Ashwani Kumar Mishra, J.

1. Heard Ms. Vijata Singh, learned Amicus Curiae for the appellant and Mrs. Archana Singh, learned AGA for the State.

2. This jail appeal is directed against judgment and order dated 16.10.2006, passed by the Additional District & Sessions Judge (Special), Baghpat in Sessions Trial No. 188 of 2005, State vs. Om Prakash whereby the appellant has been convicted under sections 302 and 352 IPC, in Case Crime No.324 of 2004, Police Station Ramala, District Baghpat and consequently sentenced to life imprisonment along with fine of Rs.20,000/- for the offence under Section 302 IPC and three months imprisonment for the offence under Section 352 IPC. In the event of failure to deposit the fine appellant was to undergo six months additional imprisonment. Both the sentences are to run concurrently.

3. Briefly stated, the prosecution case is that a written report dated 14.9.2004 was received from applicant Kallu Ram (PW-1) (Ext. A-1), scribed by Praveen Kumar S/o Kallu Ram (PW-6), stating that the elder son of informant i.e. accused appellant Om Prakash is a person of criminal antecedents and has been sent to jail multiple times. Few days prior to the incident accused Om Prakash attempted to assault the informant and his wife, which was not liked by the other two sons of the informant, namely Arvind and Praveen. Om Prakash on account of aforesaid was annoyed with his brothers Arvind and Praveen. At about 11.00 pm on 14.9.2004 the deceased Arvind alongwith informant and the informant’s brother Hukum Singh (PW-2) had gone to sleep outside the house while Om Prakash was sleeping inside the house. At about 4.00 a.m. the next morning the informant and his brother woke up on hearing some noise to find that accused Om Prakash was inflicting repeated blows on the neck and face of deceased Arvind with Tabal/Daav, a sharp edged weapon. The informant and his brother raised alarm on which Om Prakash rushed towards them also but as neighbours Rajveer Singh, etc., came on the spot the accused appellant fled. The dead body of the informant's son was lying on spot and a request was made in the written report to lodge the report and to do the needful. On the basis of aforesaid written report a First Information Report dated 14.9.2004 (Ext. A-16) was registered as Case Crime No. 324 of 2004, under Sections 302 read with 352 IPC.

4. After lodging of aforementioned FIR the police of Police Station - Ramala came into action. Accordingly, proceedings for conducting the inquest of the body of deceased were undertaken. An Inquest report was thereafter prepared in terms of Section 174 Cr.P.C. at about 9.00 am on 14.9.2004. As per the inquest report Chandra Prakash, Dilawar Singh, Mahipal, Ankur Kumar and Ranveer are the witnesses of inquest. In the opinion of the witnesses of inquest (Panch-witnesses) the deceased was found to be of average height and aged about 25 years. The inquest witnesses opined that the death of deceased was homicidal as the dead body of deceased was found lying on the cot having multiple injuries on face and neck. The panch witnesses also opined that as the deceased had died due to injuries sustained by him the postmortem of the body of deceased be also carried out.

5. Subsequent to above the blood stained clothes of the deceased were recovered. A recovery memo of the same was prepared i.e. Ext. Ka-9. Thereafter Investigating Officer collected blood stained earth and plain earth from the place of occurrence and prepared its recovery memo i.e. Ext. Ka-10. Thereafter the detailed police scroll was prepared and the body of the deceased was dispatched for postmortem on 14.9.2004. The same was carried out on the same day at about 3.00 pm by Dr. R.G. Verma (PW-7). In the opinion of the autopsy surgeon, the cause of death of deceased was shock and hemorrhage as a result of the following ante-mortem injuries:-

“1. Incised wound 10cm x 4cm x mandible cut extend from (R) angle of mouth to lower part of (R) ear.

(2) Incised wound 9cm x 3cm x bone deep present on (R) side neck, B an below injury No. (1).

(3) Incised wound 6 x 1cm x bone deep present on (R) side Neck, 1/4cm below injury No. (2).

(4) Incised wound 5 x 1cm x bone deep on (L) side chin.

(5) Incised wound 8 x 2 cm x trachea cut present on front of Neck.”

6. The autopsy surgeon thereafter prepared the postmortem report of the deceased (Ext. Ka-15).

7. Investigating Officer proceeded with the investigation and in the course of investigation he examined the first informant, brother of first informant, brother of deceased, etc. under Section 161 Cr.P.C.. The accused, however, absconded. Resultantly his properties had to be attached. Upon his surrender he was given in police remand. On his pointing out the weapon of assault (Tabal/Daav) was recovered from the sugarcane field of one Ram Mehar. Accordingly a recovery memo of same dated 18.1.2005 (Exhibit Ka-8) was prepared. Upon completion of investigation Investigating Officer submitted the chargesheet dated 25.11.2006 (Ext. Ka-7) against the appellant whereby and whereunder accused appellant has been chargesheeted under Sections 302 and 352 IPC.

8. After submission of aforementioned chargesheet, the concerned Magistrate took cognizance upon the same. As offence complained of is triable by Court of Sessions, concerned Magistrate accordingly committed the case to the Court of Sessions, Baghpat. Resultantly Sessions Trial No. 188 of 2005 (State Vs. Om Prakash) under Sections 302 and 352 IPC, P.S. Ramala, District Baghpat came to be registered. Separate and distinct charges were framed against the accused for offence under Sections 302 and 352 IPC. The accused appellant denied the charges so framed and demanded trial.

9. Resultantly the trial procedure commenced before the Court of Sessions, Baghpat. The prosecution in order to bring home the charges so framed adduced Kallu Ram (PW-1), Hukum Singh (PW-2), Babu Ram Nayyar (PW-3), Richhpal (PW-4), Rajesh Kumar Singh (PW-5), Praveen Kumar (PW-6), Dr. R.G. Verma (PW-7) and Mahendra Singh Yadav (PW-8).

10. PW-1 – Kallu Ram S/o Teekaram is the first informant and also an eyewitness of the occurrence. In his sworn testimony, he has stated that accused appellant Om Prakash is his elder son and is a man of criminal antecedents against whom several criminal cases are pending at Muzaffar Nagar and Baghpat. He has been to jail multiple times. He has further stated that few days prior to the incident accused Om Prakash had tried to assault the informant and his wife which was not liked by other sons namely Praveen and Arvind and for this reason Om Prakash maintained enmity with them. He has supported the prosecution version by stating that he was sleeping outside the house along with Hukum Singh and deceased Arvind while Om Prakash was sleeping inside the house. He claims to have woken up on hearing noise to find that accused Om Prakash was inflicting repeated blows on the deceased by Tabal (Daav). Four or five blows had been inflicted by the appellant on the deceased. PW-1 alongwith his brother raised an alarm on which Rajveer Singh and Indrapal alongwith others came on the spot who also saw Om Prakash leaving with Tabal (Daav). This witness was cross-examined by the accused. However, this witness in his examination-in-chief has stated that his brother Hukum Singh is unmarried. The incident is stated to have occurred at around 3.00-4.00 am on 14.9.2004. PW-1 has further stated that he was not having any watch and the disclosure about the time of incident is based on his assessment. He has stated that few blows had already been inflicted upon the deceased by the time this witness woke up and some more blows were inflicted later. The deceased had died on the spot. The written report was thereafter scribed by Praveen Kumar on his instruction outside the police station. He has further disclosed that the police station is 7-8 kilometers away from his village where he had gone on his own tractor. He denied the suggestion that accused has been falsely implicated on account of enmity in respect of agricultural property. Inspite of lengthy cross examination defence could not dislodge this witness. As such he is a credible and reliable witness.

11. PW-2 – Hukum Singh is the uncle of deceased aged about 64 years. This witness has also supported the prosecution story. He is an eyewitness of the occurrence alongwith PW-1 Kallu Ram. In his statement-in-chief this witness has clearly stated that accused Om Prakash is a man of criminal antecedents inasmuch as he had indulged in theft and dacoity, etc. This witness was also crossexamined by defence. However, he remained firm and consistent. Defence failed to cull out any statement from this witness so as to make his testimony unworthy of trust on account of exaggeration, embellishment and contradiction. As such this witness is credible and his testimony is worthy of trust.

12. PW-3 Sub-Inspector Ram Babu Nayyar had prepared the inquest report dated 14.9.2004 (Ext. Ka-2) and has proved the same. Except for the above his testimony is not relevant.

13. PW-4 Constable Richhpal had gone to village Kirthal alongwith other police personnel where the dead body of deceased was lying. This witness was involved in the preparation of police papers and had brought the dead body of the deceased to the mortuary. Except for the above his testimony has no other relevance.

14. PW- 5 Sub-Inspector Rajesh Kumar Singh is the Investigating Officer. This witness has clearly stated that he is the Investigating Officer of the concerned case crime number. This witness claims to have obtained the copies of the check FIR and the general diary and thereafter entered the same in the case diary. According to this witness he thereafter visited the place of occurrence and prepared the site plan of the place of occurrence (Ext. Ka-11). He thereafter collected plain earth and earth mixed with blood from the place of occurrence and prepared its recovery memo (Ext. Ka-9). He also collected the blood stained ropes (badh) from the cot of the deceased, and prepared its recovery memo (Ext. Ka-10). According to this witness the weapon of assault was recovered by him on the pointing of accused. It is this witness who had prepared the recovery memo of the same (Ext. Ka-8). He proved the aforementioned recovery memos. He has also stated that the accused has criminal history of following cases:-

“1. Crime No. 60/89, u/s 452/323/504 IPC, P.S. Ramala.

2. Crime No. 70/89, u/s 395/397 IPC, P.S. Ramala.

3. Crime No. 87/89, u/s 394/302/412 IPC, P.S. Ramala.

4. Crime No. 125/94, u/s 307 IPC, P.S. Kotwali Muzaffarnagar.

5. Crime No. 126/94, u/s 25 Arms Act, P.S. Kotwali Muzaffarnagar.”

15. PW-6 Praveen Kumar S/o Kallu Ram aged 31 years is the brother of the deceased and is working as Home Guard. On the fateful day this witness alleges to be on duty at Tehsil Baraut where he received information about the death of his brother. He claims to have come to his village. According to this witness, it is he, who had scribed the written report (Ext. Ka-1) which was submitted by his father at the police station. He has also proved the written report (Ext. Ka-1) scribed by him.

16. PW-7 Dr. R.G. Verma is the autopsy surgeon who had conducted the autopsy of the cadaver of the deceased. This witness had prepared the postmortem report dated 14.9.2004 (Ext. Ka-15) and has proved the same. This witness has opined that the cause of death of deceased was the ante-mortem injuries sustained by the deceased and specified in the postmortem report. According to this witness at the time of postmortem of the body of deceased rigor mortis was present. He opined the time of death of deceased to be around 4.00 am on 14.9.2004. The medical evidence thus supports the prosecution story.

17. PW-8 – Mahendra Singh Yadav is a Police Constable who was posted at Police Station Ramala at the relevant point. According to this witness he prepared the check FIR on the basis of written report. This witness has proved the check FIR (Ext. Ka-16) and the copy of the G.D. (Ext. Ka-17).

18. After the prosecution evidence was over all the adverse circumstances were disclosed to the accused in question answer form for his version of the occurrence. As a result the statement of the accused was recorded under Section 313 Cr.P.C. The accused in his reply to the questions put to him has denied the allegations alleged against him. According to accused, he was neither present at the time and place of occurrence, as such, he is ignorant about the manner of occurrence. He also claims to have been falsely implicated due to family enmity.

19. Accused appellant neither adduced any evidence to prove his innocence nor he has come out with his version of occurrence. As such, the only version of the occurrence is the prosecution version.

20. On the basis of aforesaid material, the Sessions Court has found the charges levelled against the accused appellant to be proved and has consequently convicted the appellant for an offence under Section 302 read with 352 IPC and consequently sentenced him to life imprisonment alongwith fine of Rs. 20,000/- vide judgment and order dated 16.10.2006.

21. Feeling aggrieved by aforementioned judgment and order the accused appellant has filed present appeal from Jail. We have heard Ms. Vijata Singh, the learned Amicus Curiae for the appellant and Mrs. Archana Singh, the learned AGA for the State.

22. As per the prosecution case, the deceased has been done to death by his brother Om Prakash who had inflicted multiple injuries upon the deceased by a Tabal (a sharp edged weapon). The motive behind the occurrence is clearly discernible from the record i.e. enmity with the deceased on account of the objection raised by him to the act of accused appellant in attempting to assault his parents. The five ante-mortem injuries found on the body of the deceased are in the nature of incised wound which could be caused by a sharp edged weapon. The ocular version of the prosecution story is supported by the medical evidence on the record which is the postmortem report as well as the oral testimony of PW-7 Dr. R.G. Verma whose testimony regarding the approximate time of death and manner of death also corroborates the prosecution story.

23. The two eyewitnesses of the incident i.e. PW-1 Kallu Ram is the father of the deceased as well as accused whereas PW-2 Hukum Singh is the uncle of the deceased and accused. Nothing has come on record on the basis of which the testimony of aforesaid eyewitnesses who are also related to the accused could be discarded on the grounds that they are interested witnesses or partisan witnesses.

24. The conviction and sentence of the accused appellant is challenged before us primarily on the ground that there are material contradictions in the prosecution story which have not been adverted to by the court below. It is also sought to be urged that the FIR is anti timed, inasmuch as, the time of death opined in the postmortem report does not tally with the timing of the alleged offence disclosed in the FIR. Learned counsel for the appellant also contends that appellant has been falsely implicated in the crime in question on account of a dispute regarding agricultural land and its distribution amongst brothers, particularly as the uncle of the deceased was unmarried and his share would devolve upon the accused appellant who is sought to be deprived of his rightful share in the agricultural property.

25. The above submissions urged by learned Amicus Curiae regarding innocence of appellant are strongly contradicted by the learned AGA. According to learned AGA in a case of direct evidence motive becomes irrelevant. Secondly, there is nothing on record on the basis of which it could be even inferred that appellant has been falsely implicated in the crime in question. The two eyewitnesses of the occurrence though are interested witnesses yet they are credible and reliable witnesses. The occurrence has taken place in front of the house at around 3.00 to 4.00 am and, therefore, there could not be an independent eyewitness of the occurrence at the point of time. The two prosecution witnesses of fact who are also an eyewitness of the occurrence have remained consistent throughout. Inspite of cross-examination defence failed to dislodge them nor could it cull out any such statement from them so as to make their testimonies unworthy of credit on account of exaggeration, contradiction and embellishment. Both the eyewitnesses have narrated almost the same story. According to learned AGA the testimony of one witness cannot be contradicted with reference to the testimony of another witness nor it is possible to have a carbon copy of the occurrence in the statement of two witnesses. Even if minor variation exists with regard to the manner of occurrence in the statements of the two eyewitnesses same shall be immaterial as it will not amount to contradiction but a natural phenomena that two person cannot be given exact deposition. Present case is a case of direct evidence and the two eyewitnesses have fully supported the prosecution story which the prosecution set out to prove. The doubts raised by learned Amicus Curiae are fanciful doubts and do not create such dent so as to dislodge the prosecution case. It is thus vehemently urged by learned AGA that the impugned judgment and order passed by court below is not liable to be interfered with by this Court and consequently the appeal be dismissed.

26. We have perused the records of the present appeal and have carefully gone through the evidence brought on record.

27. Learned Amicus Curiae has made following submissions in support of this appeal:

(i) Postmortem report shows that intestine and bladder of deceased were half full, which is usually indicative of the fact that the deceased had his meal about two hours back and, therefore, the likely time of death is around 12 pm and the entire prosecution story suggesting injuries on deceased to be inflicted at around 3.00-4.00 am in the morning is inconsistent with the medical evidence on record.

(ii) PW-1 in his statement has disclosed that he woke up on hearing some noise while PW-2 in his statement has stated that he was woken by PW-1. It is, therefore, stated that the statement of the two eyewitnesses are contradictory.

(iii) The recovery of the weapon of assault i.e. Tabal on the pointing of accused appellant is not reliable since there is no independent witness of the alleged recovery.

(iv) PW-6 Praveen Kumar is an interested witness and his testimony cannot be relied upon.

(v) Appellant has been falsely implicated in the crime in question so as to dis-entitle him from inheriting agricultural property and with the motive that Praveen Kumar could get the entire land which otherwise would have also fallen in the share of the appellant.

(vi) The motive on the part of appellant for committing the crime in question is not substantiated, inasmuch as, no specific date, time and place of assault by accused on his parents has been disclosed, nor it could otherwise constitute sufficient provocation for causing the murder of his own brother.

28. It is in the above context that we are required to determine as to whether the prosecution has succeeded in establishing the charge levelled against the accused appellant of causing the death of the deceased Arvind Kumar beyond doubt.

29. The prosecution in order to bring home the charge levelled against the accused appellant has essentially relied upon the statements of the two eyewitnesses namely Kallu Ram and his brother Hukum Singh (PW-1 & PW-2) respectively. Both the eyewitnesses are father and uncle of the deceased as also the father and uncle of the accused appellant. Both the eyewitnesses are elderly persons, who have categorically supported the prosecution version by stating that they had gone to sleep at around 11.00 pm in front of the house along with the deceased. They claim to have woken up on hearing the noise and saw that the accused appellant was inflicting injuries upon deceased by a Tabal (a sharp edged weapon). The statement of both the eyewitnesses are consistent on this score. The eyewitness account of PW-1 and PW-2 also stand supported from the ante-mortem injuries found on the body of the deceased which have been clearly mentioned in the postmortem report of the body of the deceased also. The five ante-mortem injuries found on the body of the deceased have already been referred to in the earlier part of this judgement. However this much can be inferred that injuries were inflicted upon the deceased on the sensitive part of the body whereby themselves sufficient for causing the death of deceased. The autopsy surgeon who was examined as PW-7 has specifically opined that the nature of injuries caused to the deceased could have been caused by a sharp edged weapon i.e. a Tabal/Daav. As such, the prosecution story get supported by the medical evidence as well as the testimony of the autopsy surgeon also.

30. The eyewitness account in the facts of the case is clearly consistent with the injuries found on the body of the deceased and, therefore, is entitled to due weight. Once the eyewitness account tallies with the injuries found on the body of the deceased such statement would be entitled to weight unless it is shown that eyewitness account is unreliable or the testimony of eyewitness lacks credibility.

31. In order to impeach the credibility of eyewitness account the defence has attempted to highlight contradictions in their statement. Much emphasis was laid to the contradictions in the testimonies of PW-1 and PW-2 after drawing a parallel with each other. It is on the basis of above that it was strenuously urged by the learned Amicus Curiae that while PW-1 has stated that he and PW-2 woke up on hearing the noise, PW-2 has stated that he was woken up by PW-1.

32. We have examined the testimonies of PW-1 and PW-2 and do not find any material contradiction in them. PW-1 in his statement has stated that he and his brother woke up on hearing shouts at about 3.00-4.00 am and they saw the accused inflicting blows by a Tabal (a sharp edged weapon) on the deceased. PW-2 in his cross examination has stated as under in his cross examination:-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

33. The statement of PW-2 in substance matches with the facts stated in the statement of PW-1. On a conjoint reading of the statements of PW-1 and PW-2 the synthesis which emerges is that both the eye-witnesses i.e. PW-1 and PW-2 alongwith the deceased were sleeping outside the house. PW-1 and PW-2 woke up on hearing shouts of deceased. Both the witnesses have stated that they saw the appellant inflicting multiple blows by a Tabal on the face and neck of the deceased which is consistent with the prosecution story. Even in the cross examination PW-2 has stated that he could not know when Om Prakash came and he woke up on hearing the first shout of deceased. The sentence that PW-2 was woken up by PW-1 cannot be read out of the context so as to suggest any contradiction in the statement of PW-2. Even otherwise such minor variation in the statement of PW-2 is by itself not sufficient to dislodge the credibility and reliability of PW-2. The presence of PW-2 at the time and place of occurrence has not been denied by the accused. Thus this Court has no hesitation to conclude that the contradiction pointed out by learned Amicus Curiae for the appellant in the statement of PW-2 with reference to the statement of PW-1 is just a fanciful doubt as it neither creates a doubt much less a reasonable doubt in the prosecution case nor does it singularly wipe out the prosecution case.

34. When two persons are sleeping close to each other and are woken up by some noise/sound at odd hours which in this case is 3.00-4.00 am it can always be that one person may feel that he was woken up by the other. At that spur of the moment which of the two sounds was heard first by PW-2 may not carry much weight, particularly when their disclosure of the incident is otherwise fully consistent with each other and stands corroborated with the medical evidence as well as the statement of the doctor.

35. The deceased Arvind Kumar is the real younger brother of accused appellant Om Prakash. It is the consistent case of prosecution that Om Prakash is a man of criminal antecedents as he is involved in various other cases of theft and dacoity. The statements of PW-1 and PW-2 (eyewitnesses) are consistent in this regard. Details of criminal history and arrest of accused Om Prakash have been categorically disclosed by PW-5 S.I. Rajesh Kumar Singh. The accused was specifically confronted with aforesaid in the questions put to him under Section 313 Cr.P.C., which were vaguely denied.

36. So far as the argument with regard to the FIR being anti-timed is concerned, learned counsel for the appellant has relied upon the autopsy report in which the bladder and intestine are shown to be half full. With reference to aforesaid fact alone it is urged by learned counsel for appellant that the deceased was done to death much before the disclosed time of occurrence i.e. 3.00-4.00 am.

37. The argument raised by learned Amicus Curiae emanates from the postmortem report of the deceased. However, PW-7 the autopsy surgeon who had conducted the autopsy of the body of the deceased had opined that the occurrence leading to the death of the deceased could have occurred around 3.00 to 4.00 am in the night of 14.9.2004. However, no attempt was made by the accused to crossexamine the doctor regarding above. The eye-witnesses of the occurrence namely PW-1 and PW-2 have also stated the same time of occurrence. Even after cross examination defence could not dislodge the statements of the two eye-witnesses regarding the time of occurrence. Thus no credence can be attached to the doubt raised by learned amicus curiae regarding the timing of occurrence or the FIR being anti timed. Thus the argument that the FIR is anti timed cannot be sustained.

38. With regard to the submission urged by learned amicus curiae that appellant has been falsely implicated only to deny him rightful share in the agricultural property, the court is constrained to observe that the argument has been raised only to be rejected. It is well settled that a recorded tenure holder is exclusive owner of agricultural holding. He also has the privilege to bequeath his property and also sell his property. Sons of a recorded tenure holder cannot claim any right, title or interest in the agricultural property during the lifetime of a recorded tenure holder. Moreover, in case there is no male successor of a recorded tenure holder/co-tenure holder the agricultural property i.e. tenure of such tenure holder shall devolve upon the other surviving heirs per strip in the second preference and upon the person next in the generation of the deceased in first preference. Even if it is assumed that the uncle of the deceased i.e. PW-2 was unmarried in the first preference his share shall devolve upon the father of deceased and only after death of the father the property in the share of uncle could devolve upon deceased and his brothers in equal share.

39. Learned amicus curiae has further sought to impeach the impugned judgment by submitting that no motive can be attached to the appellant for causing the crime in question. Admittedly the present case is a case of direct evidence. In a case of direct evidence motive does not play an important role. It is only in a case of circumstantial evidence that motive on the part of accused to commit the crime in question is required to be proved.

40. We may at this stage refer to the judgment of the Supreme Court in Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196 [LQ/SC/2012/161] wherein Court has observed as under in paragraph 13 of the report:-

13. As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case is wholly reliable and see no reason to discard it. The submission, therefore, that the appellant had no motive for the commission of offence is not of any significance.

41. In view of the discussion made above, we find no error in the impugned judgment whereby appellant has been convicted and sentenced for an offence under Sections 302 and 352 IPC.

42. Accordingly, this jail appeal fails and is liable to be dismissed. It is, accordingly, dismissed.

43. However, before parting we record our appreciation for the valuable assistance rendered by learned Amicus Curiae Ms. Vijata Singh. She shall be entitled to her fees which we quantify at Rs.15,000/-. The same shall be payable to her by the High Court Legal Services Authority.

44. Considering the facts and circumstances of the case, we provide that since the appellant has remained under incarceration for a period of more than 16 years, without any remission, his claim for remission or commutation in terms of Section 433/433A Cr.P.C. shall be accorded consideration by the State Government in accordance with its policy within a period of three months from today.