Penal Code,
1860 - Section 302 - Murder of fratricide and nepolicide i.e. killing of his brother and nephew - Conviction can be based on the testimony of the single witness where it was straight forward.
FIR is not ante-time because no witness can give the explanation of minute to minute time which he spent in the journey specially when the complainant is 16 years old boy and he is educated only up to the class VIth and his father and elder brother have been murdered in his presence.
Evidence Law - Medical Evidence - Time of Incident - The medical evidence qua the food found in the stomach of the two deceased person cannot be made determinative factor regarding time of incident. state of contents of stomach found at the time of medical examination is not a safe guide for determining the time of occurrence. Process of digestion depends upon the nature of food which not being in uniformity varies from individual to individual.
Evidence Law - The presence of the eye witnesses cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version.
The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant within all human probability the act has been done by the accused appellant. The manner in which the victim was done to death with lathi and axe has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion.
Court cannot reject their evidence merely because they behaved or reacted in an unusual manner as they either become stunned, speechless or stood rooted on the spot.
Some of the witnesses becomes hysteric and stars moaning and bewailing shouting for help. Some would remain tight lipped ,overawed either on account of the antecedents of the accused or threats given by him. To discard the evidence of the witnesses on the ground that they did not react in any particular manner would result to shield the culprit.
Naheed
Ara Moonis & Ifaqat Ali Khan, JJ.
CRIMINAL
APPEAL No. 2054 of 2000
18/01/2019
Brij Kishor v. State of U.P.
Counsel
for Appellant :- M.A.Mishra,D.B.
Yadav,Manish Tewari,S.N. Yadav,Satish Trivedi,Shesh Nath Yadav,V.C. Tewari
Counsel
for Respondent :- D.G.A.
Ifaqat Ali Khan, J.
The instant
criminal appeal has been preferred on behalf of the appellant Brij Kishor,
against the impugned judgment and order dated 28.07.2000 passed by VIth
Additional District and Sessions Judge, Banda in Session Trial No. 41/98 (State
vs. Brij Kishor) arising out of Case Crime No. 51 of 1997 under section 302
IPC, Police Station Kalinzer, District- Banda whereby the appellant has been
convicted and sentenced to undergo life imprisonment for the offence punishable
under section 302 IPC with the fine of Rs. 20,000/-. In default of payment of
fine, the appellant was further directed to undergo additional rigorous
imprisonment for three years.
The
appellant is involved in double murder of fratricide and nepolicide i.e. killing
of his brother and nephew.The emanation of the facts emerging from the
prosecution in a short conspectus is that the deceased Rajol is the father and
the deceased Raj Kishore is the brother of the complainant Awadh Kishor P.W.1.
The complainant lodged an FIR on 12.11.1997 at about 19:30 hours at the police station
Kalinjer with respect to the incident taken place on the same day at about 5 to
5.30 p.m. vide Case Crime No. 51 of 1997 under section 302 IPC, Police Station
Kalinzer, District- Banda with the accusations that the complainant Awadh
Kishore s/o Rajolis the resident of village Barua, Police Station- Kalinjer .
On the fateful day on 12.11.1997, the complainant, his younger brother, Lakhan
and his father Rajol Prasad were looking after the tomato crops sown in the
field at Gojawar Har. The father of the complainant was sitting adjacent to the
demarcating line of the field. The complainant and his brother were doing work
in the field. At about 05:00 p.m his uncle Brij Kishor equipped with an axe and
lathi reached contiguous to the father of the complainant and jolted him. His
father stumbled, then the accused appellant Brij Kishor assaulted him with axe
and exposed that Rajol used to demand share in the land. The father of the
complainant wriggled on account of blows inflicted on his neck with axe and
succumbed to death . Subsequent thereto, his uncle (Brij Kishore) exposed that
now he would liquidate to Raj Kishor and ran speedily towards Marwa Har where
his brother (Raj Kishor) and mother (Laxmi w/o Rajol P.W.2) were sowing the
seed of masoor in the field. When Brij Kishor (appellant) reached adjacent to
Marwahar , on the shrill and alarm of the complainant and others, the brother
of the complainant namely Raj Kishore ensued running leaving the plough in the
field. His uncle Brij Kishor (appellant) chased him rapidly and attacked upon
him with lathi and axe in the field of Bullarey as a sequel of which Raj
Kishore succumbed to injuries. On the shriek and alarm of Bullarey, Brij Kishor
(appellant) jostled him andsucceeded in running away towards the village. The
accused Brijkishore was nurturing animus and grudge against his father and
brother on the issue of division of land as a consequence thereof, the accused
appellant took drastic step of eliminating them . The corpse of both the
deceased namely Rajol Prasad and Rajkishore were lying on the spot in the vigil
of family members. The complainant in association with others went at the
police station concern to lodge the first information report. On the basis of
written complaint of the complainant, the first information report was lodged
at the Police Station Kalinjer Ext.Ka.5. The case was duly registered and its
entry was made in the G.D. By the head constable Dinesh Kumar P.W.5.
After
registration of the case, the investigation of the case was entrusted to the
Station Officer, Satyaram who recorded the statement of Head Moharrir.
Investigating
Officer, Satyaram (P.W.6) in association with two constables proceeded towards
the place of occurrence. The investigating officer recorded the statement of
the complainant as well as witnesses. On 13.11.1997, the investigating officer
made spot inspection and prepared the Panchayatnama of the deceased Rajol
Prasad vide Ext.Ka.7. He kept plain and blood stained earth in two separate
containers vide Ext.Ka.8. The corpse of Rajol Prasad was entrusted to the
constables under seal. Thereafter he reached at the place of occurrence of
Rajkishore (deceased) and prepared the Panchayatnama vide Ext. Ka.10. He
prepared the site plan of the place of occurrence and also took plain and the
blood stained soil in two separate containers and prepared the recovery memo
Ext.Ka.9. The dead body of Rajkishore was sealed and was placed in the cot
beside the corpse of Rajol Prasad. The investigating officer prepared the
challan lash, photo nash, sample seal, letter to Chief Medical Officer in
respect to both the dead body . He handed over the corpse of Rajol Prasad and
Raj Kishore to the constables Bhuwneswar and Chandrapal Mishra,separately for
getting their autopsy done which were marked as Ext. Ka.11 to Ka.21. He
prepared the site plan and also recorded the statement of the witnesses
separately with respect to deceased Rajkishore and Rajol Prasad.
On
19.11.1997 the police personnel arrested accused-appellant Brij Kishore.
The axe used
in the commission of the crime was recovered at the pointing of the accused
appellant and the recovery memo was duly prepared vide Exhibit- Ka 23. The site
plan of the recovery memo qua the axe was prepared and marked as Ext. Ka 24.
Thereafter the investigation was taken over by Sri K. S. Sinha, Station Officer
Kalinjar P.W.3. The investigating officer K.S.Sinha recorded the statement of
eye witness Smt. Laxmi and witness of recovery memo Bela Prasad and Munim
Prasad. The investigating officer collected credible and clinching materials
showing the complicity of the accused appellant in the commission of the said
offence from the statement of the witnesses as well as the incriminating
articles gathered by him during the course of investigation hence he submitted
the charge-sheet against the accused appellant under section 302 IPC vide
Ext.-Ka 2.
The
investigating officer also sent the seized articles to the Chemical Analyst
Forensic Lab Agra who submitted its report that human blood was found on the
apparels of both the deceased and blood was found disintegrated vide Ext.Ka.29.
The post
mortem of deceased Rajol was conducted by Dr. Pramod Kumar (P.W.4) Pathologist,
District Hospital Banda on 13.11.1997 at 4.00 p.m. The deceased was found
middle aged man of about 45 years average built. Time since death was about one
day old. Rigor mortis present on upper and lower limb. Left eye closed. Right
eye half opened. Following ante-mortem injuries were found on the person of the
deceased Rajol.
I) Incised
wound 7 cm x 2.5 cm bone deep on front of neck. 5 cm above from eternal notch.
Horizontally placed., on section Right carotid artery cut. Thyroid cartilage
cut and esophagus cut. Cervical vertebrae between Vth and VIth cut tailing
towards left side (out side).
II) Abrasion
1 cm x 1 cm over top at left shoulder.
III) Contusion
8 cm x 2 cm on back of left side chest over scapula region 2.5 cm above from
scapula IV)Contusion 5 cm x 3 cm on right side head 3 cm over the right eyebrow
on section right frontal bone fractured. on left side head.
V) Contusion
3 cm x 2 cm on left side head and 7 cm above left ear.
On internal
examination Dr. Pramod Kumar found frontal bone fractured in right side head,
membrance congested, haematoma on right side brain, both the chambers of heart
empty about 500 gms semi-digested food in stomach; small intestine filled with
pasty food, large intestine filled with faecal matter and gases.
The doctor
opined that the death is due to shock and hemorrhage as a result of ante-mortem
injuries.
Further the
post mortem of deceased Raj Kishore was conducted by P.W.4 Dr. Pramod Kumar,
Pathologist, District Hospital Banda on 13.11.1997 at 5.00 p.m. The deceased
was found young man of 21 years average built. Time since death was one day
old. Rigor mortis present on upper and lower limbs passed off from neck, eyes
and mouth closed. Dried mud present on both lower limbs including both soles
,both hand. Following ante-mortem injuries were found on the person of the
deceased Raj Kishore.
I) Lacerated
wound 2 cm x 2 cm x skull deep on left side head 7 cm behind left ear.
ii)
Lacerated wound 4 cm x 2 cm x bone deep on left of head 6 cm below injury no
(1).
iii) Abraded
contusion on 7 cm x 4 cm on left side of neck below lobule of left ear.
iv) Abraded
contusion 8 cm x 2 cm on dorsum of left hand and wrist.
v) Contusion
5 cm x2 cm on dorsum of right hand in the middle.
vi) Abraded
contusion 11 cm x 2 cm on back of left shoulder, 5 cm below top of left
shoulder.
Vii)
Contusion on 4 cm x 2 cm on back of right side of chest over scapulan region 3
cm above inferior angle of left scapula.
On internal
examination left parietal and left occipital fractured. Subdural haemotoma
present. 250 grams undigested rice found in stomach. Small intestine empty.
Large intestine filled with faecal matter and gases.
Dr. opined
that death was due to coma as a result of ante-mortem head injuries.
The case was
committed to the Court of Sessions for trial.
` The trial
court after hearing the prosecution as well as defence and perusing the
material available on record framed charges against the accused appellant under
section 302 IPC on 19.5.1998. The charges framed were read over and explained
to the accused appellant. The appellant abjured the guilt and claimed to be
tried hence the prosecution was called upon to lead the evidence.
In order to
prove the guilt of the appellant, the prosecution had examined Awadh Kishor
(P.W.1), Smt. Laxmi (P.W.2) as witnesses of fact , K. S. Sinha(P.W.3), PW-4 Dr.
Pramod Kumar, PW-5 Head Constable Dinesh Kumar and PW-6 Satyaram as formal
witnesses.
After
conclusion of the prosecution evidence, the accused appellant Brijkishor was
examined under section 313 Cr.P.C. In his statement he denied all the charges
attributed against him and pleaded for innocence. He stated that he has been
falsely implicated in the case due to enmity. There was no dispute with regard
to partition of land between the appellant and deceased Rajol and Raj Kishor.
The accused appellant disowned that any axe was recovered at his pointing. The
accused appellant submitted that PW-1 Awadh Kishor and PW-2 Laxmi, have given
false statement on account of animosity. At the time of occurrence the
appellant was at the house of his in-laws at Jindwara on account of serious
ailment of his wife .
In defence
brother-in-law of the appellant Mahesh Prasad was examined as DW-1. In support
of his case, the appellant has filed documentary evidence viz. a charge-sheet
and the FIR of Crime No. 50 of 1991 as Session Trial No. 175 of 1991 under
section 392/412 IPC, Police Station Kalinzer (State vs. Shivdas and others) in
which the father of the complainant was an accused.
The
prosecution in order to corroborate its stand examined Avadh Kishore (P.W.1)
who deposed that the accused appellant Brijkishore is his uncle in relation and
the deceased Rajol is his father . The deceased Raj Kishore is his elder
brother. It has been averred by him that his father Rajol and elder brother Rajkishore
were done to death with axe by the accused Brijkishor on 12.11.1997 when he was
looking after his tomato crops with his younger brother Lakhan in Gujawar Har.
The complainant and his younger brother Lakhan were isolating the futile grass
from the field of tomato . The accused appellant Brijkishore equipped with axe
and lathi came at about '5' O' clock and jostled to his fatheras a result of
which he stumbled. The accused appellant inflicted with axe on his neck as a
result of which he succumbed to injuries grappling with life. The accused
appellant had stated that he (Rajol) claimed share in the land. The said incident
was witnessed by the complainant and his younger brother Lakhan. It was
divulged by the accused appellant that the said incident had taken place on account
of dispute over the property. Thereafter he proceeded towards Marwahar to
attack upon Rajkishore. The elder brother of the complainant Rajkishore and his
mother Laxmi were sowing the seed of Masoor. The complainant and his younger
brother Lakhan chased the accused and accosted to his brother Rajkishor to run
away because the accused appellant had already committed death of Rajol. The
brother of the complainant ran towards Purwa.
The accused
appellant pursued to his brother Rajkishore equipped with axe and lathi. The
brother of the complainant Rajkishore was done to death in the field of
Bullare. On the shriek and scream of Rajkishore, the complainant, his mother Laxmi
, his younger brother Lakhan and Bullare reached at the spot. When Bullare
tried to intercept the accused appellant jolted him and ran towards north after
carrying out the murder of his brother. Four Bigha land was placed under
mortgage by the father of the complainant to Ramswaroop which was got released
by the accused appellant but was being cultivated by the father of the complainant.
The accused appellant Brijkishore used to restrain him on account of which the
father of the complainant and his brother were done to death. The written
report was given at the police station concern under the signature of the complainant
which was proved and marked as Ext.Ka.1.
The
prosecution had examined Smt. Laxmi ,the wife of the deceased Rajol as P.W.2.
She deposed that she was well aware about the identity of accused Brijkishore.
She was sowing the seeds of Masoor in Marwahar. Her son Raj Kishor was also
associating her in sowing of seeds of Masoor. She heardthe shrieks and
lamentation of her sons Avadh Kishore and Lakhan. Both were crying to run away
because the uncle (Brijkishor) was approaching. The accused appellant thrashed
to her son Rajkishor with lathi. Both the sons of Laxmi (P.W.2) and Bullare
chased the accused appellant. Her son Rajkishore surrendered before the accused
appellant with folded hand but the accused appellant did not show any clemency
rather liquidated him,. Prior to causing death to Rajkishore, the accused
appellant had committed murder of her husband Rajol. The husband and the son of
Laxmi (P.W.2) were eliminated on account of dispute of land.
The
prosecution had examined Station Officer K.S.Sinha (P.W.3) who was posted on
3.12.1997 at police station Kalinjer and had taken over the investigation of
this case. He had recorded the statement of Lakhan the ocular witness on
14.12.1997 . He had recorded the statement of Laxmi (P.W.2) and other witnesses
of memo namely Bela Prasad and Muneem Prasad. All the witnesses had supported
the prosecution version. The investigating officer after collecting credible
and clinching materials showing the complicity of the appellant submitted the
charge sheet no. 38 of 1997 arising out of Case Crime No. 51 of 1997 under
section 302 IPC which was marked as Ext.Ka.2. He had sent the seized articles
for examination to the Forensic Lab Agra.
The
prosecution had examined Dr. Pramod Kumar (Pathologist) as P.W.4.
He deposed
that he was posted at District Hospital Banda as Pathologist on 13.11.1997. He
had conducted the autopsy of Rajol on the same day brought by constable
Bholeshwar Tiwari and Chandra Nath posted at police station Kalinjer. It was
confirmed by the doctor that Rajol was done to death on 12.11.1997 at about 5
to 5.30 p.m.with axe.Dr. Pramod Kumar (Pathologist) had also conducted the
autopsy of Rajkishore on 13.11.1997 brought by constable Bhuneshwar Tiwari and chandra
Nath Mishra, Police Station Kalinjer at about 5.00 p.m. The doctor opined that
the death of Rajkishore was one day old. He was a young man of average built.
The death was caused on account of ante-mortem head injuries.
Dinesh Kumar
Head Moharrir (P.W.5) in his statement on oath stated that on 12.11.97, he was
posted at Police Station-Kalinger District Banda as Head Moharrir. On
12.11.1997, at about 19.30 p.m., on the basis of information given by the
complainant Awadh Kishor, he registered FIR no.36 /97 arising out of Case Crime
No.51/97 under section 302 IPC against Brijkishor which was exhibited as Ext.
Ka-5 and the same was entered in the GD exhibiting as Ext Ka-6.
Satya Ram
Station Officer Kalinjer District Banda was examined as P.W.6.
He stated on
oath that on 12.11.97, he was posted at Police Station-Kalinger District Banda
Station Officer. He divulged that after attending the seminar, he reached at
the police station concerned and came to know that in village Baruwa both,
father and his son were done to death and the first information report was also
registered. Head Moharrir Dinesh Kumar (P.W.5) made him available the necessary
documents at the police station concern . The station officer Satyaram (P.W.6)
reached at the place of occurrence in association with two constables. P.W.6
Satyaram firstly reached at the corpus of Rajol where constables Panna Lal and
Rajaram were present. Subsequent thereto he reached at the corpus of Rajkishor
where Buneshwar Tiwari and Ram Milan were present. In addition to those
constables local people were also present.
Thereafter
P.W.6 Satyaram in association with other police personnel proceeded to nab the
accused appellant Brijkishore but the accused appellant could not be arrested .
Panchanama was not prepared at night on account of lack of properlight. Mukeem
was present at the place of occurrence. On 13.11.1997, the statement of the
complainant was recorded. Subsequent thereto visited place of occurrence .
Panchnama of deceased Rajol was prepared . The dead body of Rajol was placed
under seal. The blood stained and plain earth were collected in two different
containers and were sealed. The statement of the witnesses were recorded .
Panchayatnama, blood stained earth of Rajol (deceased), blood stained earth of
Rajkishore were marked as Ext. Ka.7,8 & 9. The signatures of the witnesses
were obtained on the Fard on which the Station Officer Satyaram (P.W.6) had
also put his signature. The Panchayatnama of both the dead bodies i.e. Rajol
and his son Rajkishor was prepared separately which were marked as Ext. Ka.10
to 21. Both the corpus of Rajol and Rajkishor were handed over to Constable
Bhuneshwar Tiwari and Chandra Nath Mishra for autopsy. Subsequent thereto, the
Station Officer Satyaram (P.W.6) in association with the police personnel
proceeded at the place of occurrence and prepared the site plan . He also
recorded the statement of Shree Shyam s/o Nageshwar Lodh & Shree Ram Ashrey
s/o Sarjooo Prasad resident of village Baruwa Police Station Kalinjer . The
site plan was marked as Ext.Ka.22. The statement of Bullare s/o Bhauram was
also recorded. The accused appellant Brijkishor s/o Ram Kumar was nailed at
Kalinjer Naraini Chawki . On the pointing of accused appellant Ram Kishor axe
was recovered which was marked as Ext.Ka.23.The site plan of place of murder
was prepared and marked as Ext.Ka.24. The P.W.6 Satyaram Station Officer
confirmed that the accused appellant was not arrested from Tindwara.
On the
aforesaid material on record the learned trial judge found the appellant guilty
for murdering his own brother Rajol and nephew Rajkishor s/o Rajol and held
that the prosecution has been able to prove the guilt beyond the shadow of reasonable
doubt thus convicted him under section 302 IPC asnarrated in the opening
paragraph.
We have
heard Ms. Abida Syed, Amicus Curiae and learned A.G.A. Sri Devendra Kumar Singh
and perused the record.
Learned
Amicus Curiae, appearing on behalf of the accused-appellant contended that the
judgment and order passed by the learned trial judge is per se illegal and
erroneous whereby the appellant has been awarded life imprisonment merely on
suspicion while there are serious irregularities and lapses on the part of the
prosecution. All the witnesses produced by the prosecution are highly
interested and inimical who succeeded in accomplishing their evil design. There
are material inconsistency in the prosecution version and the statement of the
witnesses which itself creates doubt about the incriminating circumstances
framed against him. The first information report had been lodged with due
deliberation and consultation and the explanation given by the prosecution does
not unravel verity and truthfulness about the prosecution version. The presence
of the witnesses is highly doubtful. The learned trial court has committed
manifest error in disbelieving the defence plea of alibi which was proved by
D.W.1 Mahesh Prasad.
The main
thrust of the argument is that no strong motive has been attributed for
committing the said incident. The motive assigned to the appellant for
committing the murder of father and the brother of the complainant namely Rajol
and Raj Kishore respectively does not inspire any confidence corroborating its
truthfulness and probity. The accused-appellant is absolutely innocent and had
been made scapegoat on account of conspiracy of the complainant and other
witnesses.
The motive
is also not proved. In the FIR it is mentioned that the accused Brij Kishor
murdered Rajol and Raj Kishor due to the dispute of the partition of land
between the Rajol and accused Brij Kishor. PW-2 Smt. Laxmi in her crossexamination
has admitted that her father in-law Ram Kumar separated her husband and accused
Brij Kishor in his life time and he gave the separate house and land to her
husband Rajol and accused Brij Kishor. In the life time of the Ram Kumar,
deceased Rajol and accused Brij Kishor use to live in separate houses and they
also use to do the farming on separate land. Thus, when the property was
distributed by Ram Kumar in his life time among his both sons namely Rajol and
Brij Kishor, then there was no occasion to commit the murder of Rajol and Raj
Kishor by accused Brij Kishor for the partition of the land.
The
complainant Awadh Kishore l (P.W.1) is the son and Laxmi (P.W.2) is the wife of
the deceased Rajol. Both the witnesses are highly interested and biased . As
per prosecution story at the time of incident Awadh Kishor (P.W.1) and Lakhan
and Smt. Laxmi were alleged to be present in the field of tomato, the place of
occurrence but none of them came forward for their rescue as such testimony of
Avadh Kishor (PW-1) and Smt. Laxmi ( PW-2) cannot be taken into account for the
purpose of any reliability and credibility about their presence at the time of
incident.
Medical
evidence does not corroborate the prosecution case. As per prosecution,
occurrence took place at 05:00 pm. PW-2 Smt. Laxmi who is the mother of
deceased Raj Kishor and wife of deceased Rajol has stated in her statement that
she and her son Raj Kishor took the meal (dal roti) prepared by her daughter
and after taking the meal at about 10:00 am they went to the field.
This witness
also stated that her husband took the meal along with Lakhan and Awadh Kishor
and after taking the meal her husband Rajol went to the field of tomato crop.
Thus, as per the statement of this witness both the deceased have taken the
meal before the 10:00 am and the occurrence has taken place at 05:00 pm but in
the postmortem report of Rajol, 500 gram semi-digested food was found in the
stomach and the small intestine was filled with pasty foodwhereas in the
postmortem report of Raj Kishor about 250 gram undigested rice was found in the
stomach and his small intestine was found empty. PW-4 doctor Pramod Kumar who
has carried out the postmortem of deceased Rajol and Raj Kishor, in his
statement submitted that in his opinion Raj Kishor would have taken the meal
before half hour of his death and Rajol has taken the meal before 1 to 2 hours
before his death. Thus, the postmortem report shows that occurrence has not
taken place at 05:00 pm but it would have occurred near about at 11:00 am in
the morning which creates an absolute doubt about the veracity of the
prosecution case.
The next
argument is that there is major contradictions in the statements of PW-1
regarding the time of occurrence which creates doubt about the testimony of the
PW-1. PW-1 Awadh Kishor in his statement on page one at third line has
submitted that the occurrence took place at 08:00 pm on 12.11.1997 whereas in
the FIR 05:00 pm is mentioned as time of occurrence.
PW-1 Awadh
Kishor in his statement admitted that there is a difference of near about one
kilometer between the fields where his father was murdered and where his
brother was murdered and it is unnatural that no one tried to check and stop
Brij Kishor. It has been stressed that according to prosecution version accused
Brij Kishor murdered Rajol at that time complainant Awadh Kishor and his
younger brother Lakhan were working in the field near his father but to prove this
fact that Rajol was murdered by Brij Kishor only the complainant Awadh Kishor
is examined as PW-1 and even Lakhan has not been examined to prove the case
hence the conviction cannot be based on the testimony of single witness.
The
accused-appellant Brijkishor after murdering Rajol started running towards the
Marwahar to murder Raj Kishor then Awadh Kishor and Lakhan chased him and on
reaching near Brij Kishor raised alarm to tell his brother RajKishor that their
uncle Brij Kishor is coming to murder him. Smt. Laxmi mother of Raj Kishor was
working there in the field with Raj Kishor. As per FIR Bullare challenged Brij
Kishor while he was murdering Raj Kishor. PW-2 Smt. Laxmi in her statement has
admitted that at the time of murder of Raj Kishor by Brij Kishor in the
adjacent fields Jiyalal, Dayaram and Gilla were working in their fields. This
witness also admitted that Kedar, Bela Prasad Chandare and Bhagwadin etc saw
the occurrence. But none of the independent witnesses were examined by the
prosecution to prove its case. Only the two witnesses PW-1 Awadh Kishor and
PW-2 Laxmi have been examined to prove the murder of Rajol and Raj Kishor by
accused-appellant Brij Kishor. PW-1 Awadh Kishor and PW-2 Smt. Laxmi are the
partisan witness. Non examination of the independent witness by the prosecution
creates the doubt on the prosecution case.
FIR in this
case is ante-time because as per the prosecution, occurrence took place at
05:00 pm. PW-1 Awadh Kishor who is the first informant has admitted that after
the occurrence for one hour he stayed at the place of occurrence then he came
to his house from the place of occurrence and it took 10 minutes time to reach
his house and he stayed in his house about 30 minutes and changed his clothes
again he went back to the place of occurrence then further took 10 minutes in
reaching the place of occurrence and from the place of occurrence he went to
Mau-Kakcha police out post which is near about half kilometer away i.e. 5
minutes time would have spent in reaching Mau- Kakcha out post from there hired
tempo. From Mau-Kakcha out post Kalinjer is about 10 kilometer meaning thereby
at least 10 minutes were spent in reaching the Kalinjer Bus stand. From the
Kalinjer bus stand police station is 3 kilometer away. Thus, complainant
reached Kalinjer bus stand after two hours and 20 minutes of the occurrence
i.e. at 07:25 pm from there he reached to the policestation and lodged the FIR
at 07:30 pm which was not possible. PW-1 Awadh Kishor in his statement has said
that when he went to police station Kalinjer to lodged the FIR then in the
night he stayed at the police station and he along with Daroga Ji reached at
his village at 08:00 am. Whereas PW-2 Smt. Laxmi says that on the date of
occurrence at 11-12 pm Daroga Ji came to the village by Jeep, Bullare Ram Asare
and her son complainant Awadh Kishor also came to the village with Daroga Ji by
the Jeep of police. Secondly PW-1 Awadh Kishor in his statement at page no. 9
says that the site plan of both place of occurrence where his father Rajol was
murdered and his brother Raj Kishor was murdered were prepared by Daroga Ji on
his pointing but just thereafter three lines he says that he has said this fact
by mistake that the Investigating Officer prepared the site plan of the place
of occurrence of murder of Raj Kishor at his pointing.
These
contradictions creates the testimony of PW-1 doubtful. The prosecution has
failed to prove its case beyond reasonable doubt against the accusedappellant, therefore,
the appeal against the impugned judgment and order stands on justifiable
grounds and may be allowed.
Per contra
AGA appearing on behalf of the State contended that from the prosecution
evidence, available on record, the case of prosecution is proved beyond
reasonable doubt against the appellant-accused. The impugned judgment and order
passed by the trial court is based upon proper appreciation of evidence
available on record. The finding recorded by the trial court does not suffer
from any legal, procedural or factual infirmity or vulnerability. . There is no
embellishment in the testimony of Awadh Kishor (P.W.1) and Smt. Laxmi (P.W.2).
Awadh Kishor (complainant-PW.1) in his statement on oath averred that deceased
Rajol was his father and Raj Kishor was his elder brother. Smt Laxmi is the
widow of the deceased Rajol and mother of Raj Kishor who is the son of
deceased. The father of complainant namely Rajol Prasad (deceased)was engaged
in the look-after of tomato crops. The complainant and his younger brother
Lakhan were engaged in doing the work in the field. Awadh Kishor (P.W.1) was
present on the spot at the moment when the incident had taken place. The
accused appellant had formed guilty intention to eliminate Rajol and Raj
Kishor. They had succumbed to unnatural and ghastly death. The complainant
Awadh Kishor (P.W.1) was thunderstruck to see the fiendish and grim act of the
accused appellant. It is fully corroborated that the deceased Rajol and Raj
Kishor succumbed to injuries as a result of blows inflicted with lathi and axe.
Blood was scattered around the corpus of Rajol and Raj Kishor. Accusedappellant
is the resident of same locality and the complainant was well aware about him
since childhood being his uncle as the latter is the brother of deceased Rajol.
At the time of arrival of accused-appellant, the complainant was doing work in
the field in association with his younger brother Lakhan. The accused appellant
had developed mens rea to eliminate them hence he took drastic step of causing
fatal injuries to Rajol and Rajkishore with lathi and axe.
The
accused-appellant fled away from the scene of occurrence unleashing reign of
terror and horror. The complainant Awadh Kishor (P.W.1) remained present at the
place where the corpus of Rajol and Raj Kishor were lying in a pool of blood. A
number of persons of the locality gathered at the place of occurrence .
The Head
Morarrir Dinesh Kumar who had registered the Chik FIR Report no.36 of 1997 vide
Case Crime No.51 of 1997 under section 302 IPC and written report no.26 at
19.30 and entered in the G.D. proved by him as Ext.Ka.5 & Ka.6, on the
information of Awadh Kishor (P.W.1).
Smt Laxmi
(P.W.2) in her statement on oath averred that the name of her sons were Raj
Kishor, Awadh Kishor and Lakhan. The name of her husband was Rajol. She was
well aware about the identify of accused appellant Brij Kishor.
She was
sowing the seeds of Masoor at the time of incident. She had narratedthe
incident in a very natural and coherent manner. The murder was committed at
night. At that juncture, she was present in the field. She was sowing the seeds
of masoor. Her sons Awadh Kishor and Lakhan were present. The vivid description
of P.W.2 Laxmi cannot be ignored who had seen the ghastly and fiendish murder
of her husband and son with her own eyes. The testimony of Laxmi (P.W.2) is the
best piece of evidence .The chain of evidence is so complete that there is no
room of doubt that the act must have been done by the accused appellant.
K.S.Sinha
S.I (P.W.3) was entrusted with the investigation of this case on 3.12.1997. He
had recorded the statement of the ocular witnesses who had supported the
prosecution version. After collecting the credible and cinching evidence he
submitted the charge sheet against the accused appellant.
Dr. Pramod
Kumar (P.W.4) in his statement on oath proved Ext. Ka 3 & Ka 4 divulging
that he had conducted the autopsy of the deceased Rajol aged about 45 years s/o
Ram Kumar and Raj Kishor son of Rajol aged about 21 years both r/o
Village-Baruwa, Police Station-Kalinger, District-Banda . The ante-mortem
injuries of the deceased Rajol and Rajkishor were sufficient to cause their
death . Dr. Pramod Kumar (P.W.4) had also identified the blood stained shirt,
Baniyan ,underwear which were recovered from both the deceased namely Rajol and
Rajkishor. These articles were marked as Ext. 4,5 & 6 and were sealed an
envelop and were opened in the court.
Dinesh Kumar
Head Moharrir (P.W.5) in his statement on oath stated that on 12.11.97, he was
posted at Police Station-Kalinger District Banda as Head Moharrir. On
12.11.1997, at about 19.30 p.m.., on the basis of information given by the
complainant Awadh Kishor, he registered FIR which was exhibited as Ext. Ka-5
and the same was entered in the GD exhibiting as Ext Ka-6. On the analysis of
the aforesaid facts and circumstances of the case, it emerges outthat the
appellant-accused had formed motive to commit the alleged offence as the
accused appellant had property dispute with the deceased persons.
Ultimately
he took drastic steps of eliminating them which is corroborated from the
prosecution evidence. The direct and trustworthy evidence of PW-1 Awadh and
PW-2 Smt Laxmi supported by the medical evidence pointing guilt against the
accused-appellant are consistent with the prosecution version hence the plea of
the accused appellant with regard to presence of mens rea stands fully proved.
The conviction and sentence has been awarded to the accused appellant after
appreciation of entire evidence on record hence the same deserves to be
maintained.
In order to
appreciate the evidence, the Court is required to bear in mind the set-up and
the environment in which the crime is committed, the level of understanding of
the witnesses, over zealousness of some of the near relations to ensure that
everyone even remotely concerned with the crime be also convicted and everyone
gives different way of narration of the same facts.
Bearing in
mind these broad principles the evidence is required to be appreciated to find
out what part out of the evidence represents the true and correct states of
affairs. It is for the Court to separate the grain from the chaff.
The Court
cannot draw adverse inference only because all the witnesses have not been
examined, if the evidence of the witnesses produced are trustworthy, the Court
can rely on the said evidence to convict the accused. This is because it is
quality and not the quantity of evidence that is material.
FIR Ext-1
indicates that at the time of alleged incident Awadh Kishor & Lakhan,
Rajkishor sons of deceased and Smt. Laxmi were also present. It is evident from
the record that PW-1 Informant Awadh Kishor and PW-2 Smt Laxmi are the
eye-witnesses of the incident and their evidence fully supports the prosecution
case and they have no motive to make false statement againstthe
appellant-accused. Medical evidence (postmortem reports) and the testimony of
other prosecution witnesses fully corroborates the prosecution version as well
as the testimony of the aforesaid prosecution witnesses. In our opinion both
these eye-witnesses are trustworthy and their testimony inspires confidence.
In the case
of Veer Singh and
others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held
as under:- "Legal system has laid emphasis on value, weight and quality of
evidence rather than on quantity multiplicity or plurality of witnesses. It is
not the number of witnesses but -quality of their evidence which is important
as there is no requirement under the Law of Evidence that any particular number
of witnesses is to be examined to prove/disprove a fact. Evidence must be
weighed and not counted. It is quality and not quantity which determines the
adequacy of evidence as has been provided under Section-134 of the Evidence
Act. As a general rule the Court can and may act on the testimony of a single
witness provided he is wholly reliable." In the case of Shamsher Singh @ Shera vs. State of
Haryana (2002) 7 SCC 536, Hon'ble Apex
Court has held as under:- "Even if there is absence of motive, it would
not benefit the accused when there is reliable and acceptable version of the
eye witnesses, which is supported by the medical evidence, pointing against
him." In the case of State
of Haryana vs. Sher Singh & others AIR (1981) SC 1021, Hon'ble Apex Court has held as under:- "The prosecution is not
bound to prove motive of any offence in a criminal case, inasmuch as motive is
known only to the perpetrator of the crime and may not be known to others if
the motive is proved by the prosecution, the court has to consider it and see
whether it is adequate."It is also authenticated from the record that
prosecution had examined the Informant Awadh Kishor as PW-1 who in his
statement on oath proved the FIR exhibited as Ka-1. He also averred that he witnessed
the occurrence and got the FIR scribed by Head Moharrir Dinesh Kumar (P.W.5)
which was exhibited as Ka-1.
In our
opinion this FIR is not ante-time because no witness can give the explanation
of minute to minute time which he spent in the journey specially when the
complainant is 16 years old boy and he is educated only up to the class VIth
and his father and elder brother have been murdered in his presence.
In the case
of Dalip Singh vs.
State of Punjab AIR 1953 SC 364, Hon'ble Apex
Court has held as under:- "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." In the case of Kartik Malhar vs. State of Bihar 1996
CRL. L.J. 889, Hon'ble Apex Court has held
as under:-"We may also observe that the ground that the witness being a
close relative and consequently, being a partisan witness, should not be relied
upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, (Supra) in
which this Court expressed its surprise over the impression which prevailed in
the minds of the members of the Bar that relatives were not independent
witnesses." In the case of Shyam
Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble
Apex Court has held as under:- "Where the presence of the eye-witnesses is
proved to be natural and their statements are nothing but truthful disclosure
of actual facts leading to the occurrence, it will not be permissible for the
Court to discard the statement of such related or friendly witnesses. There is
no bar in law on examining family members or any other person as witnesses. In
fact, in cases involving family members of both sides, it is a member of the
family or a friend who comes to rescue the injured. If the statement of
witnesses, who are relatives or known to the parties affected is credible,
reliable, trustworthy and corroborated by other witnesses, there would hardly
be any reason for the court to reject such evidence merely on the ground that
the witness was a family member or an interested witness or a person known to
the affected party or friend etc".
The
submission made by the learned counsel for the appellant stood rebutted by the
pronouncement of Hon'ble Supreme Court in Surendra
Singh and Another vs. State of U.P. 2004 SCC (Cri) page 717 that the relationship of witness is not a factor to affect the
credibility of a witness. It is also worth mentioning that PW-1 Awadh Kishor is
the son of deceased Rajol and brother of deceased Raj Kishor. PW-2 Smt. Laxmi
is the wife of deceased Rajol and mother of deceased Raj Kishor. They will not
spare the real culprit and will implicate an innocent person. No plausible and
convincing material could bebrought forth by the defence witness to
substantiate that the accused appellant has been made scapegoat on account of
peshbandi.
Further the
stand of learned counsel for the appellant stood revulsed by Hon'ble Supreme
Court in Ram Kumar vs. State of Haryana
1997 SCC (Cri) page 1087 that where the statement
of several persons were recorded by Investigating Officer but at the trial only
the brother and father of the deceased were examined who were in the company of
deceased at the time of assault and had witnessed the assault. Non-examination
of other witnesses is not fatal.
It is
pertinent to mention here that PW-1 Awadh Kishor and PW-2 Smt.
Laxmi were
put to lengthy cross-examination, but nothing could be elicited by way of
cross-examination so as to create doubt about their presence at the place of
occurrence. Their testimonies have been well supported by the medical evidence.
Appellant-accused is named in the FIR, there is complete consistency and
coherence in the examination-in-chief and cross-examination of the aforesaid
prosecution witnesses, the name, time, date and place on which the offence was
committed and by whom the offence was committed, has been revealed in the FIR,
lodged by PW-1 Awadh Kishor which is also in coherence with the prosecution
version. There is nothing on record to show if the prosecution witnesses had
any animus against the appellant-accused so as to implicate falsely in the
present case.
In our
opinion contradictions if any is not much relevant because PW-1 Awadh Kishor is
the first informant of this case he has lodged the FIR and in the FIR he has
mentioned that occurrence took place at 05:00 pm on 12.11.1997. It is true that
in the third line of his statement PW-1 Awadh Kishor, has stated that occurrence
took place at 08:00 pm on 12.11.1997 but in the seventh line of his statement
he has corrected this mistake and has stated that occurrence took place at
05:00 pm on 12.11.1997. One sentence of the statement of theprosecution witness
cannot be read separately to derive any benefit. The whole statement of the
witness has to be read to reach to any conclusion. After going through the FIR
and the whole statement of the PW-1 Awadh Kishor, it is clear that as per
version of PW-1 also occurrence took place at 05:00 p.m on 12.11.1997 hence at
one place mentioning the 08:00 pm as a time of occurrence cannot be said to
create doubt about the time of incident.
In view of
the above facts and circumstances of the case, there appears no justification
to disbelieve the otherwise cogent, credible and trustworthy statements of the
aforesaid prosecution witnesses having a ring of truth.
Considering
the entire facts and circumstances of the case, we are of the considered
opinion that contradictions are not so material which goes to the root of the
case and materially affect the core of the prosecution case. Therefore, minor
contradictions cannot be taken to be a ground to reject the testimony of the
prosecutions witnesses of facts.
In the case
of State of Rajasthan
vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:- "In the deposition of witnesses
there are always normal discrepancies due to normal errors of observation, loss
of memory, mental disposition of the witnesses and the like. Unless, therefore,
the discrepancies are "material discrepancies" so as to create a
reasonable doubt about the credibility of the witnesses, the Court will not
discard the evidence of the witnesses".
In the case
of Mritunjoy Biswas
vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:- It is well settled in law that
the minor discrepancies are not to be given undue emphasis and the evidence is
to be considered from the point of view of trustworthiness. The test is whether
the same inspires confidence in the mind of the Court. If the evidence is
incredible and cannot be accepted by the test ofprudence, then it may create a
dent in the prosecution version. If an omission or discrepancy goes to the root
of the matter and ushers in incongruities, the defence can take advantage of
such inconsistencies. It needs no special emphasis to state that every omission
cannot take place of a material omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do not affect the core of the
prosecution case and should not be taken to be a ground to reject the
prosecution evidence. The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only the serious
contradictions and omissions which materially affect prosecution case but not
every contradiction or omission." In the case of Appabhai versus state of Gujarat 1988
(25) ACC 168 SC observed that the court must
bear in mind that witnesses to serious crime may not react in a normal manner .
Nor do they react uniformly. The horror stricken witnesses at a dastardly crime
or an act of egregious nature may react differently. Their course of conduct
may not be of ordinary type in the normal circumstances. Therefore, Court
cannot reject their evidence merely because they behaved or reacted in an unusual
manner as they either become stunned, speechless or stood rooted on the spot.
Some of the witnesses becomes hysteric and stars moaning and bewailing shouting
for help. Some would remain tight lipped ,overawed either on account of the
antecedents of the accused or threats given by him. To discard the evidence of
the witnesses on the ground that they did not react in any particular manner
would result to shield the culprit.
As per
statement under Section-313 Cr.P.C. property dispute between the deceased Rajol
and the accused appellant has been denied. The accused appellant has taken the
plea of his presence at the residence of his father in law situate at village
Tindwara on account of ailment of his wife . There is nothingon record to
substantiate the plea of the appellant-accused on account of which it could be
inferred under any circumstance that he had been implicated falsely in the
present case. It is also worth mentioning that no evidence has been adduced on
behalf of the appellant-accused in defence to substantiate his plea.
Mahesh
Prasad (D.W.1) who is the brother in law of accused appellant has tried to
support him in the guise that his sister fell ill on account of untimely termination
of fetus. He divulged that the accused appellant was present at the house of
his parent in laws situate at Tindwara on 10.11.1997. He remained present till
13.11.1997 and he was arrested from there on 13.11.1997. This fact stood
confronted from the statement of P.W.6 Station Officer Satyaram who unravelled
that the accused appellant was arrested on 19.11.1997 at Kalinger Naraini Road
and on his pointing the axe used in the aforesaid offence was recovered and was
exhibited as Ka.23. The report of the Chemical Analyst confirmed that human
blood was found on the axe including the apparels of both the diseased.
We have
considered the testimony of the defence witness in the light of arguments
advanced by the learned counsel for the appellant. The plea of alibi postulates
the physical impossibility of the presence of the accused at the scene of
offence by reason of his presence at another place.
In the case
of Jayantibhai Bhenkarbhai Versus State of Gujarat 2002 (45) ACC 1026 (SC) the
Hon'ble Apex Court dealt with the plea of alibi in extenso.
The axe was
recovered at the pointing of the accused appellant. The axe is shown to be
stained with human blood. The investigating officer had sent the Axe including
other incriminating articles to the Chemical Analyst The learned Sessions Judge
had rightly rejected the testimony of D.W.1.when two murder had been committed
in the family of the appellant, he ought to have immediately rushed to his
village. If the police had kept Brijkishor in the illegal custody ,thenno
application was moved to higher authorities of the police in natural course.
The plead of
alibi taken by the accused-appellant needs to be considered only when the
burden which lies on the prosecution has been discharged satisfactorily. If the
prosecution has failed in discharging its burden of proving the commission of
crime by the accused-appellant beyond any reasonable doubt, it may not be
necessary to go into the question whether the accusedappellant has succeeded in
proving the defence of alibi. But once the prosecution succeeds in discharging
its burden then it is incumbent on the accused-appellant taking the plea of
alibi to prove it with certainty so as to exclude the possibility of his
presence at the place and time of occurrence. An obligation is cast on the Court
to weigh in scales the evidence adduced by the prosecution in proving of the
guilt of the accused and the evidence adduced by the accused in proving his
defence of alibi. If the evidence adduced by the accused-appellant is of such a
quality and of such a standard that the Court may entertain some reasonable
doubt regarding his presence at the place and time of occurrence, the Court
would evaluate the prosecution evidence to see if the evidence adduced on
behalf of the prosecution leaves any slot available to fit therein the defence
of alibi. The burden of the accused-appellant is undoubtedly heavy. This flows
from section 103 of the Evidence Act which provides that the burden of proof as
to any particular fact lies on that person who wishes the Court to believe in
its existence. However, while weighing the prosecution case and the defence
case, pitted against each other, if the balance tilts in favour of the
accused-appellant, the prosecution would fail and the accused-appellant would
be entitled to benefit of that reasonable doubt which would emerge in the mind
of the Court. This fact is fully corroborated that the blood stained axe was
recovered on the pointing of the accused appellant which was marked as
Ext.Ka.23.Thus the plea of alibi canvassed from the side of theappellant stood
fully negated.
The medical
evidence qua the food found in the stomach of the two deceased person cannot be
made determinative factor regarding time of incident.
The Hon'ble
Apex Court in Ram Bali
versus State of U.P. (2004) (3) Supreme 547 (para 10 and 11) held that state of contents of stomach found at the
time of medical examination is not a safe guide for determining the time of occurrence.
Process of digestion depends upon the nature of food which not being in
uniformity varies from individual to individual.
After
considering the entire facts and circumstances of the case, we are of the
considered view that the testimony of all the prosecution witnesses supports the
prosecution case. There is nothing on record to show that the prosecution witnesses
had any animus against the appellant-accused so as to implicate him falsely in
the present case hence there appears no justification to disbelieve the testimony
of the prosecution witnesses.
From the
above facts and circumstances of the case, it is fully established that Rajol
and Rajkishor succumbed to unnatural death with lathi and axe. The presence of
the eye witnesses cannot be doubted or suspected merely they are related to the
deceased or on account of minor variation or aberration from the prosecution
version. The utterances have consistently and umpteen times been repeated by
the witnesses who had narrated and unfolded the incident in a very natural and
articulatory manner. The overt act of the accused appellant at the relevant
moment is fully established and is unimpeachable beyond a shadow of doubt
consistent with the hypothesis of the guilt of the accused appellant within all
human probability the act has been done by the accused appellant. Themanner in
which the victim was done to death with lathi and axe has portrayed very
inhuman and gruesome state of mind of the accused appellant. The occurrence is
fully supported by the testimony of eye witnesses and the medical evidence
which cannot be overclouded by any stretch of imagination or suspicion. In the
course of cross examination, the defence side has tried to evolve a story of
false implication in order to overshadow the testimony of the eye witnesses.
D.W.1 Mahesh Prasad in his cross examination divulged that his brother in law
(Brijkishor) remained at his house from 10.11.1997 to 13.11.1997 in connection
with ailment of his sister who was suffering from pain on account of untimely
abortion. The accused appellant was arrested from his house on 13.11.1997 . He
had given an application before the Police Superintendent Banda on 14.11.1997.
It cannot be doubted that the eye witnesses had not seen the accused appellant
who had perpetuated the crime in a very relentless and devilish manner.
The argument
of learned counsel for the appellant stood repelled by the dictum of Hon'ble
Supreme Court in Parveen vs. State
of Haryana 1997 SCC (cri) page 63 that if the
testimony of solitary witness is corroborated by other evidence then conviction
can be based upon the solitary witness. Hon'ble Supreme Court in Marwadi Kishor Parmanand and Another vs. State of Gujrat 1994 has held that Court may convict on the statement of solitary witness
if the evidence is wholly reliable. Hon'ble Supreme Court in Bahula Bhusan @ Bahuna Krishna vs. State of Tamil Nadu 1989 SCC
(Cri) 353 has held that this is no rule of law that
the testimony of single witness cannot be accepted. Conviction can be based on
the testimony of the single witness where it was straight forward. Cogent
reason has been put forth by the prosecution to prove the case which stood
corroborated by the medical evidence. There is no reason of giving the false
evidence by PW-1 Awadh Kishor against theaccused-appellant Brij Kishor who is
his uncle.
On the basis
of verbose and prolix discussions made above and also considering the material
evidence on record, we are of the considered opinion that findings of
conviction for the offence punishable under Section-302 of the Indian Penal
Code recorded by the Trial Court are well substantiated by the evidence on
record. The Trial Court has appreciated the evidence in the right perspective.
The prosecution has succeeded to prove the charge against the accused appellant
under section 302 IPC beyond the shadow of reasonable doubt. We don't find any
justifiable ground to interfere with the findings of conviction recorded by the
trial court for the offence punishable under Section- 302 of the Indian Penal
Code, therefore, the conviction and sentence recorded by the trial court
against the appellant-accused under section 302 IPC is hereby maintained and
affirmed . The appeal is accordingly dismissed with above observations.
Since the
appellant is on bail, the bail bonds are cancelled. The appellant be taken into
custody to serve out the sentence awarded by the court below vide order dated
28.8.2000 in Sessions Trial No. 41/98 (State versus Brij Kishor) arising out of
Case Crime No. 51 of 1997 under section 302 IPC Police Station Kalinjer
District Banda.
Let a copy
of judgment and order along with original record be transmitted to the Trial
Court for information and necessary compliance.
Learned
Amicus Curiae Dr. Abida Syed shall be paid a sum of rupees 10,000/- towards her
assistance to this Court in disposing of this appeal.