2022 Supreme(All) 1664

IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, SAROJ YADAV, JJ.
Sarafat and Another - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal Nos. 61, 120 of 2010
Decided On : 01-06-2022

Headnote:

JUDGEMENT : RAMESH SINHA, J. (A) Introduction 1. Three accused persons, Sarafat, Noor Mohammad and Ajay, were tried by the Additional Sessions Judge/F.T.C.-4, Lakhimpur Kheri in Sessions Trial No. 879 of 2004 : State Vs. Sarafat and two others, arising out of Case Crime No. 130 of 2004, under Sections 302, 504, 506 Indian Penal Code, 1860 (in short, "I.P.C.") and Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, "S.C./S.T. Act"), Police Station Nighasan, District Kheri. 2. Vide judgment and order dated 14.12.2009, the learned Additional Sessions Judge/F.T.C.-4, Lakhimpur Kheri, acquitted Sarafat, Noor Mohammad and Ajay, for the offences under Sections 504, 506 (2) I.P.C. and Section 3 (2) (v) of the S.C./S.T. Act, however, convicted and sentenced them under Section 302 read with Section 34 I.P.C. to undergo life imprisonment and fine of Rs.7,000/- each. In default of payment of fine, to undergo additional two years imprisonment. 3. Aggrieved by their aforesaid conviction and sentence, convicts/ appellants, Sarafat and Noor Mohammad, preferred before this Court Criminal Appeal No. 61 of 2010, whereas convict/appellant Ajay preferred Criminal Appeal No. 120 of 2010. 4. Since both the above-captioned appeals arise out of a common factual matrix and impugned judgment and order dated 14.12.2009, hence this Court is disposing of the above-captioned appeals by a common judgment.

Fact of the Case:

Informant Brahmadeen (P.W.1) had filed a written report (Ext. Ka.1) before Police Station Nighasan, District Kheri on 19.04.2004, at 10:00 a.m., alleging therein that in the intervening night of 18/19.04.2004, at about 02:00 a.m., Sarafat, Noor Mohammad and Ajay (convicts/appellants) came in front of his house and started to drink water by plying handpump installed in front of his house, upon which his father (deceased Kadhiley) objected. Thereafter, all three persons (convicts/appellants) used abusive language against his father (deceased Kadhiley) and when his father (deceased Kadhiley) objected them from use of abusive language, then, all three persons (convicts/ appellants), while threatening them to kill, ran towards south direction of the village.

Finding of the Court:

From the above analysis, this Court is of the view that the prosecution has proved its case beyond reasonable doubt against convicts/appellants and their conviction and sentence for the murder of deceased Kadhiley in the intervening night of 18/19.4.2004 by the impugned judgment is fully justified.

Issues: 1. Whether the delay in lodging the FIR is fatal to the prosecution case. 2. Whether the evidence of ''interested witnesses' can be said to be trustworthy. 3. Whether the contradictions in the statements of the eye-witnesses PWs-1, 2 and 3 make their testimony untrustworthy due to contradiction therein. 4. Whether there was motive on the part of the convicts/appellants to commit the murder of the deceased. 5. Whether non-examination of Independent Witness is fatal to the case of the prosecution. 6. Whether availability of source of light has not been mentioned in the written report submitted by the informant P.W.1. 7. Whether medical evidence does not corroborate the testimonies of the prosecution witnesses.

Ratio Decidendi: 1. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. 2. Mere fact that relatives of the deceased are the only witnesses is not sufficient to discredit their cogent testimonies. The Apex Court in Mohd. Rojali v. State of Assam, (2019) 19 SCC 567 reiterated the distinction between "interested" and "related" witnesses and has held that the mere fact that the witnesses are related to the deceased does not impugn the credibility of their evidence if it is otherwise credible and cogent. 3. It cannot be said that the omissions/improvements in the version of the witnesses makes their testimony untrustworthy due to contradiction therein. As a matter of fact, from a close scrutiny of the Case Diary, this Court find that the statements of the witnesses had been recorded by the Investigating Officer in a concised form by confining the same to the substance of the statement, without going into every details and therefore, it is possible that the minute details which the witnesses had deposed before the Court were not recorded by the police in the statement recorded under Section 161 Cr.P.C. 4. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. 5. Merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 6. It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of an accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. 7. The prosecution has proved its case beyond reasonable doubt against convicts/appellants and their conviction and sentence for the murder of deceased Kadhiley in the intervening night of 18/19.4.2004 by the impugned judgment is fully justified.

Final Decision: Both the above-captioned appeals stand dismissed.