AJAI ALIAS AJJU ETC. ETCversusTHE STATE OF UTTAR PRADESH

930                       [2023]
               SUPREME COURT     3 S.C.R. 930
                              REPORTS                     [2023] 3 S.C.R.


A                       AJAI ALIAS AJJU ETC. ETC.
                                       v.
                     THE STATE OF UTTAR PRADESH
                     (Criminal Appeal Nos.598-600 of 2013)
B                            FEBRUARY 15, 2023
                 [B. R. GAVAI AND VIKRAM NATH, JJ.]
             Penal Code, 1860 – ss. 302/149, 307 – Arms Act, 1959 –
      Code of Criminal Procedure, 1973 – ss. 161, 164 – The case of
      prosecution was that the accused persons, entered into the house
C
      of the PW-1 and her sister and had caused the death of the four of
      their family members – In the course of committing the offence, the
      accused persons also inflicted the injuries upon the PW-1 and her
      sister – Presuming them to be dead, the accused persons left the
      house – Thereafter, the PW-1 and her sister came out of the house
D     shouting and the villagers and the accused persons reached but
      since they were frightened of the accused persons, they both
      deliberately concealed the names of the accused persons and upon
      being asked by the accused persons that whether they have seen
      someone, they told them that they haven’t seen anyone – After that
      the names of the accused persons were disclosed to the investigating
E
      officer by PW-1 and thereafter the investigation were carried out
      and the charge-sheet were filed against the accused persons – The
      trial court, taking into consideration the evidence adduced convicted
      the accused persons of the death sentence along with other lesser
      punishments for other offences – Aggrieved by it, the accused
F     persons approached the High Court – High Court affirmed the
      sentence imposed by the trial court but commuted the death penalty
      to life imprisonment – On appeal, held: PW-1 is an injured witness
      and there is no reason why PW-1 would make false implication and
      allow the real assailants to go scot-free – Also, a perusal of her
      testimony shows that she has fully supported the prosecution story
G
      as narrated by her in her statement under section 161 CrPC and
      even during cross-examination nothing was elicited from her which
      in any way may weaken or demolish her testimony and therefore,
      she was a fully reliable witness and has stated the things in natural
      course – Non-disclosure of the name of the accused persons by the
H
                                      930
    AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                     931
                       PRADESH

PW-1 was a wise step on her part as they were close relatives of her    A
and such non-disclosure was done for protecting her own life.
      Dismissing the appeals, the Court
       HELD: 1. PW-1 is an injured witness. Her injuries have
not been challenged. There is no reason why PW-1 would make
false implication and allow the real assailants to go scot-free. A      B
perusal of her testimony shows that she has fully supported the
prosecution story as narrated by her in her statement under
section 161 CrPC. Even during cross-examination nothing has
been elicited from her which in any way may weaken or demolish
her testimony. She was a fully reliable witness and has stated the      C
things in natural course. [Para 18][939-E-F]
      2. The two daughters of the deceased ‘V’ having seen the
assailants murdering their family members and also causing injury
to one of them i.e. PW-1 being close relative rightly and wisely
did not speak out anything in their presence and allowed them to        D
remain in dark that she had actually seen them committing the
crime. At the first instance, when the Investigating Officer went
to the hospital to record her statement, they immediately came
out with the true sequence of events as they had happened. [Para
19][939-G-H; 940-A]
                                                                        E
       3. The pressing of the dog squad into service was also fully
justified as till that time when the dog squad was pressed into
service in the morning the names of the assailants had not been
disclosed. The dog squad had been pressed into service as per
the FIR since the names of the assailants were not known. It is
the case of the prosecution itself that the time when the FIR was       F
lodged and at the time when PW-1 was admitted to the hospital,
the names of the assailants had not been disclosed deliberately
and for justifiable reasons. The daughters of the deceased ‘V’
needed to protect their lives otherwise they would also had been
done to death. [Para 20][940-B-C]                                       G
       4. Non-examination of sister of PW-1 and ‘H’, father of ‘V’
also has no material bearing. It is the discretion of the prosecution
to lead as much evidence as is necessary for proving the charge.
It is not the quantity of the witnesses but the quality of witnesses
which matters. PW-1 was the injured witness having received
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932               SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A     grievous and life-threatening injuries. Non-examination of the
      statement under section 164 CrPC also has no relevance or
      bearing to the findings and conclusions arrived at by the courts
      below. It was for the Investigating Officer to have got the
      statement under section 164 CrPC recorded. If he did not think
      it necessary in his wisdom, it cannot have any bearing on the
B
      testimony of PW-1 and the other material evidence led during
      trial. [Para 21, 22][940-D-E]
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos.598-600 of 2013.
C           From the Judgment and Order dated 22.02.2012 of the High Court
      of Judicature at Allahabad in CRLA Nos.6293, 6294 and 6295 of 2009.
                With
                Criminal appeal nos.337 of 2014 and 745-748 of 2015.

D           Brijender Chahar, Sr. Adv., Ms. Deep Shikha Bharati (Amicus
      Curiae), Sanjay Kumar Tyagi, Rameshwar Prasad Goyal, Rishi Malhotra,
      Sarvesh Singh Baghel, Karan Chahar, Ms. Pooja Chahar, Advs. for the
      appearing parties.
                The Judgment of the Court was delivered by
E               VIKRAM NATH, J.
            1. Criminal Appeals No.598-600 of 2013 have been preferred by
      accused Ajai alias Ajju, Braj Pal and Ravi respectively. Ajai alias Ajju
      has since died, as reported by the learned counsel for both the sides.
      Accordingly, Criminal Appeal No.598 of 2013 stands abated. Criminal
F     Appeal No.337 of 2014 has been preferred by accused Mukesh.
             2. The above appeals assail the correctness of the judgment and
      order of the High Court dated 22.02.2012 whereby the conviction
      recorded by the Trial Court under section 302/149 of the Indian Penal
      Code1 and other allied offences, both under the IPC as also the Arms
G     Act, 1959 has been affirmed. However, sentence awarding death penalty
      by the Trial Court has been commuted to life sentence for all the accused.
      Rest of the sentences have been maintained.
             3. Criminal Appeal Nos.745-748 of 2015 have been preferred by
      the State of Uttar Pradesh against the above referred common judgment
      1
H         IPC
     AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                            933
               PRADESH [VIKRAM NATH, J.]

of the High Court to enhance the punishment to all the four respondents         A
and award them death sentence.
       4. Prosecution story in brief is that Braj Pal Singh (one of the
accused) made a complaint to the police station at Muradnagar, District
Ghaziabad at about 4.30 AM on 25.08.2007 that early in the morning at
around 3.00 AM he heard the shouting and shrieking of Ms Rashmi,                B
daughter of his brother Vijay Pal Singh whereupon along with other
villagers he reached the house of his brother in the neighbourhood only
to find that his brother Vijay Pal Singh, his wife Smt Rajesh were lying
on the ground floor on their cots with their necks cut by sharp edged
weapons, and further, when he went on the upper floor, he saw Nishant,
son of Vijay Pal Singh and also Mangal Singh, son in law of Vijay Pal           C
Singh also lying dead on their cots with their necks also cut. Smt Pinky,
daughter of Vijay Pal Singh was also lying on the ground floor in an
injured condition. She was taken to the hospital and admitted there
whereas the dead-bodies of the four deceased persons were lying on
the spot where the crime was committed. After registering the case, the         D
investigation started.
       5. The Investigating Officer recorded the statements of the two
daughters of the deceased Vijay Pal Singh, namely Ms Rashmi and Smt
Pinky (PW-1). According to Smt Pinky and also Ms Rashmi a very
shocking sequence of events were revealed. According to Smt Pinky,              E
there was enmity of her father with his brother Braj Pal and son of other
brother Indra Pal; further, there was enmity with their neighbour Mukesh
over consuming alcohol. She further stated that she was sleeping with
her parents on the ground floor. Her sister Ms Rashmi, brother-in- law
Mangal Singh, brother Nishant were sleeping on the upper floors of the
house. At about 3.00 AM, she woke up due to some noise only to see              F
that her neighbour Mukesh, son of Tungal Singh, Braj Pal Singh, Ravi,
Ajai alias Ajju were assaulting her parents with talwar and gandasa.
Mukesh assaulted her with a sword. She tried to save herself but then
she fell down and lay quietly. She also narrated that Mukesh was saying
‘Abrar makes sure that no one is left alive. Kill all of them’ and thereafter   G
he went upstairs. She continued to lie close to her mother in a state of
fright and shock. They left thinking that she was also dead. They were
also taking name of one Pramod. Both Abrar and Pramod are from
village Noorpur, which is the in-law’s place of Mukesh. They used to
regularly come to Mukesh and that she had seen them earlier. When
                                                                                H
934                SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A     these assailants left after assaulting, her sister Ms Rashmi came down
      from upstairs only to see that their parents, brother and husband had
      been murdered. Both the sisters ran outside shrieking and shouting, and
      after some time, Braj Pal and Mukesh came along with others and they
      asked what had happened. They came inside and saw the entire place
      of occurrence and asked Smt Pinky if she had recognised the assailants.
B
      Out of fright both Ms Rashmi and Smt Pinky denied having seen anyone.
      Thereafter Mukesh called for the vehicle of Ajai alias Ajju and they
      brought them to the hospital. They were also asking her on the way as to
      whether she had recognised any one, to which she had denied. She also
      requested the Investigating Officer that both of them have told the correct
C     sequence but please keep to himself as there is imminent threat to her
      life and also to her sister’s life. After narrating the entire story Smt
      Pinky (PW-1) fell unconscious. Ms Rashmi, the other daughter of the
      deceased has also given a similar statement to the Investigating Officer,
      although she was not examined during trial. After recording the said
      statements, the Investigating Officer completed all the formalities, sent
D
      the dead-bodies for post-mortem, informed the superior authorities,
      prepared the sight plan, made necessary recoveries from the spot.
             6. Smt Pinky (PW-1) suffered the following injuries as per the
      injury report prepared by Dr Rajeev Sharma(PW- 2) of the Sarvodaya
      Hospital, Ghaziabad who had examined her at 5.25 AM on the same
E     day:
            “INJURIES
            (i)      Amputated little & ring finger at level of proximal crease
                     (R)
F           (ii)     Cut lacerated wound on palmar aspect of (R) hand 8 cm. x
                     2 cm. red in colour. 2 cm distal to palmar crease.
            (iii)    Cut lacerated wound on front side of forearm (R) 6 cm. x 2
                     cm. red in colour profusely, bleeding, 5 cm. above wrist
                     joint.
G           (iv)     Cut lacerated wound over face extending from (Lt.) Angle
                     of mouth 5 cm. x 3 cm.
            (v)      Cut lacerated wound over neck 5 cm. x 1 cm. just above
                     upper crease of neck.
            (vi)     Cut lacerated wound at base of index and middle finger on
H                    back side 2 cm. x 1 cm. & 2 cm. x 0.5 cm. respectively.
    AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                        935
              PRADESH [VIKRAM NATH, J.]

      (vii) Cut lacerated wound on (L) ear 3 cm. x 1 cm. red in colour     A
            and bleeding.”
      X-ray of the neck and jaws was also conducted on the same day
      and a report to that effect was submitted by Dr.Rajeshwar Yadav,
      Radiologist (PW-3).
      7. Post-mortem was conducted in the afternoon on the same day        B
by Dr K.N.Tiwari (PW-4) and the following ante- mortem injuries were
reported on the four deceased:
      “Smt. Rajesh
      Antemortem Injuries (Exhibit Ka-3)                                   C
      (1)   Incised wound over neck lower part anteriorly and on Rt.side
            8 cm. x 4 cm., bone deep, 3 cm. above supractenal notch,
            soft tissues of neck including blood vessels and trachea are
            cut in the wound.
      (2)   Incised wound on Lt. side neck lower part 8 cm. below ear      D
            7 cm. x 3 cm. wound in muscle deep, soft tissue and muscle
            cut.
      Post-mortem wound
      Three clean cut wounds on right hand dorsum are present. Sixe 8
      cm. x 5 cm., 7 cm. x 4 cm., 3 cm. x 2 cm., 2.3 cm. apart.            E

      Vijay Pal
      Antemortem Injuries (Exhibit Ka-4)
      (1) Incised wound in upper part of neck on anterior and sides size
      10 cm. x 3 cm. bone deep, wound is 8 cm. below ear lobule laryux,    F
      hyoid soft tissues and blood vessels are cut in the wound.
      Post mortem wound
      Post mortem wounds (1) clean cut 7 cm x 3 cm. on dorsum of Rt.
      Hand, (2) Abrasion 7 cm. x 3 cm. on dorsum of Rt. Hand and 1
                                                                           G
      cm. x 1 cm. clean cut over Lt. angle of mouth noted.
      Mangal
      Antemortem Injuries (Exhibit Ka-5)
      (1)   Incised wound 25 cm. x 9 cm. on upper part of neck and
            lower jaw on anterior and Rt. Side, wound is reactive upto     H
936               SUPREME COURT REPORTS                       [2023] 3 S.C.R.


A                   Vertebrae, Mandible, soft tissues of neck muscles, Larix,
                    hyoid and blood vessels are cut in the wound.
            (2)     Upper part of wound in at level of ear lobule and oblique,
                    oblique Incised wound on Rt.side face, from upper lip to
                    ear 11 cm. x 1 cm. muscle deep.
B           Nishant
            Antemortem Injuries (Exhibit Ka-6)
            (1)     Incised wound 9 cm. x 2 cm, oblique, Rt. Side neck reaching
                    upto mid line 6cm. Below ear muscle deep.
C           (2)     Incised wound 5 m.m. Below injury no.1 on Rt. Side neck
                    reaching up to midline size 10cm x 8 cm., muscles, Larynx,
                    (thyroid cartilage and hyoid) vessels are cut in the wound.”
             8. After having recorded the statements of the two daughters of
      Vijay Pal Singh, namely Smt Pinky and Ms Rashmi, the Investigating
D     Officer Sub-Inspector Ram Babu Saxena (PW-9) also noted that mobile
      number of the deceased Nishant bearing No.9336780542 was also not
      traceable. Later on, the Investigating Officer arrested Mukesh and Braj
      Pal Singh. Mukesh after his confessional statement also got recoveries
      made on his pointing out of blood-stained pant, Khukri from his house
      which were taken into custody, sealed and memo prepared. Motor cycle
E
      belonging to Abrar, co-accused was also recovered and taken into custody.
      Braj Pal Singh after giving his confessional statement also got a
      blood-stained gandasa recovered from his house which was taken into
      custody, sealed and memo prepared. On 28.08.2007, co-accused Ravi
      was arrested and in his confessional statement, and on his pointing out, a
F     blood- stained T-shirt and a mobile phone LG Reliance bearing
      No.9336780542 was also recovered from the house of his mother’s sister.
      The same was taken into custody, sealed and a memo prepared. Ajai
      alias Ajju was arrested on 4.11.2007 and upon recording his confessional
      statement, and on his pointing out, a knife was recovered from his village
      hidden near a canal, the said knife was taken into custody and a recovery
G
      memo was prepared. The recovered articles were sent for forensic
      examination to the Vidhi Vigyan Prayogshala, Agra.
             9. After completing the investigation, a charge-sheet was filed
      against the four accused namely, Braj Pal Singh, Mukesh, Ravi and Ajai
      alias Ajju. Two separate cases were registered against Mukesh and Ajai
H
       AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                       937
                 PRADESH [VIKRAM NATH, J.]

alias Ajju under sections 4/25 of the Arms Act. In these two FIRs also a     A
charge-sheet was submitted. All the matters were clubbed together and
tried by the Trial Court.
      10. The prosecution examined 13 witnesses. They all supported
the prosecution story. All the relevant material and documents were
proved and exhibited.                                                        B
       11. The four accused gave their statements under section 313 of
the Criminal Procedure Code2 in which they denied their involvement
and alleged that they had been falsely implicated; they also stated that
the recovery was not at their instance; the witnesses were giving evidence
out of enmity; the accused in defence examined two witnesses. Dr             C
Islamuddin, a resident doctor in Sarvoday Hospital was examined as
DW-1 to prove the medical papers regarding admission of Smt Pinky in
the hospital Exh. Kha-1 to Kha-38. Smt Berwati, wife of Mool Chand,
mother of the accused Ajai alias Ajju was examined as DW-2. She
stated that her son was arrested along with Mukesh and Braj Pal,
thereafter released and again after 20 days he was arrested.                 D

       12. The Trial Court vide judgment dated 24.09.2009, after thorough
scrutiny and appreciation of the material evidence on record, came to
the conclusion that the prosecution had successfully brought home the
guilt of the four accused in committing the murder of the four deceased
and attempt to murder of Smt Pinky (PW-1) who were their close relatives     E
and, accordingly, convicted them under section 302/149 and section 307
of IPC and other allied offences under IPC and Arms Act, 1959 and
awarded them death sentence and life imprisonment and other lesser
sentences for different offences proved.
      13. Appeals were preferred before the High Court by the accused        F
which were heard along with death reference forwarded by the Trial
Court. Before the High Court, the appellants Braj Pal, Ajai alias Ajju and
Ravi had engaged separates counsels whereas appellant Mukesh was
provided an amicus curiae from the legal aid. The High Court, after
considering the respective arguments and the material on record, affirmed    G
the conviction recorded by the Trial Court of all the offences. However,
on the question of sentence, after discussing the law on the point and
taking into consideration the various other relevant factors, commuted
the death sentence into life imprisonment.
2
    CrPC                                                                     H
938                   SUPREME COURT REPORTS                        [2023] 3 S.C.R.


A              14. Aggrieved by the same, present appellants are before this
      Court.
             15. We have heard learned counsel for the parties at length and
      also perused not only the record provided by the learned counsel for the
      parties but also the Original Record of the Trial Court.
B           16. On behalf of the appellants, the arguments advanced are briefly
      recorded as follows:
               (i)      This is a case of solitary eye-witness, namely, Smt Pinky
                        (PW-1), her testimony was that of a witness related to the
                        deceased and also a witness having enmity with the
C                       appellants and, therefore, would not be a reliable witness
                        and ought not to have been relied upon;
               (ii)     There is no other evidence to corroborate the testimony of
                        the solitary eye-witness, PW-1;
               (iii)    Smt Pinky (PW-1), at the first instance, does not disclose
D                       the names of the assailants to the villagers and other family
                        members who collected on her shouting and shrieking nor
                        did she disclose the names of the assailants at the time she
                        was admitted to the hospital, therefore, it is a case of
                        improvement;
E              (iv)     There is evidence to show that a dog squad was summoned
                        in the morning, as such it was a case of unknown assailants
                        and that the eye-witness Smt Pinky had actually not seen
                        any one and even if she had seen any one, she did not
                        recognise them. A dog squad would not have been put into
                        action, in case the names of the assailants were known; as
F                       such this also suggests improvement;
               (v)      No explanation as to why Ms Rashmi and Horam, father of
                        the deceased Vijay Pal Singh, accused Braj Pal and
                        grandfather of Ravi were not examined, even though they
                        were there at the place of occurrence; and
G
               (vi)     The statement of Smt Pinky (PW-1) was not recorded
                        before the Magistrate under section 164 CrPC which
                        creates a doubt.
               (vii)    Learned counsel on behalf of the appellant Ravi raised an
                        additional argument that Smt Pinky (PW-1) did not take his
H
    AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                          939
              PRADESH [VIKRAM NATH, J.]

             name before the Investigating Officer while giving her          A
             statement under section 161 CrPC. According to him, the
             name of Ravi has been taken for the first-time during trial
             as an improvement. His client has been falsely implicated.
      (viii) Learned Amicus appearing for appellant Mukesh has
             referred to various discrepancies in the testimony of the       B
             witnesses.
       17. On the other hand, learned counsel appearing for the respondent
-State submitted that the findings recorded by the Trial Court and the
High Court are based upon a thorough scrutiny and appreciation of the
evidence on record and do not require any interference. It is further        C
submitted by the learned counsel for the State that the appellants being
close relatives and neighbours of the deceased, in order to gain property,
settled their score of enmity by committing a ghastly act of brutally
murdering four members of the same family and also attempting to murder
the injured witness Smt Pinky who had been attacked and assaulted on
her neck and in the act of protecting herself she lost a couple of fingers   D
of her upper hand. No leniency needs to be shows to them. The High
Court committed an error in commuting the death sentence to life
imprisonment. Accordingly, the sentence of life imprisonment awarded
by the High Court be set aside and that of the Trial Court of death
sentence be restored.                                                        E
       18. The submissions advanced are being dealt with in the same
sequence. PW-1 is an injured witness. Her injuries have not been
challenged. There is no reason why PW-1 would make false implication
and allow the real assailants to go scot-free. A perusal of her testimony
shows that she has fully supported the prosecution story as narrated by      F
her in her statement under section 161 CrPC. Even during
cross-examination nothing has been elicited from her which in any way
may weaken or demolish her testimony. She was a fully reliable witness
and has stated the things in natural course.
       19. The two daughters of the deceased Vijay Pal Singh having          G
seen the assailants murdering their family members and also causing
injury to one of them i.e. Smt Pinky (PW-1) being close relative rightly
and wisely did not speak out anything in their presence and allowed
them to remain in dark that she had actually seen them committing the
crime. At the first instance, when the Investigating Officer went to the
hospital to record her statement, they immediately came out with the         H
940             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     true sequence of events as they had happened. The appellants cannot
      gain anything out of the above submission.
             20. The pressing of the dog squad into service was also fully
      justified as till that time when the dog squad was pressed into service in
      the morning the names of the assailants had not been disclosed. The dog
B     squad had been pressed into service as per the FIR since the names of
      the assailants were not known. It is the case of the prosecution itself
      that the time when the FIR was lodged and at the time when Smt Pinky
      (PW-1) was admitted to the hospital, the names of the assailants had not
      been disclosed deliberately and for justifiable reasons. The daughters of
      the deceased Vijay Pal Singh needed to protect their lives otherwise
C     they would also had been done to death.
             21. Non-examination of Ms Rashmi and Horam, father of Vijay
      Pal Singh also has no material bearing. It is the discretion of the
      prosecution to lead as much evidence as is necessary for proving the
      charge. It is not the quantity of the witnesses but the quality of witnesses
D     which matters. Smt Pinky (PW-1) was the injured witness having
      received grievous and life-threatening injuries. We are not impressed by
      this argument also.
             22. Non-examination of the statement under section 164 CrPC
      also has no relevance or bearing to the findings and conclusions arrived
E     at by the courts below. It was for the Investigating Officer to have got
      the statement under section 164 CrPC recorded. If he did not think it
      necessary in his wisdom, it cannot have any bearing on the testimony of
      PW-1 and the other material evidence led during trial.
             23. Insofar as the attempt of the learned counsel for Ravi is
F     concerned, regarding his name not being taken in the statement of Smt
      Pinky under section 161 CrPC, we are of the view that the same is
      factually incorrect. This Court has perused the statement of Smt Pinky
      and finds that at two places she has taken the name of Ravi, both during
      the assault and otherwise also.
G            24. Learned Amicus for the appellant Mukesh has tried to point
      out several discrepancies and inconsistencies in the evidence. We need
      not go into details as the same are minor and do not have any impact on
      the findings recorded by the courts below.
             25. For all the reasons recorded above, we do not find any infirmity
H     in the order of the High Court affirming the conviction of the appellants.
     AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR                             941
               PRADESH [VIKRAM NATH, J.]

Accordingly, Criminal Appeal Nos.598-600 of 2013 and Criminal Appeal             A
No. 337 of 2014 are liable to be dismissed and are accordingly dismissed.
Insofar as the appeals filed by the State are concerned for enhancement
of sentence, we find that the High Court has given sound and cogent
reasons for commuting death sentence into life sentence. Accordingly,
the Criminal Appeal Nos.745-748 of 2015 also stand dismissed. The
                                                                                 B
appellants are in custody and they will serve out their sentence.
       26. Pending applications, if any, are disposed of.

Ankit Gyan                                                  Appeals dismissed.
(Assisted by : Mahendra Yadav, LCRA)
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