TMI Blog2023 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-4 has also escaped the attention of the court below. In the case before the Supreme Court in RAJESH YADAV ANR. ETC. VERSUS STATE OF U.P. [ 2022 (2) TMI 1299 - SUPREME COURT] the witness had initially supported the prosecution case in the examination-inchief but turned hostile, later, at the stage of cross-examination. The Supreme Court has deprecated the adjournment of trial after the statement of witness is recorded in examination-in-chief as such time is utilized either to win over the witness or to extend threats etc. In the facts of the present case the witnesses who have turned hostile have not supported the prosecution case at the stage of examination-in-chief itself. The judgment of Supreme Court in Rajesh Yadav, therefore, though lays down important principle for guidance of the Court but is not shown to have relevance on the facts of this case. The first principle laid down by the Supreme Court for evaluation of ocular evidence is that the evidence of witness has to be read as a whole in order to ascertain that it has a ring of truth around it - the testimony of the sole eyewitness are examined on the touchstone of an interested chance witness and it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Accused appellants have been convicted and sentenced for the murder of Rajendra Rai (hereinafter referred to as the deceased ) in the morning hours on 27.6.2005. A written report was made in respect of the incident by the father of the deceased namely Kapil Dev Rai. This written report was scribed by Rakesh Kumar Rai, who happens to be the son of the deceased. The written report states that the informant s son Rajendra Rai is an active member of political party (we deem it appropriate to avoid referring the name of party as it has no relevance for the matter in issue) and as the Zila Panchayat and Kshettra Panchayat Elections were nearby, as such, Afzal Ansari (Member of Parliament Ghazipur) and his younger brother Mukhtar Ansari (MLA) were attempting to get the deceased in their party. About fifteen days prior to the incident the deceased was stopped at Muhammadabad and was told that since he is the husband of the Ex-Block Pramukh of Block Bhawarkol if he leaves the company of Krishnanand Rai and joins their party, then he would be benefited and it would secure his life and property. Again on 26/27.6.2005, the aforesaid persons sent message through the accused Umesh Rai @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident i.e. 27.6.2005 and the inquest began at 8.15. Information in respect of incident was received from Kapil Dev Rai (first informant). The inquest concluded at 10.05 am. The five witnesses to the inquest are Rambachan Rai, Vijay Bahadur Rai, Tarkeshwar Rai, Ravikant Rai and Ramashankar Rai. 6. The condition of body has been specified in the inquest as lying on the roof of the house of Shiv Kumar Yadav. The inquest witnesses found gunshot injury on the head and thighs of the deceased. There were other injuries on the body of deceased. The inquest witnesses thus opined that in order to ascertain the cause of death the postmortem be got conducted on the dead body of deceased. The body was accordingly sealed and sent to the mortuary. 7. The postmortem on the deceased has been conducted at 4.45 pm on the date of incident, wherein the deceased was found to be 55 years old with a heavy body and the time of death was reported to be about half day. In the opinion of autopsy surgeon the deceased suffered instant death as a result of ante-mortem head injury from a firearm. The postmortem has been proved by the autopsy surgeon (PW-3). As per postmortem, following ante-mortem injuries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Charge Sheet (Mool) dated 22.11.2005 Ex.Ka.5 10. In addition to documentary evidence the prosecution has also produced Vijay Bahadur Rai (PW-1), who is a witness to the inquest. Ravi Kant Rai is produced as PW-2, who too is a witness of inquest. Dr. Nishar Ahmad, Autopsy Surgeon has been produced as PW-3. Chandra Shekhar Rai, who allegedly has seen the incident and whose presence is mentioned in the FIR, has been produced as PW-4. Dinesh Kumar Pandey is the nephew (Bhanja) of the deceased, who has been produced as PW-5. Rakesh Kumar Rai is produced as PW-6, who is the scribe of the written report and is the son of the deceased. Tara Yadav has been produced as PW-7, who had come to her maternal house on the date of incident, situated next to the house of Shiv Kumar Yadav, where the deceased has been done to death. Yogendra Yadav @ Jogi Yadav has been produced as PW-8, who is resident of village Mathiya and had allegedly seen the incident. Similarly, Ashok Singh Yadav (PW-9) and Triveni Yadav (PW-10) are the resident of village Mathiya and had allegedly seen the incident. Constable Rampreet Chauhan has been produced as PW-11, who was associated in preparation of inquest and has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informant and would have supported the prosecution case, blindly, to implicate the accused appellants. It is also urged that the evidence led by the prosecution in no way connects the accused appellants with the commission of the offence, inasmuch as, neither the motive for committing the offence has been established against the accused appellants nor their association with Ansari brothers are established and, therefore, their conviction and sentence is wholly without any basis. It is urged that the accused appellants have been falsely implicated for political reasons, particularly, as the brother of the accused Angad Rai namely Ram Narayan Rai @ Pahalwan Rai had been done to death in which the then local MLA Krishnanand Rai was named as accused and it was at his instance that the accused appellants have been falsely implicated. It is also urged that the other accused namely Gora Rai is the cousin of Angad Rai (Mausera Bhai). Further arguments have been made on behalf of the appellants to contend that they are wholly innocent and have been falsely implicated and that the trial court has erred in convicting and sentencing them. 14. The appeal is strongly opposed by Sri Arunendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmadabad had come to the place of occurrence at about 12.00 noon by when the dead body of deceased was still lying there. He has stated that the SHO took the dead body alongwith other villagers, including PW-1, to the police station where the inquest was conducted. He has stated that the inquest was completed at about 2.00 in the afternoon. It was thereafter that the dead body was taken by the police for postmortem to Ghazipur. The defence relies upon this testimony of PW-1 to submit that police papers are fudged and not reliable. 19. PW-2 Ravi Kant is also a witness of inquest. He too has proved the inquest report. Contrary to what has been stated by PW-1, PW-2 has stated that the inquest was conducted at the place of occurrence. He has further stated that the Investigating Officer has not interrogated him. 20. PW-3 is Dr. Nishar Ahmad, who has proved the postmortem report and has specified the injuries found on the deceased. As per him, the deceased met an instant death on account of gunshot injury sustained on his head. As per the doctor the deceased had eaten something about 3-3 hours prior to the incident since undigested food was found in his stomach. He also found exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further cross-examination, PW-4 has admitted that market is held in Yusufpur on Tuesday and Saturday and that on other days no market is held. However, the shops remain open. He has disclosed that soon after the incident he returned to the village to inform about the murder of Rajendra, but he did not inform this fact to his son, when he crossed him on the way. He has also stated that after the incident he fell sick and his statement was recorded later on. The witness has further explained that informant slammed his head on seeing the dead body of his son. Clothes worn by informant were soaked with blood as he tried to hold the deceased. The witness further claims that on entering the house of Shiv Kumar Yadav he saw only a girl aged 18-20 years cooking food and that none else was present. He claims to have seen the incident from a distance of 100 paces. The witness has admitted that he has weak eye-sight and that only by wearing specs he can read or write. 23. PW-5 Dinesh Kumar Pandey is the son of informant s daughter and has supported the prosecution case, particularly with regard to receiving of threat by deceased about 10-15 days prior to the incident. He claimed that dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. 5.12.2007 and they too have turned hostile. 28. PW-14 Jagdish Kumar Yadav is the second Investigating Officer. He has stated that during investigation no evidence was found against the accused Mukhtar Ansari and Afzal Ansari and, therefore, their names were excluded from further investigation. He claims to have tried to locate PW-4 Chandra Shekhar Rai, but he was not available and, therefore, his statement was recorded at the police station only on 9.7.2005. This witness has stated that PW-4 had not disclosed him that he was going to purchase seed from Yusufpur. He has also stated that PW-4 did not inform him during investigation that he had reached 20 minutes prior to the incident, nor had he informed him that after a couple of minutes he left for the village to inform about the murder of the deceased. The witness also found no trace of any motorcycle, nor such a motorcycle was made available to the Investigating Officer and even details of such motorcycle was not furnished. During investigation it could not be ascertained as to by which route the deceased reached the place of incident. This witness has also stated that it was not possible from point B shown in the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not leave Krishnanand Rai. Later, the deceased informed PW-18 that he had received threats from Umesh Rai @ Gora Rai. She has stated that the informant came thereafter and various family members also arrived at the house. The witness offered food at about 11.00, but as they were troubled, they kept discussing the affairs and it was only around 2.30 that they had food. She also stated that her husband left by motorcycle to lodge the report alongwith informant. In the cross-examination, this witness has admitted that she has engaged two private counsels; all applications etc., were moved by the private counsels with her consent; her son had earlier moved an application for her discharge during trial as Investigating Officer had not correctly recorded her statement; no application was made through the counsel for not appearing as a witness but that she could not depose as she was ill; her statement was incorrectly recorded by the Investigating Officer. This witness has further showed her ignorance about criminal antecedent of her husband. The witness has also been confronted with her previous statement made under Section 161 Cr.P.C. where she had not deposed about the family members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of trial also no application was moved under Section 319 Cr.P.C. to summon the Ansari Brothers. Except the version of informant and the statement of close relatives of deceased about receiving of threats from Ansari Brothers no other material apparently was collected against them during the course of investigation. 36. Although it is alleged that Ansari Brothers asked the deceased to leave the company of Krishnanand and join their party and that this would be in the interest of his life and property but no specific time or place of such threat apparently has been disclosed. The other part of the prosecution story is with regard to threats received from the two accused on the date preceding the incident by Gora Rai and three other unknown persons. No challenge has been laid by anyone to this part of the investigation nor this aspect has been pressed even at the stage of trial. Though we find that allegations were made against Ansari brothers of extending threats to the deceased for joining their party but it remains a fact that neither they were charge-sheeted nor summoned during trial under section 319 Cr.P.C. No date, time or place is otherwise disclosed when such threat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was a result of ante-mortem head injury from the firearm. It is, therefore, proved beyond doubt that the deceased died a homicidal death. The question is as to whether the two accused appellants on the basis of evidence led in the matter can be held responsible for the offence or not? 40. So far as the version of first informant is concerned, admittedly he died and he could not depose before the court below. His statement made under Section 161 Cr.P.C. has limited appeal as it neither contains his signatures nor the accused appellants have any opportunity to cross-examine such version. 41. The prosecution case essentially relies upon the testimony of PW-4. PW-4 is the cousin of the first informant and is the uncle of the deceased. He is thus a related witness. This witness has stated that he was going to Yusufpur market to buy seeds. As per the witness, he had left at about 5.00 in the morning and as he got tired he sat in a grove to take rest. It is at this juncture that he saw the incident. 42. The presence of the witness at the place of occurrence is seriously questioned on behalf of the defence. So far as the purpose of going to Yusufpur market early in the morning f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll. This part of the version of PW-4 is not supported by the statement of first informant in his statement under Section 161 Cr.P.C. nor is it contained in the first information report. We also find that no motorcycle has otherwise been found on the spot. There is no recovery of the motorcycle, nor any of the prosecution witnesses have disclosed the details and description of the motorcycle. The fact that motorcycle was neither found on the spot, nor it contains any description in the FIR or the statement of informant under Section 161 Cr.P.C. creates a doubt in the prosecution case. PW-4 has stated that he did not venture towards the place of firing. This statement, therefore, conveys that PW-4 remained at the grove when the incident of firing took place on the road. PW-4 then states that he saw the deceased rushing towards the village abadi. The site plan shows that in front of the place where PW-4 was standing was the hutment of Ramkrit and Kamlakar Yadav. There are also bamboo plants behind hutment. PW-4 has also admitted that even in the lane in front of the place where he was standing there existed house on both sides. We, therefore, find it somewhat difficult to comprehend a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Durgesh Kumar Singh, learned counsel for the informant states that the first Investigating Officer acted in a partisan manner and only after the second Investigating Officer took over the investigation that the statement of PW-4 was recorded needs to be examined at this juncture. It is a matter of fact that only the second Investigating Officer had recorded the statement of PW-4. PW-4, however, never stated that he informed anyone of the incident or offered to get his statement recorded or that his version was not noticed/recorded by the Investigating Officer. The Investigating Officer in his statement before the Court has stated that he tried to locate Chandra Shekhar Rai on the date of incident but he was not available. He came to the house of PW-4 on 28.6.2005 but he was informed that PW-4 had gone to Ghazipur. On 30.6.2005, PW-4 was not well enough for his statement to be recorded. Since PW-4 has not alleged in his testimony that he was available for his statement to be recorded or that his statement was actually not recorded, though he informed such fact, it would be difficult for this Court to accept the explanation of delay in recording of his statement on the premise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of incident in the present case is the roof top of the house of Shiv Kumar Yadav. Shiv Kumar Yadav has not been produced in evidence during trial. His statement, however, has been recorded under Section 161 Cr.P.C., which states that Chandra Dev Yadav is his brother. Chandra Dev Yadav gave his house to his daughter Tara Yadav, but generally people treat her house to be that of Shiv Kumar Yadav. Tara Yadav has been produced as PW-7. She has clearly stated that she left at the day-break to attend natures call alongwith her daughter and returned prior to sunrise. She saw large number of persons at her house. She also learnt that a dead body was at roof top and was removed in the afternoon. She also stated that by the time she returned prior to sunrise police personnels had already reached the place of occurrence. 51. On behalf of the defence, an argument has been raised questioning the timing of incident disclosed by the prosecution. Reliance is placed upon the statement of PW-7 to submit that the incident had occurred prior to the sunrise. We have been informed that on the date of incident the sunrise was at about 5.06 am. Strong reliance is placed upon the testimony of PW-7 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement under Section 161 Cr.P.C. We do not find the testimony of PW-18 to be convincing or reliable, particularly as her statement contains material improvements from what was disclosed by her earlier to the Investigation Officer. A serious doubt is raised upon the timing of the incident inasmuch as the existence of semi-digested food in the stomach of the deceased supports the defence version that time of incident was prior to 6.30 in the morning. This doubt in the timing of incident finds support from the testimony of PW-7. The desperate attempt on part of the prosecution to explain the medical evidence on the aspect of timing by improvements made in the testimony of PW-5 and PW-18 also generates doubt in the prosecution case. 53. We have examined the judgment of conviction and sentence passed by the court below wherein the trial court has noticed that the solitary evidence of prosecution in this case is PW-4, and his testimony has been relied upon primarily to convict and sentence the accused appellants. We have perused the judgment of the trial court which does not show that the testimony of PW-4 was carefully analyzed by the trial court. The fact that PW-4 was a related and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. 39. Before we part with this case, we are constrained to record our anguish on the deliberate attempt to derail the quest for justice. Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reasons. This Court has already expressed its views on the need for a legislative remedy to curtail such menace. Notwithstanding the abovestated directions issued by this Court in Vinod Kumar [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L S) 712] , we take judicial note of the factual scenario that the trial courts are adjourning the cross-examination of the private witnesses after the conclusion of the cross-examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief-examination, which only helps the defence to win them over at times, with the passage of time. Thus, we deem it app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : (1983) 3 SCC 217 : AIR 1983 SC 753, Leela Ram v. State of Haryana, (1999) 9 SCC 525 : AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012] 28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10) 10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration. 57. Further delving on the same issue, it is noted that in the case of Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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