Pyare Lal and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri R.N.S. Chauhan, learned counsel for the appellants, Ms. Madhulika Yadav, learned AGA for the State and Shri Anil Kumar Tripathi, learned counsel for the complainant, were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 11.07.1983 passed by 3rd Additional Sessions Judge, Unnao, in Sessions Trial No. 170 of 1982 arising out of Case Crime No. 125 of 1981, Police Station Auras, District Unnao, whereby the present appellants were convicted and sentenced as under:-

(i) 302 IPC read with Section 149 IPC - Imprisonment for life;

(ii) 148 IPC - Rigorous imprisonment for a period of two years., and

(iii) 201 IPC - Rigorous imprisonment for a period of four years.

All the sentences were directed to run concurrently.

In brief, the case of the prosecution, necessary for disposal of the instant appeal, is that one Ram Kumar was married to the daughter of Ram Lal and the other daughter of Ram Lal was married to appellant Sajiwan. Appellant Sajiwan used to harass and treat his wife with cruelty. About six months prior to this incident his wife came to her parental house and thereafter Ram Lal remarried his daughter to one Sheo Pal Yadav with the help of deceased Dularey. Accused Pyarey Lal asked Dularey to return the wife of Sajiwan but he was also threatened. On 10.09.1981 in the morning Dularey, Khushi Ram and Sri Pal were coming to Unnao from their village to attend the date of a case under Section 325 IPC in which they were accused. One Gokaran Nath was also accompanying them. Complainant Ram Das and his cousin were walking about 50 paces behind them. These two persons were going to Kanpur. At about 6.30 P.M. in the morning, when Dularey, Khushi Ram, Sri Pal etc. reached near the bridge of Bachhauli then they saw the accused Pyarey Lal, Ram Singh, Sajiwan, Rajjan and Balister rushing towards them. Accused Pyarey Lal was armed with single barrel gun, Ram Singh was armed with half gun, Sajiwan and Rajjan were armed with country made pistols and Balister was armed with Kulhari (axe). When Dularey and his brother saw the accused persons rushing towards them then they started running in west direction. Pyarey Lal opened fire on Khushi Ram. The other accused persons chased Dularey and Sri Pal. Ram Das and others raised alarm and Ram Nath, Ram Autar, Sunder, Mohan Lal, Bharosey, Mansha Ram, Mahabir Yadav and many others reached the place of occurrence. In the meantime, Pyarey Lal shot two fires on Khushi Ram who fell down after sustaining gunshot injuries while the other accused persons ambushed Dularey and Sri Pal near the bridge and fired due to which they also fell down in the Khanti situated towards north of canal Path and west of the bridge. Accused Pyarey Lal also reached there and the accused persons brought Dularey and Sri Pal from the Khanti and put them on the canal Patri. Thereafter Pyarey Lal shot fire in the air and threatened the witnesses. Balister severed the heads of Dularey and Sri Pal and accused persons threw the dead bodies and the heads of both the deceased in the canal. Thereafter accused persons reached near Khushi Ram and accused Balister severed the head of Khushi Ram with his Kulhari and his dead body as well as severed head was also thrown in the canal and thereafter accused persons ran away towards the village. After the accused had left the place of occurrence, the persons present on the spot were asked to bring out the dead bodies and heads of deceased persons from the canal by the complainant and complainant Ram Das himself left for the police station and lodged an oral first information report at police station Auras at 07.40 A.M.

After registration of the case, the investigation proceeded. The place of occurrence was inspected and after completing the investigation, charge sheet was filed. Inquest proceedings on the three dead bodies were conducted and thereafter the dead bodies were sent for postmortem. The postmortems on all the three dead bodies were conducted on 11.09.1981 by the same doctor which started from 11.20 A.M. On the dead body of Dularey, the following ante-mortem injuries were reported:-

(i) A firearm wound 1-1/2" x 1" cavity deep on right side abdomen 3" above and lateral to umbilicus blackening present margins inverted and a piece of omentum was protruding out from the wound.

(ii) Incised wound 2" x 1/2" x scalp deep on right side head 3" above right ear.

(iii) Incised wound 1 1/2" x 1/2" x scalp deep on top of head 5" above the bridge of nose.

(iv) Incised wound 3" x 1" x muscle deep on top of left shoulder.

(v) Incised wound 3" x 1" x muscle deep on left shoulder joint below injury No. 4.

(vi) Incised wound 1 1/2" x 1/2" x muscle deep on outer part and upper part of left arm 2" below injury No. 5.

(vii) Incised wound 1 1/4" x 1/2" x muscle deep on the outer and upper part of the left arm just lateral to injury No. 6.

(viii) Incised wound 1 1/2" x 1/2" x muscle deep on outer and upper part of left arm 1/2" below injury No. 7.

(ix) Incised wound 4" x 3 1/2" x bone deep on left middle of arm ventral aspect 1" above the left elbow joint.

(x) A circular cut of neck in an area of 7" x 5" autroposterior on base of neck at level of survical 5th vertebrae. Head is completely chopped off. All the soft structure of neck including skin subcutaneous, tissue muscles vessels, nerves, oesophagus, trachea and body of 5th cervical vertebra are cut at same level. Head fits in circular cut of neck.

(xi) Contusion 3" x 2" on the top of right shoulder.

(xii) Abrasion 1" x 1/2" on lower part right thigh joint above right knee joint.

(xiii) Abrasion 6" x 1/4" on the back of right forearm, 2" above right wrist joint.

The doctor has recovered a wadding piece in the abdominal cavity. Stomach was empty. Small intestine was also empty and lacerated while faecal matter was found in the large intestine. The cause of death was reported to be ante-mortem injuries.

On the dead body of Khushi Ram, following ante-mortem injuries were reported by the doctor:-

(i) Incised wound of neck in diameter of 5 1/2" 4" autroposteriorly at the level of cervical 3 & 4th vertebra. Head was completely chopped off from the body and fits into the wound of neck. All soft structures of the neck including skin, subcutaneous, tissue, muscles, vessels and nerves are cut both sides and oesophagus and trachea and body of 3rd cervical vertebrae and spinal-cord cut at the same level.

(ii) Incised wound 3 1/2" x 1" x bone deep on left side face extending from the left side chin to left cheek.

(iii) Incised wound 1" x 1/2" x cavity deep 1" above the umbilicus on mid-line of abdomen.

(iv) 4 incised wound of size each 1/2" x 1/4" x muscle deep on an area of 3" x 1" one above the other in mid line of abdomen 2" above umbilicus.

(v) A firearm wound 2 1/2" x 1 1/2" x cavity deep on mid line of back 6" below left lower angle of scapula, blackening present margins inverted wound of entry.

(vi) Nine firearm wound of size 1/6" x 1/6" each in area of 7" x 2 1/2" on the left side of chest in axillary line 2" below the left axillary margins everted and no blackening present, wound of exit.

(vii) Three fire arm wound of size 1/6" x 1/6" in area of 1 1/2" x 2" on medial aspect of left arm just close to axilla, wound of entry, no blackening present, margins inverted.

(viii) A fire arm wound of size 1/6" x 1/6" x muscle deep on outer side of left arm 4" below the left shoulder, wound of exit, no blackening present, margins everted.

(ix) Incised wound 1 1/2" x 1/2" x muscle deep on top of left shoulder.

The doctor found fracture of the bones. Stomach and small intestine were empty while faecal matter was found in large intestine. The cause of death was shock and hemorrhage which was the result of ante-mortem injuries.

The postmortem on the body of Sri Pal was conducted on the same day and the following ante-mortem injuries were reported by the doctor:-

(i) A fire arm wound 1 1/4" x 1 1/4" cavity deep on right side chest 1" above the right nipple, blackening present, margins inverted.

(ii) Incised wound 1 1/2" x 1/2" x bone deep 1" above left ear on left side of head.

(iii) Incised wound (neck cut) 12" x 2" x bone deep and through and through except skin and subcutaneous, tissue, attached to head and neck on left side, at level of cervical 3rd vertebrae. All soft tissues including muscles, vessels, nerves on both sides and trachea, oesophagus and body of third cervical vertebrae with spinal cord are cut at c-3 level.

(iv) Incised wound 4" x 1" x bone deep on right side face extending from middle of chin to right cheek teeth of right lower jaw are cut and exposed.

(v) Incised wound 3 1/2" x 1" x muscle deep on right side face just below right ear lobule and extending upto behind the ear.

(vi) Incised wound 7" x 2" x bone deep on outer aspect of right arm 2" below right shoulder right humerus bone is fractured in middle of shaft.

(vii) Incised wound 5" x 2" x lower deep on medial aspect of right arm 3" below right axilla.

(viii) Incised wound 1/2" x 1/4" x muscle deep on top of left shoulder.

(ix) Incised wound 1" x 1/2" x muscle deep on outer side of left arm 6" above the left elbow joint.

(x) Incised wound 1/2" x 1/2" x muscle deep left wrist joint dorsal side.

(xi) Incised wound 1 1/2" x 1/2" x bone deep on front of chest just above the xiphisternum.

(xii) Incised wound 1" x 1/2" x muscle deep on left side chest 1/2" outer and left injury No. 11.

(xiii) Incised wound 1" x 1/2" x muscle deep on left side chest 2" below injury No. 12.

(xiv) Incised wound 1" x 1/2" x cavity deep on mid line of abdomen 1" above the umbilicus.

(xv) Incised wound 1" x 1/2" x cavity deep 1/2" lateral and below the umbilicus.

(xvi) Incised wound 1" x 1/2" x subcutaneous deep on below and left side chin.

One wadding piece and pellets were also found in the right thoracic cavity, stomach and small intestine were empty. However, faecal matter was present in the large intestine. The death was caused due to shock and hemorrhage as a result of ante-mortem injuries.

The case of the defence was of their false implication due to enmity as the accused persons used to help Harijans of their village. It was suggested to the eyewitnesses that they were not present at the place of occurrence and have not witnessed any incident and are giving false evidence because of party bandi and enmity.

In order to prove its case, the prosecution has examined PW-1 Ram Das the complainant of this case who has supported the case of the prosecution, PW-2 Mahabir - another eyewitness of this incident, PW-3 Sunder - third eyewitness of this incident, PW-4 Head Constable Jeet Bahadur, who has prepared Chik report and GD of this case, PW-5 Constable Indra Kumar Mishra, who had accompanied the Investigating Officer and had taken three dead bodies to Unnao for postmortem, PW-6 Dr. R.N. Sinha, who has conducted the postmortem on three dead bodies, PW-7 Shri Ram Ashrey Pandey, Junior Scientific Officer of Ballistic Laboratory, who has stated that on 19.11.1981, he examined the empty cartridges and a country made pistol and two live cartridges and he found after experiments that the empty cartridges were fired by the country made pistol produced before him. He has proved his report and the material exhibits also. This country made pistol was recovered from appellant Rajjan during investigation. PW-8 Ganesh Prasad is a witness of arrest of appellant Rajjan and recovery of country made pistol from his bag. He has supported this part of the investigation. PW-9 Constable Anant Prasad Tiwari was accompanied with SI Raj Deo Upadhyay on 14.09.1981 and arrested Bahadur, Babu Ram and Madhu Ram. PW-10 SI Abdul Saboor Khan was examined as Investigating Officer of this case. Apart from it, as CW-1 Dr. K.K. Singhal as an expert was also examined.

The accused persons in their statements under Section 313 Cr.P.C. have admitted the residence of the deceased persons. They have also admitted that they are real brothers. The factum of marriage of Ram Kumar and Sajiwan with the daughters of Ram Lal was also admitted. However, the allegation of cruel behavior with the wife of Sajiwan was denied and it was added that because of the bad character of his wife, Sajiwan had left her and showed their ignorance regarding second marriage of wife of Sajiwan with Sheo Pal with the help of deceased Dularey. They have also denied that they had asked Dularey for return of wife of Sajiwan and also denied the allegations of threats. Ignorance was pleaded regarding the pending criminal case under Section 325 IPC against Dularey and others. However all the allegations pertaining to the incident were denied. Accused Pyarey Lal has furnished a detailed reason for his false implication.

In defence, DW-1 Maya Nand Tyagi, Reader of the Munsif Magistrate North, was examined, who has stated that on 19.09.1981 Ram Singh, Sajiwan and Balister surrendered before the court and moved an application on which orders were passed by the Presiding Officer. He proved the order of Shri S.K. Srivastava, Judicial Magistrate-V, Unnao and has also proved the said application as Ext. Kha-1. He has also stated that on 19.09.1981 accused Rajjan was arrested by the police in the court and an inquiry was made in this regard by District Judge, Unnao.

DW-2 Santosh Kumar Pandey, Advocate, has stated that on 19.09.1981 accused Pyarey Lal, Ram Singh, Sajiwan, Rajjan and Balister were taken by him to the court of Judicial Magistrate-V, Unnao, for surrender. He has stated that in the court of Judicial Magistrate-V, Unnao, police personnel were present and they arrested accused Rajjan and accused Pyarey Lal ran away. The other three accused persons were taken into custody by the court. He has proved the application Ext. Kha-1 which was moved before the court regarding the said occurrence and an action was taken against two constables by the Judicial Magistrate-V and the matter was also referred to District Judge, Unnao.

DW-3 Sri Shanker Lal Yadav has stated that he was teacher in village Malihabad. He has stated that he was Manager of Baba Hulasi Das Shiksha Sansthan and accused Pyarey Lal was its Vice President. After the death of Baba Hulasi Das, his Chela Lalta Das founded the said institution. Baba Lalta Das was President of the said institution and landed property was in his name. Baba Lalta Das sold the said land away and Pyarey Lal raised objection and thereafter Pyarey Lal was sent to jail in this case and when Pyarey Lal was in jail, Baba Lalta Das transferred the said land through sale deed to one Munna Sonar.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the instant criminal appeal.

Learned counsel for the appellants has argued that the first information report has not come into existence at the time as alleged by the prosecution but we do not find this argument to have any substance. The incident of this case is alleged to have taken place on 10.09.1981 at 06.30 A.M. while the first information report of this case was lodged on the same day at 07.40 A.M. i.e. only after one hour and ten minutes of the incident. It was an oral first information report. The distance of police station from the place of occurrence was four miles. On the same day, inquest proceedings were conducted and it started from 09.00 A.M. The case crime number and name of the complainant were mentioned correctly in the postmortem report without any cutting or overwriting. Even the distance from the police station which was mentioned in the Chik report was also mentioned correctly in the inquest reports. So the only conclusion that can be derived from all these documents was that the first information report of this case came into existence at the time as alleged by the prosecution. Thus, a very prompt first information report in this case has been lodged.

A prompt first information report lends credence to the case of the prosecution as the chances of coming up of a coloured version or any fabrication stands vanished because of short time gap and for want of opportunity of consultation. On this point, reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of Nanhe Vs. State of Uttar Pradesh reported in , 1973 (3) SCC 317.

Hon''ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in , (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in , (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs. v. Gurpal Singh and others reported in , (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly delay in lodging FIR does not make the complainant''s case improbable when such delay is properly explained."

Before proceeding further to discuss the evidence of eyewitnesses we would like to consider the medical evidence which is in the form of postmortem report of three deceased persons namely Dularey, Khushi Ram and Sri Pal and also ocular testimony of Dr. R.N. Sinha, who has conducted the postmortems on the bodies of three deceased persons. Apart from it, there is evidence of CW-1 Dr. K.K. Singhal, who was examined as an expert.

Perusal of postmortem report of Dularey shows that he had received one firearm wound of entry on his right side abdomen and apart from it, he had also received nine incised wounds on different parts of the body. He had also received one contusion and two abrasions. Deceased Khushi Ram had received one firearm wound of entry on mid line of back and also another injury on the left side of chest and also in medical aspect of left arm. Apart from it, he had also received five incised wounds. Out of the said five incised wounds, injury No. 4 itself contained four incised wounds. Deceased Sri Pal had received one firearm wound on right side of chest and apart from it, he had received 15 incised wounds on his body.

Dr. R.N. Sinha, who has conducted the postmortems on the bodies of the deceased persons, has stated in his evidence that these injuries could have been caused by weapons on the date and time as alleged by the prosecution. There is no dispute to the fact situation that all three deceased persons died because of firearm injuries and injuries caused by heavy sharp cutting weapon, which was banka, as alleged in the instant case. Dr. Sinha has also stated that if the dead body is thrown into the water and without a long gap it is taken out of the water then no different symptoms would appear on the body. This witness was cross examined regarding the size of the injuries and this witness has stated that injuries No. 12 and 13 of Dularey could have been caused by the pellets shot from a gun if the same passes only touching the body. Great emphasis has been laid on the evidence of this witness wherein he has stated that injuries No. 12 and 13 of Dularey could not have been caused in standing position. Minor abrasions and contusions in such type of a gruesome murderous assault wherein several persons have taken part and incident had taken place in a large area the possibility that every witness will observe and remember the entire incident in the same sequence is humanly impossible. So when the witnesses are questioned on certain points then they only on the basis of their guess work reply some questions because they fear that their evidence shall be discarded by the court if they fail to reply every question. It is the case of the prosecution that the bodies were pulled and thrown into the river. So in that process, minor abrasions/contusions might be the result of such pulling.

Learned counsel for the appellants has laid great stress on the evidence of CW-1 Dr. K.K. Singhal. He has stated that injury No. 10 of deceased Dularey could have been caused by more than one blow of axe. Likewise injury No. 1 of deceased Khushi Ram could have been caused by more than one blow and injury No. 3 of deceased Sri Pal could have been caused by more than one blow of axe. He has stated that axe is a heavy cutting weapon. Axe was not produced before this witness at the time of his evidence. He has also stated that from the same weapon different sizes of injuries may be caused because the size of the injury depends not only on the size of the weapon but also on the part of the body which comes into contact with the sharp edge of the weapon. He has also stated that it also depends on the point as to what resistance was offered by the victim at the time of giving blows to him. Learned trial court in paragraph 28 of its judgment has considered the medical evidence and the submissions, which are being pressed into service before this Court which were also raised before the learned trial court and the learned trial court has rightly rejected the same. Learned trial court was of the view that after firing shots on the deceased persons they became absolutely helpless or they were not in a position to offer any resistance which is clear from the firearm wounds sustained by three victims of this offence. So in that condition they were not in a position to offer any resistance and therefore the possibility to give blows of axe on the same place cannot be ruled out. Learned trial court has also observed that accused Balister who was carrying axe may be an expert of giving blows of axe being an agriculturist and therefore the possibility that some of the axe blows repeated by him at the same place of the body cannot be ruled out. In an incident of such a huge magnitude we cannot expect the prosecution witness to explain each and every wound as to how it was caused, who caused it and what was the position of assailant and the deceased when it was caused. So the medical evidence in the instant case in our considered opinion fully supports the case of the prosecution. All the three deceased persons had received firearm injuries and also incised wounds.

Law is settled on the point that medical opinion can be given priority over the ocular testimony only when the medical evidence is of such a nature which completely belies the prosecution story or completely rules out the prosecution story, otherwise it is the substantive evidence of the witnesses which has to be given priority over the medical opinion. At this juncture, we would like to discuss the law on the point as to what value should be attached to the medical evidence when the same is contrary to the ocular testimony of the witnesses. In the case of Umesh Singh Vs. State of Bihar reported in , (2013) 4 SCC 360, Hon''ble the Apex Court has occasioned to discuss the law on the aforesaid point. In the said judgment, Hon''ble the Apex Court has quoted the relevant part of its earlier judgment in the case of Abdul Sayeed Vs. State of Madhya Pradesh reported in , (2010) 10 SCC 259, the relevant paragraphs read as under:-

"33. In State of Haryana v. Bhagirath reported in , AIR 1999 SC 2005 it was held as follows:

The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.

Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence,

it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses'' account which had to be tested independently and not treated as the ''variable'' keeping the medical evidence as the ''constant''.

Where the eyewitnesses'' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses'' account requires a careful independent Assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

21....... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ''credit'' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

In Solanki Chimanbhia Ukabhai v. State of Gujarat reported in , 1983 (2) SCC 174 this Court observed:

Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

(emphasis added)

Keeping in view the aforementioned legal position and the medical evidence led in this case, we are of the firm view that the medical evidence fully corroborates the case of the prosecution. Therefore, the arguments raised on this ground have absolutely no force.

It has also been argued that no satisfactory evidence has been led by the prosecution on the point of motive. It is a case of direct evidence. So motive loses all its value in the cases of direct evidence. Even otherwise, motive is a mental status which remains embedded in the hearts of the accused persons and the prosecution can only guess the same on the basis of prevailing circumstances but what actually prevailed in the minds of the accused persons to commit the offence is simply impossible to be described by the prosecution. Therefore, the law does not give importance to motive in the cases where there is direct evidence of the offence. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Habib Vs. State of Uttar Pradesh reported in , 2013 (12) SCC 568, wherein Hon''ble the Apex Court has observed that if there is direct and trustworthy evidence of witnesses as to the commission of offence, the motive part loses its significance. Ocular testimony of witnesses cannot be discarded only due to absence of motive if otherwise evidence is worthy of credence. Similar view has been expressed in the case of Subodh Nath and another Vs. State of Tripura reported in , 2013 (4) SCC 122 wherein Hon''ble the Apex Court has observed that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. But if there is direct evidence against the accused having committed offence motive becomes irrelevant. Similar view has been expressed by Hon''ble the Apex Court in the case of Darbara Singh Vs. State of Punjab reported in , 2012 (10) SCC 476.

It has also been argued that according to the case of the prosecution one Baba Gokaran Das was also present at the place of incident but he has not been examined by the prosecution. Law is settled on the point that it is only the quality of evidence and not the quantity of evidence that is required to prove a particular fact. Since several prosecution witnesses have supported the case of the prosecution, therefore, their ocular testimony cannot be thrown out on the ground that some other witnesses who were also present have not been examined by the prosecution. Virtually it is for the prosecution to produce as many witnesses as it deems necessary to prove its case. Therefore, simply because Baba Gokaran Das was not examined in this case will have no adverse effect on the evidence of the other witnesses.

It has also been argued that the recovery from the possession of appellant Rajjan was falsely shown by the police and the defence evidence led by the accused persons on this point belies the story of arrest and recovery of weapon from the possession of appellant Rajjan. Learned trial court in paragraph 29 of its judgment has already disbelieved the factum of recovery from the possession of appellant Rajjan. According to the case of the prosecution appellant Rajjan was arrested during investigation and from his possession one country made pistol was recovered which matched with the empty cartridge, recovered from the place of occurrence. Since learned trial court has already disbelieved the said recovery, therefore, we do not consider it necessary to discuss it any more.

Now the point to be considered is whether disbelieving this arrest and recovery would have any adverse effect on the ocular testimony of the witnesses. On this point, we are of the considered view that it will have no adverse bearing on the case of the prosecution because it was an over enthusiastic act on the part of the Investigating Officer to show the arrest of appellant Rajjan from a different place and has shown the recovery from his possession. Therefore, the evidence of recovery and arrest of appellant Rajjan is excluded from consideration and we consider only the ocular testimony of the witnesses.

Learned counsel for the appellants has also argued that Pyarey Lal was in the management of a school and there were two parties in the school. One party wanted to dispose of the property of the school which was being opposed by Pyarey Lal. So on the behest of the said party Pyarey Lal has been falsely implicated and while he was in jail in the instant case, the other party executed the sale of the said property. Learned trial court has discussed this argument in paragraph 31 of its judgment and we concur with the view taken by the learned trial court and we would add that the first information report of this case was lodged with great promptness which eliminates all the chances of false implication. Appellant Pyarey Lal has played the lead role in the commission of this offence.

Now we come to the ocular testimony of the witnesses. PW-1 in his evidence has fully supported the case of the prosecution and has given a vivid description of the brutal manner in which this offence has been committed by the accused persons. Accused appellant Pyarey Lal took lead in the commission of the offence. First fire was shot by appellant Pyarey Lal which hit Khushi Ram (father of the complainant) and thereafter two other fires were shot by him. The remaining appellants Ram Singh, Sajiwan, Balister and Rajjan also apprehended Sri Pal and Dularey. They were also fired at by the accused persons due to which they fell down near the canal. This witness has stated fairly that near the canal who fired and whose fire hit the injured persons he could not notice. Pyarey Lal after leaving his father Khushi Ram in an injured condition came near Dularey and Sri Pal and again shot fire which he could not observe as to whom it hit. Thereafter all five accused persons brought Sri Pal and Dularey to the bank of canal where appellant Pyarey Lal again fired a shot in the air to threaten the witnesses. Thereafter appellant Balister severed the heads of the deceased persons and thereafter the dead bodies were thrown into the river. Similar statement has been given by the other eyewitnesses also. Minor contradictions have been brought to our notice by the learned counsel for the appellant. But minor contradictions in the evidence of the witnesses are bound to occur and that too in a case of such nature where the incident has taken place in a large area and three persons have been brutally murdered and five accused persons have taken part in it. So it was not possible for each and every witness to observe all the minute details of the case of the prosecution. Sometimes the witnesses reply certain questions put to them in cross examination only on the basis of guess work. So minor contradictions in the evidence of the witnesses are bound to occur. Law is settled on the point that only such contradictions which goes to the root of the case have to be given importance as minor contradictions in the evidence of natural witnesses are bound to occur. On this point, reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of State of U.P. v. Naresh and others reported in , (2011) 4 SCC 324, wherein Hon''ble the Apex Court has held as under:-

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited."

No other ground has been pressed into service on behalf of the appellants and after considering the entire case of the prosecution and the ocular testimony of the witnesses, we are of the considered view that learned trial court has rightly appreciated the prosecution evidence and has rightly convicted the appellants. There is no irregularity, illegality or mistake in marshaling the evidence on record by the leaned trial court. Impugned judgment does not suffer from any illegality/irregularity whether of fact or of law.

In view of discussions made above, we are of the considered view that this appeal sans merits, deserves to be dismissed and is hereby dismissed. Appellants are on bail. Their bail is cancelled. They shall be taken into custody to serve out their sentence.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.