Case: Sadhu Saran Singh Vs. State of U.P. &amp; Others

and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”iv) We are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death sentence. 22. For the aforesaid reasons, we reach to the irresistible conclusion that these appeals deserve to be allowed and the impugned judgment and order has to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Having carefully considered the impugned judgment and order passed by the High Court as also that of the Trial Court and after perusing the records and giving anxious consideration to the facts of the case on hand in the light of well-settled law, in our considered opinion the judgment of the High Court deserves to be set aside on the ground of lack of reasoning and for the following compelling and substantialThe High Court had taken a view that PW 1 – Bhola Singh, father of the deceased (brother of the appellant before us) had changed his version at the time of second Chief Examination. Upon giving our anxious consideration to the chronology of events, we find that after commencement of the trial, the evidence of PW1 was started on 9.8.1996 and the chief-examination was concluded on 21.8.1996. On 9.1.1997 the cross-examination was started and further on 29.5.1997 the second Examination-in-chief was started as some of the accused had surrendered before the Court in the meanwhile. Second time Examination-in-chief was conducted on 29.5.1997 and ended up on 19.06.1997. Second Cross-examination started on 17.07.1997 which was further conducted on 24.7.1997. As seen from the various dates, the record indicates that the first chief-examination of PW 1, which started on 09.08.1996, was concluded after completing the second cross-examination on 24.7.1997. So, it is clear from the evidence of PW 1 itself that the examination and cross-examination had taken place several times in a piece-meal manner and the Court was forced to conduct the chief-examination repeatedly because of the subsequent surrender of some of the accused persons. While appreciating the evidence of PW1, the Courts must be conscious of the length of time consumed in recording the evidence of the prosecution witness. From a perusal of the evidence of PW1, the High Court was of the opinion that there were discrepancies and deviations in the evidence of PW1. In our considered opinion, the evidence of PW 1, who is an eyewitness who lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW1 might have been due to the long gap between the date of incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to disbelieve his evidence. The statements of PW 1 are fairly corroborated by the statements of PW 2. Hence, we are of the considered opinion that the occurrence had taken place in front of Baithaka of PW1—Bhola Singh and he had witnessed the said occurrence along with PW-2 Baijnath and the injured Ganga Singh.ii) Similarly, we find no reason whatsoever to disbelieve the evidence of PW2 (brother-in-law of PW1 Bhola Singh), another key eyewitness present at the time of incident. A valiant attempt is also made by the defence to discredit his evidence that he is only a chance witness and not an eyewitness to the incident and his presence is doubtful. But, nothing has come out in his examination-in-chief or in cross-examination which creates a doubt on the veracity of his statement. Moreover, he has been consistent in his version and fully supported the prosecution story. However, his admission that at the time of panchnama, he has signed as suggested by the Darogaji and PW1 asked him as to whose names should be written and whose names should be left out in the panchnama, have to be seen in the context of preparing the panchnama and shall not be attributed otherwise to disbelieve his evidence.iii) We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the Doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence of PW 1 cannot be discarded as primacy has to be given to the ocular evidence particularly in the case of minor discrepancies. This Court in Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476 , wherein this Court has heldSo far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to beWe are also of the opinion that the place of occurrence is proved beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah Khan—Sub Inspector). Apart from this, the investigating officer had recovered blood stained roll of the clay and plain clay from the place of incident (Ext.Ka-8) and also had recovered cartridges from the place of the incident. Even as per the forensic report human blood was found on the roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish that the place of incident was the baithka of the informant and not the village pakvainar as alleged by the defence.v) Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.09.1997 and 06.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.vii) It has been vehemently argued by the accused/respondents that the prosecution has failed to establish any motive for the alleged incident. However, the complainant had deposed about existence of land dispute between the parties and regarding the same complaints were made prior to the incident also. The Trial Court had held that there was land dispute between the parties and for the same the complainant had made complaints to the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court that the accused—respondents had enmity with the complainant party over a land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the incident, could not be an after-thought as both the exhibits bear signature and dates on which these were received by the police. Thus, in the light of above discussion, it can be safely held that the accused respondents had strong motive to commit the offence against the complainant party.viii) The High Court, while passing the impugned judgment and order, has failed to consider that the two respondents-accused Ramashray Singh and Kamla Singh had not succeeded in proving their plea of alibi. It is evident from the letter of Ministry of Defence addressed to the District & Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned that the accused Ramashray Singh and one Virender Singh (DW-1) had been directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh had deposited the fused missile and Ramashray Singh accused respondent was not present on the said date and he presented himself at Secunderabad on 11.10.1994. As far as accused Kamla Singh is concerned, he had taken a plea of alibi stating that he was posted as a Hawaldar in Jammu. However, he has failed to mark any evidence in this behalf. Also it was stated by him that he was present at his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove the same by adducing cogent evidence. Thus, on perusal of the material on record, we concur with the finding of the trial Court that the accused have failed to establish their plea of alibi.ix) We are also of the considered opinion that the reasons given by the High Court to reverse the conviction and sentence of the accused are flimsy, untenable and bordering on perverse appreciation of evidence.x) The trial Court has awarded death sentence to Ramashraya Singh and Kamla Singh. On this issue, we are not able to concur with the view taken by the trial Court as the reasoning of the trial Court does not convince us that this is the rarest of the rare cases which warrants the penalty of death