STATE OF U.P.versusRAM KUMAR & ORS.

                          [2017} 7 S.C.R. 850



A                           STATE OF U.P.
                                   v.
                        RAM KUMAR & ORS.
                    (Criminal Appeal No. 1584 of2010)
B                            JULY20,2017
             [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
         Penal Code, 1860 - s. 302 - Murder - Prosecution case that
  week before the incident altercation between informant and his step
  brothers-accused person - On the fatefiil day, accused person with
c the common intention of murdering the informant came and ii?iured
  the informant, killed his wife by using firearms and caused death of
  one, and two children by putting the whole house to fire - Award of
  capital punishment by trial court - However, acquittal by High
  Court, since prosecution failed to prove the guilt of accused - On
D appeal, held: High Court relied on small inconsistencies and
  untenable grounds to set aside the well considered judgment of the
  trial court - Evidence of PWJ and PW2 regarding incident and
  identity of the accused rightly believed by trial court - Burning of
  lantern being fidly proved, the High Court erred in holding that
  lantern was not burning and that the accused could not have been
E
  identified - Also, FIR was not ante timed and ante dated - Thus,
  order passed by the High Court set aside - Capital punishment
  reduced to life imprisonment.
          Allowing the appeal, the Court
F       HELD: 1. It is clear that the High Court concluded that
  lantern was not burning since, had the lantern been burning, there
  would have certainly been blackening on the peg and on the wall
  near to it. The trial court noticed the evidence and gave reason
  for holding that blackening on the wall was not there since the
  lantern was burning and hanging on a peg which was a long one.
G PW.1 stated that lantern was hanging on the peg in the midst of
  two doors. He stated that wall was never blackened since the
  peg was one hand long and thick; and that lantern was covered
  hence, no blackening was on the wall. [Para 26] [864-G-H; 865-
    A]
H
                                   850
            STATE OF U.P. v. RAM KUMAR & ORS.                       851


       2. The trial court believed the statement of PW.1 and held A
that the statement of PW.1 that there would not have been any
blackening on the wall due to the long peg is correct. The High
Court, thus, without any valid and cogent reason disbelieved the
burning of lantern at the relevant time which was proved source
of light. As regards a question put in the cross-examination to · B
PW.1 that light of lantern cannot go beyond 8 feet, the trial court
returned finding that accused were at a distance of only 7 to 8
feet from the witness and were recognized in the lantern light by
the PW.I. Further, it has come on the evidence that the IO when
visited the scene of occurrence at 12.30 a.m. in the night itself
lantern was shown by 'P' another son of informant and the lantern C
was given in the superdagi of 'P'. The High Court noted the
statement of IO in regard to the lantern. The statement of the IO
was not to the effect that there was no blackening on the wall.
Statement was that he does not recollect as to whether there was
blackening on the wall or on the peg or not. The High Court
                                                                     D
proceeded on the premises that it was stated that there was no
blackening on the wall. The very premise of the High Court, thus,
to reject the burning of the lantern is fallacious and is the result
of the misreading of the statement of the IO. [Paras 27-30] [865-
B-G]
      3. Accused were all family members and well known to the E
witnesses. 'RP' was step brother of informant, his sons and
nephew were with him. Informant also stated that 'RP' exhorted
the accused to kill 'ML'. There cannot be any mistake regarding
identification of the family mem hers who apart from being family
members are residing in the nearby houses. The evidence of F
PW.2 regarding identification of the accused was also rightly
believed by the trial court. PW.2 stated that when he along with
other family members bolted themselves in his Kothari, the
accused came and asked him to open the door. They told PW.2 to
open the door, they will not kill'. He further stated that when he
did not open the door, they put the house on fire. PW.2 further G
stated that he had seen the accused from 'Jhiri' of the door. He
further stated that he recognised them by their voices and also
when the house was lit on fire, in its light he recognised the
accused. There was sufficient evidence on the record which was
                                                                    H
852            SUPREME COURT REPORTS                      [2017] 7 S.C.R.


A     rightly believed by the trial court that all the accused were present
      on the spot at the time of occurrence. Thus, High Court erred in
      holding that lantern was not burning and the accused could not
      have been identified. [Paras 31, 32] [865-H; 866-A-D]
              4. The High Court stated that there was no proof regarding
 B    any earlier dispute between informant and 'RP'. The High Court
      observed that prosecution did not examine any other witness of
      the Panchyat and further the dispute was not such as to constitute
      immediate motive to kill the family members. When PW.1 and
      PW.2 both have stated that one week before the incident there
      was dispute between informant and 'RP' for Nabdan which was
 C    flowing in the western side near the house of 'RP'. The genesis
      of dispute laid there. Further observation of the High Court was
      that the dispute was not of such a nature, so as to give the accused
      any motive to kill the family members of the witnesses. The said
      view of the High Court cannot be accepted. On a particular
 D    incident how a human being will react is not easy to comprehend.
      There was no other evidence before the High Court to come to
       the conclusion that there was no dispute between informant and
       'RP'. [Para 33] [863-D-G]
              5. The High Court made adverse observation regarding
       ante dated and ante timed FIR. The High Court noticed the
 E     argument of the defence that in the inquest report prepared by
       the ASI, the crime number and section were written in different
       ink. The High Court further stated that prosecution cared least
       to prove the time of sending the special report and date on which
       FIR came before the Court concerned. The fact that in the inquest
 F     report the crime number and date are written in different ink,
       are not the facts on which the prosecution case can be disbelieved
       by the Court concerned. IO in his statement clearly stated that
       at 10.15 p.m. on 9.10.1995 informant reached Police Station and
       he was present at that time when the informant had given written
       report which was directed to be registered. IO also started for
 G     place of occurrence at 12.05 a.m. and reached at about 12.30
       a.m. on 10.10.1995. The inquest report was also prepared on
       10.10.1995 at 6 a.m. Furthermore, from Police Station the injured
       were sent to District Hospital and were examined at 1.45 a.m.
       i.e. in the night. Sequence of the events belies the argument that
 H     the FIR was not registered at the time and on the date as claimed.
            STATE OF U.P. v. RAM KUMAR & ORS.                      853



The High Court further observed that PW.t has stated that he A
became unconscious after the incident and he was unconscious
till he reached Police Station. The High Court observed that how
it was possible that the FIR was dictated to 'MP'. This aspect
was very carefully considered by the trial court and trial court
examined and correctly analysed the said statement of PW.t. The
                                                                     B
trial court rightly believed ~hat FIR was written on dictation by
'MP' and after FIR was read over to informant he put his thumb
impression on it and the same written report was given to the
Police Station which is also proved from the Police records. On
the doubt expressed by the High Court regarding writing of FIR
on dictation of informant since he claimed to be unconscious, c
this is not of any material significance on which evidence of PW. t
regarding preparing and lodging of FIR could have been doubted.
[Paras 34, 35, 37] [866-H; 867-A-E; 868-F-G]
        6. Reading of the judgment of the High Court clearly reveals
that there are no such reasons given by the High Court on which D
the evidence of injured witnesses could be disbelieved, the minor
inconsistencies pointed out by the High Court were
inconsequential. The prosecution by cogent reason successfully
proved that the accused with the common intention of murdering
 'ML' came and injured 'ML', killed his wife by using firearms
and caused death of 'SK' and two children by putting the whole E
house to fire. A perusal of judgment of the High Court gives an
impression that the High Court relied on small inconsistencies
 and untenable grounds to set aside the well considered judgment
 of the trial court. There were no such grounds or reasons on
which evidence of PW.1 and PW.2 regarding incident and identity F
 of the accused could be disbelieved. [Para 38, 41] [868-H; 869-
A; 870-E)
        7. Two accused 'RP' and 'DS' have already died, only three
 accused 'RK', 'RM' and 'K' remain. The High Court acquitted
 the accused about 10 years ago. Taking into consideration over
 all facts and circumstances of the case, at this distance of time G
 confirming the capital punishment to the accused is not an
 appropriate punishment. Other punishments awarded by the trial
 court is confirmed except capital punishment which is converted
 into life imprisonment. The High Court judgment is set aside.
 Accused 'RK', 'RM' and 'K' are directed to be taken into custody H
             SUPREME COURT REPORTS                       [2017] 7 S.C.R.



A   forthwith to serve out the sentences awarded. [Para 42] [870G-
    H; 871-A]
          Brahm Swaroop and another v. State of Uttar Pradesh
          (2011) 6 SCC 288 : [2010] 15 SCR 1 - referred to.
                          Case Law Reference
B         (2010] 15 SCR 1         referred to          Para 38
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    1584of2010.
          From the Judgment and Order dated 11.10.2002 of the High Court
    ofJudicature at Allahabad, Lucknow Bench Lucknow in Criminal Appeal
C   Nos. 84 and 121 of2001.
         D. K. Singh, AAG, Adarsh Upadhyay, Vikas Chaudhary, Ms.
    Koma! Mundhra, Advs. for the Appellant.
         Ajay Sharma, Ms. Nidhi, Ms. Puja Sharma, Advs. for the
    Respondents.
D         The Judgment of the Court was delivered by
           ASHOK BHUSHAN, J. 1. The State is in appeal against the
    judgment of the High Court of Judicature at Allahabad dated 11.10.2002
    in Capital Sentence Reference No. l of2001 and three criminal appeals
    filed by the accused.
E         2. The High Court rejected the Capital Sentence Reference made
    by Additional Sessions Judge and allowed the criminal appeals filed by
    the accused acquitting them from the charges. The Fifth Additional
    Sessions Judge vide its judgment dated 18.01.2001 had convicted the
    accused Ram Prasad, Ram Kumar, Ramakant, Kalloo and Daya Shankar
    and by order dated 19.01.2001 had awarded death sentence with other
F
    sentences.
          3. The prosecution story, in brief, is that when at 7.30 P.M. on
    09.10.1995 PW. 1 Mohan Lal was sitting outside his house and his wife,
    now deceased lying on a cot near him, the accused persons armed with
    deadly weapons reached there and on exhortation of accused Ram
G   Prasad to kill Mohan Lal accused Daya Shankar, Ramakant and Ram
    Kumar started firing due to which PW. I Mohan Lal had to run for safety
    but sustained firearm injuries including the wife who was present with
    him. The accused persons followed PW. l Mohan Lal inside the house
    and on not finding him there demanded from the other family members
H
             STATE OF U.P. v. RAM KUMAR & ORS.                                855
                   [ASHOK BHUSHAN, J.]

to open the doorofthe room in which they had locked themselves fearing        A
for their life due to the sudden assault by the accused persons. When on
demand the door was not opened the accused persons set on fire the
house due to which three humans including one child and one animal lost
their lives. Smt. Makhana wife of the informant PW. 1 Mohan Lal who
had sustained firearm injuries also succumbed to those injuries.
                                                                              B
      4. A written report was lodged by the injured PW. I Mohan Lal at
the police station at 10.15 P.M. the same night. According to the report
lodged the accused persons were of the family of his step brother and
the assault was due to the altercation which had taken place between
the informant and the accused Ram Prasad his step brother one week
~·                                                                            c
       5. The I.O., B. P. Singh who was present in the Police Station at
the time of!odging of First Information Report, after lodging of the report
proceeded to place of occurrence at 12.05 A.M. on 10.10.1995. At
12.30 A.M., he reached the place of occurrence. He directed Shri
Nisanath Misra, Sub Inspector Police Chowki, to conduct the Inquest           D
Report of the deceased Sarvesh Kumari, Kumari Kunti aged 03 years,
and Santosh son of Ram Asrey aged 09 years.
      6. I.O. inspected the place of occurrence, collected the blood
found on the spot, collected ashes of burnt chhappar and also examined
the lantern (lalten) which was stated to be burning at the time of            E
occurrence and gave it in the supurdgi of Parshuram son of Mohan Lal.
LO. had already recorded the statement of Mohan Lal, the informant at
the Police Station itself. The inquest of the deceased started at 6 A.M.
on 10.10.1995.
      7. Injured Mohan Lal, Ram Asrey, Smt. Shakuntla and Guddu               F
were sent from the Police Station itself to the District Hospital. Medical
examination of injured was conducted at 1.45 A.M. on l 0.10.1995, which
had revealed firearm injuries on different parts of the bodies of Mohan
Lal. Medical examination of Ram Asrey, Shakuntala and Guddu had
revealed that they were suffering from inhalation of carbon dioxide and       G
carbon mono oxide.
       8. The postmortem was also conducted of deceased Sarvesh
Kumari, Kumari Kunti, Santosh and Smt. Makhana. The postmortem
report of Sarvesh Kumari, Kumari Kunti and Santo sh revealed that death
had occurred due to suffocation from the smoke. Postmortem of Smt.
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856            SUPREME COURT REPORTS                           (2017] 7 S.C.R.



A     Makhana revealed fire arm injury on the chest to the extent of I 5 X I 7
      cm. Postmortem report opined that death had occurred due to firearm
      injury sustained by the deceased. Postmortem of the she buffalo was
      also conducted by the veterinary doctor, who also opined that she buffalo
      died due to third-degree burns.
B            9. The Police submitted the chargesheet against Ram Prasad,
      Ram Kumar, Ramakant, Kalloo and Shripal on which Sessions Trial No.
      6196 was registered and against one Daya Shankar, on which Sessions
      Trial No. 412/96 was registered. The Prosecution produced 08 witnesses.
      PW. I Mohan Lal (informant and injured eyewitness), PW. 2 RamAsrey
      (son of Mohan Lal and injured eyewitness) PW. 3 Nisanath Misra (Sub
 c    Inspector who conducted the Inquest Report of body of Smt. Sarvesh
      Kumari, Kumari Kunti and Santosh). PW. 4 Dr. Jalaludeen (conducted
      the post mortem of Smt. Sarvesh, Kumari Kunti, Santosh and Smt.
      Makhana) PW. 5 Dr. Veerender Kumar Trivedi, Veterinary Doctor (who
      conducted the postmortem of she buffalo), PW. 6 Dr. J. L. Gautam
 D    (who examined the injured, namely, Mohan Lal, Guddu, Ram Asrey,
      Smt. Shakuntala and Chotey Lal), PW. 7 B. P. Singh Inspector (LO.),
      PW. 8 Dr. R. C. Agrawal Radiologist.
            10. No witness was examined by defence. Statements under
      Section 313 Cr. P. C. were recorded of all the accused, who in their
 E    statements denied the allegation and alleged false persecution due to
      enmity. The trial court heard the parties and after analyzing the evidence
      available on record held eyewitnesses PW. I and PW.2 trustworthy and
      found the guilt proved against accused Ram Prasad, Ram Kumar,
      Ramakant, Kalloo and Daya Shankar and looking into the heinous and
      barbaric murder, awarded the capital punishment to all of them. Accused
 F    Shripal, was acquitted as having not been found involved in the crime.
      Learned Sessions Judge sent Reference to the High Court for
      confirmation of death sentence. All the convicted accused filed criminal
      appeals.
             11. The High Court decided the death confirmation reference as
 G    well as criminal appeals filed by the convicted accused by its judgment
      and order dated I I .I 0.2002. The High Court by impugned judgment
      held that evidence of injured Mohan Lal and Ram Asrey is totally
      untrustworthy and unreliable. Doubt is, having created that First
      Information Report was ante timed and ante dated and there was no
 H    source oflight to identify the assailants at the time of incident. The State
             STATE OF U.P. v. RAM KUMAR & ORS.                                 857
                   [ASHOK BHUSHAN, J.]

aggrieved by the above judgment has come up with this appeal. The              A
Respondent No. I Ram Prasad died and the appeal has been abated by
order dated 08.03.2013. Accused Daya Shankar died during pendency
of this matter and Special Leave Petition( Criminal) filed by the State
was dismissed as having abated by this Court's order dated 12.02.2007.
       12. We have heard Shri D. K. Singh Additional Advocate General          B
for the State ofU. P. and Mrs. Puja Sharma, learned counsel appearing
for Respondent No.2.
      13. Learned Additional Advocate General submitted:
      (i)That evidence of eyewitnesses was correctly appreciated and
      believed by the trial court whereas, High Court on surmises and          C
      conjectures held evidence of PW. I and PW. 2 untrustworthy. It
      is submitted that appreciation of the evidence by the High Court
      is perverse. Without any valid reason evidence led by the
      prosecution has been disbelieved.
      (ii) Referring to the finding of the High Court that there was no        D
      source oflight at the time of occurrence, it is contended that burning
      of lantern at the time of occurrence was proved by eyewitnesses
      PW. 1 and PW. 2 which lantern was also shown to the 1.0., who
      examined the same in the same night. The High Court misdirected
      in observing that since there was no blackening on the wall, the         E
      burning oflantern is doubtful. PW. I had already clearly explained
      in his statement that peg on which lantern was hung, was long
      one hence there was no blackening on the peg or wall. Without
      considering the statement of PW. I, High Court unnecessarily
      jumped to the conclusion that there was no light and accused
      could not have been identified.                                          F
      (iii) The High Court had also committed error in holding that
      prosecution failed to prove that there was dispute regarding
      Nabdan. Eyewitnesses proved that one week before the incident,
      there was dispute between the parties who were no other than
      step brother of Mohan Lal, step brother's sons and one nephew            G
      of Ram Prasad.
      (iv) Observation made by the High Court that there were doubts
      regarding date and ·time of lodging of the FIR were nothing but
      surmises and conjectures by the High Court. A written report
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858            SUPREME COURT REPORTS                           [2017] 7 S.C.R.


A           was given to the Police Station at I 0.15 P.M. on the same night.
            Immediately thereafter, LO. reached at the place of incident in
            the same night at 12.30 A.M. The mere fact that on the Inquest
            Report FIR No. was written by different ink cannot be the basis
            for observing that FIR was ante timed or ante dated.
B           (v) The doubt has been expressed by the High Court that when
            Mohan Lal himself stated that after incident he became
            unconscious then how can he dictate the FIR, which case of
            defence was properly dealt by the Sessions Judge who had
            examined and correctly explained the statement of Mohan Lal
            regarding his unconsciousness.
 c
            (vi) Minor contradictions and omissions cannot be the basis for
            rejecting the prosecution theory. The High Court had tried to dig
            out the minor contradictions and omissions on the basis of which
            a capital is sought to be made, which is clearly against the settled
            law.
 D
             14. Learned counsel appearing for Respondent No. 2 supported
      the judgment of the High Court and have submitted that capital punishment
      awarded by the trial court in any view of the matter could not be sustained
      in the facts of the present case.

 E            15. We have considered, the submission of the learned counsel
      for the parties, gone through the judgments of the High Court and the
      trial court and have also perused the lower court records including the
      statement of the witnesses and other materials on record.
             16. The prosecution case is mainly based on oral evidence of
      PW. l Mohan Lal and PW.2 RamAsrey. Mohan Lal received the firearm
 F
      injuries fired upon him by the accused and on the sam~ day after lodging
      of the First Information Report he was sent to the District Hospital for
      medical examination. Dr. J.L. Gautam, Emergency Medical Officer,
      District Hospital, Hardoi had examined Mohan Lal at 1.45 a.m. on
      10.10.1995. Three injuries were noticed on the body of the injured. Doctor
 G    opined that all injuries were caused due to firearm. In this reference, it is
      relevant to notice that Smt. Makhana, wife of Mohan Lal, was also lying
      on the cot near the door of the house of Mohan Lal. At 7 .30 p.m. accused
      came and fired both on Mohan Lal and his wife. Smt. Makhana, wife of
      Mohan Lal died while being taken to the District Hospital. On 10.l 0.1995
      in the evening postmortem ofSmt. Makhana was conducted. The injuries
 H
             STATE OF U.P. v. RAM KUMAR & ORS.                              859
                   [ASHOK BHUSHAN, J.]

which were all ante mortem were noted in postmortem report (translated      A
in English from Hindi) to the following effect:
      "Wound of insertion of the bullet in front of the chest which
       was in 15 c.m. X 17 c.m. area. The wound was deep up to 3
      c.m. X 3 c.m. flesh of the chest. The wound was lacerated
      from front to inner side of the body and direction of potholes        B
       were from front to back. "
       17. The medical injury report of PW. I as well as postmortem
report ofSmt. Makhana clearly supports the prosecution case regarding
the manner in which accused came and fired on the Mohan Lal and his
wife who were at that time outside the house. The medical report fully       c
corroborates the time of incident i.e. 7.30 p.m. as claimed in the FIR.
       18. The trial court in its judgment after perusing the evidence
recorded finding in paragraph 19 of the judgment that there is no dispute
that on 9.10.1995 at 7.30 p.m. in the evening the incident of firing of
gunshots at the house of informant had taken place due to which he D
sustained gunshots injuries and his wife Makhana died. Thereafter the
fire was lit to the house of Mohan Lal. It is relevant to extract the following
observation recorded by the trial court in paragraph 19 of the judgment:
      "19 ... I deem it important to mention that the evidence available
      on the file and from the statements given by the accused E
      persons under Section 313 Cr.P. C. and on the basis of the
      arguments made before me this fact does not remain disputed
      that on 9.10.95 at 7.30 p.m. in the evening the incident of
      firing of gunshots at the house of the plaintiff Mohan has
      taken place due to which he sustained gunshots injuries and
      due to gunshots injuries his wife Makhana died. Thereafter F
       the fire was lit to the house of the plaintiff Mohan Lal, due to
      which the persons who have closed themselves inside the room
       to save them, out of them Sarvesh Kumari and two children
      Km. Kunti and Santosh have died due to suffocation of the
      smoke of the fore and one she buffalo of the plaintiff also G
       died and the son of the plaintiff and the wife of his son and
       two others were adversely affected by the smoke of the fire ... "
       19. PW. I Mohan Lal in his statement has clearly stated that one
week before the incident with regard to eastern Nabdan of informant
there has been talks between informant and Ram Prasad. Ram Prasad
                                                                             H
860           SUPREME COURT REPORTS                        [2017] 7 S.C.R.


A   asked to close the Nabdan on which informant stated that Nabdan is on
    Gramsamaj land and not in Ram Prasad's land hence it will not be closed
    by the informant. Ram Prasad extended threat of killing to the informant
    due to which the accused harboured enmity with the informant. He further
    stated that on 9.10.1995 at about 7.30 p.m., when he was sitting near
    southern door and his wife was lying on the cot towards south, lantern
 B
    was also burning on the peg above the door, at that time from northern
    side accused persons came having guns in their hands. Ram Prasad
    immediately exhorted others to kill Mohan Lal. By that time he could
    only stand up from earth and his wife could sit on the cot, Daya Shanker,
    Ramakant and Ram Kumar fired on which witness ran inside the house.
 c When he stood up he received firearm shot and when he entered into
    the house second firearm shot hit him. His wife also received firearm
    shot injuries. When accused entered, the witness ran from inside by
    western side door and went out from the house. Accused ran behind the
    witness. The other family members, who were present inside the house,
    bolted themselves in the room ofRamAsrey. The accused asked them
 D
    to open the door and when they did not open the door, the accused set
     the house on fire. He stated that when he ran he had seen the accused.
     He further stated that certain persons of the village came and accused
     ran away. Due to suffocation wife of Munna, daughter of Mumm and
     son of Ram Asrey died. Ram Asrey his wife and son also became
 E unconscious. A buffalo also died in this incident. Villagers put off the
     fire. He further stated that he dictated the written report to Maujiram,
     Pradhan and after completion of dictation, FIR was read over to him
     and he put his thumb impression on it. PW. I along with his wife and
     other persons who were unconscious proceeded to Police Station and at
      IO.IS p.m. written report was given to the Munshi of the Police Station
  F
     who registered the report. He along with two Police Constables was
     sent to District Hospital and on the way his wife died. PW.2 RamAsrey,
     son of Mohan Lal, also supported the prosecution case. He stated that
     his father and mother were sitting outside the house and a lantern was
     burning above the door and other family members including Ram Asrey
  G were inside. Accused came and fired on which father of the witness ran
      inside the house and told that accused had arrived with firearms and
      have fired. RamAsrey and other family members bolted themselves in
      a 'Kothari'. All the accused asked them to open the door. When they did
      not open the door, Daya Shanker told if the door was not open, put the
      house on fire, accused put the house on fire. Due to suffocation of the
  H
             STATE OF U.P. v. RAM KUMAR & ORS.                             861
                   [ASHOK BHUSHAN, J.]

smoke of fire, Sarvesh Kumari wife ofMunna, Kunti daughter ofMunna         A
and Santosh son of Ram Asrey died and one buffalo also died. Ram
Asrey, his wife and his son Guddu became unconscious due to suffocation.
RamAsrey in his cross-examination also stated that lantern was burning.
He has seen the accused from 'Jhiri' of the door. Further, he had
recognised the accused from their voices who asked the witness to open
                                                                           B
the door.
      20. After marshalling the evidence on record, the trial court
returned the following findings:
      "The fact that the witnesses had colluded with the Accused
      Persons has not been contradicted.                                   c
       There has been no delay in lodging the FIR. Further, merely
      because PW-I has stated in his main examination that he had
      got the report written at home through Maujiram Pradhan,
       while in his argument he has stated that he got it written at
      the police station, does not make the FIR a concocted one.       D
       The said witness has stated that he was brought to the police
      station in a state of unconsciousness by the Pradhan, to which
      the defence has stated that it was not possible for him to lodge
      the FIR. However, he hid and waited quietly for the Accused
      Persons to leave for the safety of his life, and therefore, he E
       had not become immediately unconscious due to the fire.
       Further, as soon as he ran towards his house, he warned his
      son: PW-2, and informed him quickly that the Accused Persons
       had attacked him. Therefore, statement given by PW-1 as
       regards his unconsciousness is hyperbolic.
                                                                       F
       The fact that there is insertion of the name of Shripaf in the
       written complaint, while PW-I has denied his involvement in
      the incident, does not render the writf:en complaint bad or
       incorrect. Further, his name may have been added by mistake
      of the Pradhan, as PW-1 has not stated anywhere about him
      firing any shots, but has in fact, stated that he helped put out G
      the fire at the place of the incident. Similarly, even in the
      statement of PW-2, the name of Shripaf is not mentioned
      anywhere.
      Merely because the wall on which the lantern was hanging
                                                                           H
862            SUPREME COURT REPORTS                        [2017] 7 S.C.R.



A           was not blackened, does not mean anything, as the peg/rod
            on which it rested was long one.
           It was argued by the defence that the visibility in the light of
           the lantern was only up to 8 steps, and so it was not possible
           for PW-1 to see the Accused Persons. However, the Accused
B          Persons were at a distance of only 6 to 7 feet, and therefore,
            it was not hard to identify them in the light. Even otherwise,
            the Accused Persons were not outsiders, and it was easy to
            recognize them from their voices.
            The argument that no cartidges or tikkahs were found on the
 c          place of incident is of no consequence, as the place of
            occurrence of the said incident is not disputed. Further, it
            was the negligence on the part of the IO if he could not find
            bullet marks, and the benefit of such negligence cannot be
            given to the defence.

 D            The witness, PW-2, Ram Ashrey recognized the Accused-
            Respondents from the side of the door of the room in which
             he was locked, as well as from their voice. Further, the light
            from the burning thatched roof also aided his vision."
            21. The trial court awarded capital sentence noticing the gruesome
 E    and barbaric act and murder committed by the accused. The High Court
      while deciding the Death Reference and appeals has set aside the
      judgment of the trial court and acquitted all the accused.
             22. The High court by giving following reasoning and finding has
      set aside the judgment of the trial court and acquitted the accused:
 F            "As regards the fact of the dispute between the Accused and
            PW-1 as regards the Nabdan, the prosecution has not
            examined any other witnesses or the panchayat. Therefore,
            in the absence of the evidences of the panchas, it will not be
            safe to place reliance on the same. Furthe1; the dispute was
            not of such a nature, so as to give the Accused Persons any
 G
            motive to kill the family of the witnesses/complainants.
             Since all the parties belonged to the same family, it appears
             unlikely that the Accused Persons attempted lo kill them or
             had any motive to do so.

 H
            STATE OF U.P. v. RAM KUMAR & ORS.                              863
                  [ASHOK BHUSHAN, J.]

      The High Court has observed that PW-I stated in his                  A
      examination in chief that he got the report written by Maujiram
      Pradhan, and put his thumb ingression on it, after the same
      was read out to him. Jn his cross-examination(l 6. 02.1999 -
      after 4 years), he has stated that he fell unconscious after his
      house was set on fire, and it was in that state that the Pradhan
                                                                           B
      took him to the Police Station, where the written report was
      prepared. He also stated that he had never asked the scribe
      to note down the name of Shripal.
        It has been argued that the complaint was written in one
      ink, while the case number and sections were written in a
      different ink and stroke, and it appears that the FIR was not c
      in exestence on 10.10.1995. The High Court has held that
      although it is not possible to prove that the said FIR was ante
      dated and ante times, but the facts and circumstances create
      a doubt in the mind. Nothing in this regard has been explained
      by PW-3.                                                        D
        It was not natural on the part of PW- I to dictate an FIR
      soon after the incident in his house, and his natural conduct
      would have been to take the injured to the hospital.
      Had the lantern been burning on the wall ever:v day, the same
      would have created a black mark on the said ·wall. [IO has           E
      stated that he does not recollect the Jae/um of the blackening.}
      Ram Ashrey could not have identified the Accused or the
      culprits in the light created by flamer of the burning chappe1;
      as this was not mentioned in the FIR. It is also unbelievable
      that the flames would have come to high as to create enough          F
      light for such identification. Further, he fact that he came to
      know of the same also from his father does not inspire
      confidence. "
       23. We have noticed the findings and reasoning given by the trial
court as well as by the High court. We have also gone through the oral     G
evidence of the witnesses and exhibits on the record.
      24. One of the main reasons for acquittal ofthc accused given by
the High Court is that there was no source of light, lantern was not
burning on the date of incident since there was no blackening on the
                                                                           H
864            SUPREME COURT REPORTS                           [2017) 7 S.C.R.



A     wall, hence it was not possible for PW. I and PW.2 to identify the accused.
      The prosecution failed to prove the guilt of accused. We proceed to
      examine the first issue pertaining to source of light and the burning of
      lantern.
             25. Before we examine the evidence pertaining to source oflight,
 B    burning oflantern and identification of accused by PW.1 and PW.2, it is
      necessary to refer to judgment of the High Court in the above reference.
      With regard to burning oflantern following is the discussion of the High
      Court:
             "RamAsrey PW.2 has tried to support on the point of the burning
 c           of the lantern. In his cross-examination he says that it is wrong to
             say that he identified the culprits in the lantern light. He says on
             page 6 that the lantern was burning towards south of the place,
             where his father was sitting. The investigating officer, Sri. B.P.
             Singh, who inspected the lantern and prepared fard, says that he
             does not recollect as to whether there was blackening on the wall
 D           or on the peg where lantern was allegedly burning at the time of
             the incident.
             Learned counsel for the appellants have submitted that the
             discrepancy in between the evidence of Mohan Lal and his
             son Ram Asrey i_n regard to the. actual place of burning of the
 E           lantern and absence of any blackening etc. on the wall or on
             the peg, creates doubt whether lantern was actually burning
             at the relevant time.
             After careful scrutiny of the evidence on record, we find
             ourselves in agreement with the learned counsel for the
 F           appellants. Had the lantern been burning and hanging in a
             peg as usual, there would have certainly been some blackening
             on the peg and on the wall near to it. "
             26. From the above, it is clear that the High Court concluded that
      lantern was not burning since, had the lantern been burning, there would
 G    have ce1iainly been blackening on the peg and on the wall near to it. The
      trial court had already noticed the evidence given in the above context
      and gave reason for holding that blackening on the wall was not there
      since the lantern was burning and hanging on a peg which was a long
      one. We again revert on the evidence of PW. I. In his statement he has
 H
              STATE OF U.P. v. RAM KUMAR & ORS.                               865
                    [ASHOK BHUSHAN, J.]

  stated that lantern was hanging on the peg in the midst of two doors. He    A
  stated that wall was never blackened since the peg was one hand long
  and thick. He further stated that lantern was covered hence no blackening
. was on the wall.
       27. The trial court as noted above has believed on the statement
 of PW. I and held that the statement of PW. I that there would not have      B
 been any blackening on the wall due to the long peg is correct. The High
 Court, thus, without any valid and cogent reason has disbelieved the
 burning oflantern at the relevant time which was proved source oflight.
        28. A question was also put in the cross-examination to PW.I that
 light of lantern cannot go beyond 8 feet. The trial court had returned       c
 finding that accused were at a distance of only 7 to 8 feet from the
 witness and were recognized in the lantern light by the PW. I.
          29. There is one more reason by which the above view of the
  High Court regarding not burning oflantern is out rightly to be rejected.
  It has come on the evidence that the IO when visited the scene of D
  occurrence at 12.30 a.m. in the night itself lantern was shown by
  Parshuram another son of infonnant and the lantern was given in the
. superdagi of Parshuram. The High Court has noted the statement ofIO
  in regard to the lantern as extracted above which was to the following
  effect:
                                                                            E
        " ... he does not recollect as to whether there was blackening
        on the wall or on the peg where lantern was allegedly burning
        at the time of the incident... "
        30. The statement of the IO was not to the effect that there was
 no blackening on the wall. Statement was that he does not recollect as
                                                                              F
 to whether there was blackening on the wall or on the peg or not. The
 High Court proceeded on the premises that it was stated that there was
 no blackening on the wall. The very premise of the High Court, thus, to
 reject the burning of the lantern is fallacious and is the result of the
 misreading of the statement of the IO. The burning oflantern being fully
 proved, the High Court committed error in putting off the light oflantern    G
 from the case.
       31. It is also relevant to note that accused were all family members
 and well known to the witnesses. Ram Prasad was step brother of
 informant, his sons and nephew were with him. Informant has also stated
                                                                              H
866            SUPREME COURT REPORTS                         [2017) 7 S.C.R.


A     that Ram Prasad exhorted the accused to kill Mohan Lal. There cannot
      be any mistake regarding identification of the family members who apart
      from being family members are residing in the nearby houses.
             32. The evidence of PW.2 RamAsrey regarding identification of
      the accused was also rightly believed by the trial court. Ram Asrey in
B     his statement has stated that when he along with other family members
      bolted themselves in his Kothari, the accused came and asked him to
      open the door. They told that 'Ram Asrey open the door they will not
      kill'. He further stated that when he did not open the door, they put the
      house on fire. Ram Asrey further stated that he had seen the accused
      from 'Jhiri' of the door. He further stated that he recognised them by
 c    their voices and also when the house was lit on fire, in its light he
      recognised the accused. There was sufficient evidence on the record
      which was rightly believed by the trial court that all the accused were
      present on the spot at the time of occurrence. We are, thus, of the view
      that High Court erred in holding that lantern was not burning and the
 D    accused could not have been identified.
          33. The High Court has further stated that there was no proof
   regarding any earlier dispute between informant and Ram Prasad. The
   High Court has observed that prosecution has not examined any other
   witness of the Panchyat and further the dispute was not such as to
 E constitute immediate motive to kill the family members. When PW.1
   and PW.2 both have stated that one week before the incident there was
   dispute between informant and Ram Prasad for Nabdan which was
   flowing in the western side near the house of Ram Prasad. The genesis
   of dispute laid there. Further observation of the High Court is that the
   dispute was not of such a nature, so as to give the accused any motive to
 F kill the family members of the witnesses. We do not subscribe the above
   view of the High Court. On a particular incident how a human being will
   react is not easy to comprehend. There was no other evidence before
   the High Court to come to the conclusion that there was no dispute
   between informant and Ram Prasad. The said observations were based
 G on no evidence. It is, however, relevant to note that the High Court
   itself has observed that where prosecution has adduced direct evidence
   on the point of actual occurrence, search for motive is only academic
   and with a view to clear the conscience of the Court.
            34. The High Court has also made adverse observation regarding
      ante dated and ante timed FIR. The High Court has noticed the argument
              STATE OF U.P. v. RAM KUMAR & ORS.                                  867
                    [ASHOK BHUSHAN, J.]

of the defence that in the inquest report prepared by the ASI, Nishant           A
Mishra on 10.10.1995 the crime number and section were written in
different ink. The High Court further stated that prosecution cared least
to prove the time of sending the special report and date on which chick
FIR came before the Court concerned. The fact that in the inquest report
the crime number and date are written in different ink, are not the facts
                                                                                 B
on which the prosecution case can be disbelieved by the Court concerned.
IO in his statement clearly stated that at I 0.15 p.m. on 9.10.1995
informant reached Police Station and he was present at that time when
the informant had given written report which was directed to be registered.
IO also started for place of occurrence at 12.05 a.m. and reached at
about 12.30 a.m. on 10.10.1995. The inquest report was also prepared             c
on 10.10.1995 at 6 a.m.
       35. It is further relevant to note that from Police Station the injured
were sent to District Hospital and were examined at 1.45 a.m. I.e. in the
night. Sequence of the events belies the argument that the FIR was not
registered at the time and on the date as claimed. The High Court                D
further observed that PW. I has stated that he became unconscious after
the incident and he was unconscious till he reached Police Station. The
High Court has observed that how it was possible that the FIR was
dictated to Maujiram Pradhan. This aspect was very carefully considered
by the trial court and trial court had examined and correctly analysed the
aforesaid statement of PW. I.                                                    E

      36. The trial court has dealt with the aforesaid statement in the
following manner:
       ' " ... Mohan Lal P. W.1 has stated during the course of his
       arguments that after the fire was lit he had become F
       unconscious and in the condition of his unconsciousness he
       had been brought by the Pradhan to the Police Station. On
       this point it has been stated on behalf of the defence side that
       if he had become unconscious as to how he had got written
       the report Ext.ka-1 by speaking himself In my opinion the
       statement given by Mohan Lal PW-I during the course of G
       argument is hyperbolic. Some time the witnesses used to
       emphasize their statement by speaking hyperbolically. Even
       then on analyzing all the evidences it is known that what is
       the reality. Mohan /al PW-I has clear~v stated in his arguments
       that immediately on hitting the gunshot to him he had run and H
868            SUPREME COURT REPORTS                            [2017] 7 S.C.R.



A           went inside the house and then stated at his western side of
            the house and did not go to the village and remained
            concealed himself and he said that he had not made noise
            because the accused persons would have killed him. Until
            the accused persons remained at my house. I remained
            concealed myself After there going I had cried. From this it
B
            is evident that after fire was lit to his house Mohan Lal PW-1
            was not unconscious. Not only this Ram Asarey P. W-2 has
            stated that on hitting the gunshot to his father he came by
            nmning inside the house and he ahd told the incident offiring
            of gunshots and thereafter my father (Mohan Lal) came outside
 c          by nmning. Thus it is clear that the statement which has been
            given by Mohan Lal with regard to his unconsciousness that
            is hyperbolic statement. On this basis it is not in the interest
            of justice to have any doubt with regard to reality of written
            report Ext.ka-1, because the witness P.Wl has not become
            unconscious. The statement which has been given by Mohan
 D
            Lal P. Wl, from that it is evident that after getting the written
            report Ext.ka-1 written all the injured persons were taken to
             the police station, and if it may be accepted for the sake of
            arguments that the written report was got written on reaching
             the police station, only on this basis the written report Ext.ka-
 E           1 cannot be said to be doubtful, because this statement of
             Mohan Lal P. W 1 has not been challenged in which he has
             stated that he has got the report written by speaking to the
             Pradhan and the Pradhan has written the same which I have
             spoken."
 F           37. The trial court rightly believed that FIR was written on dictation
      by Maujiram Pradhan and after FIR was read over to informant he put
      his thumb impression on it and the same written report was given to the
      Police Station which is also proved from the Police records. On the
      doubt expressed by the High Court regarding writing of FIR on dictation
      of informant since he claimed to be unconscious, we are of the view that
 G    this is not of any material significance on which evidence of PW. l
      regarding preparing and lodging of FIR could have been doubted.
             38. Reading of the judgment of the High court clearly reveals that
      there are no such reasons given by the High Court on which the evidence
      of injured witnesses could be disbelieved, the minor inconsistencies
 H
             STATE OF U.P. v. RAM KUMAR & ORS.                              869
                   [ASHOK BHUSHAN, J.]

pointed out by the High Court were inconsequential. This Court has          A
held in Brahm Swaroop and another vs. State of Uttar Pradesh,
2011(6) sec 288, that statement of injured witnesses is generally
considered to be very reliable. In paragraphs 27 and 28 following has
been stated:
      "27. Injured witness Alar Singh (PW 1) has been examined,             B
      his testimony cannot be discarded, as his presence on the
      spot cannot be doubted, particularly, in view of the fact that
      immediately after lodging of FIR, the injured witness had been
      medically examined without any loss of time on the same day.
      The injured witness had been put through a gruelling cross-
      examination but nothing can be elicited to discredit his              c
      testimony.
      28. Where a witness to the occurrence has himself been injured
      in the incident, the testimony of such a witness is generally
      considered to be very reliable, as he is a witness that comes
      with an in-built guarantee of his presence at the scene of the D
      crime and is unlikely to spare his actual assailant(s) in order
      to falsely implicate someone. "Convincing evidence is required
      to discredit an injured witness. " (Vide State of U.P. v. Kishan
      Chand (2004) 7 SCC 629, Krishan v. State of
      Haryana(2006)12 SCC 459, Dinesh Kumar v. State of E
      RajasthanJ2008) 8 SCC 719, Jarnail Singh v. State of Punjab
      (2009) 9 SCC 719, Vishnu v. State of Rajasthan (2009) JO
      ACC 477, Annareddy Sambasiva Reddy v. State of A.P. and
      Balraje v. State of Maharashtra (2010) 6 SCC 673.)"
      39. This Court further in the above case has laid down that minor     F
discrepancies in the statement of witnesses of trivial nature cannot be a
ground to reject evidence. In paragraph 32 following has been laid down:
      "32. It is a settled legal proposition that while appreciating
      the evidence of a witness, minor discrepancies on trivial
      matters, which do not affect the core of the prosecutions case, G
      may not prompt the court to reject the evidence in its entirety.
      "Irrelevant details which do not in any way corrode the
      credibility of a witness cannot be labelled as omissions or
      contradictions. " Difference in some minor details, which does
      not otherwise affect the core of the prosecution case, even if
                                                                       H
870            SUPREME COURT REPORTS                         [2017] 7 S.C.R.


A          present, would not itselfprompt the court to reject the evidence
            on minor variations and discrepancies. After exercising care
           and caution and sifting through the evidence to separate tn1th
           from untruth, exaggeration and improvements, the court comes
            to a conclusion as to whether the residuary evidence is
            sufficient to convict the accused. Thus, an undue importance
B
           should not be attached to omissions, contradictions and
            discrepancies which do not go to the heart of the matter and
            shake the basic version of the prosecution witness. As the
            mental capabilities of a human being cannot be expected to
            be attuned to absorb all the details, minor discrepancies are
 c          bound to occur in the statements of witnesses. (See State of
            UP. v. M.K. AnthonyJ1985) 1 SCC 505, State of Rajasthan
            v. Om Prakash (2007) 12 SCC 38 I), State v. Saravanan (2008)
            17 SCC 587 and Prithu v. State of H.P. (2009) 11 SCC 588)"
             40. In the above judgment also this Court while considering the
 D    inquest report laid down that omissions in the inquest report are not
      sufficient to put the prosecution out of court.
             41. The prosecution by cogent reason has successfully proved
      that the accused with the common intention of murdering Mohan Lal
      came and injured Mohan Lal, killed his wife by using firearms and caused
 E    death of Smt. Sarvesh Kumari and two children by putting the whole
      house to fire. A perusal ofjudgment of the High Court gives an impression
      to us that the High Court relied on small inconsistencies and untenable
      grounds to set aside the well considered judgment of the trial court.
      There were no such grounds or reasons on which evidence of PW. I and
      PW.2 regarding incident and identity of the accused could be disbelieved.
 F
              42. As noted above, two of the accused Ram Prasad and Daya
      Shankar have already died, only three of the accused Ram Kumar,
      Ramakant and Kalloo remain. The High Court has acquitted the accused
      by its judgment dated 11.10.2002 that is about 10 years ago. Taking into
      consideration over all facts and circumstances of the case, we are of
 G    the view that at this distance of time confirming the capital punishment
      to the accused is not an appropriate punishment. We confirm other
      punishments awarded by the trial court except capital punishment which
      is converted into life imprisonment. The High Court judgment dated
      11.10.2002 is set aside. The appeal is accordingly allowed. The above
 H
             STATE OF U.P. v. RAM KUMAR & ORS.                            871
                   [ASHOK BHUSHAN, J.]

mentioned three accused, Ram Kumar, Ramakant and Kalloo are directed      A
to be taken into custody forthwith to serve out the sentences awarded
as above.


Nidhi Jain                                              Appeal allowed.