Rajiv Gupta, J
1. Heard Shri Ram Sagar Yadav, learned counsel for the appellant, Shri Arun Kumar Pandey, learned AGA for the State and perused the record.
2. The instant criminal appeal has been preferred against the judgment and order dated 14.09.2005 passed by Additional Sessions Judge, Court No.10, Ghaziabad in Sessions Trial No. 1147 of 2003 (State of U.P. Vs. Hari Bahadur), arising out of Case Crime No. 686 of 2003, under Section 302 IPC, Police Station Indirapuram, District Ghaziabad, convicting and sentencing the accused-appellant to undergo imprisonment for life with fine of Rs.10,000/- under Section 302 IPC and in default of payment of fine, to undergo six months’ further additional imprisonment.
3. The prosecution case as has been set out by the first informant Shobha Kant Poddar (PW-1) in the first information report is that in the night between 13/14.05.2003 at about 12:00 O’clock in the night, while he was taking his meals, he heard an alarm being raised from near the hutment of Sita Ram. After hearing the alarm, he reached there, where he had seen in the light of the electric bulbs lit there on the electric pole, that appellant, who also used to reside near his hutment, assaulting Sita Ram by a knife on his chest and back, uttering that he suspects that his brother Radhey Shyam had enticed away his wife and whereabouts of Radhey Shyam is not being disclosed by him, as such, he would be done to death and continued to assault Sita Ram by a knife.
4. It is further stated that when PW-1 Shobha Kant tried to rescue Sita Ram, he was also threatened for dire consequences, as such, he retreated back and started raising alarm. On hearing the alarm, number of persons reached the place of incident and saw Hari Bahadur, with the knife in his hand, making his escape good towards Shukra Bazaar. The dead body of the deceased Sita Ram, soaked with blood, was lying at the place of incident.
5. On the basis of the said written report handed over by the first informant Shobha Kant, a first information report was registered against the appellant Hari Bahadur Nepali, which was registered vide Case Crime No. 686 of 2003, under Section 302 IPC at Police Station Indirapuram, District Ghaziabad at 12:45 AM or 00:45 Hours, which has been proved and exhibited as Exhibit Ka-1. Entry regarding first information report was made in G.D. Report No.2, dated 14.05.2003 at 00:45 hours.
6. Perusal of the record shows that prior to the lodging of the said first information report, after committing the incident of murder by the appellant Hari Bahadur Nepali, and making his escape good, he was being chased by number of villagers and on the alarm raised by them, S.I. R.V. Kaul of Police Station Indirapuram, who was on the patrolling duty, reached near the place of incident and apprehended the accused-appellant Hari Bahadur Nepali alongwith crime weapon knife, which he was holding in his hand at about 12:20 AM in the night. The said knife held by the accused-appellant, was taken in possession by the S.I. R.V. Kaul and its fard recovery memo was prepared, which has been proved and exhibited as Exhibit Ka-9. Thereafter, the blood-stained pant, worn by the appellant at the time of his arrest, was also taken in possession and its fard recovery memo was drawn. Thereafter, accused was taken to the Police Station and lodged in the jail.
7. Thereafter, the investigation of the said case was entrusted to S.I. Mahesh Singh Tomar (PW-4), who recorded the statement of first informant Shobha Kant (PW-1) and that of the accused, who was arrested by the police. Thereafter, the statement of other relevant witnesses, namely, Sanjeev and Rajesh Kumar were recorded and the Investigating Officer reached the place of incident and prepared the site plan, which has been proved and exhibited as Exhibit Ka-4.
8. Thereafter, on 14.05.2003, S.I. R.V. Kaul conducted the inquest on the person of the deceased and prepared the inquest memo and other relevant documents and thereafter, despatched the dead body of the deceased for post-mortem and an autopsy was conducted on the person of the deceased on 14.05.2003 at about 4:00 PM. In the said post-mortem report, the Doctor has noted as many as six injuries on the person of the deceased, which are noted herein-below:-
(i) कटा हुआ घाव 3.5 x 1.5 से०मी० जो छाती के बीचो बीच फेफड़े की गहराई तक पाई गयी बायाँ फेफड़ा कटा हुआ था, जिसके चारो ओर लगभग 800 मि०ली० रक्त पाया गया।
(ii) कटा हुआ घाव 3 x 1 से०मी० पेट के ऊपरी हिस्से पर बांयी तरफ पसली के मध्य के नीचे मांस पेशियों की गहराई तक पाया गया।
(iii) कटा हुआ घाव 3.5 x 1.5 से०मी० पीठ पर बांयी तरफ स्कैपुला हड्डी के नीचे फेफड़े की गहराई तक पाया गया, बायाँ फेफड़ा कटा हुआ पाया गया, जिसके चारो तरफ लगभग 1 लीटर रक्त जमा पाया गया।
(iv) कटा हुआ घाव पीठ पर बांयी तरफ चोट नं०-3 से 12 से०मी० नीचे फेफड़े की गहराई तक जिससे बायाँ फेफड़ा कटा हुआ पाया गया।
(v) कटा हुआ घाव 3.5 x 1.5 से०मी० पीठ पर दाहिने हाथ की तरफ चोट नं०4 से आर पार होता हुआ तथा लगभग इससे 10 से०मी० दूर पेट की गहराई तक पाया गया। पेट के अन्दर कोई चोट नहीं पायी गयी।
(vi) कटा हुआ घाव 3 x 1.5 से०मी० चोट नं०5 से 12 से०मी० नीचे माँस पेशी की गहराई तक पाया गया।
9. In internal examination, both lungs were found lacerated and the cause of death has been noted to be shock and haemorrhage due to laceration of both lungs.
10. At the time of conducting the panchayat nama, the Investigating Officer had also collected plain earth and blood-stained earth from the place of incident and kept it in a container. Apart from it, hair strands of the accused-appellant Hari Bahadur, held by the deceased Sita Ram in his fist, was also recovered and taken in possession by the Investigating Officer and its fard recovery memo was prepared. The Investigating Officer thereafter recorded the statement of other relevant witnesses and after concluding the investigation, submitted the charge-sheet against the appellant.
11. On the basis of the said charge-sheet, learned Magistrate had taken cognizance of the offence and since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions for trial, which was registered as Sessions Trial No. 1147 of 2003 (State of U.P. Vs. Hari Bahadur). The trial court on 29.07.2023 framed the charges against the appellant under Section 302 IPC, which was read out to the appellant, who abjured the charges, did not plead guilty and claimed to be tried.
12. During the course of trial, the prosecution, in order to bring home the guilt against the appellant, examined as many as two witnesses of fact and two other formal witnesses. Their testimony, in brief, is enumerated herein-below:-
13. PW-1 Shobha Kant, first informant of the case, has stated that in the night of 13/14.05.2003, Sita Ram was murdered at about 11:45 PM, while he was taking his meals in his hutment. The hutment of Sita Ram is situated behind his hut, from where, alarm was being raised by Sita Ram. Hearing the alarm, he reached there and saw Hari Bahadur, present in the court, assaulting Sita Ram on his chest and back by a knife. The source of light was the electric bulbs lit there on the electric poles. While assaulting him, Hari Bahadur was uttering that he had not disclosed the whereabouts of his brother Radhey Shyam, who had enticed away his wife. On making an attempt to rescue him, he was also threatened. On raising alarm, number of persons of the vicinity reached there, consequent to which, Hari Bahadur made his escape good. The report in respect of the incident was lodged by him, which has been proved and exhibited as Exhibit Ka-1.
14. During cross-examination, he has stated that incident had occurred at about 11:45 PM on 13.05.2003 and before he reached near the place of incident, no other person was present there. His hutment is situated at a distance of 30 feet from the hutment of deceased Sita Ram. The incident had taken place outside the hutment of Sita Ram and he had reached the place of incident at about 11:45 PM and the police had also reached in the night itself. He had gone alone to lodge the report at 12:00 in the night and he himself had scribed the report in the Police Station itself and not on the dictation of any police personnel. He returned back after the police had recorded his statement.
15. During cross-examination, he further denied the recovery of knife in his presence. He further stated that Radhey Shyam is not related to him and Sita Ram used to live with his brother Radhey Shyam. He further denied the suggestion that Hari Bahadur used to make their complaints to the police, who used to look out for the miscreants in respect of sale of Ganja and in retaliation to which, he is falsely deposing against the appellant. He further denied the suggestion that he had not witnessed the incident.
16. PW-2 Raja Ram is the panch witness and after conducting the panchayat nama, the dead body of the deceased was despatched for post-mortem.
17. During cross-examination, he has stated that at about 12:00-12:30 AM, Sita Ram was murdered and his hut is situated just adjacent to his hut, which is at a distance of 20 feet. On the alarm being raised, he got up and reached the place of incident within five minutes, however, before he reached there, Shobha Kant (PW-1) had already reached there alongwith 20-25 other persons. He further stated that police reached the place of incident at about 12:00-12:30 AM. He further categorically stated that the accused made his escape good, before he could reach the place of incident. He further stated that he was a panch witness and his signature was obtained on the inquest.
18. PW-3 Dr. A. Mishra had conducted the autopsy on the person of the deceased and proved the autopsy report and contents thereof. The autopsy report has been proved and exhibited as Exhibit Ka-3.
19. During cross-examination, he stated that an autopsy was conducted on the person of the deceased at 4:00 PM on 14.05.2003. He further stated that injury nos. 1, 3 & 4 were sufficient to cause the death and the cause of death is laceration of the lungs. He further stated that on account of long illness or on account of taking excessive liqour, such injuries could not be caused. All the injuries could be caused by sharp edged weapon and the said injuries could not be caused by fall over a sharp edged weapon.
20. PW-4 S.I. Mahesh Singh Tomar is the Investigating Officer of the case, who was entrusted the investigation on 14.05.2003. He stated that he had recorded the statement of the first informant and that of the accused, who had been arrested by the police and brought at the police station. He prepared the site plan, which has been proved and exhibited as Exhibit Ka-4.
21. He further stated that he had recorded the statement of S.I. R.V. Kaul, who had arrested the accused Hari Bahadur, while he was trying to make his escape good towards Shukra Bazaar after killing Sita Ram and the crime weapon (knife) was taken in his possession from the hands of the accused-appellant Hari Bahadur, who prepared the respective recovery memos. After recording the statement of several witnesses and collecting the material evidence, he concluded the investigation and submitted the charge-sheet against the appellant.
22. During cross-examination, he stated that the place of incident is near the police outpost Kaushambi and at the relevant time of incident, Shri R.V. Kaul was on patrolling duty, who reached the place of incident and arrested the accused alongwith crime weapon (knife). The inquest proceedings was also conducted by the said S.I. R.V. Kaul and the knife, bloodstained pant, hair strands from the fist of the deceased, plain earth and bloodstained earth were taken in possession by him, who prepared their respective recovery memos.
23. He further stated that fard recovery memo in respect of recovery of knife and hair strands is not before the court, as such, he can not state anything about the said recoveries. He further denied the suggestion that on the instigation of the first informant, he investigated the said case and falsely implicated the accused-appellant.
24. Thereafter, statement of the accused under Section 313 CrPC has been recorded and all the incriminating circumstances were put to him, which were denied by him and he pleaded that on account of enmity, he has falsely implicated, however, in his defence, no evidence has been led nor any evidence relating to enmity with the witnesses has been proved by the appellant.
25. The trial court, after appreciating the entire material and evidence available on record, has held that the prosecution has proved its case beyond all reasonable doubts against the appellant by relying upon the testimony of PW-1 as also corroborated by PW-2 regarding presence of PW-1 at the place of incident and the medical reports of the deceased, however, the factum of recovery of various articles has not been found proved by the trial court. The trial court, on the basis of unimpeachable testimony of PW-1 and post-mortem report of the deceased, has held that the appellant is guilty of the offence committed and convicted and sentenced him. The medical evidence also lends credence to the prosecution case against the appellant. The datas mentioned in the post-mortem report points out conclusively to the culpability of the appellant for the commission of offence.
26. Being aggrieved and dissatisfied by the said judgment and order, the present criminal appeal has been filed.
27. Learned counsel for the appellant has vehemently submitted that trial court has committed a serious error in recording the finding that the appellant is guilty of murder. He has further submitted that trial court committed a serious error in believing the two so called eye-witnesses as reliable witnesses. He has further submitted that both the eye-witnesses PW-1 and PW-2 are unreliable witnesses, however, trial court by placing implicit reliance upon their testimony, has illegally recorded the finding of conviction and sentence against the appellant.
28. Learned counsel for the appellant has further submitted that PW-2 in his testimony has clearly stated that when he reached the place of incident, accused person had already made his escape good and as such, he had not witnessed any part of the actual incident of assaulting the victim by the appellant and therefore, his testimony do not lend any credence to the prosecution story and as such, the finding of conviction recorded against the appellant is bad in law and is liable to be set aside.
29. Learned counsel for the appellant has next submitted that veracity of entire prosecution story, rests only on the sole testimony of PW-1, which has not been corroborated by any other link evidence and as such, the finding of the guilt recorded against the appellant based on the sole testimony of PW-1 is bad in law and is liable to be set aside.
30. Learned counsel for the appellant has further submitted that only on the basis of sole testimony of a witness, the finding of guilt can not be recorded against an accused person.
31. Learned counsel for the appellant has next submitted that admittedly, the incident has taken place in the dark hours of the night at 12:00 O’Clock as evident from the testimonies of witnesses and no source of light was available in the hutment, in absence of which, identification of the appellant to be the assailant, is nothing but based on imagination of the prosecution witnesses and as such, their testimony is liable to be discarded.
32. Learned counsel for the appellant has next submitted that recovery of blood-stained clothes, knife and hair strands recovered from the fist of the deceased has not been sent for forensic examination, in absence of which, no reliance can be placed on the said link evidence and the appellant is liable to be acquitted by setting aside the impugned judgment and order of conviction and sentence.
33. Per contra, learned AGA has submitted that PW-1 Shobha Kant Poddar is an eye-witness of the incident, who is living in the vicinity, where the incident is said to have taken place and he has been attracted on the alarm raised by the victim and when he reached the place of incident, he had seen the appellant Hari Bahadur assaulting the victim Sita Ram by a knife on his chest and the back. He has further categorically stated in his statement that adequate light of electric bulb fixed on the electric poles was available there, in which, he had witnessed the incident and identified the accused Hari Bahadur assaulting the victim, thereby causing his death.
34. Learned AGA has further submitted that during the course of trial, PW-1 in his testimony has clearly narrated the entire incident of assaulting the victim by the appellant causing his death and his testimony is of unimpeachable character and the defence has not been able to point out any inconsistency, improvement or embellishment in his testimony. Even during the cross-examination, nothing has been elicited to doubt the credibility of the said witness. PW-1 has corroborated the prosecution story in all material particulars and therefore, his testimony falls in the category of “wholly reliable witnesses,” as such the trial court by placing implicit reliance upon his testimony, has rightly recorded the finding of conviction and guilt against the appellant, which is just, proper and legal and do not call for any interference.
35. Learned AGA has further submitted that even PW-2 in his cross-examination has clearly proved the factum of presence of PW-1 at the time and place of incident, which further lends credibility to the prosecution story.
36. Learned AGA has further submitted that post-mortem report completely corroborates the prosecution story and the defence has not been able to point out any contradiction or improvement in the said post-mortem report, viz-a-viz to the prosecution story, which further lends credibility to the prosecution story.
37. Learned AGA has further submitted that from the site plan as well as statement of PW-1, it is evident that adequate source of light was available at the place of incident in the form of electric bulbs fixed on the electric poles, outside the hutment in the slum area, which has been clearly marked by the Investigating Officer while preparing the site plan. Even PW-1 has clearly stated that he had identified the appellant in the bulb light, which was lit there. The Investigating Officer in the site plan has pointed out that at point B-1, B-2 and B-3, electric poles were fixed having electric bulbs, which were lighted and there was adequate source of light, in which, PW-1 had witnessed the incident and identified the appellant to have assaulted the deceased causing his death. Even PW-1 has clearly pointed out that source of light at the place of incident in the form of electric bulb lit on the electric poles. To quote: “बिजली की रोशनी खम्भे से आ रही थी।" Thus, there was adequate source of light at the place of incident, in which, the assailant has been distinctly identified by the first informant.
38. Learned AGA has further submitted that appellant is living in the same vicinity, where the first informant-PW-1 used to reside and therefore, he was well acquainted with the appellant and there can not be any doubt about his identity.
39. Learned AGA has further submitted that it is well settled principle of law that on the sole testimony of a witness if unimpeachable, the accused can well be convicted. He has further submitted that even the medical report completely corroborates the prosecution story and therefore, the trial court by placing the implicit reliance of testimony of PW-1, corroborated by the statement of PW-2 and the medical report, has rightly convicted the appellant for the offence charged with and there is absolutely no illegality in recording the finding of conviction and sentence against the appellant and as such, the instant criminal appeal has no merit and is liable to be dismissed.
40. Having considered the rival submissions made by learned counsel for the parties and the evidence adduced during the course of trial, we would now scrutinize the material available on record, on the basis of which, finding of conviction has been recorded against the appellant. It appears from the evidence available on record, more particularly, the evidence of PW-1 Shobha Kant Poddar that both the deceased and the appellant herein were known to him. PW-1 Shobha Kant Poddar knew both as they used to reside in the same locality and very well acquainted with each other. PW-1 in his statement has clearly stated that while he was taking his meals, he heard the alarm raised by the deceased Sita Ram, on which, he was attracted and reached the place of incident and saw the appellant assaulting the deceased with knife, which resulted in his death. In his testimony, he has categorically stated that the incident was well witnessed by him in the electric bulb light, lit at the place of incident, particularly places B-1, B-2 and B-3 as pointed out by the Investigating Officer in the site plan. PW-1 in his testimony has categorically corroborated the entire prosecution story as witnessed by him, on the basis of which, he had gone to the Police Station and lodged the first information report.
41. Moreover, we do not find anything improbable in examination-in-chief of PW-1 Sobha Kant Poddar, even during cross-examination, the defence has not been able to point out any inconsistency, improvement or embellishment in his statement. Thus, nothing could be elicited by the defence to doubt the credibility of the said witness.
42. In the backdrop of scrutinizing the testimony of said witness, we find that the testimony of PW-1 falls in the category of “wholly reliable witness” as held by the Hon’ble Apex Court in the case reported in AIR 1957 (SC) 614 Vadivelu Thevar Vs State of Madras.
43. It is further germane to point out here that though PW-2 in his testimony has stated that he has not been an eye-witness of the incident of actual assault by the appellant but in his statement, he has categorically stated about the presence of the first informant Shobha Kant Poddar (PW-1) at the time and place of incident, which further lends credibility to the prosecution story.
44. The Hon’ble Apex Court in a recent decision passed in Criminal Appeal No. 739 of 2017 (Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra) has laid down broad principles for appreciation of an ocular evidence, wherein it has been stated that:-
“27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
(I). While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the 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.
(II). If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(III). When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(IV). Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(V). Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(VI). 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.
(VII). 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.
(VIII). 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.
(IX). 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 a human tape recorder.
(X). 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.
(XI). Ordinarily a witness cannot be expected to recall accurately the sequence 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.
(XII). A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination 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 subconscious 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.
(XIII). A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012].
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”
45. Thus, testing the credibility of the statement of two prosecution witnesses PW-1 and PW-2 on the aforesaid principle, we find that there is nothing palpable or glaring in the evidence of two eye-witnesses, on the basis of which, we can take the view that they are not true or reliable eye-witnesses.
46. Analysing the testimony of PW-1 on its face value, we are of the view that the defence has not been able to point out any inconsistency, improvement or embellishment in his testimony and he falls in the category of “wholly reliable witnesses” as held by the Hon’ble Apex Court in several of its decision.
47. Now, coming to the plea raised by learned counsel for the appellant that PW-2 is not an eye-witness of the incident of actual assault by the appellant as he in his statement has categorically stated that he reached the place of incident, when the accused had already made his escape good, therefore, he is not an eye-witness of the incident of assaulting the victim, causing his death and therefore, PW-1 is the sole eye-witness of the incident and only on the basis of his sole testimony, conviction can not be based as held by the trial court.
48. In our considered opinion, the said submission made by learned counsel for the appellant can not be accepted in view of settled law laid down by the Hon’ble Apex Court in several of its decisions, wherein it has been held that on the sole testimony of the witness, the accused can be held guilty but the only caveat is that the testimony of the said witness must be of sterling quality. The Hon’ble Apex Court in the case of (2012) 8 SCC 21 Rai Sandeep @ Deepu Vs. State (NCT of Delhi) has very vividly described the characteristics of the sterling witness.
“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
49. On the anvil of the above principles, when we test the version of PW-1, we find that his testimony is of sterling quality and the defence has not been able to point out any inconsistency, improvement or embellishment, which makes the said witness to be wholly reliable witness and we find that there is a ring of truth in his testimony, therefore, the said argument of learned counsel for the appellant that on the basis of the sole testimony of the witness, the accused-appellant can not be convicted, is beyond comprehension and is liable to be rejected.
50. It is further germane to point out here that at the time of incident, adequate source of light has been pointed out by the Investigating Officer at the place of incident, in which, witnesses are said to have seen the incident and adduced their testimony, which further lends credibility to the prosecution story.
51. It is further germane to point out here that even PW-2, who is not an eye-witness of the incident, has also reached the place of incident on being attracted by the alarm raised by the deceased and he has categorically stated that when he reached the place of incident, he saw PW-1, to be present there, which further lends credibility to the testimony of PW-1. Furthermore, the datas mentioned in the post-mortem clearly supports the prosecution story and further lends credence to it.
52. Learned counsel for the appellant has also submitted that prosecution has failed to cogently and convincingly establish the recoveries of knife, blood-stained clothes and the factum of hair strands, said to be recovered from the fist of the deceased at the time of incident and as such, the prosecution has miserably failed to prove the case against the appellant beyond all reasonable doubt and he is entitled for benefit of doubt by setting aside the impugned judgment and order convincing and sentencing the appellant.
53. Now, considering the said submission of learned counsel for the appellant on its face value, it is well settled principle of law that even where the prosecution fails to prove the factum of recoveries made against the appellant as a link evidence, the conviction can be recorded against the appellant and failure to prove the factum of recoveries against the appellant can not be the sole ground to acquit the accused, where testimony of the witnesses is otherwise found to be reliable and trustworthy as in the instant case.
54. Thus, from the entire analysis and discussions made above, it is evident that prosecution by relying upon the testimony of PW-1 and PW-2 and the medical evidence, has proved its case beyond all reasonable doubt against the appellant and has rightly held the appellant guilty for the offence, for which, he has been charged with and we are of the opinion that there appears to be no infirmity or illegality in its judgment, hence, the conviction of the appellant by the trial court under Section 302 IPC is just, proper and legal and is hereby upheld.
55. Now, coming to the sentence of life imprisonment been awarded to the appellant is concerned, learned counsel for the appellant has submitted that at the time of commission of the offence, the appellant was only 28 years of age, moreover, he has no criminal antecedents and poses no threat to the society.
56. Lastly, learned counsel for the appellant has pointed out that the appellant as on date has undergone approximately 20 years of sentence, however, since he is a resident of Nepal, therefore, his case is not being considered for “remission” and therefore, he be awarded “fixed term sentence” as held by the Hon’ble Apex Court in a recent decision passed in Criminal Appeal No. 942 of 2023 (Shiva Kumar @ Shiva @ Shivamurthy Vs. State of Karnataka), wherein it has been held that:-
“7. Under Chapter III of the IPC, different punishments have been provided. Section 53 provides for five categories of punishments: the death penalty, imprisonment for life, imprisonment (either rigorous or simple), forfeiture of property and fine. It is also a settled position that when an offender is sentenced to undergo imprisonment for life, the incarceration can continue till the end of the life of the accused. However, it is subject to a grant of remission under the provisions of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) and the Constitutional powers vested in the Hon’ble Governor and the Hon’ble President of India, as the case may be. While imposing a life sentence, if it is directed that the accused shall not be released for a specific period, it becomes a modified punishment.”
57. Further, in the said case (Union of India Vs. V. Sriharan, (2014) 11 SCC 1), it has been held that a modified sentence only be imposed by the Constitution Bench and not by the sessions court.
9. In the case of Union of India Vs. V. Sriharan, (2014) 11 SCC 1, the Constitution Bench was dealing with the question, which is quoted in paragraph 50, which reads thus:
“50. Having thus noted the relevant provisions in the Constitution, the Penal Code, the Criminal Procedure Code and the DSPE Act, we wish to deal with the questions referred for our consideration in seriatim. The first question framed for the consideration of the Constitution Bench reads as under: Union of India Vs. V. Sriharan, (2014) 11 SCC 1 : (2014) 3 SCC (Cri) 1] , SCC p. 19, para 52)
“52.1. Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda Vs. State of Karnataka, (2008) 13 SCC 767: (2009) 3 SCC (Cri) 113, a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?”
10. While answering the question, the Constitution Bench (majority view) held that imprisonment for life in terms of Section 53 read with Section 45 of the IPC means imprisonment for the rest of the life of the convict. In such a case, right to claim remission, commutation etc. in accordance with law will always be available. Thereafter, in paragraph 105, the Constitution Bench held thus:
“105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.” (emphasis added)
11. What is held by the Constitution Bench, cannot be construed in a narrow perspective. The Constitution Bench has held that there is a power which can be derived from the IPC to impose a fixed term sentence or modified punishment which can only be exercised by the High Court or in the event of any further appeal, by the Supreme Court and not by any other Court in this country. In addition, the Constitution Bench held that power to impose a modified punishment of providing any specific term of incarceration or till the end of convict’s life as an alternative to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.
12. In a given case, while passing an order of conviction for an offence which is punishable with death penalty, the Trial Court may come to a conclusion that the case is not a ‘rarest of the rare’ case. In such a situation, depending upon the punishment prescribed for the offence committed, the Trial Court can impose other punishment specifically provided in Section 53 of the IPC. However, when a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the benefit of statutory remission, etc. is not available to the accused. The majority view in the case of V. Sriharan cannot be construed to mean that such a power cannot be exercised by the Constitutional Courts unless the question is of commuting the death sentence. This conclusion is well supported by what the Constitution Bench held in paragraph 104 of its decision, which reads thus:
“104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High Court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.” (emphasis added)
13. Hence, we have no manner of doubt that even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed-term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. The fixed punishment cannot be for a period less than 14 years in view of the mandate of Section 433A of Cr.P.C.”
16. This is one case where a Constitutional Court must exercise the power of imposing a special category of modified punishment. The High Court expressed the view that the punishment imposed by the Trial Court was justified after considering the balance sheet of aggravating and mitigating circumstances. It is the duty of the Court to consider all attending circumstances. The Court, while considering the possibility of reformation of the accused, must note that showing undue leniency in such a brutal case will adversely affect the public confidence in the efficacy of the legal system. The Court must consider the rights of the victim as well. After having considered these circumstances, we are of the opinion that this is a case where a fixed-term sentence for a period of thirty years must be imposed.
58. Accordingly, in the instant case, we modify the order of sentence passed by the trial court for the offence punishable under Section 302 IPC. The appellant is already in jail having undergone about 20 years of actual imprisonment, as such, we direct that the appellant shall be released only after he completes 22 years of actual sentence. The instant criminal appeal is partly allowed to the above extent.
59. Let a copy of this judgment and order be forwarded to the court concerned along with trial court record for information and necessary compliance.
