State of U.P. vs Ram Bilas

Dr. Vijay Laxmi,J. - Challenge in this appeal is to the judgment and order dated 31.01.1981 passed by the then Sessions Judge, Unnao acquitting the accused/respondents, namely, Ram Charan and Ram Bilas of the charges under Sections 302/34 I.P.C. in Sessions Trial No.46 of 1980 and Ram Bilas of the charge under Section 25A Arms act in Sessions Trial No.47 of 1980.

The incident occurred in intervening night of 12/13th July, 1979 inside the house of Smt. Kaushalya who was murdered in the incident. The report was lodged by Chowkidar of village the next morning at 7.35 a.m. within Police Station Safipur, District Unnao. The accused persons were prosecuted under Section 302/34 I.P.C. The accused Ram Bilas was further charged under Section 302 I.P.C. simpliciter in connection with the murder of Smt. Kaushalya and 25A Arms Act.

The leave to appeal against one of the respondent accused Ram Charan was not granted by this Court vide order dated 07.01.1982. It was granted only for Ram Bilas. To quote the order:-

"There is only one injury on the deceased which is a fire arm injury. Ram Bilas is said to be responsible for causing fire arm injury on the deceased. Ram Charan was involved as according to the prosecution he had tried to shut the mouth of the deceased. I have gone through the Judgment. Leave to appeal against Ram Bilas is allowed. Leave to appeal against Ram Charan is rejected."

The case of the prosecution as unfolded during the trial through F.I.R. and the evidence may be described as under: Smt. Kaushalya was the wife of one Jangali resident of village Umar Ranjit. Jangali mostly resided in Kanpur in connection with his job. Her daughter was also married in Kanpur and resided there. Smt. Kaushalliya used to live in the village alone to look after cultivation and her house hold affairs. Ram Kumar PW2 resided in her vicinity. The courtyard of Smt. Kaushalliya was fully visible from the roof of his house since it was on higher level. The house of Smt. Kaushalya was situated on the western side of his house. The accused persons, namely, Ram Charan and his son Ram Bilas, belonged to the community of the Jangali and also the resident of same village who bore a grudge against Jangali and his wife. The proceedings under Section 107/116 Cr.P.C. were initiated against the accused persons and three more on the complaint of Jangali which were pending at the time of incident and the police report 25.03.1979 given in these proceedings revealed that the two parties belonged to same community and the family of Jangali being more properous than accused, they were jealous and continuously threatened his wife Kaushalya who was living in village all alone. In these proceedings, the date was fixed after 7 days from the date of the incident. Thus, the murderous attack was made by the accused respondent on Smt. Kaushalya Devi.

There was long string of enmity between the family of the deceased Smt. Kaushalya on the one hand and the accused persons on the other. The incident occurred in intervening night of 12/13th July, 1979, when Smt. Kaushalya was sleeping in her tarwaha. She woke up at midnight hearing the sound of jumping in her courtyard and raised alarm. She saw in the light of dhebri burning in the chappar that accused persons, Ram Charan and Ram Bilas had entered her house by jumping the wall. One Ram Kumar, her immediate neighbor, who was sleeping in a chappar on his roof, suddenly woke up hearing her out cry and rushed to the western corner of his roof to see what was the matter in the house of Kaushaya. There was a distance of only 5 to 6 paces between the houses of the two. He flashed his torch in the house of Smt. Kaushalya, heard a shot of fire and immediately thereafter saw the accused Ram Bilas and his father Ram Charan coming out in courtyard from tarwaha of Kaushalya. Ram Bilas was with a pistol in his hand. He reloaded the pistol in the courtyard and thereafter, the accused persons fled away opening the kundi of the door of the court yard. Meanwhile, Ram Kumar raised a call for Suraj Prasad who was residing in front of his house who immediately responded to reach the spot.

Ram Kumar rushed to the house of Smt. Kaushalya and saw Smt. Kaushalya coming to his house with grevious injury in her abdomen which was profusely bleeding. She fell down after reachings his bangli. Suraj Prasad also reached there with the torch in his hand. She was taken by them and laid to rest on a cot under the chhappar of the house of Suraj Prasad. There being excessive bleeding from her wound Ram Kumar bandaged it with the piece of saree of Kaushalya. Meanwhile, Behari was sent by them to call Chowkidar Shri Ram PW1. Smt. Kaushalya narrated the whole incident to chawkidar PW1 of village and other villagers who happened to be present there. She stated that she identified the two accused in the light of burning dhebri and raised alarm. Ram Charan caught hold of her mouth and Ram Bilas shot a fire in her stomach by his pistol. They came out of tarwaha, Ram Bilas reloaded his pistol and fled away opening the western door of the house of Smt. Kaushalya. Chowkidar PW1 tried to arrange a bullock cart and in the meantime she succumbed to the injuries. Chowkidar could not go to police station as the night was dark and it started raining heavily after the incident. He proceeded to Thana in the next morning and lodged a report at 7.35 a.m. which is exhibit Ka-1. Sheo Lakhan Singh, S.I. conducted the investigation. He arrested Ram Charan near the village Atwa. The Investigating Officer arrested Ram Bilas on 14.07.1979 at 7.00 p.m. A country made pistol and 2 live cartridges were recovered from his custody. Accused Ram Bilas informed the Investigating Officer that he shot Smt. Kaushalya from that pistol. The payjama and kurta of Ram Bilas were also taken in custody as there were blood stains on these clothes.

The post-mortem of the person of Smt. Kaushalya was conducted by Dr. R.S. Shukla, Medical Officer, District Hospital, Unnao, PW6 on 14.07.1979 at about 12.00 p.m. who stated that the death was caused due to shock and hemorrhage resulting from fire arm injury which was caused from a close range. He stated that it was possible that the injured might have survived for some time after receiving the injury. He also stated that the death might have taken place sometime after midnight in between 12/13th July, 1979

After conclusion of investigation, the appellant was charged for committing the offence. He denied complicity and trial was conducted. During the proceedings before the Trial Court, prosecution relied on the testimony of 8 witnesses and also placed on record certain exhibits. The accused answered queries put to him under Section 313 Cr.P.C. They stated their false implication on account of enmity. They also stated that they were taken into custody by the Police from their house. But they did not chose to lead evidence in their defence. On an overall consideration of all these, the Trial Court held that the respondent accused were not guilty and acquitted them of the charges.

Learned Counsel for the appellant-State opposed the judgment of the trial Court. It is argued by learned A.G.A on behalf of Appellant State that the statement of PW-1 and PW-2 stand fully proved and corroborated from the evidence of each other and other evidence available on the record, who were informed soon after the incident as to how, the injury was inflicted by the respondent accused on Kaushalya. Their statements also revealed that PW-2 was residing in the vicinity of the scene of crime who had rushed towards the spot as soon as he heard the Kaushaya''s wails and shrieks. Thus under Section 6 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act"), PW-1 and PW-2 were to be treated as Res Gestae witnesses. Their evidence lends full support to the case of prosecution and corroborates the medical evidence.

In the light of aforesaid evidence of Shri Ram PW-1, and Ram Kumar PW-2, it fully stands proved and established that the respondent accused had caused the fire arm injury on the person of the deceased causing her death. The learned Sessions Judge acquitted the accused respondent disbelieving the oral dying declaration. It was rejected on flimsy grounds. The evidence of prosecution witnesses were consistent and did not suffer from any improbability. Learned Trial Court observed that the night was dark and drizzling and therefore there was no sufficient light available for the identification of the accused overlooking the fact that the accused persons were known to the witnesses and were identified in the light of dhebri and torches. The dying declaration was further corroborated by the circumstances and other evidence of the prosecution. The guilt was fully proved by medical evidences also. The testimony of PW2 was wrongly rejected who saw both the accused coming out of the chappar and also saw Ram Bilas armed with a pistol just after occurrence. The accused had motive to commit the murder of Smt. Kaushalya. Being aggrieved by this order, this appeal has been filed alleging that the impugned order was against the evidence and law.

It is urged by the appellant State that the Trial Court''s findings are unsustainable. Learned AGA submitted that the trial court has committed error in disbelieving the statement of P.W. 1 and P.W. 2 without any cogent ground. The judgment and order of acquittal is totally based on conjecture and surmises. There was no reason of his false implication by P.W. 1 and P.W.2. They were resident of same village. He further submitted that it was a pre-planned incident because of earlier land dispute between accused Respondent and deceased. The proceedings under Section 107 CrPC were pending on complaint of jangali, the husband of deceased, against the accused respondent. The accused Respondent assaulted Kaushalya causing fire arm grievous injury. Kaushalya succumbed to the injuries which was fully proved by the occular, medical and other corroborative evidence.

Learned AGA further submitted that P.W. 1 and P.W. 2 have fully supported the prosecution version. They were reliable witnesses and except some minor and negligable discrepancies, there was no contradiction in their statement. Statement was recorded after about one year of the incident hence it is not unnatural if there are some minor inconsistencies in the statement of witnesses. It was emphasized that the Trial Court overlooked this very important legal aspect and fell into serious error. It was urged that having regard to these circumstances, this Court should reverse the findings and the respondent should be held guilty of the charges under Section 302 Indian Penal Code and Section 25A Arms Act.

As against it, Sri S.S. Mishra learned Counsel for the respondent submitted that the aspects highlighted by the Trial Court to record acquittal should not be upset by the High Court when the view taken by the Trial Court was not perverse and was a possible view.

However, we do not agree with the various aspects which weighed with the Trial Court to record acquittal for the reasons given below which need to be noted.

The first circumstance highlighted by the Trial Court related to non availability of direct evidence. The Trial Court noted as follows:

There is, however, no direct evidence to connect the accused persons with the crime in the sense that no one claims to have actually seen the accused persons firing and causing the fatal injury to Smt. Kaushalya.

i) Although, the PW-2 did not witness the incident in the sense that the attack did not take place in front of him,but he could hear outcry of Kaushalya, identified respondent accused fleeing from courtyard of Kaushalya in torch light, raised alarm to call Suraj Prasad to reach the spot and was a part of the incident. Kaushlya had first disclosed the full description of the incident including the name of respondent accused to Shriram Chawkidar P.W. 1 and Ram Kumar P.W. 2, thus they would be Res Gestae witnesses. The reliance on Section 6 of the Evidence Act in this case would be an apt in this regard. The testimony of PW-2 was corroborated by that of PW-1. The former saw the respondent fleeing from the spot after carrying out his design and attacking the injured. Thus the witnesses relied upon by the prosecution were not, strictly speaking, eye-witnesses; they were witnesses res gestae within the meaning of the expression as understood under Section 6 of the Evidence Act. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue as to form part of the same transaction-becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. (See the decisions of Supreme Court reported as Gentela Vijayavardhan Rao v. State of A.P., 1996 (6) SCC 241 and AIR 1999 SC 3883 Sukhar v. State of Uttar Pradesh).

ii) Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. Reginam, (1952) 2 All E.R. 447, thus :

''The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."

iii) Observations of the Supreme Court in ''Krishan Kumar Malik v. State of Haryana'', (2011) 7 SCC 130, are relevant on this aspect:

Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of Res gestae must have been made contemporaneously with the act or immediately thereafter.

iv) The testimony of PW-2 clearly establishes that he was a witness to the events which immediately preceded and the events which immediately occurred after the incidence of attack which were intrinsically connected to each other. Furthermore, he even heard cries of the deceased and saw the respondent coming out of tarvaha who held the pistol with him. Deceased Kaushalya has also made oral dying declaration in his presence where she stated that the respondent/accused had attacked and caused fatal fire arm injury to her. For all practical purposes, PW-2, in the opinion of this Court, can be treated as an eye-witness to the incidence. The testimony of PW-1 in this case, is at best corroborative of what PW-2 said.

v) In the instant case, the deceased narrated the incident to PW1 and PW2 without any long time leg. The deceased having received serious fire arm injury in her abdomen and their being excessive loss of blood from her wound, when she felt somewhat settled after being bandaged by PW2 by piece of her saree, she narrated the incident to chowkidar Shri Ram, Ram Kumar and others who had reached there by that time. The discrepencies pointed out by Respondent/accused in the dying declaration stated by PW1 and PW2 were not material which were natural and trivial, Chowkidar of village was called there immediately through Behari. It cannot be said that there was time gap to negate the principle of resgestae under Section 6 of the India Evidence Act, 1872.

vi) The evidence of PW2 is fully corroborated by the testimony of Chowkidar who was called on the spot by Behari immediately after the incident. PW1 and PW2 reached on the place of occurrence soon after the occurrence. PW2 saw the accused running away from the spot thus they were the best resgestae witnesses who have been examined by the prosecution in support of their case. The accused did not give any plausible explanation to the incriminating evidence proved against him. He did not examine any witness to prove false implication due to any ill-will or enmity with PW1 and PW2. We do not find any reason to disbelieve their evidence.

The second circumstance relates to the dying declaration. The trial court found as follows:

So far as the dying declaration of Smt. Kaushalya is concerned there is no written record of it and an oral account of it contained in the testimony of Shriram Chaukidar PW1 and Ram Kumar PW2. The version has also been incorporated by the Chaukidar in the FIR lodged by him. The testimony of the two witnesses Shriram and Ram Kumar regarding actual words of the dying declaration, however, differ in material details�. The dying declaration is said to have been made by Smt. Kaushalya only after the arrival of Chaukidar. Shriram Chaukidar has clearly stated that he did not put any questions to Smt. Kaushalya and that Smt. Kaushalya herself voluntarily made the declaration. It is unnatural that after the occurrence Smt. Kaushalya would have waited for the arrival of the chaukidar to disclose the circumstances in which she had received the fatal injury and it is more natural and probable that she would have stated about the circumstances in which she had been injured immediately after the occurrence.

i) However, the testimony of the prosecution witnesses PW1 and PW2 in the opinion of this Court was also strengthened and supported by the dying declaration and medical report. PW1 stated what was heard by him from the mouth of Kaushalya about cause of her death in following words:

"dkS''kY;k us eq>dks crk;k fd og vius ?kj esa iM+h lks jgh Fkh njoktk vanj ls can Fkk og rjokgs ds uhps lks jgh FkhA jlksbZ dh nhoky ij fpeuh ty jgh Fkh djhc vk/kh jkr FkhA mlds ?kj ds vanj nhoky ls dwn dj jke pju o jke fcykl ?kj esa QkUnsA ?kj esa muds dwnus dh /ked ls dkS''kY;k dh vkWa[k [kqy xbZA mlus ''kksj fd;kA ''kksj gksus ds ckn jke pju us dkS''kY;k dk eqag nkc fy;k o jke fcykl us djhc dks[kh esa xksyh ekj nhA ml oDr jke dqekj xokg us viuh Nr ls o lwjt izlkn xokg us yydkjkA bu nksuksa xokgksa ds ikl VkpsZ FkhA ekjdj eqyfteku njoktk [kksydj HkkxsA mijksDr lc ckrsa eq>s dkS''kY;k us crk;k FkkA ?kVuk ds cknA"

ii) Ram Kumar PW2 stated the dying declaration in following words:

"fQj fcgkjh pkSdhnkjh dks cqykus x;kA pkSdhnkj ih0M0&1 vk;kA pkSdhnkj ls dkS''kY;k us esjs lkeus crk;k Fkk fd eSa Niij ds uhps lks jgh Fkh lnj njoktk can Fkk Niij ds uhps nsofy;k ij fpjkx ty jgk Fkk ftl ij dksbZ ''kh''ks dh fpeuh ugha Fkh nhoky QkUn dj eqyfteku dwns vkSj tc fpYykbZ rks jke pju us mldk eqag nck fn;k vkSj jke fcykl us isV esa xksyh ekj fn;kA esjs fpYykus ij vkaxu dk njoktk [kksydj eqyfteku Hkkx x;sA"

iii) Dr. R.S. Shukla PW-6 in the cross-examination categorically stated that the deceased got bullet injury in the abdomen. He was of the opinion that in case of a bullet injury in the abdomen like in the instant case, the injured could remain alive for some time. The prosecution proved by clinching evidence of PW1 and PW2 that after sustaining the bullet injury, the victim was in a fit condition to speak and made declaration about the cause of her death. PW-1 and PW- 2 proved that the deceased was fully conscious and was in a fit state of mind to make the statement in question and it was made by her truthfully and voluntarily without being tutored or prompted by any person. They explained the incident. In the cross-examination nothing was suggested to them about the physical condition of the victim after the occurrence. Upon analysis of the evidence, it is clear that the prosecution fully established that the victim was in a fit condition to make the oral dying declaration who made it before chawkidar, Ram Kumar and all present there. Though the deceased had got serious injuries but it did not incapacitate her to speak. She remained conscious.

iv) The chawkidar PW1 and Ram Kumar PW2 reported the incident and oral dying declaration by the deceased to the police. They informed the investigating officer that dying declaration was made to him and others by the victim. The dying declaration was the basis of registering the FIR. The Investigating Officer recorded their statements.

v) In our opinion the Trial Court has erred in law in acquitting the accused Ram Bilas from commission of the offence Under Section 302 Indian Penal Code. Men may lie but the circumstances do not is cardinal principle of evaluation of evidence. A dying declaration as per section 32 IEA can be in any form, however the Court has to see whether the dying declaration was actually made. If a dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.

vi) Further a dying declaration made by a person on the verge of his death has a special sanctity. It is for this reason the requirements of oath and cross-examination are dispensed with. It has been held by the apex court in the matter of Narain Singh and Anr. v. State of Haryana reported in AIR 2004 SC 1616 that:

A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death.

vii) It has also been held by the Hon''ble Apex Court in the matter of Girdhar Shankar Tawade v. State of Maharashtra reported in AIR 2002 SC 2078, as under:

It is well settled that dying declarations shall have to be dealt with due care and upon proper circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence.

viii) In Laxman v. State of Maharashtra, the Supreme Court observed that where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that, the dying declaration is not acceptable. To quote the relevant extract :

The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.

ix) In the instant case, there is no reason for this Court to raise any suspicion over testimony of PW1 and PW2. In the light of the above legal position, there is no reason to disbelieve the said dying-declaration made by the deceased as a corroborative piece of evidence. Further considering the fact that the defence could not cull out anything during cross-examine from PW-1 and PW-2, on the said aspect, we are not persuaded to give any weightage to the contention raised by the counsel for the respondent that credence and credibility of the said dying-declaration becomes questionable.

x) In the light of the aforesaid discussion we find ourselves fully satisfied that the said dying declaration was made by the deceased voluntarily and truthfully, free from any kind of tutoring or prompting. The contention is raised by the counsel for the respondent that according to PW2 the incident was narrated by Smt. Kaushalya within 20 minutes while Shriram PW2 stated that Smt. Kaushalya took about more than one hour in narrating the incident but no inference could be drawn against the prosecution on the basis of this discrepancy in view of the fact that Chowkidar was an illiterate rustic villager whose statement was recorded on 25.08.1980 as against the date of the incident dated 12/13-07-1979 where there has been a gap of about one year.

xi) The discrepancies and the statement of the two witnesses are natural and in ours considered opinion are not that fatal to doubt the entire prosecution story, particularly when the discrepancies are trival and quite natural. Chowkidar PW1 of the village was admittedly an illiterate person. Thus, there was nothing unnatural and improbable in dying declaration of Smt. Kaushalya made before Chowkidar Shriram, Ram Kumar PW2 and others. The discrepancies, if any, were not material at all. The contention raised by the counsel for the respondent with regard to his challenge to the dying-declaration has no merit and deserve an outright rejection.

The third aspect related to the medical evidence qua occular testimony. The trial court observed that there was conflict between medical evidence and ocular testimony.

i) Another circumstance stressed by the counsel for the respondent was that there was conflict between the ocular testimony and medical evidence concerning the death of Kaushalya. It is contended that according to statements of PW1 and PW2 the deceased died at 3.00 a.m. in the morning of 13.07.1979. But according to post-mortem report the death occurred before midnight. In the post-mortem report half digested food was also found which also showed that death occurred before midnight because food should have been digested completely after 4 hours.

ii) However the trial court as also the counsel for the respondent have not properly interpreted the evidence of medical officer in this case. The learned counsel as also the trial court have committed a serious error in the appreciation of evidence. The medical evidence is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The Supreme Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. Moreover, though Dr. Shukla PW-6 stated that the deceased might have died by about 36 hrs to 48 hrs before the post mortem but during cross examination he did not deny from the possibility that deceased would have died after midnight. The Doctor, PW- 6, testified that injury given was caused by a fire arm, which was sufficient in the ordinary course of nature to cause death.

iii) Further, the process of digestion is not uniform and varies from individual to individual as also the health of a person at a particular time and so many other varying factors. Therefore, the trial court was not justified in doubting the time of incident on the basis of stomach contents of the deceased. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. The State of Punjab(AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity.

The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof.

iv) Dr. R.S. Shukla PW6 who had performed post mortem examination on the dead body of Smt. Kaushalya proved the post mortem report Ext. Ka-24. The deceased was found aged about 50 years. The ante-mortem injury found was a firearm wound of entry in the right side of stomach 1" x �" x stomach deep with inverted and contused margins. Blackening and charring was found around the wound in an area of 3" x 2 �". He further stated that the firearm injury had been caused from a close range and it was possible that the injured might have survived for some time after receiving the injury. He has also stated that the death might have taken place sometime after midnight between 12th and 13th July, 1979.

v) In these circumstances, we do not see any reason why the trial court should have disbelieved the evidence of PWs. 1 and 2 merely on a misreading of the medical evidence which instead of supporting the view of the trial court, was fully, consistent with the evidence of PWs. 1 and 2. For the discussion made herein above, we overrule the finding of the trial Judge that there was conflict between the ocular testimony and medical evidence concerning the death of Kaushalya. There is consistent testimony of the two eye witnesses of the incident relating to the murder of Kaushalya. Far from being in conflict, the medical evidence and ocular testimony were in complete harmony. The deceased Kaushalya sustained one fatal injury on her person of pistol-shot. The shot had been fired by the respondent. There was nothing to disbelieve the categorical and emphatic testimony of two resgestae witnesses in this behalf, the same being in complete conformity of the medical evidence too.

The fourth circumstance relates to the motive. The trial court found as follows:

For motive reliance is placed on a case under Sections 107/116 Cr.P.C. against the accused persons�.Other person Suraj Bux also figured among the opposite parties along with Ram Charan and Ram Bilas in the case under Section 107/116 Cr.P.C. and as such it cannot be said that the accused persons were the only persons who could have a motive for committing the crime.

i) However, another crucial point regarding commission of the said offence by the respondent relates to motive of the respondent accused in the commission of the crime. The contention raised by the counsel for the respondent was that there was no motive which could be attributed to the respondent for committing the said crime and in the absence of any motive, his alleged act of committing murder of Kaushalya should not be believed. This contention raised by the counsel for the respondent is also devoid of any force as motive on the part of the respondent is proved in view of the positive evidence on record. It is established from evidence on record that Proceedings under Section 107/117 of the Code of Criminal Procedure,1973 had been drawn against Ram Bilas, Ram Lochan and three others alleging threat to life and property of Kaushalya from them on complaint of jangali. The Police report dated 25.03.1979 is Ext Ka 25 on record in this respect. According to this report the two parties belonged to same community and accused was jealous of Jangali and his wife and continuously threatened his wife Kaushalya who was living in village all alone.

ii) Moreover, no question was put to PW 1 regarding land dispute between deceased Kaushalya and respondent accused, during his cross examination. Even otherwise, the respondent accused stated in his 313 statement that he was falsely implicated due to enmity without producing any material to support such allegation against deceased/complainant/witnesses. No suggestion was made either to PW1 or PW2 in this respect. Thus the analysis of the sequence of events revealed that admittedly there was enmity between accused respondent and deceased and her family members.

iii) Even otherwise as per the settled legal position where positive evidence against the accused is clear, cogent and reliable, it becomes immaterial whether motive on the part of the accused has been proved by the prosecution or not. If that is the correct position, the absence of motive, in this Court''s opinion, is of little or no consequence. Here, it would be worthwhile to reproduce the following paragraph from the recent judgment of the Apex Court in the case of Amitava Banerjee @ Amit @ Bappa Banerjee v. State of West Bengal, reported in AIR 2011 SC 2913, as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty."

iv) In the facts of the present case, the positive evidence is sufficient enough to nail the accused.

So far as the analysis of the evidence and identification of the accused are concerned, the trial court referred to various aspects:

The prosecution story should not be believed because there were discrepencies in the statements of public witnesses...The night being dark and the weather being cloudy and drizzling, it is doubtful that Ram Kumar was able to see so clearly as to identify the accused persons without committing any mistake. Since he had been aroused from his sleep he must have been in a dazed and drowsy condition. Even the torch of three cells which he claims to have flashed could not create such a light in the courtyard of Smt. Kaushalya so as to enable Ram Kumar to identify the accused persons clearly and without committing any mistake particularly when the accused are said to have stayed in the courtyard after the occurrence only for a few seconds.... At best Ram Kumar could have seen the backs of the assailants while they were fleeing from the courtyard...It would be absolutely unsafe to rely on the sole testimony of Ram Kumar regarding the identity of the assailants.

i) However the counsel for the respondent has not been able to substantiate the contention that the prosecution story should not be believed because there were discrepencies in the statements of public witnesses who could not prove the case of the prosecution. The prosecution examined independent witnesses PW1 and PW2 who being totally independent witnesses have more reliability then other witnesses having some interests to support the case of the prosecution. However, we cannot shut ours eyes to the fact that very rarely public men come forward to give evidence. Due to lack of proper safe guards for the witness protection, it is usually seen that people are reluctant to join the investigation as a witness.

ii) With regard to contradiction, inconsistencies in evidence, the Supreme Court in the case of Bharwada Bhoginibhai Hirbhai v. State of Gujarat reported in 1983 Cri.LJ 1096 observed as under:

"Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:-

By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person''s mind, whereas it might go unnoticed on the part of another.

By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.

In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

Ordinarily a witness cannot be expected to recall accurately the sequences of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses".

iii) As to how evidence of a witness has to be appreciated, the Supreme Court observes as follows in State of U.P. v. M.K. Anthony, 1985 Cri.LJ 493.

"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief,"

iv) Keeping in view these principles, we have read the evidence of PWs. 1 and 2 as a whole. Their deposition inspire confidence. Therefore, presumption of the learned Trial Judge that there were material discrepancies in their statements is erroneous. As already discussed, the doubts entertained by the learned Trial Judge in this case were based on minor discrepancies and inconsistencies. With regard to doubts entertained by Courts, the Supreme Court observed in the case of State of U.P. v. Krishna Gopal, 1989 Cri.LJ 288 that while the protection given by the criminal process to the accused persons is not be eroded, at the same time, uniformed legitimization of trivialities would make a mockery of administration of criminal justice.

v) In such scenario we cannot give any weightage to said argument of the counsel for the respondent. Here, it would be worthwhile to reproduce the following paragraph highlighting the importance of independent witnesses from the recent judgment of the Apex Court in the case of Gian Chand & Ors. v. State of Haryana reported in 2013(9) Scale 544, wherein the Court dealt with the issue of non-examining the independent witness:

The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.

vi) We have gone through the evidence of the two witnesses in detail and we are of the considered opinion that shorn of a few discrepancies here and there, there does not appear to be any material infirmity in the evidence of PWs. 1 and 2.

vii) Mr. Mishra, submits that according to the prosecution itself, the night was dark and hence, the identification of the accused, was doubtful. We do not find any substance in this submission of Mr. Mishra. It is well known that visible capacity of villagers is more than those persons accustomed to fluorescent light. The recovery of dhebri from the spot and torch from PW2, evidence of P.W. 1 and P.W. 2, the fact that the respondent accused was a co-villager and in view of the other evidence available on record, the claim made by the prosecution about the identification of the accused in the night of incident cannot be said to be a tall claim.

One of the aspects which weighed with the trial court related to the ineffective investigation. The same reads as follows:

So far as the recovery of pistol�.the factum of recovery which is disputed, it may be said that the presence of nitrate and lead in the caudling matter of the pistol does not in any way connect Ram Bilas with the murder of Smt. Kaushalya. An empty cartridge said to have been left by the assailants in the courtyard was collected by the I.O. and was sent to the Ballastic Expert but there is no evidence that on examination it was found to have been fired from the same pistol which is said to have been recovered from the possession of Ram Bilas.

i) However the investigation was also stated to be defective since the pistol allegedly recovered from respondent was sent for forensic test but it was not connected with the incident. The fired cartridge was also not connected with the incident. It was also not proved that the blood stains on Payjama and Kurta of Ram Bilas were the human blood. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).

ii) In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

iii) As was observed in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re-iterated in Amar Singh v. Balwinder Singh and Ors. (2003 (2) SCC 518). As noted in Amar Singh''s case (supra) it would have been certainly better if the firearms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses in this case corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect credibility of the prosecution version.

iv) Thus in the light of the said testimonies of these witnesses, there remains no dispute with regard to the commission of the crime and minor discrepencies will not lead us to disbelieve the entire prosecution version.

v) The contention raised by the counsel for the appellant has no force and the same is liable to be rejected out-rightly. In cases, where the accused claims that a false case has been foisted against him, often suggestions are made to the prosecution witnesses alleging malice on their part of ill-will against the accused. Suggestion may be also with regard to the ill-will between the accused and the victim or the complainant in whom the witness may be interested. When there are materials to support such allegation, evidence of such witness has to be either considered with caution or may be rejected as tainted depending on the acceptability of such material. But, where there are no materials to support such suggestion, evidence of a witness cannot be rejected only on suspicion. It is only if the malice or ill-will suggested is so strong as to probabilise the possibility of the victim or the complainant hoisting a false case, that, suggestion assumes importance and the deposition of the witness has to be carefully scrutinised to decide about the acceptability or otherwise of the evidence of such witness.

vi) In the instant case no suggestion has been made to PW- 1 and PW-2 that they had ill-will with the accused on account of which a false case has been foisted against the respondent nor there are materials to support such allegation.

vii) On re-assessment of evidence, we find that the reasoning adopted by the learned Sessions Judge was not proper. He has magnified inconsistencies; and the doubts entertained by him were not reasonable.

viii) In the Gorle S. Naidu v. State of A.P. and Ors. the Supreme Court stated that there is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and Ors. v. State of Madhya Pradesh 2002 Cri.LJ 2024). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by Supreme Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 Cri.LJ 1783, Ramesh Babulal Doshi v. State of Gujarat 1996 (4) Supreme 167, Jaswant Singh v. State of Haryana 2000 Cri.LJ 2212, Raj Kishore Jha v. State of Bihar and Ors. 2003 (7) Supreme 152, State of Punjab v. Karnail Singh 2003 Cri.LJ 3892 and State of Punjab v. Pohla Singh and Anr. 2003 Cri.LJ 5010 and Suchand Pal v. Phani Pal and Anr. 2004 Cri.LJ 628.

ix) Thus, on a sum total of the evidence and the circumstances mentioned above and considering the reasons given by the trial court for acquitting the accused, we are of the opinion that the Sessions Judge has committed a serious error on a point of law while acquitting the accused without applying his mind to the effect of the evidence on record particularly of PWs. 1 and 2 we see no reason to discard. We are, therefore, clearly of the opinion that the judgment of the trial court is extremely perverse. In our opinion, this is positively not a case in which another view is reasonably possible.

Unmerited acquittal should be guarded against because they strike at the root of the judicial edifice and shake the confidence of the people in the efficacy of justice delivery system. The following observations of the Supreme Court in the case of Shivaji Sahebrao Bobade And Anr. v. State of Maharashtra, 1973 Cri.LJ 1783 need to be kept in mind by all Trial Courts while appreciating evidence in criminal trials.

"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lost credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ''persons'' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that

"a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

Substantial justice based on dispassionate scrutiny of evidence brought on record should always be imparted. On threadbare scrutiny of the evidence, the participation of the accused respondent with his specific role is proved to the hilt by the testimony of two witnesses, namely,PW I and PW 2 coupled with medical evidence and other speaking circumstances on record. We should make it clear that the accused respondent committed the murder of Kaushalya.

So far as the offence under Section 25A Arms Act against respondent accused is concerned, the prosecution has not been able to prove the said offence beyond reasonable doubt for want of sufficient evidence. In the circumstances, we are not inclined to accept the prosecution case regarding recovery of pistol and cartridges from his possession. The accused Ram Bilas is entitled to be acquitted of the offence under Section 25A Arms Act for which he has been tried in S.T. No.47 of 1980.

To come to a close, in view of the discussion made herein above, we allow this appeal in part and set aside the acquittal recorded in respect of Section 302 I.P.C. of the accused respondent. The part of the impugned judgment acquitting the respondent accused of the charge of 25A Arms Act is hereby confirmed.

Respondent would be heard on the quantum of sentence. List this appeal on 22.12.2016. Let counsel for respondent be notified.