JUDGMENT
Amar Saran, J.
1. This criminal appeal has been preferred by the appellant Shiv Kumar against the Judgment and order dated 8.5.2006 passed by the learned Additional Sessions Judge Fast Track Court No. 1, Siddharthnagar convicting the appellant under Section 302 IPC and sentencing him to undergo life imprisonment and a fine of Rs. 5,000/-and in default of payment of fine, the appellant was to undergo six months additional imprisonment.
2. The prosecution case was that in the morning of 21.9.2005 at about 8.30 A.M. the deceased Visheshar had gone along with the appellant Shiv Kumar, who was his grand-son, for the purpose of irrigating his Arhar field in village Kudi of police station Dumriyaganj. After half an hour when the informant Gurucharan, the father of the appellant had gone to spread cow dung (fertilizer) in the field, he saw the appellant had felled down his father and was hacking his neck with a Hansia. On seeing the informant, the appellant ran towards him. The informant ran in the direction of the canal raising an alarm. On seeing the informant’s brother Ram Baran and Ors. working on their fields there the appellant ran away. The witnesses reached the spot where they saw the informant father Visheshar lying dead on the field.
3. The informant Gurucharan then got a report (Ext. Ka. 1) of the incident scribed by Ram Inder and lodged it on 21.9.2005 at 10.45 A.M. at police station Dumariyaganj, which was at a distance of 6 kms. from the place of incident. On the basis of the said report, constable-Muharrir Rameshwar Prasad prepared chik FIR (Ext. Ka. 2) and made entries in G.D. (Ext. Ka. 3). The investigating officer, P.W. 4 SI Girjesh Shahi, SHO, police station Dumriyaganj started the investigation. He proceeded to the place of incident where he conducted inquest on the dead body of the deceased and sent the dead body for post-mortem.
4. P.W. 6, Dr. Mahesh Prasad, who conducted the postmortem on the deceased on 22.9.2006 at 4.00 P.M. at District Hospital Siddharthnagar noted that the deceased was about 75 years in age. A lacerated wound 16 cm x 5 cm x bone deep was present on the upper and anterior part of the neck. The trachea, oesophagus and both carotid arteries were cut down. On internal examination he found the neck lacerated on anterior and upper part. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. The time and date of death was one and a half days prior to the post mortem.
5. P.W. 4, S.I. Girjesh Shahi further recorded the 161 Cr.P.C. statements of the witnesses Gurucharan and Ram Baran and thereafter inspected the spot and prepared the site plan (Ext. Ka 4) on the pointing out of the informant and Ram Baran. He collected plain and blood stained earth from the spot and prepared the recovery memo. He also collected a Lathi and Hawai (sleeper), which were lying near the deceased and thereafter began to search for the appellant. He apprehended the accused-appellant at 4.45 P.M. on the same day. The appellant confessed to his crime and agreed to get the weapon of the crime recovered and the appellant got the same recovered from the rice field of Ram Prasad Chaudhary. Thereafter, after completing the other formalities of the investigation, he submitted the charge sheet against the appellant (Ext. Ka. 12), which was in the handwriting of Head Constable Rameshwar Prasad, which he identified. The charge against the appellant was framed on 31.1.2006 under Section 302 IPC, to which he pleaded not guilty and claimed trial.
6. Two witnesses of fact, P.W. 1, the informant Gurucharan, the father of the deceased and P.W. 2, Ram Baran, the uncle of the deceased and three formal witnesses, P.W. 2, HC Rameshwar Prasad who prepared the chik report, P.W. 4 Girjesh Shahi, the investigating officer and P.W. 6, Dr. Mahesh Prasad, who conducted the post-mortem on the body of the deceased have been produced in this case.
7. The defence of the appellant in his statement under Section 313 Cr.P.C. was of denial. He stated that he has been falsely implicated due to suspicion and enmity. He led no evidence in defence.
8. P.W. 1 Gurucharan has deposed that the appellant was watering his Arhar field along with the deceased Visheshwar and when he arrived at the field to spread cow dung in it, he saw the appellant cutting the neck of the deceased with a Hansia. When he ran to save the deceased, the appellant ran towards him. Then the informant ran towards the canal where his brother Ram Baran was working in his field. When his brother and other villagers scolded the appellant and ran to catch him, then he ran away with the Hansia towards the eastern side of the canal. When this informant, his brother and other villagers reached the Arhar field, they saw Visheshar lying dead. He thereafter proceeded to the police station where he lodged the written report on which he affixed his thumb impression. The appellant was arrested on the date of incident and on his pointing out the weapon of murder was recovered.
9. P.W. 2, Ram Baran, has deposed that on 21.9.2005 at about 9.00 A.M. when he was watering his field near the canal he saw his father, the deceased going towards his Arhar field. After about one and a half hours his brother Gurucharan went to spread cow dung in the field. Soon thereafter he saw his brother Gurucharan come running in his direction crying that the appellant Shiv Kumar was cutting the neck of their father. When he also reached the place of occurrence, he found his father lying dead there. He saw the appellant throwing the Hansia in the paddy field and running away.
10. We have heard Shri Tripathi B.G. Bhai, learned Counsel for the appellant and learned Additional Government Advocate representing the State.
11. It is argued by the learned Counsel for the appellant that no reliance can be placed on the testimony of the informant Gurucharan. There are some highly suspicious features in the case and the investigation was tainted. The informant had admitted that he was also apprehended after the incident by the police, which fact is inconsistent with the informant being an eyewitness of this case. The only other witness, who have been examined in this case is Ram Baran, who also denies being an eyewitness and he has given hearsay evidence on the basis of the disclosure made to him by Gurucharan. No other witness has come forward to support the prosecution case. No reason has been suggested why the appellant has committed this crime. There is conflict in the place where the knife was said to have been recovered and the time of arrest of the appellant as according to the informant-P.W.1 Gurucharan the appellant was arrested soon after the incident and the knife was recovered from him near the canal where he was arrested, whereas according to the investigating officer the knife was recovered at about 4.45 P.M. after his arrest from the paddy field on the pointing out of the’ appellant.
12. On the other hand, it was submitted by the learned Additional Government Advocate that there is absolutely no reason for the informant to have nominated his own son, the appellant, for the murder of his 75 years old father if the appellant had no connection with the crime. The report was lodged very soon after the incident at 10.45 A.M. at police station Dumriyaganj which was 6 kms. from the place of occurrence. Simply because the police also arrested the informant provides no reason for discarding his testimony as the police may have needed to arrest him for the purpose of interrogation. Even though no motive for the crime has been mentioned in the evidence, but absence of mention of any motive for the crime is no reason to discard the eyewitness testimony if there is no other adequate reason to doubt the credibility of the witnesses.
13. In our view also looking to the promptness of the report and the fact that a father had nominated his own son for the murder of his father, i.e. the appellant’s grand-father, such evidence cannot be discarded on the mere allegation of some irregularities in the conduct of the investigation. Also simply because the informant Gurucharan admits to having been picked up by the police after the incident, the same could be merely an incident of the interrogation process. Moreover, it is quite possible that the informant may have been a little reluctant to nominate his own son after his father had been murdered and the police may have thought that picking him up may be necessary to help them reach the truth about the crime.
14. For some faults in the process of investigation it has been held by the Apex Court in a catena of decisions, no ground is provided for discarding the otherwise reasonably credible evidence, especially when witnesses have nominated a very close relation for a crime, although the evidence of the witnesses may have to be examined with circumspection. If to lapses in the investigation process provide a ground for unjustified acquittals, then the confidence of the public may be shaken not only from the law enforcers but also from the very administration of justice. Thus in Dhanaj Singh v. State of Punjab , the Hon’ble Supreme Court has observed as follows in paragraphs 4 to 7:
4. In reply, learned Counsel for the State submitted that faulty investigation cannot be a ground to affect the credibility of the eye-witnesses. It is a fairly settled position in law that when witnesses are branded as partisan or inimical, their evidence has to be analyzed with care and scrutiny. That has been done in the present case and both the trial Court and the High Court have found the evidence to be credible. Even if the investigation was faulty, both the trial Court and the High Court have acted only in the permissible way i.e. to weigh the evidence carefully and come to an independent conclusion. As rightly noted by the High Court, the investigation seems to be slipshod. The highly improbable stand that the complainant and his relatives killed the deceased who was their close relative can hardly be accepted with even a pinch of salt. Though the deceased and the complainant had criminal track records that per se will not affect the evidence of witnesses if it is otherwise credible and cogent. Both the trial Court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to investigate the evidence is that of the police and when the police has given clean chit, that should prima facie be accepted is clearly without substance.
5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would be tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. See Karnel Singh v. State of M.P. .
6. In Paras Yadav and Ors. v. State of Bihar was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
As was observed in Ram Bihari Yadav v. State of Bihar and Ors. if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh and Ors. . As noted in Amar Singh’s case (supra) it would have been certainly better if the fire-arms were sent to the Forensic Test Laboratory for comparison. But the report of the Ballistic Expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission or negligence on part of the 10 cannot affect credibility of the prosecution version.
(Emphasis added)
15. Likewise, from the mere fact that the other witnesses have not come forward to support the prosecution case, will provide no ground for acquitting the accused as it is well known these days that outsiders are notoriously disinterested in interfering in the affairs of others and are completely reluctant to give evidence in a case. This reluctance has been appositely noticed by the Apex Court in Appabhai v. State of Gujarat at para 11 : “It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.
16. Also this fact merits repetition that the father (and uncle) would not implicate their son (or nephew) if he was not concerned with this crime of murdering his own grandfather. Although they may have become half-hearted in their deposition in court and subsequently thought that as the old man had already died what benefit would be derived in implicating the son (or nephew), hence we find P.W. 2 Ram Baran saying at one point that his brother Gurucharan had disclosed to him that Shiv Kumar, the appellant had murdered their father Visheshar and at another point in his cross-examination he states that he does not know who killed his father.
17. However, no one else could have any motive to commit the murder of the 75 years old man. The deceased Visheshar had already divided his property between his two sons, the informant, P.W. 1 Gurucharan and Ram Baran, P.W. 2 and the only person who could have a grouse with this disposition of the property could have been the appellant, who was living and working in Bombay and who may have felt that he was not enjoying the fruits of the property in his working life. But we can not explore the mind of the criminal, and there is no need to indulge in the exercise where there is the eye witness account of a father nominating his son for the murder of his own grand father.
18. Learned Counsel for the appellant drew my attention to one line in the cross-examination of P.W. 1 Gurucharan, where he stated that the investigating officer was thinking that he had committed the murder, but in our view that could merely be the inference of this witness who had also been apprehended by the investigating officer, perhaps for the purpose of interrogation and only to reach the truth about the real culprit in the crime. Significantly, the investigating officer himself denied arrest or beating the informant after the incident. In State v. N.M.T. Joy Immaculate , it has been held by the Apex Court that even if the custody is illegal or there is some other irregularity in investigation it gives no reason for discarding the evidence so collected if it is legally admissible. In this connection paragraph 15 of the aforesaid report may be usefully perused : 15. The law of evidence in our country is modeled on the rules of evidence which prevailed in English law. In Kurma v. R All ER 236, an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under:
The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.
19. Significantly, when it was suggested to P.W. 2 Ram Baran that actually Gurucharan had committed the murder, he flatly denounced the suggestion. We think that Gurucharan or Ram Baran could have absolute, no reason for killing their father, who had already teaser-red most of his property in their names.
20. We also think that a minor discrepancy whether the appellant was arrested immediately after the incident with the weapon of assault, which was a blood stained Hansia as alleged by P.W. 1, the informant or subsequently as the I.O. P.W. 4 suggests when he deposes that he got the Hansia recovered from the paddy field on the pointing out of the appellant after his alleged arrest at 4.45 P.M. The discrepancy is not fatal for the prosecution and it could have been caused because as suggested above because the informant and other witnesses may have tried to help the appellant subsequently, who was their own son or nephew or the discrepancy may at best be treated as a defect in the investigation, which can provide no ground for discarding the prosecution case in the circumstances. Some amount of embellishments are inevitable in any case and the rule of benefit of doubt should not be elevated to absurd proportions as that would result in break down of faith of people in our system of justice and that proof beyond reasonable doubt is a guideline and not a fetish. In this connection it would be useful to recall the telling words of the Apex Court in paragraphs 20, 21 and 22 of Sucha Singh v. State of Punjab :
20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and Ors. . Prosecution is not required to meet any and every hypothesis put forward by the accused See State of U.P. v. Ashok Kumar Srivastava . A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof bevond reasonable doubt is a guideline, not a fetish. See Inder Singh and Anr. v. State (Delhi Admn.) . Vague hunches cannot take place of judicial evaluation. “A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.” Per Viscount Simen in Stirland v. Director of Public Prosecutor 1944 AC (PC) 315 quoted in State of U.P. v. Anil Singh . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra
…. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt….
…The evil of acquitting a guilty person light heartedly as a learned author Clanville Williams in ‘proof of guilt’ has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acouittals become general, thev tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ‘persons’ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless….
…a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent….
22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal . Similar view was also expressed in Gangadhar Behera and Ors. v. State of Orissa .
20.In view of what has been indicated herein-above, we find no illegality in the order of the learned Additional Sessions Judge convicting the appellant. In the result the appeal fails and is dismissed.
21. The appellant is in jail. He shall remain in jail to serve out the sentence awarded to him by the court below.