High Court · 2025 on 25 Feb 2025

Judgment

1. Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri M.R. Khan, learned counsel for appellant; Sri Prem Shankar Prasad, learned AGA for State-respondent; Sri Neeraj Singh, learned counsel for informant and perused the material on record.

2. The above noted criminal appeal has been preferred against the judgment and order of conviction and sentence dated 16.11.2013 passed by Additional Sessions Judge, Court No. 7, District- Deoria in Sessions Trial No. 65 of 2010 (State vs. Satish Singh and another), arising out of Case Crime No. 698 of 2009, under Sections- 364, 302/34, 504, 201 IPC and Section 25 of Arms Act, Police Station- Salempur, District- Deoria, whereby the appellant has been convicted and sentenced for committing offences under Section 364 IPC for a period of 10 years rigorous imprisonment and fine of Rs. 25,000/- and in default of payment of fine to undergo 5 months further imprisonment; under Section 302/34 IPC for life imprisonment and fine of Rs. 50,000/- and in default of payment of fine to 2 undergo 10 months additional imprisonment; and under Section 201 IPC for 7 years rigorous imprisonment along with fine of Rs. 10,000/- and in default of payment of fine to undergo three months additional imprisonment.

3. The prosecution case, as per F.I.R., is that Laxmi Devi wife of Raja Ram gave an application at police station- Kotwali Salempur, District- Deoria alleging that her husband, Raja Ram, is having a kirana (general merchant) shop for last 8 years in the house of Sri Paramhans Singh, village- Bharauli, Ward No. 1, Nagar Panchayat, Salempur, police station- Kotwali, District- Deoria. Appellant, Satish Singh, abducted her husband today (i.e.,12.10.2019) at about 8 p.m when she was present there. She stopped Satish Singh but after abusing her he took her husband on motorcycle. Two other persons accompanied appellant, Satish. They terrorised her and took away the money kept in the shop also along with them. She has apprehension that her husband may be killed. She is giving information in the hope that police will free her husband from custody of the accused.

4. Case Crime No. 698 of 2009, under Section- 364/506 IPC was registered at police station aforesaid. After investigation charge sheet was submitted against appellant, Satish Singh and co-accused, Akhilesh, under Sections- 302, 364, 504, 201/34 IPC and Section 25 of the Arms Act. Trial court framed charges under Sections- 364, 302/34, 504, 201 IPC and Section 25 of the Arms Act against appellant, Satish Singh and charges under Section 364, 302/34, 504, 201 IPC against the co-accused, Akhilesh. The appellant and co-accused denied charges and sought trial.

5. To prove the prosecution case, informant, Laxmi Devi, was examined as P.W.-1; Km. Soni as P.W.-2; Sumeshwar Singh as P.W.-3; Janardhan Prajapati as P.W.-4; Shiv Pratap Singh as P.W.-5; Sub-Inspector, 3 Uma Singh Mishra as P.W.-6; Inspector, Sundhwa Singh Tomar as P.W.-7; Constable, Tufani Gautam as P.W.-8; Doctor, Ashok Kumar Verma as P.W.-9; Sub-Inspector, Jai Narayan Singh as P.W.-10; Constable, Ishwar Prasad Tiwari as P.W.-11 and Constable, Pramod Kumar as P.W.-12.

6. The statements of accused were recorded under Section 313 Cr.P.C., wherein they denied the allegation and alleged false implication.

7. P.W.-1 in her examination-in-chief repeated the contents of the F.I.R and further stated that along with her husband, P.W.-1 and her daughter, Soni, used to live. Appellant, Satish Singh and his family members used to purchase goods from the shop of her husband on credit. Her husband was having shop for last about 8 years and she recognizes these persons. On the day of incident her husband after closing the shop was preparing to go to his house. All of us used to live in the house of Yadavji on rent near the shop of her husband. When her husband was closing the shop she along with her daughter was also present there. Three persons came on motorcycle and out of them she recognize appellant, Satish Singh, present in court. She does not recognizes the other two persons. Three persons came on motorcycle and after threatening her husband forcibly took him on motorcycle. After he was abducted by the accused persons, she went to her house crying and got the application written by Rinku Singh son of Paramhans Singh on the basis of which F.I.R was lodged. Her husband was murdered. On the next day full pant of her husband was found 10 steps away and his shirt, mobile phone and money was also found. Rs. 1,700/- were found in the upper pocket of his shirt. Satish Singh was annoyed with her husband because he was demanding money of the goods sold to the appellant from his mother at the time of holi. Appellant, Satish Singh, got annoyed and because of his annoyance, he along with two other accused came at the shop of her husband and after abducting her husband caused his murder. She produced the pant, shirt and mobile phone of her 4 husband before the court, which was handed over to her after recovery by police.

8. P.W.-2, daughter of the deceased, proved that the incident took place as alleged by P.W.-1. She further stated that at the time of incident three persons including the appellant, Satish Singh and co-accused, Akhilesh, present in court and another person had come to the shop of her father. Satish Singh said to her father that how he dare to came to his house demanding money. They took her father on a motorcycle towards the East. Satish Singh had pointed pistol on her father and forcibly took him on motorcycle. Her statement was recorded by the Inspector. Her mother and Sumeshwar Singh, P.W.-3 and another person also saw the incident but because of fear they did not tell anything.

9. P.W.-3, Sumeshwar Singh, stated that he knows appellant, Satish Singh and co-accused, Akhilesh. Satish belongs to his village while Akhilesh resides in village- Gopalpur and keeps coming to his village. His shop was situated on Bharauli main road. On 12.10.2009 appellant, Satish Singh, Akhilesh and another person, whose name he does not know, came and were talking to Raja Ram. Thereafter, they made him sit on motorcycle after pointing weapon. Wife of Raja Ram and his daughter, Soni, were present at that time. He did not object because the accused had weapon. His statement was recorded by the Inspector.

10. P.W.-4, proved that the deceased was having a shop in Bharauli but he did not see him being abducted on motorcycle by appellant, Satish. He refused to recognize co-accused, Akhilesh, before the trial court. He expressed ignorance as to how Raja Ram died and stated that his wife never informed him about his murder. He does not know who caused his murder. P.W.-4 was declared hostile. 5

11. P.W.-5, stated before the court that on 12.10.2009 at about 09:30 a.m., P.W.-1 came to him and asked him to write an application regarding abduction of her husband, which he wrote as she stated.

12. P.W.-6, stated that the country made pistol of 32 bore was recovered by him on the pointing out of appellant, Satish Singh, from the house of co-accused, Akhilesh. He proved the memo of recovery before the court.

13. P.W.-7, proved that he investigated this case and proved the papers prepared during investigation.

14. P.W.-8, Constable, proved his signatures on memo of recovery and was only a formal witness.

15. P.W.-9, proved autopsy report of the deceased. He proved that he found a circular lacerated wound, charred margins about ½ inch in diameter over occipital region of skull. He found the second wound which was lacerated three inches into two inches over right temporal region of skull. Doctor further found a circular hole on the occipital base of skull, extensive laceration of occipital and a right temporal lobes of brain, presence of haematoma and blood clots. Cause of death was found to be

extensive brain injury and bleeding caused by fire arm injury.

16. P.W.-10, proved the inquest report of the dead body of the deceased.

17. P.W.-11, proved the chik F.I.R lodged by him and its entry in the general diary.

18. P.W.-12, was another formal witness who proved that he brought appellant, Satish Singh, on remand to the police station- Salempur. 6

19. Learned Senior Counsel for the appellant has submitted that it is a case of false implication of appellant, Satish Singh. He has submitted that there was enmity of landlord of deceased, Paramhans Singh with appellant, Satish Singh and for this reason son of Paramhans Singh, P.W.-3 wrote an application on the basis of which F.I.R was lodged against the appellant, Satish Singh. The murder of deceased was caused by some unknown person and thereafter P.W.-3 falsely implicated the appellant, Satish Singh, due to enmity of his father with the appellant. He has further submitted that P.W.-3, Sumeshwar Singh, was not named in the F.I.R. and he is not a reliable witness. He has further submitted that P.W.-1 and P.W.- 2 are not the eye-witnesses of the incident and they are highly interested witnesses and their statements are contradictory. He has further pointed out that Paramhans Singh father of Sumeshwar Singh, was also inimical against Satish Singh as he has admitted in his cross-examination that he along with his two brothers and father were accused in a case lodged under Section 307 IPC by father of Satish, Shyam Bihari, resident of his village. He has further pointed out that one month ago, P.W.-3 his brother and father were convicted under Section 307 IPC. He further testified the involvement of co-accused, Akhilesh, in the present case.

20. P.W.-4, denied seeing the incident and also denied recording of his statement by investigating officer under Section 161 Cr.P.C wherein he stated that on 12.10.2009 the deceased was taken on motorcycle by appellant, Satish Singh and accused, Akhilesh, was sitting behind him. He denied seeing any incident and was declared hostile. P.W.-3, proved that he wrote the application given at police station on the basis of information given by P.W.-1, regarding abduction of her husband. In cross- examination, he stated P.W.-1 is illiterate but he wrote the application as dictated by her. He has further stated that no criminal case is pending between his family members and family members of appellant, Satish 7 Singh. Earlier his three brothers were convicted in case under Section 307 IPC regarding case of attempt to murder of brother of Satish Singh, namely, Dilip Singh. He denied that because of this enmity he had lodged the F.I.R against Satish Singh through Laxmi Devi. The police had recorded his statement in this regard. He has submitted that the motive of crime alleged by the prosecution is not credible because of demand of amount of goods taken from the shop of deceased, such pretty incident could not have resulted in murder of deceased. He has submitted that P.W.- 1 is an illiterate lady and has lodged the F.I.R on the advice of P.W.-3. Trial court has acquitted co-accused, Akhilesh, who was similarly implicated.

21. Learned Senior Counsel for the appellant has laid much stress upon the fact that P.W.-1 and P.W.-2 are the wife and daughter of deceased and they were neither present on the scene of incident nor are eye-witnesses of the incident. They are highly interested witnesses being closely related to the deceased. Their statements do not inspire confidence. They have implicated the appellant only on the direction of P.W.-3. Father of respondent no. 3, having enmity with the appellant and hence P.W.-3 had deposed against the appellant before the trial court. P.W.-1 was an illiterate lady and had not seen the incident of murder of her husband. She had only seen his abduction by the appellant and three unknown accused. P.W.-1 did not name the co-accused, Akhilesh, in her statement and he was named only by P.W.-2. There are discrepancies in the statements of aforesaid witnesses which makes the prosecution case doubtful.

22. The judgment of the trial court is not in accordance with law and deserves to be set aside.

23. Learned counsel for the informant has made the following submissions :- 8 (i) The appellant, Satish Singh, is named accused in the first information report of the present case. (ii) The body of the deceased has been recovered on very next morning i.e., 13.10.2009 and panchayatnama of the body of the deceased has been conducted on 13.10. 2009 at 9:00 a .m (iii) The cloths of the deceased has been recovered on 13.10.2009 from about 800 meters away from the place of incident and at the time of the recovery of the body of the deceased he was wearing only vest and underwear. (iv) P.W.1 (wife of the deceased), who is the first informant of the present case, and P.W.2 (daughter of the deceased) were steadfast in matter of identification of accused/appellant, Satish Singh, not only at the time of the incident but also thereafter in court. Enmity between the scribe of first information report and accused/appellant has no adverse bearing on prosecution case. (v) The post mortem of the body of the deceased has been conducted on

13.10.2009 and according to the post mortem report the deceased died within 24 hour. That the cause of death of the deceased was bullet injury and no other injury has been found on the body of the deceased. (vi) On 24.10. 2009 the second Investigating Officer, (P.W.-7) first time came to know that accused/appellant has surrendered before the Court in the present case and thereafter he moved an application before the court for taking him into police custody. Thereafter on 02.11. 2009 a U.S.A. made 32 bore pistol was recovered from the pointing out of the accused/appellant, Satish Singh. 9 (vii) The motorcycle, which was used for abduction of deceased, was also recovered from the house of the accused/ appellant, Satish Singh. (viii) The accused/appellant and other co-accused persons were aged about 18 to 19 years at the time of incident and it is quite possible that deceased was abducted by three accused persons by using one motorcycle in the present case. (ix) According to the first information report as well as statement of P.W.1 (wife of the deceased) and P.W.2 (daughter of the deceased) the deceased was taken away by the accused/ appellant and two other used persons on

12.10.2009 at 8:00 p.m. from his shop and in the morning of next day i.e.,

13.10.2009 his body was recovered therefore as per Sections 106 and 114 of the Indian Evidence Act, the presumption of guilt can be drawn against the accused/appellant in the present case. (x) There was no motive for the first informant to falsely implicate the accused/appellant in the present case. (xi) After attending the trial court proceedings of the present case, some unknown person made fire upon a police personnel, who sustained serious injuries and the appellant, Satish Singh, managed to escape from police custody. In respect of the said incident which took place on 17.03.2012, first information report was lodged by the Constable, Sukhraj Singh, as Case Crime No. 66 of 2012, under Sections- 222, 223, 224, 225, 307 IPC, P.S.- G.R.P. Bhatni, District- Deoria. The accused-appellant, Satish Singh, absconded for a long time from court proceeding and was arrested by the police on 22.08.2012. During absconding period appellant, Satish Singh, committed three criminal case which relate to the dacoity, loot and attempt to murder. 10 (xii) The accused/appellant, Satish Singh, is a hardened criminal and he is involved in 22 (twenty two) criminal cases including cases relating to the murder, attempt to murder, kidnapping, dacoity, loot, etc., between the year 2004-2012. Accused/appellant, Satish Singh, is involved in following 22 criminal cases :- (1) Case Crime No. 327 of 2004, under Section- 3/25 of Arms Act, P.S.- Salempur, District- Deoria. (2) Case Crime No. 356 of 2005, under Section 307 IPC, P.S.- Salempur, District- Deoria. (3) Case Crime No. 193 of 2006, under Sections- 364, 302, 201 IPC, P.S.- Salempur, District- Deoria. (4) Case Crime No. 206 of 2006, under Section 307 IPC and 7 Criminal Law Amendment Act, P.S.- Salempur, District- Deoria. (5) Case Crime No. 207 of 2006, under Section 3/25 Arms Act, P.S.- Salempur, District- Deoria. (6) Case Crime No. 208 of 2006, under Section 8/20 of N.D.P.S. Act, P.S.- Salempur, District- Deoria. (7) Case Crime No. Nill of 2006, under Section- 411 IPC, P.S.- Salempur, District- Deoria. (8) Case Crime No. 4 of 2008, under Section- 110 Cr.P.C., P.S.- Salempur, District- Deoria. 11 (9) Case Crime No. 567 of 2008, under Sections- 386, 397, 504, 506 IPC, P.S.- Salempur, District- Deoria. (10) Case Crime No. 735 of 2008, under Gangsters Act, P.S.- Salempur, District- Deoria. (11) Case Crime No. 161 of 2008, under Section 3(1) of Gunda Act, P.S.- Salempur, District- Deoria. (12) Case Crime No. 168 of 2009, under Sections- 504, 506 IPC, P.S.- Salempur, District- Deoria. (13) Case Crime No. 686 of 2009, under Section- 110 Cr.P.C., IPC, P.S.- Salempur, District- Deoria. (14) Case Crime No. 689 of 2009, under Section- ¾ of Gunda Act, P.S.- Salempur, District- Deoria. (15) Case Crime No. 698 of 2009, under Sections- 364, 302, 201, 504 IPC, P.S.- Salempur, District- Deoria. (present case). (16) Case Crime No. 942 of 2009, under Sections- 384, 352, 504, 506 IPC, P.S.- Salempur, District- Deoria. (17) Case Crime No. 1 of 2010, under Section- 2(3) of Gangsters Act, P.S.- Salempur, District- Deoria. (18) Case Crime No. 97 of 2010, under Section 3/25 of Arms Act, P.S.- Salempur, District- Deoria. 12 (19) Case Crime No. 66 of 2012, under Sections- 222, 223, 224, 307 IPC and 7 Criminal Law Amendment Act, P.S.- G.R.P. Bhatni, District- Deoria. (20) Case Crime No. 216 of 2012, under Section 392 IPC, P.S.- Salempur, District- Deoria. (21) Case Crime No. 113 of 2012, under Sections- 394, 411 IPC, P.S.- Pateherwa, District- Kushinagar. (22) Case Crime No. 131 of 2012, under Sections- 341, 323, 307, 353, 120-B IPC and Section 25/26/27/35 of Arms Act and under Section 22C/23 of N.D.P.S. Act, P.S.- Lauriya, District- Betiya (Bihar).

24. Trial court has rightly convicted and sentenced the accused/appellant, Satish Singh, for the offence under Sections- 364, 302/34, 201 IPC in the present case vide its judgment and order dated

16.11.2013 passed in S.T. No. 65 of 2010 (State vs. Satish Singh and another) arising out of Case Crime No. 698 of 2009, under Sections- 364, 302/34, 201 IPC, P.S.- Salempur, District- Deoria.

25. Counsel for the first informant has also relied upon the judgment dated 19.04.2016 passed by Hon’ble Supreme Court of India in Criminal Appeal No. 365 of 2013 (Chaman and another vs. State of Uttarakhand) reported in (2016) 12 Supreme Court Cases 76.

26. Learned A.G.A has supported the arguments advanced by the learned counsel for the informant and has submitted that the prosecution has proved its case against the appellant, Satish Singh, beyond all reasonable doubt and, therefore, the appeal preferred by the appellant 13 deserves to be dismissed. He testified to the long criminal history of the appellant as submitted by learned counsel for the informant.

27. After considering the rival submissions, we find that the main thrust of argument of the Senior Counsel for the appellant is that because of enmity between appellant, Satish Singh and the land-lord of shop of deceased, P.W.-3, son of land lord of shop of deceased, has falsely implicated the appellant. It is notable that there is eye-witness account of wife and daughter of deceased (P.W.-1 and P.W.-2) regarding motive and manner of the incident. There is nothing in their statements to point any contradiction which may render their statements untrustworthy. Only because they did not raised alarm at the time of incident cannot have any adverse bearing on the prosecution case. At the relevant time, the husband of P.W.-1 and father of P.W.-2, Raja Ram, was only abducted on motorcycle by the accused and not murdered before them. P.W.-1 immediately got the application written by P.W.-3 and F.I.R was lodged within three hours of the incident. F.I.R is named one and appellant, Satish Singh, was implicated in the F.I.R by name. There is nothing in the suggestions made to P.W.-1 and P.W.-2 that there was enmity of the deceased with some other person and he may have caused his murder. Deceased was tenant in the shop of father of P.W.-3. If he helped destitute woman (P.W.-1) after abduction and subsequent murder of her husband, it cannot be said that he did it solely to take revenge from appellant, Satish Singh, because father of Satish got them implicated in the case under Section 307 IPC.

28. Regarding the motive of crime set up by prosecution that the deceased was demanding money of goods given on credit to appellant, Satish Singh, from his mother which annoyed him and he abducted and murdered the deceased for this purpose cannot be disbelieved, keeping in view the fact that the appellant had long criminal history and such a person 14 can get infuriated even on small provocation. The appellant clearly had enmity with the family of P.W.-3 and this may have been one of the reason of annoyance with the deceased, who was tenant of their father.

29. The arguments of learned Senior Counsel for the appellant that P.W.-3 was not named in the F.I.R and, therefore, his statement is not reliable will not have much bearing on the prosecution case since P.W.-1 and P.W.-2 have proved the prosecution case by their eye-witness account beyond all reasonable doubt. Even if the recovery of arms allegedly made on the pointing out of the appellant is discounted even then it cannot be said that the prosecution case is false. It is settled law that recovery of arms is not an essential condition for convicting an accused.

30. Contention regarding interestedness of the witnesses for furthering prosecution version made by Senior Counsel for the appellant needs consideration. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

31. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with 15 the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

32. The above decision has since been followed by Apex Court in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

33. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by the Apex Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

34. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) Apex Court observed: 16 "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

35. It is certainly true that in criminal case the burden of proof is on the prosecution. Proof beyond reasonable doubt, as has been held in a plethora of decisions of courts, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed in Inder Singh vs. State (Delhi Admn.), (1978) 4 SCC 161. A caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this court in Gurbachan Singh vs. Satpal Singh, (1990) 1 SCC 445. It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated.

36. Judged by the above touchstone of reasonableness of doubt in evaluating that facts and circumstances of the present case, we are clear in out mind that the complicity of the appellant in the offences with which he has been charged, has been convincingly proved as required in law.

37. Apex court in the case of State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 382, in a somewhat similar fact situation, where the 17 deceased was abducted by the accused persons and thereafter his mangled body was found, held that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as if it admits of no process of intelligent reasoning. It was enunciated that the doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule qua the purport of presumption of fact as a rule in the law of evidence. It was observed thus: "33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the curt exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case."

38. Adverting to the facts, the Court in Mir Mohammad Omar (Supra) ruled that as the prosecution had succeeded in establishing that the deceased had been abducted by the accused, they alone knew what happened to him until he was with them and if he was found murdered in a short time, after the abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused had murdered him. It was held that such inference can be disrupted, if the accused would tell the Court what else had happened to the deceased at least until he was in their custody. Referring to Section 106 of the Evidence Act, it was propounded that the said section was not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but would apply to cases where prosecution had 18 succeeded in proving facts from which a reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to offer any explanation, to drive the court to draw a different inference.

39. The Apex Court in the case of Prithviraj Jayantibhai Vanol vs. Dinesh Dayabhai Vala and Others, (2022) 18 SCC 683, has held that ocular evidence is considered the best evidence unless there are reason to doubt it. It is only in a case where there is gross contradiction between medical evidence and oral evidence and where medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence to be true, the ocular evidence may be disbelieved. In this case there is no such fact situation.

40. Further in the case of Rameshji Amarsing Thakor vs. State of Gujarat, 2023 SCC OnLine SC 1321, the Apex Court has held that discrepancies in the statement of witnesses are different from contradiction in the statement of witnesses and there are bound to be some discrepancies in the statement of different witnesses but it could not be used as the basis of throwing out the prosecution case. The paragraph 8 of the aforesaid judgment of the Apex Court can be usefully referred to :- “8. On the aspect of discrepancies, it has been held by this Court in the case of State of H. P. vs. Lekh Raj and Another., reported in [2000 (1) SCC 247] :- “7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while 19 narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. [1981 Supp SCC 40 : 1981 SCC (Cri) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.

8. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] , Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875] , Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : JT (1988) 1 SC 249] and Rammi v. State of M.P. [(1999) 8 SCC 649 : JT (1999) 7 SC 247] , this Court in a recent case Leela Ram v. State of Haryana [(1999) 9 SCC 525 : JT (1999) 8 SC 274] held: “There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of 20 eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.”

41. Learned counsel for the appellant has relied upon the judgments of the Apex Court in the cases of Naresh Kumar vs. State of Delhi reported in 2014 Supreme (SC) 529 and Nababuddin alias Mallu alias Abhimanyu vs. State of Haryana, 2023 Supreme (SC) 1176, in support of his contentions.

42. Regarding the judgment in the case of Naresh Kumar (Supra) cited on behalf of appellant we find that the case relates to the prejudice caused to the accused because of not putting relevant questions to the accused under Section 313 Cr.P.C. In the present case, there is no such argument advanced that the accused was not afforded opportunity to rebut the prosecution case and explain his case in his statement recorded under Section 313 Cr.P.C. The other judgment in the case of Nababuddin (Supra) is also to the same effect. It has not been submitted by the counsel for the appellant that the prosecution failed to put material circumstances to the accused in statement under Section 313 Cr.P.C which has caused serious prejudice to his rights. The question of motive of commission of crime was put to the appellant in his examination under Section 313 Cr.P.C and in reply thereto he stated that he is having enmity with Paramhans and his sons who were convicted in case lodged from his side. He has not committed any murder nor any recovery has been made from him. 21 Therefore, there is nothing in the statement of appellant which proves that he was not given adequate opportunity to explain his conduct before the trial court.

43. In view of the above consideration, we are of the view that the trial court has not committed any error in convicting and sentencing the appellant.

44. The appellant is already in jail. His conviction and sentence is confirmed. He shall carry out the remaining sentence as awarded by the trial court.

45. The criminal appeal is dismissed.

46. Let this judgement be notified to the trial court and trial court record be returned within two weeks. Order Date :- 25.02.2025 Rohit (Subhash Chandra Sharma,J.) (Siddharth, J.)