ble the Apex Court has opined in the case of Shiv Ram and Another vs. State of U.P. (1998) 1 SCC 149 that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased person. But, what is required is that the Court must scrutinize the evidence with utmost care and caution. Time and again, it has also been stated by Hon'ble the Apex Court that civilized people are in general insensitive when the crime is committed even in their presence, they withdraw themselves from both victim and the assailants. They keep themselves away from the Court. Evidence has to be appreciated keeping in view such ground realities. The Court instead of doubting prosecution case when no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for nugget of truth with doubt of probability, if any suggested by the accused. 32. Hon'ble the Apex Court in its judgment in the case of Kuria and Another vs. State of Rajasthan, (2012) 10 SCC 433 has held in paragraph 34 as under: “The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly reliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar vs. State of Punjab, (2203) 11 SCC 367, Brathi vs. State of Punjab, (1991) 1 SCC 519 and Alaguapndi vs. State of Tamil Nadu, (2012) 10 SCC 451 .” 33. Reference in this regard can be made to Sunil Kumar vs. State of Punjab, (2203) 11 SCC 367, Brathi vs. State of Punjab, (1991) 1 SCC 519 and Alaguapndi vs. State of Tamil Nadu, (2012) 10 SCC 451 .” 33. In a recent judgment in the case of Gurjit Singh vs. State of Haryana, (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. Apart from it, Hon'ble the Apex Court in the case of Veer Singh vs. State of U.P. (2014) 2 SCC 455 has observed that court can and may act on the single testimony. Legal system has laid emphasis on value, weight and quality of evidence rather than the quantity. 34. In the light of law cited above the principle of law can safely be deduced that merely on the ground that witness being related his testimony cannot be discarded on this score alone. What is required is that the law enjoins a heavy duty on the Court to scrutinize the testimony of a related or interested witness with utmost care and precaution and if the Court after considering the evidence of such witnesses in its entirety, is of the opinion that their testimony is credible, reliable and trustworthy, then there would be no legal impediment in placing reliance upon testimony of such a related or interested witness. 35. Hon'ble the Apex Court has from time to time issued guidelines for appreciation of the testimony of a child witness. In the case of Shivasharanappa and Others vs. State of Karnataka decided on 7.5.2013 in Criminal Appeal No. 1366 of 2007 and Criminal Appeal No. 508 of 2007 respectively in paragraph 16 of the judgment, the Hon'ble Apex Court has propounded as follows: “Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness, who is competent and whose version is reliable.” 36. In the case of Alagupandi @ Alagupandian vs. State of Tamil Nadu in reference to Criminal Appeal No. 1315 of 2009 decided on 8.5.2012, the Hon'ble Apex Court in paragraph 23 has pleased to observe as follows: “It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence.” 37. In the case of State of Rajasthan vs. Chandgi Ram and Others reference to Criminal Appeal No. 937 of 2008 decided on 9.9.2014 the Hon'ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below: “The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him.” 38. In view of propositions mentioned above it can safely be discerned that there is no legal impediment in placing reliance upon the evidence of a child witness. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him.” 38. In view of propositions mentioned above it can safely be discerned that there is no legal impediment in placing reliance upon the evidence of a child witness. What is required that the trial Court is enjoined with a duty to put certain questions to the child witness and to assess whether the witness is capable of appreciating the truth and further the witness is capable of understanding the question and giving appropriate reply after assessing the aspect referred above. The Court has to see whether the testimony of a child witness can be relied upon and an inference can be drawn on the basis of his testimony provided it is very natural, bonafide, reliable, credible and inspires confidence even in absence of corroboration. Keeping in view the principle of law which has been crystallized regarding appreciation of testimony of a child witness, the evidence of PW-1 has to be appreciated accordingly. 39. In the instant case PW-1 Nikhil Kumar is the son of deceased. His presence in the house was natural. The presence of PW-2 Pradeep Kumar has already been discussed above. PW-2 came to his sister's house is also not unnatural and more so, PW-1 in his cross-examination had deposed that ^^esjk ekek ;gha esjs lkFk jgrk gSA** More so, admission by PW-1 fortifies the presence of PW-2 at his sister's house at least on the date of incident. 40. PW-1 has categorically stated about the date, time, place and manner of occurrence and how it has been committed by the appellant Shyam Kumar who is “tau” (father's elder brother). He has specifically pointed out about the source of light i.e. dibiya. He has also stated that it was moon light on the date of incident. He has stated in his statement that after the incident he took shelter in the house of one Manoj. This fact cannot be denied that after seeing murder of his parents, this witness might have been badly fear stricken and badly disturbed, therefore, he took shelter in the house of one Manoj. He has categorically stated that he had seen the incident himself and on that basis he deposed before the Court. This fact cannot be denied that after seeing murder of his parents, this witness might have been badly fear stricken and badly disturbed, therefore, he took shelter in the house of one Manoj. He has categorically stated that he had seen the incident himself and on that basis he deposed before the Court. The testimony of this witness has been assailed by learned counsel for the accused-appellant on the ground that the fire was discharged upon Mamta and thereafter, the accused-appellant went to his house and again loaded the gun and discharged shot upon his father. This fact is though not in coherence with the FIR, but finds support from the documentary evidence in the shape of report by Forensic Science Laboratory, which categorically mentions that one shot was discharged from right barrel and one shot was discharged from left barrel of the double barrel gun. The testimony of witness has further been assailed that the dead bodies were found from Sehan of the house whereas in the FIR the word “gallery” has been used. The testimony of this witness has been assailed on the ground that he has deposed on the basis of parcha which he had read prior to his deposition before the Court. Even if, it be conceded for argument sake, this factual or legal position cannot be denied that normally the Courts permit the witness to refresh memory by perusing the relevant portion of the case diary or the earlier statement u/s 161 Cr.P.C. This is not unusual. So far as the incoherence in the testimony of PW-1 with the FIR version is concerned, this legal proposition cannot be ignored that the FIR is not supposed to be an encyclopaedia. The very purpose of lodging the FIR is to put to the police into motion in the event of commission of an offence. If the FIR contains the date, time, place and manner of occurrence and by whom the offence has been committed and in whose presence it has been committed, that simply facilitates the investigating agency to expeditiously investigate the case. Absence of any material in this regard, would not have the effect of denying the veracity of the FIR. 41. If the FIR contains the date, time, place and manner of occurrence and by whom the offence has been committed and in whose presence it has been committed, that simply facilitates the investigating agency to expeditiously investigate the case. Absence of any material in this regard, would not have the effect of denying the veracity of the FIR. 41. Even for argument sake if it is considered that there are contradictions about the gallery or about the visit of accused-appellant to his house for loading the gun or the witness has deposed on the basis of parcha, these variations are of very trivial nature, keeping in view the terrifying effect of the incident, which resulted in murder of parents of this witness i.e. PW-1. Such inconsistencies in the statement of a child witness are bound to occur. The Court must bear in mind that he was a child witness who has witnessed the murder of his parents. Such an incident must have given a shock to this witness. So simply on the basis of such minor inconsistencies his otherwise reliable evidence cannot be discarded. 42. On the over all scrutiny of statement of PW-1 it is conclusively established that in presence of PW-2, these murders were committed by accused-appellant Shyam Kumar, who is “tau” (elder brother of his father), firstly, of his mother Mamta, when she tried to rescue her husband Dinesh and thereafter of Dinesh. PW-1 has also mentioned about the source of light. While appreciating the testimony of a child witness it should also be borne in mind that a witness of 8 years only is deposing about murder of his parents. Upon over all assessment, we are of the considered opinion that the testimony of this witness appears to be natural, bonafide and inspires confidence. In the facts of this case evidence of PW-1 finds full support from the evidence PW-2 and the evidence of these two witnesses stands fully corroborated by the medical evidence. 43. The presence of PW-2 Pradeep Kumar at the place of occurrence on the relevant date and time of incident has been established. He has categorically supported the statement of PW-1 about the date, time, manner of occurrence and also by whom the offence has been committed. He has stated in his statement that he had come in the evening to his sister's place. He has categorically supported the statement of PW-1 about the date, time, manner of occurrence and also by whom the offence has been committed. He has stated in his statement that he had come in the evening to his sister's place. He has also disclosed the source of light as dibiya. He has also stated that firstly the fire was discharged upon his sister Mamta and thereafter, upon his brother-in-law Dinesh at 9 pm. He has also affirmed the presence of Nikhil Kumar (PW-1), Himanshu and Gudia, his nephews and niece (i.e. sons & daughter of deceased). He has admitted that out of fear he just hid himself in the house. Since, Mamta sustained injury, deceased Dinesh opened the door and raised alarm about the fire. 44. Much emphasis has been laid down on admission made by the witnesses that there was no enmity between deceased and accused earlier. There had never been any quarrel between them. PW-2 has specifically conceded that out of fear he did not lodge the FIR in the night or even not informed the police outpost. He has also corroborated the version of PW-1 that after discharging one shot, the accused-appellant went to his house and thereafter, again came and discharged shot upon Dinesh. This version has been assailed as not being contained in the FIR version. In such a heinous incident such variations are natural variations and would have no negative impact or bearing on the prosecution case. 45. Law is settled on the point that if there are variations, which do not go to the root of the prosecution case, then the same shall have no adverse effect on the case of the prosecution. In the instant case, bearing in mind the psychology, gravity of offence, variations in the statements of PW-1 and PW-2 appear to be natural and do not go to the root of the prosecution case and do not have the devastating effect upon the prosecution case. 46. It is true that the weapon of assault was recovered on 16.8.2001, which was sent to Forensic Science Laboratory on 15.10.2001. There is a delay. The reliance has been placed by learned counsel for the accused-appellant upon the case of Santa Singh vs. State of Punjab decided on 2nd February 1956 reported in AIR 1956 SC 526 wherein it has been observed by the Hon'ble Court that “inordinate delay raises much suspicion”. There is a delay. The reliance has been placed by learned counsel for the accused-appellant upon the case of Santa Singh vs. State of Punjab decided on 2nd February 1956 reported in AIR 1956 SC 526 wherein it has been observed by the Hon'ble Court that “inordinate delay raises much suspicion”. On the basis of above ruling it has been submitted that in the instant case also this circumstance creates doubt on the veracity. The facts of the ruling referred above is different from the facts of this case. Apart from it, in the instant case the appellant could not furnish any reason as to how he was prejudiced in his defence because of this delay. There is evidence on record that the recovered weapon remained in sealed condition and it was kept at police malkhana and it was taken in sealed condition to Forensic Science Laboratory as stated by PW-8 Constable, Kiran Pal. Neither there is any evidence nor, any suggestion that the said weapon was changed during the said period of delay. So, simply because the recovered weapon was sent with some delay, would not, by itself, be a ground to discard the report of ballistic expert in absence of any inference of prejudice to the appellant in his defence. Report of ballistic expert also supports the case of prosecution and we do not find any reason to disbelieve it. 47. In the instant case, the witnesses of fact have fully corroborated the prosecution version. The report of ballistic expert, even if, ignored for the argument sake, the commission of murder by accused-appellant Shyam Kumar in the manner as alleged by the prosecution is established. PW-1 and PW-2 have categorically stated that Mamta and Dinesh sustained fire arm injuries, which finds support from the testimony of PW-4, Dr. Anand Prakash. It has come in the evidence of the doctor that semi digested food was noticed while conducting autopsy on the corpus of Mamta whereas, in the oral testimony it has been stated that Mamta had not taken dinner by the time when incident took place. The findings regarding the presence of semi digested food is not always determinative. The presence of semi digested food is not of much consequence when the factum of incident is established by the ocular testimony. 48. The findings regarding the presence of semi digested food is not always determinative. The presence of semi digested food is not of much consequence when the factum of incident is established by the ocular testimony. 48. It is the established principle in the evidence that a person, who states anything, has the burden to prove or establish his version. The accused has taken the plea of alibi i.e. about his absence. He had the onus to prove his plea of alibi or absence. He has simply examined DW 1 whose testimony has not been relied upon with respect to factum of dacoity. This fact cannot be ignored that when such an incident occurred it would have been natural on the part of the family members of the accused-appellant to take the children of the deceased to their house and to console them. That has not been done. No such efforts have been made. If it would have been a case of dacoity, it was expected from the wife of appellant that she must have taken assistance from the co-villagers to lodge the FIR of the incident, in absence of accused-appellant. This all has not been done, which has adverse bearing on the plea of alibi taken by the accused-appellant. Plea of dacoity does not inspire the least confidence because in that situation the appellant himself or any member of his family must have informed the police about such an incident in the house of his own real brother. On the contrary, such defence admits the date, time and place of occurrence and also the fact that deaths were caused by fire arm injuries. 49. From ocular evidence it is established that the incident took place on 14.8.2001 at about 9 pm whereas the FIR has been lodged with the police on 15.8.2001 at 7.15 am. It is noteworthy that the incident of dacoity as proposed by the accused in his statement under Section 313 Cr.P.C. is also alleged to have taken place on the date of incident as alleged by the prosecution in the night. It clearly indicates that the murder of Mamta and Dinesh took place in the night on 14.8.2001 and the FIR is alleged to have been lodged on 15.8.2001 in the morning. As such, the argument regarding the FIR being ante timed, does not convince us. 50. It clearly indicates that the murder of Mamta and Dinesh took place in the night on 14.8.2001 and the FIR is alleged to have been lodged on 15.8.2001 in the morning. As such, the argument regarding the FIR being ante timed, does not convince us. 50. In view of aforesaid discussions we are of the considered opinion that the learned trial Court has rightly appreciated the evidence and has rightly recorded the findings of conviction against the accused-appellant. The findings are reasoned one and are based on materials and evidence available on record. We are of the considered opinion that the findings of conviction of accused-appellant recorded by the learned trial Court deserves to be affirmed and is, accordingly, affirmed. 51. This appeal is bereft of merits and is hereby dismissed. 52. Accused-appellant Shyam Kumar is reported to be in jail. He shall serve out the sentence awarded by the trial Court. 53. Let the lower Court's record be sent back to the Court concerned forthwith along with a copy of this judgment for immediate compliance.