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2017 DIGILAW 1394 (ALL)

Hira v. State of U. P.

2017-05-25

ARVIND KUMAR TRIPATHI, RAGHVENDRA KUMAR

body2017
JUDGMENT Raghvendra Kumar, J. 1. Heard learned counsel for the accused-appellants and the learned A. G. A. for the State of U.P. 2. Under assail in this appeal is the judgment and order dated 6.1.1984 passed by Vth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 53 of 1983 (State v. Hira Lal and others) for the offences u/s. 302/34, 452, 307/34 IPC arising out of Case Crime No. 150 of 1982, P.S. Seramau North, District-Shahjahanpur whereby the accused Hira Lal, Tika and Mihi Lal have been respectively convicted for the offence u/s. 302 and 302/34 and 452 IPC and have been awarded the sentence of life imprisonment for the offence u/s. 302 IPC, R.I. For one year for the offence u/s. 452 IPC and R.I. For 5 years for offence u/s. 307 IPC. 3. The accused-appellant Tika has already died and hence the proceedings of this appeal stood abated against the accused-appellant vide order dated 15.7.2016. 4. Briefly stated the prosecution version is as follows : - “According to prosecution on 18/19.10.1982 at midnight the informant along with her family members was sleeping. The eldest son Ram Charan (deceased) was sleeping on a cot before the northern door along with informant’s son-in-law Dammar on the same cot below a thatch. The informant was sleeping in another thatch. In the same thatch towards southern gate, informant’s younger son Sardar was sleeping with his wife. One kerosene oil dibiya (lamp) was burning near the northern wall adjacent to which Ram Charan’s cot was lying. The brother-in-laws of Ram Charan (deceased) namely Chandar, Lila and Chhote had purchased land near the house of accused-appellant Hira, upon which Hira had put a thatch whereby there was an altercation between deceased Ram Charan and Hira. Since then, Hira was having enmity with the deceased. On the fateful night Hira, Tika and Mihi entered from the northern door and they gave a call to deceased Ram Charan. The informant suddenly awoke and his deceased son Ram Charan and Dammar also got up and as her son sat on the cot, Hira fired a shot on Ram Charan, which hit the deceased on his chest. The informant raised alarm and his younger son Sardar also awoke after hearing the first shot. He interrupted accused-appellants Hira, Tika and Mihi then the accused-appellants raised gun towards him and out of fear Sardar ran away. The informant raised alarm and his younger son Sardar also awoke after hearing the first shot. He interrupted accused-appellants Hira, Tika and Mihi then the accused-appellants raised gun towards him and out of fear Sardar ran away. All the three accused-appellants also chased him and Hira with an intent to kill him discharged a fire shot, which did not hit Sardar. Again they came to the deceased Ram Charan and placed him below the cot and thereafter Mihi tried to cut his head. Tika was showing light by torch and he was equipped with a country made pistol. After raising alarm, the informant fell over the son then all the three accused-appellants escaped from the spot. In the meantime, the daughter of informant who was living separately was coming to her mother, then Mihi Lal assaulted her with sword. After hearing the fire shot Niranjan and Ram Bharose, who are the co-villagers, came there armed with lathi and also lighting a torch. The FIR of the incident was lodged with the police on 19.10.1982 at 7 am.” 5. After registration of the FIR the investigation proceeded in accordance with law. During the course of investigation the statements of witnesses were recorded. The inquest proceedings were conducted and after complying with the necessary formalities the body was sent to C.M.O. for autopsy. 6. The I.O. during the course of investigation has also prepared the recovery memo of kerosene oil dibiya (lamp), bed sheet (chadar), Ban of cot, empty cartridge, torch, blood stained soil and ordinary soil, sword from accused Mihi and search documents of accused Hira and Tika. The investigation culminated into filing of police report in the shape of charge sheet u/s. 173 (2) of The Code of Criminal Procedure. 7. After complying with the procedure, the case was committed to the Court of Sessions. 8. The learned Sessions Court after hearing the parties framed charge against accused Hira Lal for the offences u/s. 452, 302, 307/34 IPC, against accused Mihi Lal for the offences u/s. 452, 302/34, 307 and 307/34 IPC and against accused Tika for the offences u/s. 452, 302/34 IPC. The charges framed against the accused persons were read over and explained to them. They denied the charges and claimed for trial on merits. 9. Accused persons have taken defence of false implication because of enmity and have claimed themselves to be innocent. 10. The charges framed against the accused persons were read over and explained to them. They denied the charges and claimed for trial on merits. 9. Accused persons have taken defence of false implication because of enmity and have claimed themselves to be innocent. 10. To substantiate the charges levelled against the accused persons, the prosecution has examined PW 1 Smt. Mulli, who is the mother of deceased and proved FIR version and the execution of Tehriri (written) report, PW 2 Jamuna, who is informant’s daughter and injured, PW 3 Sardar, who is informant’s son, PW 4 S.I. Hori Lal, who is the first I. O., PW 5 Dr. S.K. Mehrotra, who has conducted the post mortem examination of deceased, PW 6 Bhuneshwar Singh, who is the second I. O., PW 7 Dr. B.P. Pant, who has examined the injured and PW 8 Ramesh Pandey, who has taken the corpus of the deceased to mortuary for the purposes of autopsy examination. 11. PW 5, Dr. S.K. Mehrotra has conducted post mortem examination on the dead body of deceased Ram Charan on 20.10.1982 at 2 pm and he has noted the following observations in the post mortem examination report (Ext Ka 17) : “Dead body was one and half days old and was of average built. Rigor mortis passed off the upper limb extremities and was in the process of passing in the lower ones. The doctor has noted following ante mortem injuries : (i) One gun shot wound of entry 3.5 cm x 3.5 cm x chest cavity deep, 6 cm below left clavicle above left nipple. Blackening and tattooing were present, margins were inverted and direction onwards and towards back. (ii) incised wound 3 cm x 1 cm x scalp deep below occipital (iii) Abrasion 4 cm x 1 cm above injury No. (2) (iv) Incised wound 10 cm x 1.5 cm x scalp cavity deep above the root of neck at level of C.S.V.T (v) Abrasion 6 cm x 1 cm below left elbow (vi) Incised wound 4 cm x 0.4 cm x 0.24 cm left wrist. Two other incised wounds 2 cm x 0.4 cm skin deep adjacent to injury No. (vi) (vii) Abrasion 2 cm x 1 cm below left eye (viii) Incised wound 2 cm x 0.4 cm x 0.2 cm left side chin (ix) Incised wound 3 cm x 0.2 cm x 0.2 cm left side lip upper (x) incised wound 1 cm x 0.2 cm x 0.4 cm below nose left side (xi) Abrasion 2 cm x 1 cm above left eyebrow (xii) Incised wound 5 cm x 0.2 cm x 0.2 cm left cheek. Another incised wound 4 cm x 0.2 c x 0.2 cm just lateral to this wound. On internal examination, the doctor found that ribs underlying injuries fractured. Pleura stood lacerated. Pericardium and heart stood lacerated. Heart vessels stood lacerated. Stomach contained half digested food material. Small intestines contained digested part of foods. Large intestine contained faeces. The doctor recovered 23 small shots with wadding pieces from the heart, lung and ribs etc and sealed them in a packet. The cause of death of deceased has been assigned due to shock and haemorrhage as a result of ante mortem injuries. He has also proved the execution of the post mortem examination report.” 12. PW 7 Dr. B.P. Pant has examined injured Jamuna (PW 2) on 19.10.1982 and found following injuries on her person : “(i) Incised wound 1 cm x 0.4 cm x muscle deep on the back of the root of the right thumb. Blood clots were present on the wound and pus coming out of the wound. (ii) Incised wound 1 cm x 0.5 cm x muscle deep on the right side of the middle umbilicus. 8 cm outer to the umbilicus serum with pus was coming out of the wound. (iii) Multiple abrasions in an area of 4 cm x 3 cm in the front of left breast, 2 cm above the nipple. The injuries were one day old.” Injury No. (i) and (ii) were caused by sharp cutting object and injury No. (iii) was caused by friction. The doctor has proved the medico legal examination report of Jamuna. 13. PW 4 is S.I. Horilal posted at P.S. Khutar, District-Shahjahanpur. The injuries were one day old.” Injury No. (i) and (ii) were caused by sharp cutting object and injury No. (iii) was caused by friction. The doctor has proved the medico legal examination report of Jamuna. 13. PW 4 is S.I. Horilal posted at P.S. Khutar, District-Shahjahanpur. He received intimation from constable Swami Dayal about non availability of S. I. at P.S. Sehramau, hence he proceeded to P.S. Sehramua, after entry in the G. D. (Ext Ka.2) and performed the inquest proceedings and inspected the spot and prepared the documents relating to recovery and for the purposes of autopsy. He has also proved the execution of Chik FIR and carbon copy of the G. D. and also the execution of charge sheet. All the documents proved by this witness have been exhibited. He is the first I.O. 14. PW 6 Bhuneshwar Singh is the second I.O., who has proved the execution of documents relating to search of accused persons, one empty cartridge. The documents so prepared have been exhibited. 15. PW 8 C.P. Ramesh Pandey has taken the corpus of deceased to the mortuary for the purposes of autopsy examination. 16. PW 4 S.I. Horilal, PW 5 Dr. S.K. Mehrotra, PW 6 S.I. Bhuneshwar Singh, PW 7 Dr. B.P. Pant and PW 8 Constable Ramesh Pandey are the formal witnesses and their testimonies are confined to their roles relating to investigation. 17. The statement of accused-appellants was recorded u/s. 313 Cr. P.C. All the incriminating circumstances/materials appearing against the accused-appellants during the course of trial were put to them and they were afforded opportunity to explain the same. Appellant Hira has stated in reply to the question put to him u/s. 313 Cr. P. C. as being false and disclaimed knowledge and stated that due to enmity the investigation was conducted and out of enmity the witnesses have deposed against him. Accused Mihilal has also stated in his reply to the question put to him u/s. 313 Cr. P. C. as being false or disclaimed knowledge and has stated that the witnesses have deposed due to relationship. Accused Tika has also taken the same stand in his statement u/s. 313 Cr.P.C. and has stated that the witnesses are the man of Swami Dayal that is why they have deposed against him. 18. The accused persons have made suggestion to the prosecution witnesses of the fact. Accused Tika has also taken the same stand in his statement u/s. 313 Cr.P.C. and has stated that the witnesses are the man of Swami Dayal that is why they have deposed against him. 18. The accused persons have made suggestion to the prosecution witnesses of the fact. On behalf of accused, it was suggested to PW 1 that deceased Ram Charan had brought with him the wife of another Ram Charan r/o Netapur that is why there was dissension and the second suggestion was that the deceased was mischievous person and that is why he was murdered. The suggestion advanced to PW 2 on behalf of accused persons that some unknown criminals had come with an intention to commit theft. Further suggestion was that the witnesses did not recognize the accused-appellants. All the suggestions put to the witnesses have been replied. 19. It has been submitted on behalf of accused-appellant that the incident has taken place in the midnight of 18/19.10.1982 whereas the FIR was registered on 19.10.1982 at 7 am. The distance of the police station from the place of incident is 3 km only. The prosecution has not rendered any reasonable explanation for delay in lodging the FIR. Further contention is that the investigation suffers from illegality because the case was registered at P.S. Sehramau whereas the Sub Inspector Horilal, who proceeded with the initial investigation, was posted at P.S. Khuttar. Further contention is that it is a midnight incident and no one has seen the incident. It is a case of enmity and the accused-appellants have been falsely roped in. None of the eye witnesses have seen the accused persons committing the offence since it was completely dark. PW 1 is alleged to have awoke after hearing the sound of fire and PW 1 Mulli Devi, PW 2 Smt. Jamuna Devi reached at the place of occurrence after the incident and the witness PW 3 Sardar when came the incident had already taken place. It is submitted that Niranjan and Ram Bharose are alleged to be the eye witnesses of the incident, but they have not been examined. PW 1, PW 2 and PW 3 are inter se related and are respectively the mother, sister and brother of deceased Ram Charan. They are highly interested witnesses, hence their testimonies without any corroboration, cannot be relied upon. PW 1, PW 2 and PW 3 are inter se related and are respectively the mother, sister and brother of deceased Ram Charan. They are highly interested witnesses, hence their testimonies without any corroboration, cannot be relied upon. Further submission is that the alleged source of light i.e. kerosene oil dibiya (lamp) was not sufficient to identify the accused-appellants. Further submission is that the factum of inscription of FIR by Swami Dayal is belied in view of the admission made by PW 2 Smt. Jamuna in para 4 at page 28 of the paper book wherein she has categorically stated that her mother went to the police station in the night along with village Chowkiar and the police darogaji brought her mother to the village in the morning. There is no coherence in the ocular evidence and the medical evidence. Further submission is that there is contradiction in the testimonies of the witnesses of fact PW 1, PW 2, PW 3 and the FIR version. It is further submitted that the motive is stale. The injuries sustained by Smt. Jamuna are alleged to have been caused by the accused persons while fleeing after commission of the offence. Corroboration of testimony of PW 1 with the medical evidence. 20. Learned A. G. A. has submitted that even presuming for argument sake any illegality in the preliminary part of investigation would have no bearing since the trial has concluded and no such plea was raised before the trial Court. Further submission is that the presence of accused persons has been established from the testimonies of PW 1 and PW 3 at the place of occurrence. Further submission is that there is no question of false implication of accused persons sparing the real assailants. There is a specific averment by PW 1 about the presence of source of light in a thatch where deceased Ram Charan was sleeping. 21. Hon’ble the Apex Court has been pleased to lay down the guidelines for decision of a appeal from time to time. There is a specific averment by PW 1 about the presence of source of light in a thatch where deceased Ram Charan was sleeping. 21. Hon’ble the Apex Court has been pleased to lay down the guidelines for decision of a appeal from time to time. The Hon’ble Apex Court has propounded the following principles in Padam Singh v. State of U.P. reported in 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 case is 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.” 22. Further guidelines have been issued by the Hon’ble Apex Court in case of Rama & others v. State of Rajasthan reported in 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.” 23. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.” 23. The guidelines have been issued by three Judges Bench of the Hon’ble Apex Court in case of Majjal v. 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.” 24. 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 Anr v. State of Gujarat reported in 2014 Cr.LJ 443. 25. Keeping in view the propositions cited above, the Court is to scrutinize and appraise the evidence available before it and to draw the inference accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings recorded by learned trial court. 26. It has been contended on behalf of the accused persons that the investigation is illegal and has been conducted by a Sub Inspector, who was not posted at the P.S. Sehramau North where the case was registered. S.I. Horilal was at the relevant time posted at P.S. Khutar in the same district. Learned A. G. A. has refuted the argument and stated that the law is settled on the point that any illegality in the investigation would not vitiate the final verdict passed by the Court after conclusion of the trial in accordance with law. 27. S.I. Horilal was at the relevant time posted at P.S. Khutar in the same district. Learned A. G. A. has refuted the argument and stated that the law is settled on the point that any illegality in the investigation would not vitiate the final verdict passed by the Court after conclusion of the trial in accordance with law. 27. The basic legal objection as argued by the defence about the illegality in the investigation has to be scrutinized in the facts and circumstances of the case. The cogent reason has been stated by PW 4 before the Court and he has disclosed the circumstances in which he was asked to proceed with the investigation. He has categorically stated that at the relevant time no Sub Inspector was available at the P.S. Sehramau, the place where the FIR was lodged. He did not assume the investigation on his own accord. A request was made. The relevant entry in the G. D. was also made. The G. D. entry Ext Ka 2 which has been proved by PW 4 S.I. Horilal, clearly goes to establish that in black and white he proceeded with to assume the investigation after receiving information from the Sehramau Police Station. Presuming for argument sake that illegality has been committed in the investigation then it was incumbent upon the accused-appellants to raise the plea at the very inception of the trial. No such plea was ever raised by the accused persons that the cognizance was barred because of illegal investigation or the trial could not proceed because of above illegality. There was no legal impediment before the accused persons for raising such plea immediately after cognizance or at the initiation of the trial. No such plea was ever raised. Further the onus lies heavily on the shoulders of accused persons to establish that material prejudice or injustice has been caused to them because of investigation by S.I. of different police station. 28. The accused persons-appellants have failed to establish any prejudice or injustice which has been occasioned to them due to illegality in the investigation. Further the onus lies heavily on the shoulders of accused persons to establish that material prejudice or injustice has been caused to them because of investigation by S.I. of different police station. 28. The accused persons-appellants have failed to establish any prejudice or injustice which has been occasioned to them due to illegality in the investigation. This controversy regarding illegality in investigation was considered by the Hon’ble Apex Court in the case of H.N. Rishbud and another v. State of Delhi, (2007) 15 SCC 699 and the Hon’ble Apex Court was pleased to make following observation : “That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the case in – ‘Prabhu v. Emperor’, AIR 1944 PC 73 (C) and – ‘Lumbhardar Zutshi v. The King’, AIR 1950 PC 26 (D).” 29. The Hon’ble Apex Court has made an observation in reference to Dev Kanta Barooah v. Kusharam Nath and others reported in AIR 1961 SC 1125 . In the relevant para 11 the Hon’ble Court was pleased to observe that an illegality committed in the course of investigation did not affect the competence and jurisdiction of the Court for trial; but if any breach of the mandatory provisions relating to investigation were brought to the notice of the Court at an early stage of the trial, the Court would have to consider the nature and extent of the violation and pass appropriate orders for such re-investigation as might be called for. 30. In view of the propositions cited supra, it can safely be inferred that it was an obligation on the part of accused persons to prima facie take a plea to establish that there was any illegality in the investigation, which has resulted into failure of justice and cause of the accused persons was materially prejudiced. The learned Amicus Curiae has failed to draw our attention to the fact that after the cognizance or during the course of trial such plea was ever raised before the trial Court. The observations made by the Hon’ble Apex Court are ample explicit that any illegality during the course of investigation would not be any impediment for taking cognizance and for proceeding with the trial and merely on this score, a duly conducted and concluded trial would not vitiate. The observations made by the Hon’ble Apex Court are ample explicit that any illegality during the course of investigation would not be any impediment for taking cognizance and for proceeding with the trial and merely on this score, a duly conducted and concluded trial would not vitiate. As such, the Amicus Curiae has failed to impress us by his argument on this aspect and we are of the considered opinion that even presuming for the illegality in the investigation the duly conducted trial would not vitiate, since no such plea was ever raised on behalf of the accused persons either after the cognizance was taken or during the course of trial. 31. It has been submitted on behalf of defence that motive as alleged by the prosecution is not convincing. The incident of encroachment by putting a thatch on the land owned by the brother-in-law of deceased had taken place much prior to the instant incident. Per contra, learned A. G. A. has submitted that it is not a case based solely on motive, rather it is a case of direct evidence. 32. PW 1 Smt. Mulli has categorically stated to have seen the incident and identified the accused persons. The presence of accused persons immediately after the incident has also been alleged by PW 3 Sardar, who is the brother of deceased. PW 1 has categorically spelled out about the identity of the accused persons. She has categorically stated in the FIR as to how the offence was committed by the appellants. She has also revealed the sequence in which the injuries were caused and sustained by the deceased. She has specifically identified and named the accused persons in the FIR as well as in her statement before the trial Court. PW 2 has also stated about the presence of accused persons-appellants in the thatch where the deceased was sleeping prior to the incident. As such, even if, the motive being stale, it is a case of direct evidence and the legal proposition has now been crystallized through a catena of pronouncements of the Hon’ble Apex court that the motive loses its significance in cases which are based on direct evidence. 33. The aspect of motive has also been dealt categorically by PW 1 Smt. Mulli through her statement with respect to the encroachment. 33. The aspect of motive has also been dealt categorically by PW 1 Smt. Mulli through her statement with respect to the encroachment. It was deceased Ram Charan, who asked the accused persons to remove the thatch and there was an altercation between the two. Prima facie, a light has been shown to the aspect of motive by PW 1. 34. On complete evaluation we are of the considered opinion that it is a case of direct evidence and as such, the aspect of motive does not have a fair role. 35. It has been submitted on behalf of defence that PW 1 is mother of deceased, PW 2 is the sister of deceased and PW 3 Sardar is the brother of deceased. As such, their testimonies does not inspire confidence and does not rule out the chances of false implication. Being related and highly interested witness, their testimonies cannot be relied upon. Learned A. G. A. has submitted that there is no bar to place reliance upon the testimonies of related or interested witnesses. [Ref. Nagappan v. State by Inspector of Police, Tamil Nadu (2014) 3 SCC (Crl) 660]. 36. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon’ble the Apex Court in the case of Sahabuddin & Anr. v. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon’ble the Apex Court has discussed the legal position on this point in paragraph No. 16. Relevant portion of the aforesaid judgment reads as under “16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under: - We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close relatives of the victim should not be relied upon, the Court held as under: - 26. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close relatives of the victim should not be relied upon, the Court held 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 against the accused, to wish to implicate him falsely. Ordinarily, a close relative 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 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 generalisation. Each case must be judged on its own facts. Our 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.” Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [ (2006) 4 SCC 512 ]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, “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 interested witness. The Court also stated the principle that, “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 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.” This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [ (2008) 16 SCC 73 ]} In the case of Darya Singh & Ors v. State of Punjab [ AIR 1965 SC 328 ], the Court held as under: - 6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.” 37. It will be useful to make a reference of another judgment of Hon’ble the Apex Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh reported in [ (2009) 13 SCC 790 ], wherein Hon’ble the Apex Court has held as under: - “26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon.........” 38. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon.........” 38. Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [ (2010) 6 SCC 673 ], Hon’ble the Apex Court has held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. 39. Hon’ble Apex Court in the case of Mano Dutt and Another v. State of Uttar Pradesh reported in (2012) 4 SCC 79 had again occasion to consider this aspect and has observed in para 32 as under: “Another argument with regard to the appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that] non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in view of the discussion made above, we are of the considered view that the prosecution has been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten.” 40. Therefore, in view of the discussion made above, we are of the considered view that the prosecution has been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten.” 40. Hon’ble Apex Court has been pleased to make an observation with regard to related and highly interested witness in the case of Shiv Ram & Anr v. 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. 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 the Hon’ble 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. 41. From the above cited propositions of law now the legal position so crystallizes that mere the witness being a related or highly interested one, his testimony cannot be discarded on this score, but a heavy duty is cast upon the Court to scrutinize and appreciate the testimony of such witness with utmost care and caution. Such evidence should be critically appraised so as to extract the truth. The Hon’ble Apex Court has further observed that it is the common psychology of the related witness that he or she would not like to spare the real assailant and implicate others falsely. Such evidence should be critically appraised so as to extract the truth. The Hon’ble Apex Court has further observed that it is the common psychology of the related witness that he or she would not like to spare the real assailant and implicate others falsely. It is the common psychology of the victim of a crime to ensure that the real culprits is punished accordingly, so that their feelings and emotions may be satisfied. 42. It has vehemently been contended by the Amicus Curiae on behalf of appellants that the witnesses Dammar, Ram Bharose and Niranjan have not been examined by the prosecution during the course of trial. At least, Dammar could have been the best witness to depose about the manner of commission of offence by the accused persons- appellants. Witnesses Ram Bharose and Niranjan could have been the best witnesses about the factum of assault on PW 2 Smt. Jamuna and also on the aspect of source of light i.e. torch carried by them. Per contra, it has been submitted by the learned A. G. A. on behalf of the State that it is the prerogative of the prosecution to examine any particular witness or not. The defence has no interference in it. 43. Witness Dammar was sleeping along with the deceased. It has come in the evidence of PW 1 that Dammar immediately ran away from the spot. This legal position is res integra and it is the prerogative of the prosecution to prove its case by any particular evidence and the prosecution has the discretion to examine any witness from the list of prosecution witnesses. The prosecution cannot be compelled to produce a particular witness by the defence to substantiate its case. The legal position has also been established that it is not the quantity of evidence, but it is the quality of evidence that matters for the Court and cases are decided on the basis of quality of the witness. 44. It has been submitted by the Amicus Curiae on behalf of the appellants that according to PW 3, PW 1 approached the police station in the night along with the village Chowkidar and in the morning mother of deceased, brought the Sub Inspector of police at the place of occurrence whereas in her statement PW 1 has stated that she went to the police station in the morning for lodging the FIR. PW 1 has also categorically stated that the report was inscribed by one Swami Dayal, which finds support from the chik FIR wherein the time, date of lodging of the FIR has been written as “19.10.1982 at 7 am” by Smt. Mulli (i.e. PW 1) and the name of the inscribe is also revealed in the chik FIR. The statement of PW 1 also finds corroboration from the relevant G. D. entry of the P.S. Sehramau North, which has been proved and exhibited. 45. Even presuming any contradiction in the manner of lodging of the FIR, it does not have any material bearing. The purpose of FIR is to bring to the notice of police about the commission of the offence. Any contradiction in lodging of the FIR is required to be taken care by the Investigating Officer during the course of investigation and further the Court is required to assess the impact of such contradictions and such aspect is to be considered on the totality of the circumstances in the light of evidence available on the record. After having critical appraisal of the evidence, we are of the opinion that this contradiction is not very material and as such would have no adverse bearing on the prosecution version. 46. Further submission by the learned Amicus Curiae is that no one has seen the incident. With respect to PW 1 it has been submitted on the basis of admission that PW 1 heard the sound of fire thereafter she raised the alarm. Further her testimony has been challenged on the ground that she has stated about the source of light in the thatch in which she was sleeping and she has confined about one source of light in her statement. Since there was no sufficient light hence she could not see who committed murder of her son deceased Ram Charan. Her statement about the manner of commission of offence also does not inspire confidence in the absence of source of light. 47. Learned A. G. A. has submitted that the presence of source of light has been revealed in the examination-in-chief itself in the thatch where deceased Ram Charan was sleeping. Further submission is that isolated admissions appearing in the cross-examination do not have much relevance. 47. Learned A. G. A. has submitted that the presence of source of light has been revealed in the examination-in-chief itself in the thatch where deceased Ram Charan was sleeping. Further submission is that isolated admissions appearing in the cross-examination do not have much relevance. Further contention is that this fact cannot be ignored that Smt. Mulli (PW 1) is a fairly old lady aged about 60 years, she is illiterate and hails from village background. She might have been under the pressure of cross-examination and might have made isolated admission. 48. So far as source of light is concerned, it has been categorically disclosed in the examination-in-chief of PW 1. She has also revealed the place where it was kept. This fact has not been disputed on behalf of defence that PW 1 is not a fairly aged lady, who is illiterate and she hails from village background. 49. It is the settled proposition of law that the evidence of a witness has to be appreciated as a whole and no inference is to be drawn on the basis of isolated admissions. It is also settled that in case of natural witness, the natural contradictions are bound to appear at places. While appreciating the evidence the Court is required to consider whether the statement of a witness was recorded at one stage or it was recorded in parts. It is noteworthy that in this case the examination-in-chief of PW 1 was recorded on 15.3.1983 whereas her cross-examination was resumed on 29.4.1983 i.e. after a lapse of about 1 & 1/2 month. There has been a sufficient time gap in recording of examination-in-chief and cross-examination of PW 1. This material fact should not be ignored at the time of appreciation of the evidence and it cannot be denied that this time gap might have been the cause for contradiction. 50. We cannot ignore this aspect that there was no sufficient light but when it was sufficient for the assailants/appellants to identify the victim and to commit the offence then by no stretch of imagination it can be said that it was not sufficient for the witnesses to identify the accused persons/assailants. 50. We cannot ignore this aspect that there was no sufficient light but when it was sufficient for the assailants/appellants to identify the victim and to commit the offence then by no stretch of imagination it can be said that it was not sufficient for the witnesses to identify the accused persons/assailants. If the accused persons can identify in darkness their victim who was sleeping along with his brother-in-law Dammar and committed the offence then it cannot be said that in the darkness the witnesses were not able to identify the accused persons/assailants. The source of light has been revealed by PW 1 in the thatch of deceased Ram Charan. After a long interval she was put to cross-examination. The contradictions appearing in the cross-examination of PW 1 are not sufficient to discard her testimony in toto. As such, we are not impressed by the argument raised on behalf of the appellants by the learned Amicus Curiae in this regard. 51. Further submission of learned Amicus Curiae on behalf of appellants is that PW 3 Sardar who has disclosed the source of light inside the thatch. He has categorically stated that after hearing the sound of fire he awoke and interrupted the accused persons. He has also stated that accused persons Hira, Tika and Mihi were seen near deceased Ram Charan. He has also assigned weapon of assault namely sword to Mihi, country made pistol and torch to Tika and a gun to Hira. He has stated that when on his interruption accused Hira raised gun towards him, he ran away from the southern door then Hira fired upon him, but he did not sustain any injury. He further stated that Mihi assaulted his sister Smt. Jamuna (PW 2) with sword. In view of the admission it has been submitted that Sardar did not see the incident of deceased Ram Charan’s murder. Per contra, learned A. G. A. has contended that even if the statement of this witness is taken to be true that he did not see the incident, but the identity of the accused-appellants is established in the thatch where deceased Ram Charan was murdered. It is also contended that PW 2 was put to a lengthy grilling cross-examination, but there appears no material contradiction to discredit his testimony on this aspect. 52. It is also contended that PW 2 was put to a lengthy grilling cross-examination, but there appears no material contradiction to discredit his testimony on this aspect. 52. From appraisal of evidence of PW 3 Sardar it is evident that he awoke after hearing the sound of fire and when he interrupted the accused persons, gun was raised towards him whereupon he ran away and fire aiming at him from behind was discharged, which did not hit him. From appraisal of the evidence, the presence and identity of the accused persons-appellants at the place of occurrence is established. The accused persons-appellants were seen and identified inside the thatch immediately after the murder. It is an important circumstance which leads to draw an inference against the accused persons about their presence on the spot immediately after the offence, otherwise there was no occasion for the accused persons-appellants to chase him and discharge a fire shot from behind. 53. From critical appraisal of testimony of PW 2 Smt. Jamuna it is evident that she was not present at the place of occurrence at the time of the incident. After hearing voices of her mother and fire shots, she rushed towards her maternal home. Her testimony with respect to the manner of commission of murder of deceased Ram Charan is of no avail. 54. On the joint reading of statements of PW 1 and PW 3 it is revealed that the source of light was available in the thatch where deceased Ram Charan was sleeping along with his brother-in-law Dammar. The isolated admission in the cross-examination by PW 1 would have no bearing since her statement in the examination-in-chief finds due corroboration from the testimony of PW 3 on the aspect of source of light. As such, the argument advanced on behalf of learned Amicus Curiae in this regard loses its significance. 55. Further submission made by learned Amicus Curiae is to the effect that it does not inspire confidence that the accused-appellants after committing the murder chased PW 2 and thereafter came back to the place of occurrence to commit further assault by sword. PW 1 has categorically assigned the weapon of assault to all the accused-assailants. 55. Further submission made by learned Amicus Curiae is to the effect that it does not inspire confidence that the accused-appellants after committing the murder chased PW 2 and thereafter came back to the place of occurrence to commit further assault by sword. PW 1 has categorically assigned the weapon of assault to all the accused-assailants. She has categorically stated that on the voices raised by the accused persons she awoke and saw the accused Hira discharging fire shot upon the deceased and thereafter when PW 3 Sardar interrupted accused Hira, Hira raised gun towards him, all the accused persons chased him and accused Hira fired shot upon him and thereafter accused persons came back to the place of occurrence again for committing assault on the deceased. It does not appear to be natural. Learned A. G. A. has submitted that from the testimony PW 1 and PW 2 it is revealed that firstly the murderous attack was made by accused Hira from his gun. Thereafter on being seeing by Sardar, the brother of deceased, they chased him and discharged fire shot though PW 3 was saved. PW 1 has categorically assigned the weapon of assault to all the accused persons namely, gun to Hira, sword to Mihi Lal and a country made pistol as well as a torch to accused Tika. She has categorically stated that as the deceased Ram Charan rose from the sleeping posture, appellant Hira discharged a fire shot upon him and the witness Dammar ran away. Ram Charan sustained bullet injuries on his chest. PW 1 has stated that accused persons-appellants chased her another son Sardar (PW 3) and discharged a fire shot upon him from the back and then they came back at the place of occurrence. According to PW 1 all these incidents occurred within a very short span of time and thereafter assault was made to deceased by Mihi Lal with his sword. PW 1 laid down on the person of dead body of her deceased son and tried to rescue him. PW 3 Sardar has also stated that he awoke after hearing the sound of fire and interrupted the accused-appellants, who were seen inside the thatch immediately after the incident. Thereafter, gun was raised towards him and he ran away. He was chased by the accused persons-appellants and fire was discharged upon him. 56. PW 3 Sardar has also stated that he awoke after hearing the sound of fire and interrupted the accused-appellants, who were seen inside the thatch immediately after the incident. Thereafter, gun was raised towards him and he ran away. He was chased by the accused persons-appellants and fire was discharged upon him. 56. PW 2 Smt. Jamuna has stated about hearing the sound of two fire shots, which corroborates the evidence of PW 1 and PW 2 about the fire shots discharged upon deceased Ram Charan and PW 3 Sardar while chasing him. 57. On critical appraisal, we find that the testimony of PW 1, even if she is taken to be the sole witness of the incident, finds corroboration from the story set up in the FIR. The manner, place and time of incident and by whom the offence has been committed as stated in the FIR is fully fortified by her testimony. The testimony of PW 1 appears to be natural. The contradictions, if any, appearing in her examination-in-chief and cross-examination, appears to be natural and trivial because of the long interval in recording examination-in-chief and cross-examination. There is no legal impediment in placing reliance upon the sole testimony of the witness. Even if she being the mother of the deceased, her testimony cannot be discarded on this score alone. This fact can also not be ignored that in the present scenario the outsiders have apathy to involve themselves in the affairs of others and it is the related witness who comes forward to ensure that the real assailant may not go scot free and do not wish to implicate falsely because in the event of false implication their feeling of vengeance would not be satisfied. The emotional satisfaction would come to the witness when the real assailants are taken to the task and are punished efficaciously. 58. The testimony of PW 1 is required to be assessed at the touch stone of the medical evidence. The manner of committing the murder by discharging fire shot and by assaulting deceased Ram Charan by sword finds full corroboration from the medical evidence discussed in the autopsy report. The nature of injuries (ante mortem) in the autopsy report is revealed to be fire arm wounds, incised wounds and abrasions, which further fortifies and supports the testimony of PW 1. 59. The nature of injuries (ante mortem) in the autopsy report is revealed to be fire arm wounds, incised wounds and abrasions, which further fortifies and supports the testimony of PW 1. 59. From combined appraisal of testimonies of PW 1 and PW 3 the identity of the accused persons-appellants is established. The site plan also reveals coming back of the accused persons-appellants to the place of occurrence again. 60. PW 6 Bhuneshwar Singh has stated in his cross-examination that he took over the investigation on 20.4.1982 and submitted the charge sheet. No suggestion has been put to PW 4 or PW 6, the Investigating Officers so as to create doubt about the veracity of the site plan. The site plan further fortifies the testimony of PW 1 about coming back of the accused persons-appellants to the place of occurrence which corroborates the story of assault by sword by Mihilal (appellant). 61. PW 2 has categorically stated that while she was approaching the place of incident she was assaulted by accused Mihi Lal with a sword. It has been stated on behalf of the Amicus Curiae that PW 2 fell down for two minutes then her brother Sardar (PW 3) came there. She has stated to have seen the accused persons-appellants in the light of torch of Ram Bharose. This is minor contradiction about the source of light in the hands of Ram Bharos and Niranjan, but it is established that she had identified the accused persons in the torch light, which is established from the total consideration of her evidence. 62. From critical appraisal of testimonies of the witnesses of the fact it is evident that assault of deceased Ram Charan was firstly made by Hira by discharging a fire shot and subsequently after coming back from the chase, accused Mihi Lal assaulted the deceased with his sword and from testimonies of PW 1 and PW 2 the identity and presence of accused persons-appellants is established in the thatch at the time of first assault of deceased Ram Charan. 63. The identity of the accused persons is established from the testimony of PW 2 as well with respect to the assault made with her by accused persons-appellants while fleeing after commission of assault of deceased Ram Charan. 64. 63. The identity of the accused persons is established from the testimony of PW 2 as well with respect to the assault made with her by accused persons-appellants while fleeing after commission of assault of deceased Ram Charan. 64. Further submission of learned Amicus Curiae on behalf of the appellants is that some unknown criminal have committed the offence and the accused persons have been falsely implication. 65. It has been contended on behalf of accused persons-appellants that the deceased had taken away with him wife of one Ram Charan r/o Netapur, hence the possibility cannot be ruled out that the offence of murder has been committed by Ram Charan of Netapur. 66. It is noteworthy that in spite of his wife being carried away by deceased Ram Charan, Ram Charan of Netapur did not take recourse to any legal measure for restoration of the custody of his wife. The accused persons-appellants have failed to demonstrate any evidence whereby it could be established that Ram Charan of Netapur had lodged protest for the aforesaid act of deceased Ram Charan. Hence, the above submission advanced on behalf of the appellants, does not appear to have force. 67. We have already discussed about the presence of accused persons-appellants at the place of occurrence at the time of incident. Thus rules out the theory of commission of the offence by some unknown criminals though admitted by the witnesses in their suggestions. 68. After critical appraisal of the materials available on the record, we are of the considered opinion that the learned trial Court has not erred in appreciating the evidence and has rightly recorded the findings of complicity of the accused-appellants in commission of the offence and it has rightly recorded the findings of conviction against the accused persons-appellants, which suffers from no illegality or irregularity warranting any interference by this Court. 69. In view of aforesaid discussions, we do not find any justification to interfere with the findings of conviction and sentence awarded by the learned Court below against the accused-appellants. As such, the judgment and order dated 6.1.1982 passed by the learned Court below convicting and sentencing the accused persons-appellants, is hereby affirmed. 70. The appeal is bereft of merits and is, accordingly, dismissed. The learned Court below is directed to ensure the presence of accused-appellants so as to undergo the sentence awarded to them. 71. As such, the judgment and order dated 6.1.1982 passed by the learned Court below convicting and sentencing the accused persons-appellants, is hereby affirmed. 70. The appeal is bereft of merits and is, accordingly, dismissed. The learned Court below is directed to ensure the presence of accused-appellants so as to undergo the sentence awarded to them. 71. Let a copy of this judgment and order along with the lower Court’s record be transmitted back to the concerned Court below for information and necessary compliance. 72. Today appeal was dismissed. Sri Arun Kumar Shukla, Advocate has appeared and argued on behalf of the appellants as an Amicus Curiae. We appreciate the assistance provided by him. 73. Registry/Office is directed to pay a sum of Rs. 15,000/- from the head of Legal Aid Cell to Sri Arun Kumar Shukla, Amicus Curiae as per rules, at the earliest.