JAI KARAN AND ORS.versusSTATE OF U.P.

                         JAi KARAN AND ORS.                            A
                                  v.
                             STATE OF U.P.

                          OCTOBER 28, 2003

              [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                B
       .,,
    ~~:JO,.

   -~T:riminal Trial.

     Appreciation ofevidence-Eye witnesses-Held Evidence of interested
or related witness requires evaluation with caution and does not warrant C
mechanical rejection-Minor variations do not affect testimony which is
otherwise credible-Medical Evidence-Held, testimony of eye-witnesses
should not be discarded on alleged inconsistency with medical evidence
unless medical evidence completely rules out all possibilities of injuries
taking place as alleged by eye witnesses-Indian Penal Code, 1860- D
Sections 148, 149, 302 & 323.

     Prosecution alleged that accused-appellants V, J and B armed
with guns alongwith two unknown assailants armed with a kanta and
banka attacked S in his house as accused and S were on inimical terms.
Accused V fired at S as a result of which S fell down. Informant-PW- E
1 who is son of S, PW-2, PW-3 and R, servant of S, were present in
the house and when they rushed to rescue S, J fired at S and assaulted
PW-2 with barrel of gun while B fired at Rand the unknown assailants
assaulted S with kanta and banka. After murdering S and R and
inuring PW-2, accused and the two unknown persons ran away. PW- F
l lodged FIR and PW-2 and PW-3 were stated to be eye-witnesses while
accused also lodged information alleging that S and his relatives had
assaulted them. Trial court convicted accused-appellants under Sections
148, 302 and/or 302 read with 149, and 323 read with 149 of the Indian
Penal Code, 1860 and awarded them life sentence but acquitted two
other persons. Aggrieved by the judgment of the trial Court, accused, G
against their conviction, and State against acquittal preferred appeals
which were dismissed by the High Court by a common judgment.
Hence the present appeal by the accused persons.

      Appellants contended that there was doubt about PW-2 being H
                                 995
    996               SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A injured in the incident as claimed; that time of injury of PW-2 as stated
    by doctor did not fit in with alleged time of occurrence; that there was
    doubt about PW2's presence at place of occurrence; that statement of
    injured witness PW-2, w~s, recorded after a day from date of occurrence
    which casts doubt on authenticity of his evidence as there was time to
B   make improvements; and that witnesses made improvements in Court
    to bring medical evidence in line with ocular evidence which rendered
    prosecution case weak.

          Dismissing the appeal, the Court

C         HELD : 1. The High Court has found the evidence of PW-2 to
    be cogent, credible and trustworthy. His presence at the place of
    incident was explained and his evidence cannot be thrown out as
    unreliable or tainted, merely because in some cases he was a co-accused
    with the deceased. This circums'tance would not warrant mechanical
D   rejection of his testimony. Evaluation with caution was needed, which
    has been done. The manr..er of assaults as described by' him is also
    corroborated by medical evidence. The plea that imprO.\fements were
    made to bring the ocular evidence in line with the medical evidence is
    clearly without substance. Whatever was stated was by way of a
    clarification and certainty cannot be termed to be an improvement.
E   Therefore, the evidence of PW-2 alone was sufficient to fasten guilt on
    the accused appellants. [1001-B, E-G]

         2. The First Information Report was lodged with promptitude.
    Merely because PW2 was examined after some time, the reason thereof
F   has been clearly explained by the investigating officer who stated that
    after the information was lodged by PWI at the police station he
    interrogated him and thereafter left for the place of incident which he
    reached at 8.45 p.m. [1001-G-H, 1002-A]

          3. So far as time of injury on PW2 is concerned the opinion of
G PW4 (doctor) is clearly hypothetical. He himself has stated that there
    can be a margin of 2-3 hours. That being so, credible evidence of
    eyewitnesses does not become tainted. [1002-A]

         4. Though evidence of PWI does not specifically indicate the
H   injury on PW2 that is but natural. Before a young person two murders
                 JAi KARAN v. STATE [PASAYAT, J.)                   997

were committed and it is quite natural to create a sense of shock and A
as such minor variations in his evidence do not affect his testimony
which is otherwise credible. [1002-B-C]

     5. Unless the medical evidence in its turn goes so far that it
completely rules out all possibilities whatsoever of injuries taking place B
in the manner alleged by eye-witnesses, the testimony of the eye-
witnesses cannot be thrown out on the ground of alleged inconsistency
between it and medical evidence. [1002-C]

     Solanki Chimanbhai Ukabhai v. State ofGujarat, AIR (1983) SC 484
and State of UP. v. Krishna Gopal and Anr., AIR (1988) SC 2154, relied     C
on.

    CRIMINAL APPELLATE WRISDICTION: Criminal Appeal No.
1262 of 2002.
                                                                           D
     From the Judgment and Order dated 7.8.2002 of the Allahabad High
Court in Cr!. A. No. 498 of 1980.

    U.R. Lalit, Naresh Kaushik, Ms. Shilpa Chohan, Dr. Bairam Singh
and Ms. Lalitha Kaushik for the Appellants.
                                                                           E
    Ravi P. Mehr?tra, Garvesh Kabra and Ms. Deepti R. Mehrotra for the
Respondent.

     The Judgment of the Court was delivered by
                                                                           F
      ARIJIT PASA YAT, J. : Appellants having unsuccessfully challenged
their conviction before the Allahabad High Court have filed this appeal.

       They along with two others, namely, Mahesh and Bhan Chand faced
trial for alleged commission of offence punishable under Sections 148, 302
read with 149 and 307 read with 149 of the Indian Penal Code, 1860 (in G
short the 'IPC'). The trial Court acquitted Mahesh and Bhan Chand on all
counts, but convicted the present appellants. So far as accused Jai Kar(\11
and Babu were concerned, they are convicted under Sections 148, 302 read
with 149 and 323 read with 149 IPC and accused Veer Bhadra was
convicted under Section 148, 302, 302 read with 149 and 323 read with H
    998                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 149 IPC. The_Y were each awarded !ife sentence for the offences punishable
    under Sections 302 and 302 read with l49 IPC as the case may be, and
    two years and six months for the offence under Sections 148 and '323 read
    with 149 !PC respectively.

         The convicted accused persons preferred appeal against their
B
    conviction, while the State preferred appeal against the acquittal. Both the
    appeals were heard together in view of the common factual matrix and were
    disposed of by the impugned judgment.

          Prosecution case as unfolded during trial is as follows:
c
          The informant-Ashok Kumar Singh (PW-1) is the son of Surya
    Prakash Singh (hereinafter referred to as the 'deceased'). At the time of
    the incident the informant, deceased Surya Prakash Singh and another
    deceased Ram Lal, injured Ram Chandra Singh (PW-2) and appellants Jai
D   Karan, Veer Bhadra and Babu were living in village Alaipur within the
    limit of police station Sidhauli district Sitapur. Appellants Veer Bhadra and
    Jai Karan are real brothers and appellant Babu is son of their maternal
    uncle. There was enmity between Veer Bhadra and Jai Karan 011 one side
    and deceased Surya Prakash Singh on the other. Few months before the
E   incident, Veer Bhadra, Jai Karan, their brother Pyarey Lal and a relative
    had attacked Surya Prakash Singh with pistol and bhala. Surya Prakash
    Singh who had suffered injuries lodged FIR against Mahesh, Veer Bhadra
    and his others.

F         On the date of the incident i.e.17.12.1978 at about 4.00 p.m. deceased
    Surya Prakash Singh was sitting on a cot in his courtyard situated at a short
    distance from the door of his house. His servant deceased Ram Lal was
                                                   ·~I·

    weeding potato crop in the field situated to"north of the said courtyard.
    Informant Ashok Kumar Singh (PW-1) Ram Chandra Singh (PW-2)
    Vishwanath Shukla and Narendra Singh (PW~3) were sitting near the door
G   of his house. Suddenly, appellants Veer Bhadra, Jai Karan and Babu armed
    with guns along with two unknown persons, one of whom was armed with
    a kanta and the other with a banka came. Immediately, appellant Veer
    Bhadra fired at deceased Surya Prakash Singh, as a consequence of which
    he feU down. When informant Ashok Kumar Singh (PWl), deceased Ram
H   Lal and others rushed to rescue deceased Surya Prakash Singh, appellants
                         ·,   ':


                 JAIKARANv. STATE[PASAYAT,J.]                         999
Jai Karan and Babu fired; the former on Surya Prakash Singh and the latter A
on Ram Lal. Jai Karan also assaulted Ram Chandra Singh (PW2) with the
barrel of gun. The two unknown persons assaulted Surya Prakash Singh
with kanta and banka. After murdt:ring Surya Prakash Singh and Ram Lal
and injuring Ram Chandra the appellants and the unknown persons ran
~·                                                                          B
      The first ini,orffiation report was lodged by Ashok Kumar Singh
(PWI). Two oth~rs ~amely Ramchandra Singh (PW2) and Narender Singh
(PW3) were stated to be the eye-witnesses of the occurrence. Investigation
was undertaken and on comp_letion thereof charge sheet was placed. It has
to be noted that the accused persons had also }odged an information in tht:i C
police alleging that the deceased Surya.Prakash Singh and his relatives
assaulted some of the attused persons. puring trial, they denied the
allegations and claimed that' they had been falsely implicated.

      Sixteen witnesses were examined.to further the prosecution version. D
Three of them i.e. PWs 1, 2 and 3 were claimed to be eyewitnesses,
Accused Bhan Chand and Mahesh examined one witness. No other oral
evidence was led by any of the accused. Placing reliance on the evidence
of the prosecution witnesses, more particularly the injured witness and
other eyewitnesses, the present appellant accused persons were found E
guilty, convicted and sentenced as afore noted. The plea of innocence
raised by the accused was held to be full of holes and as indicated supn;l
the conviction and sentence as awarded stood confirmed. The appeal filed
by the State was held to be without merit and was dismissed.

     Learned counsel for the appellants subm,itted that it is doubtful F
whether PW2 was injured in the incident as claimed. The trial Court and
the High Court have -16Sf sight of the fact that in view of the admitted
animosity between tii~ accused and the deceased Surya Prakash Singh, the
evidence of so-called 'eyewitnesses should not have been acted upon.
Improvements. were made by witnesses in Court to bring the medical G
evidence in line with the ocular evidence. Jhat itself rendered the
authenticity of medi~al evidence inapplicable. '·As improvements were
made on material points, the Courts below should not have held that the
medical evidence was in consonance with the -0ral evidence. The statement
of the so-called injured witness (PW2) was recorded after a day in the H
    1000                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A afternoon. He had suffered some minor injuries and a non-examination for
    a day casts grave doubt on the authenticity of his evidence. The Investigating
    Officer in order to explain the delayed examination stated.that the witness
    was in a dazed state; but the injured does not say so, and this is nothing
    but a lame explanation. There is grave doubt about PW2's presence
B   because of his sudden appearance at the place of occurrence. He stated that
    he came to the house of Madan Lal and then to the house of deceased Surya
    Prakash Singh. Though, he was sent for medical examination on the alleged
    dat_e of occurrence, his statement was recorded on the next day and there
    was ample time to make improvements. Though in the statement during
    investigation it was not stated that Surya Prakash Singh had stood up on
C   seeing the accused persons, it was so stated in Court. It was done tactfully     .·~
                                                                                       r
    as the injuries found on his body were possible only if he was standing.
    The object was to bring ocufar evidence at par with the medical evidence.
    These improvements should have been noticed by the courts below to
    render prosecution version vulnerable. In the FIR, there was no mention
D   about assault by barrel. of gun. PW2 stayed in the house of deceased for
    about 35 years and he was friendly with him. The time of injury as stated
    by Doctor does not fit in with the alleged time of occurrence. The reaction
    of the witnesses was most unnatural when considered in the background
    of their claim that they were eyewitnesses and when a known person who
E   is closely related and friendly with them was being assaulted; their reaction
    would have been certainly different. Prosecution has tried to introduce the
    presence of two other persons just for the purpose of bringing in application
    of Section 149 IPC and acquittal of the two persons clearly shows how
    unauthentic prosecution version is. Merely because the FIR was lodged
F   immediately as claimed, that does not strengthen the prosecution case
    because of admitted hostility. In view of the fact that the evidence of PW-
    3 has not been held to be reliable, it is clear that the prosecution has not
    come to Court with clean hands.

          In response, learned counsel for the State submitted that there is no
G   infirmity in the conclusions arrived at by the trial Court and the High Court
    to warrant any interference. The evidence has been analysed in great detail
    and with great care and circumspection in view of t~e fact that the accu~ed
    and deceased were in inimical terms; and the witnesses were either relatives
    or known to the deceased-Surya Prakash Singh. There is no doubt about
H   the presence of PW2 who was an injured witness and the hypothetical
                         JAI KARAN v. STATE (PASAYAT, J.]                     1001

        scenario as projected by the accused appellants does not have any leg A
        to stand. The doctor (PW4) has clearly stated as to the time of injury
        and it rules out the possibility that he sustained injury at the time of
        incident.

             The High Court has found the evidence of PW-2 to be cogent, B
        credible and trust-worthy. His evidence shows that on the date of occurrence
        he along with A.K. Singh (PW-1) and Narendra Singh (PW-3) and one
        Vishwanath (not examined) were sitting near the door of deceased. At that
        time Ram Lal was weeding potato crops sown in the field near the house
        of deceased-Surya Prakash Singh who was sitting on cot and reading the
        newspaper. At this juncture, the three accused appellants armed with guns C
        and two unknown persons also armed with various weapons came to the
        place. Veer Bhadra fired a shot at Surya Prakash Singh and thereafter Jai
        Karan and Babu fired; which hit the two deceased persons. Thereafter, the
        accused Jai Karan assaulted Ramchandra Singh (PW2) with the barrel of
        a gun and those unknown persons also assaulted deceased Surya Prakash D
        Singh with kanta and banka. Thereafter the accused persons ran away.

              After considering his evidence in toto, the High Court found the
        evidence to be implicitly truthful and reliable. Though his presence was
        attempted to be shown as doubtful, we do not find any reason to accept E

-       the plea. His presence at the place of incident was explained and his
        evidence cannot be thrown out as unreliable or tainted, merely because in
        some cases he was a co-accused with the deceased Surya Prakash Singh.
        This circumstance would not warrant mechanical rejection of his testimony.
        Evaluation with caution was needed, which has been done. The manner F
        of assaults as described by him is also corroborated by medical evidence.
        The plea that improvements were made to bring the ocular evidence in line
        with the medical evidence is clearly without substance. We have read the
        evidence and found that whatever was stated was by way of a clarification
        and certainty cannot be termed to be an improvement. Therefore, the
        evidence of PW2 alone was sufficient to fasten guilt on the accused G
        appellants. But, added to that is the evidence of PWl, the informant, which
    -   further strengthens the prosecution version. The First Information Report
        was lodged with promptitude. Merely because PW2 was examined after
        some time, the reason thereof has been clearly explained by the investigating ,
        officer who stated that after the information was lodged by PWl at the H
    1002               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A police station he interrogated him and thereafter left for the place of
    incident which he reached at 8.45 P.M. So far as time of injury-on PW2
    is concerned, the opinion of PW4 (doctor) 'is: clearly hypothetical. ·He
    himself has stated that there can be a margin of 2-3 hours. That being so,
    credible evidence of eyewitnesses does not become tainted.
B         Great emphasis was led on the approximate time of injury. That in
    no way affects the credibility of PW2's evidence. Though evidence of PWl
    does not specifically indicate the injury on PW2 that is but natural. Before
    a young person two murders were committed and it is quite natural to create
    a sense of shock and minor variations in his evidence do not affect his
C · testimony which is otherwise credible. Unless the medical evidence in its
    tum goes so far that it completely rules out all possibilities whatsoever of
    injuries taking place in the manner alleged by eye-witnesses, the testimony
    of the eye-witnesses cannot be thrown out on the ground of alleged
    inconsistency between it and the medical evidence. (See Solanki Chimanbhai
D Ukabhai v. State of Gujarat, AIR (1983) SC 484. To similar effect is the
    deciision in State of UP. v. Krishna Gopal and Anr., AIR (1988) SC 2154.

          That being the position, the High Court was justified in dismissing
    the appeals filed by the accused appellants before it. We find no reason
E   to take a different view. The appeal is dismissed.

    A.K.T.                                                   Appeal dismissed.