Ajai Alias Ajju Etc. Etc. v. The State of Uttar

AJAI ALIAS AJJU ETC. ETC. v. THE STATE OF UTTAR PRADESH (Criminal Appeal Nos.598-600 of 2013) FEBRUARY 15, 2023 [B. R. GAVAI AND VIKRAM NATH, JJ.] Penal Code, 1860 – ss. 302/149, 307 – Arms Act, 195 9 – Code of Criminal Procedure, 1973 – ss. 161, 164 – T he case of prosecution was that the accused persons, entered i nto the house of the PW-1 and her sister and had caused the death of the four of their family members – In the course of committing th e offence, the accused persons also inflicted the injuries upon the PW-1 and her sister – Presuming them to be dead, the accused pers ons left the house – Thereafter, the PW-1 and her sister came out of the house shouting and the villagers and the accused persons reached but since they were frightened of the accused persons, they both deliberately concealed the names of the accused persons and u pon being asked by the accused persons that whether the y have seen someone, they told them that they haven’t seen anyone – Af ter that the names of the accused persons were disclosed to the inves tigating officer by PW-1 and thereafter the investigation wer e carried out and the charge-sheet were filed against the accused person s – The trial court, taking into consideration the evidence adduced convicted the accused persons of the death sentence along with other lesser punishments for other offences – Aggrieved by it, t he accused persons approached the High Court – High Court affi rmed the sentence imposed by the trial court but commuted the death p enalty to life imprisonment – On appeal, held: PW-1 is an injure d witness and there is no reason why PW-1 would make false implication and allow the real assailants to go scot-free – Also, a perusal of her testimony shows that she has fully supported the pros ecution story as narrated by her in her statement under section 161 C rPC and even during cross-examination nothing was elicited from he r which in any way may weaken or demolish her testimony and therefore, she was a fully reliable witness and has stated the things in n atural course – Non-disclosure of the name of the accused persons by the PW-1 was a wise step on her part as they were close relat ives of her and such non-disclosure was done for protecting her o wn life. Dismissing the appeals, the Court HELD: 1. PW-1 is an injured witness. Her injuries h ave not been challenged. There is no reason why PW-1 would mak e false implication and allow the real assailants to go scot -free. A perusal of her testimony shows that she has fully supp orted the prosecution story as narrated by her in her stateme nt under section 161 CrPC. Even during cross-examination nothin g has been elicited from her which in any way may weaken or demolish her testimony. She was a fully reliable witness and has s tated the things in natural course. [Para 18][939-E-F]

¶2The two daughters of the deceased ‘V’ having seen t he assailants murdering their family members and also causing injury to one of them i.e. PW-1 being close relative rightly and wisely did not speak out anything in their presence and allowed them to remain in dark that she had actually seen them committing t he crime. At the first instance, when the Investigating Of ficer went to the hospital to record her statement, they immediatel y came out with the true sequence of events as they had happe ned. [Para 19][939-G-H; 940-A]

¶3The pressing of the dog squad into service was also ful ly justified as till that time when the dog squad was pr essed into service in the morning the names of the assailants had no t been disclosed. The dog squad had been pressed into servi ce as per the FIR since the names of the assailants were not known . It is the case of the prosecution itself that the time when the FIR was lodged and at the time when PW-1 was admitted to the hosp ital, the names of the assailants had not been disclosed de liberately and for justifiable reasons. The daughters of the de ceased ‘V’ needed to protect their lives otherwise they would also had been done to death. [Para 20][940-B-C]

¶4Non-examination of sister of PW-1 and ‘H’, father of ‘V’ also has no material bearing. It is the discretion of the prosecution to lead as much evidence as is necessary for proving the char ge. It is not the quantity of the witnesses but the quali ty of witnesses which matters. PW-1 was the injured witness having received PRADESH grievous and life-threatening injuries. Non-examinatio n of the statement under section 164 CrPC also has no releva nce or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Officer to have got the statement under section 164 CrPC recorded. If he did not t hink it necessary in his wisdom, it cannot have any beari ng on the testimony of PW-1 and the other material evidence led during trial. [Para 21, 22][940-D-E] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.598-600 of 2013. From the Judgment and Order dated 22.02.2012 of the High Court of Judicature at Allahabad in CRLA Nos.6293, 6294 and 6295 of 2009. With Criminal appeal nos.337 of 2014 and 745-748 of 2015. Brijender Chahar, Sr. Adv., Ms. Deep Shikha Bharati (Amic us Curiae), Sanjay Kumar Tyagi, Rameshwar Prasad Goyal, Rishi Malhotra, Sarvesh Singh Baghel, Karan Chahar, Ms. Pooja Chahar, Advs. for the appearing parties. The Judgment of the Court was delivered by

VIKRAM NATH, J.

¶1Criminal Appeals No.598-600 of 2013 have been preferred by accused Ajai alias Ajju, Braj Pal and Ravi respectively. Ajai alias Ajju has since died, as reported by the learned counsel for both the sides. Accordingly, Criminal Appeal No.598 of 2013 stands abated. Criminal Appeal No.337 of 2014 has been preferred by accused Mukesh.

¶2The above appeals assail the correctness of the judgment and order of the High Court dated 22.02.2012 whereby the c onviction recorded by the Trial Court under section 302/149 of the Indian Pena l Code 1 and other allied offences, both under the IPC as also the Arms Act, 1959 has been affirmed. However, sentence awarding death penalty by the Trial Court has been commuted to life sentence for all the accused. Rest of the sentences have been maintained.

¶3Criminal Appeal Nos.745-748 of 2015 have been preferred by the State of Uttar Pradesh against the above referred common judgment 1 IPC of the High Court to enhance the punishment to all the four respondents and award them death sentence.

¶4Prosecution story in brief is that Braj Pal Singh (one of the accused) made a complaint to the police station at Muradnagar, District Ghaziabad at about 4.30 AM on 25.08.2007 that early in the morning at around 3.00 AM he heard the shouting and shrieking of Ms Rashmi, daughter of his brother Vijay Pal Singh whereupon along wi th other villagers he reached the house of his brother in the neighbourhood only to find that his brother Vijay Pal Singh, his wife Smt Rajesh were lying on the ground floor on their cots with their necks cut by sharp edged weapons, and further, when he went on the upper floor, he saw Nishant, son of Vijay Pal Singh and also Mangal Singh, son in law of Vijay Pal Singh also lying dead on their cots with their necks also cut. Smt Pinky, daughter of Vijay Pal Singh was also lying on the ground fl oor in an injured condition. She was taken to the hospital and admitted there whereas the dead-bodies of the four deceased persons were lyi ng on the spot where the crime was committed. After registering the case, the investigation started.

¶5The Investigating Officer recorded the statements of th e two daughters of the deceased Vijay Pal Singh, namely Ms Rashmi and Smt Pinky (PW-1). According to Smt Pinky and also Ms Rashmi a v ery shocking sequence of events were revealed. According to Smt Pinky, there was enmity of her father with his brother Braj Pal and son of other brother Indra Pal; further, there was enmity with their neighbour Mukesh over consuming alcohol. She further stated that she was sleeping w ith her parents on the ground floor. Her sister Ms Rashmi, brother-in-law Mangal Singh, brother Nishant were sleeping on the upper floors of the house. At about 3.00 AM, she woke up due to some noise only to s ee that her neighbour Mukesh, son of Tungal Singh, Braj Pal Singh, Ravi, Ajai alias Ajju were assaulting her parents with talwar and gandasa . Mukesh assaulted her with a sword. She tried to save herself b ut then she fell down and lay quietly. She also narrated that Mukesh was saying ‘Abrar makes sure that no one is left alive. Kill all of them’ and thereafter he went upstairs. She continued to lie close to her mother i n a state of fright and shock. They left thinking that she was also dead. They were also taking name of one Pramod. Both Abrar and Pramod are fr om village Noorpur, which is the in-law’s place of Mukesh. They us ed to regularly come to Mukesh and that she had seen them earlier. When these assailants left after assaulting, her sister Ms R ashmi came down from upstairs only to see that their parents, brother and husband had been murdered. Both the sisters ran outside shrieking and shouting, and after some time, Braj Pal and Mukesh came along with others and they asked what had happened. They came inside and saw the entire pla ce of occurrence and asked Smt Pinky if she had recognised the assailants. Out of fright both Ms Rashmi and Smt Pinky denied having seen anyone. Thereafter Mukesh called for the vehicle of Ajai alias A jju and they brought them to the hospital. They were also asking her on the way as to whether she had recognised any one, to which she had denied. She also requested the Investigating Officer that both of them have told the correct sequence but please keep to himself as there is imminent t hreat to her life and also to her sister’s life. After narrating the entire story Smt Pinky (PW-1) fell unconscious. Ms Rashmi, the other daughter of the deceased has also given a similar statement to the Investigating Officer, although she was not examined during trial. After recording the said statements, the Investigating Officer completed all the formalities, sent the dead-bodies for post-mortem, informed the superior autho rities, prepared the sight plan, made necessary recoveries from the spo t.

¶6Smt Pinky (PW-1) suffered the following injuries as p er the injury report prepared by Dr Rajeev Sharma(PW-2) of the Sar vodaya Hospital, Ghaziabad who had examined her at 5.25 AM on the same day: “INJURIES

(i) Amputated little & ring finger at level of proximal cr ease

(R)

(ii) Cut lacerated wound on palmar aspect of (R) hand 8 cm. x 2 cm. red in colour. 2 cm distal to palmar crease.

(iii) Cut lacerated wound on front side of forearm (R) 6 cm . x 2 cm. red in colour profusely, bleeding, 5 cm. above wrist joint.

(iv) Cut lacerated wound over face extending from (Lt.) Angl e of mouth 5 cm. x 3 cm.

(v) Cut lacerated wound over neck 5 cm. x 1 cm. just above upper crease of neck.

(vi) Cut lacerated wound at base of index and middle finger on back side 2 cm. x 1 cm. & 2 cm. x 0.5 cm. respectively.

(vii) Cut lacerated wound on (L) ear 3 cm. x 1 cm. red in colour and bleeding.” X-ray of the neck and jaws was also conducted on the same day and a report to that effect was submitted by Dr.Rajeshwar Yadav, Radiologist (PW-3).

¶7Post-mortem was conducted in the afternoon on the same day by Dr K.N.Tiwari (PW-4) and the following ante-mortem injuries were reported on the four deceased: “Smt. Rajesh Antemortem Injuries (Exhibit Ka-3)

(1) Incised wound over neck lower part anteriorly and on Rt.side 8 cm. x 4 cm., bone deep, 3 cm. above supractenal notch, soft tissues of neck including blood vessels and trachea are cut in the wound.

(2) Incised wound on Lt. side neck lower part 8 cm. below ear 7 cm. x 3 cm. wound in muscle deep, soft tissue and muscle cut. Post-mortem wound Three clean cut wounds on right hand dorsum are present. Sixe 8 cm. x 5 cm., 7 cm. x 4 cm., 3 cm. x 2 cm., 2.3 cm. apart. Vijay Pal Antemortem Injuries (Exhibit Ka-4)

(1) Incised wound in upper part of neck on anterior and sides size 10 cm. x 3 cm. bone deep, wound is 8 cm. below ear lobule laryux, hyoid soft tissues and blood vessels are cut in the wound. Post mortem wound Post mortem wounds (1) clean cut 7 cm x 3 cm. on dorsum of Rt. Hand, (2) Abrasion 7 cm. x 3 cm. on dorsum of Rt. Hand and 1 cm. x 1 cm. clean cut over Lt. angle of mouth noted. Mangal Antemortem Injuries (Exhibit Ka-5)

(1) Incised wound 25 cm. x 9 cm. on upper part of neck and lower jaw on anterior and Rt. Side, wound is reactive upto Vertebrae, Mandible, soft tissues of neck muscles, Larix, hyoid and blood vessels are cut in the wound.

(2) Upper part of wound in at level of ear lobule and oblique , oblique Incised wound on Rt.side face, from upper lip to ear 11 cm. x 1 cm. muscle deep. Nishant Antemortem Injuries (Exhibit Ka-6)

(1) Incised wound 9 cm. x 2 cm, oblique, Rt. Side neck reaching upto mid line 6cm. Below ear muscle deep.

(2) Incised wound 5 m.m. Below injury no.1 on Rt. Side neck reaching up to midline size 10cm x 8 cm., muscles, Larynx, (thyroid cartilage and hyoid) vessels are cut in the wound.”

¶8After having recorded the statements of the two daughter s of Vijay Pal Singh, namely Smt Pinky and Ms Rashmi, the Investig ating Officer Sub-Inspector Ram Babu Saxena (PW-9) also noted that mobile number of the deceased Nishant bearing No.9336780542 was also not traceable. Later on, the Investigating Officer arrested Mukesh and Braj Pal Singh. Mukesh after his confessional statement also got recoveries made on his pointing out of blood-stained pant, Khukri from his house which were taken into custody, sealed and memo prepared. Motor cycle belonging to Abrar, co-accused was also recovered and taken into custody. Braj Pal Singh after giving his confessional statemen t also got a blood-stained gandasa recovered from his house which was taken into custody, sealed and memo prepared. On 28.08.2007, co-accused Ravi was arrested and in his confessional statement, and on his pointing out, a blood-stained T-shirt and a mobile phone LG Relian ce bearing No.9336780542 was also recovered from the house of his mother’s sister. The same was taken into custody, sealed and a memo prepared. Ajai alias Ajju was arrested on 4.11.2007 and upon recording his confessional statement, and on his pointing out, a knife was recovered from his village hidden near a canal, the said knife was taken into custody and a recovery memo was prepared. The recovered articles were sent for forensic examination to the Vidhi Vigyan Prayogshala , Agra.

¶9After completing the investigation, a charge-sheet was fi led against the four accused namely, Braj Pal Singh, Mukesh, Ravi and Ajai alias Ajju. Two separate cases were registered against Mukesh and Ajai alias Ajju under sections 4/25 of the Arms Act. In these two FIRs also a charge-sheet was submitted. All the matters were clubbed together and tried by the Trial Court.

¶10The prosecution examined 13 witnesses. They all supported the prosecution story. All the relevant material and document s were proved and exhibited.

¶11The four accused gave their statements under section 313 of the Criminal Procedure Code 2 in which they denied their involvement and alleged that they had been falsely implicated; they also stated tha t the recovery was not at their instance; the witnesses were giving evidence out of enmity; the accused in defence examined two witnes ses. Dr Islamuddin, a resident doctor in Sarvoday Hospital was exami ned as DW-1 to prove the medical papers regarding admission of Smt Pinky in the hospital Exh. Kha-1 to Kha-38. Smt Berwati, wife of Mool Chand, mother of the accused Ajai alias Ajju was examined as DW-2. She stated that her son was arrested along with Mukesh and Braj Pal, thereafter released and again after 20 days he was arreste d.

¶12The Trial Court vide judgment dated 24.09.2009, after thorough scrutiny and appreciation of the material evidence on record, came to the conclusion that the prosecution had successfully brought home the guilt of the four accused in committing the murder of the four deceased and attempt to murder of Smt Pinky (PW-1) who were their close relatives and, accordingly, convicted them under section 302/149 and section 307 of IPC and other allied offences under IPC and Arms Act, 1959 and awarded them death sentence and life imprisonment and other les ser sentences for different offences proved.

¶13Appeals were preferred before the High Court by the accused which were heard along with death reference forwarded by the Trial Court. Before the High Court, the appellants Braj Pal, Ajai alias Ajju and Ravi had engaged separates counsels whereas appellant Mukes h was provided an amicus curiae from the legal aid. The High Court, after considering the respective arguments and the material on record, affirmed the conviction recorded by the Trial Court of all the offences. However, on the question of sentence, after discussing the law on the point and taking into consideration the various other relevant factors, commuted the death sentence into life imprisonment. 2 CrPC

¶14Aggrieved by the same, present appellants are before th is Court.

¶15We have heard learned counsel for the parties at length and also perused not only the record provided by the learned counsel for the parties but also the Original Record of the Trial Court.

¶16On behalf of the appellants, the arguments advanced are briefly recorded as follows:

(i) This is a case of solitary eye-witness, namely, Smt Pin ky (PW-1), her testimony was that of a witness related to the deceased and also a witness having enmity with the appellants and, therefore, would not be a reliable witness and ought not to have been relied upon;

(ii) There is no other evidence to corroborate the testimo ny of the solitary eye-witness, PW-1;

(iii) Smt Pinky (PW-1), at the first instance, does not disclose the names of the assailants to the villagers and other family members who collected on her shouting and shrieking nor did she disclose the names of the assailants at the time she was admitted to the hospital, therefore, it is a cas e of improvement;

(iv) There is evidence to show that a dog squad was summoned in the morning, as such it was a case of unknown assailants and that the eye-witness Smt Pinky had actually not seen any one and even if she had seen any one, she did not recognise them. A dog squad would not have been put into action, in case the names of the assailants were known; as such this also suggests improvement;

(v) No explanation as to why Ms Rashmi and Horam, father of the deceased Vijay Pal Singh, accused Braj Pal and grandfather of Ravi were not examined, even though they were there at the place of occurrence; and

(vi) The statement of Smt Pinky (PW-1) was not recorde d before the Magistrate under section 164 CrPC which creates a doubt.

(vii) Learned counsel on behalf of the appellant Ravi raised an additional argument that Smt Pinky (PW-1) did not take his name before the Investigating Officer while giving her statement under section 161 CrPC. According to him, the name of Ravi has been taken for the first-time during trial as an improvement. His client has been falsely implicated.

(viii) Learned Amicus appearing for appellant Mukesh h as referred to various discrepancies in the testimony of the witnesses.

¶17On the other hand, learned counsel appearing for the respondent -State submitted that the findings recorded by the Trial Cou rt and the High Court are based upon a thorough scrutiny and appreciation of the evidence on record and do not require any interference. It is furthe r submitted by the learned counsel for the State that the appellants being close relatives and neighbours of the deceased, in order to gain property, settled their score of enmity by committing a ghastly ac t of brutally murdering four members of the same family and also attempting to murder the injured witness Smt Pinky who had been attacked and assaulted on her neck and in the act of protecting herself she lost a couple of fingers of her upper hand. No leniency needs to be shows to them. The Hi gh Court committed an error in commuting the death sen tence to life imprisonment. Accordingly, the sentence of life imprisonment awarded by the High Court be set aside and that of the Trial Court of de ath sentence be restored.

¶18The submissions advanced are being dealt with in the same sequence. PW-1 is an injured witness. Her injuries have not been challenged. There is no reason why PW-1 would make false implication and allow the real assailants to go scot-free. A perusal of her testimony shows that she has fully supported the prosecution story as narrated by her in her statement under section 161 CrPC. Even d uring cross-examination nothing has been elicited from her which in any way may weaken or demolish her testimony. She was a fully reliable witness and has stated the things in natural course.

¶19The two daughters of the deceased Vijay Pal Singh having seen the assailants murdering their family members and also causing injury to one of them i.e. Smt Pinky (PW-1) being close relative rightly and wisely did not speak out anything in their presence and allowed them to remain in dark that she had actually seen them committing the crime. At the first instance, when the Investigating Officer went to the hospital to record her statement, they immediately came ou t with the true sequence of events as they had happened. The appellants cann ot gain anything out of the above submission.

¶20The pressing of the dog squad into service was also full y justified as till that time when the dog squad was pressed into service in the morning the names of the assailants had not been disclosed. The dog squad had been pressed into service as per the FIR since the names of the assailants were not known. It is the case of the prosec ution itself that the time when the FIR was lodged and at the time when Smt Pinky (PW-1) was admitted to the hospital, the names of the assailants had not been disclosed deliberately and for justifiable reasons. The daughters of the deceased Vijay Pal Singh needed to protect their lives otherwise they would also had been done to death.

¶21Non-examination of Ms Rashmi and Horam, father of Vijay Pal Singh also has no material bearing. It is the disc retion of the prosecution to lead as much evidence as is necessary for proving the charge. It is not the quantity of the witnesses but the quality of witnesses which matters. Smt Pinky (PW-1) was the injured witne ss having received grievous and life-threatening injuries. We are not impressed by this argument also.

¶22Non-examination of the statement under section 164 CrPC also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Offic er to have got the statement under section 164 CrPC recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial.

¶23Insofar as the attempt of the learned counsel for Ravi is concerned, regarding his name not being taken in the statement of Smt Pinky under section 161 CrPC, we are of the view that the same is factually incorrect. This Court has perused the statement of Smt Pinky and finds that at two places she has taken the name of Ravi, both during the assault and otherwise also.

¶24Learned Amicus for the appellant Mukesh has tried to p oint out several discrepancies and inconsistencies in the evidence. We need not go into details as the same are minor and do not have any impact on the findings recorded by the courts below.

¶25For all the reasons recorded above, we do not find any infirmity in the order of the High Court affirming the conviction of the appellants. Accordingly, Criminal Appeal Nos.598-600 of 2013 and Criminal Appeal No. 337 of 2014 are liable to be dismissed and are accordingly dismissed. Insofar as the appeals filed by the State are concerned for enhancement of sentence, we find that the High Court has given sound and cog ent reasons for commuting death sentence into life sentence. Accordingly, the Criminal Appeal Nos.745-748 of 2015 also stand dismissed. The appellants are in custody and they will serve out their sentence.

¶26Pending applications, if any, are disposed of. Ankit Gyan Appeals dismissed. (Assisted by : Mahendra Yadav, LCRA)