SUPREME COURT REITERATES THAT NON-EXAMINATION OF CERTAIN WITNESSES DOES NOT HAVE MATERIAL BEARING ON THE TRIAL, AS IT IS NOT THE QUANTITY BUT THE QUALITY OF WITNESSES THAT MATTERS

A two Judge Bench of the Supreme Court comprising of Justice B.R. Gavai and Justice Vikram Nath have recently passed a Judgment dated 15-02-2023 in the matter of Ajai Alias Ajju etc. vs The State of Uttar Pradesh, Criminal Appeal Nos. 598­600 of 2013, and other connected Appeals and observed that non-­examination of statements of witnesses by an Investigating Officer under Section 164 of the Code of Criminal Procedure 1973 (CrPC) (Recording of confessions and statements) does not have a bearing or relevance to the findings and conclusions of the concerned Trial Court.

Facts

i) That one, Braj Pal Singh filed a Complaint with the Police Station, Muradnagar, District Ghaziabad, on 25-08-2007 early morning at 4.30 am, that around 3 am he heard his Brother, Vijay Pal Singh’s Daughter, Rashmi’s loud voice, whereupon he along with other villagers, reached Vijay Pal Singh’s house and saw (i) Vijay Pal and his wife lying on the ground floor cot with their necks slit with sharp edged weapons; (ii) Smt. Pinky, Vijay Pal’s other Daughter lying on the ground floor in an injured condition. She was later taken to a hospital; (iii) Nishant, i.e. Vijay Pal’s Son and Mangal Singh, i.e. Rashmi’s Husband, were also lying dead on the first floor cot with similar cuts on their necks.

ii) The Investigating Officer recorded the statements of both Daughters of Deceased Vijay Pal Singh, i.e. Rashmi and Pinky.

iii) As per Pinky’s statement, her Father, Vijay Pal Singh had enmity with his Brother, Braj Pal Singh and son of their other Brother, Indra Pal; and with his neighbour, Mukesh over consuming alcohol. She further stated that she woke up around 3 am due to some noise, when she saw Mukesh, Braj Pal Singh, Ravi and Ajai (Accused) were assaulting her Parents with talwar and Further, that Mukesh had assaulted her with a sword, but to save herself, she fell down and lay quietly. They left thinking that she was dead. A little later, her Sister, Rashmi came downstairs from the first floor and ran outside with Pinky. The Accused-Assailants thereafter visited the place of occurrence with other neighbours and asked the Sisters if they could recognise the Assailants, but out of fright, both the Sisters denied seeing any of the Assailants. But later, the Sisters informed about the crime committed by the said Assailants to the Investigating Officer (IO), Sub-­Inspector Ram Babu Saxena (PW-­9).

iv) Rashmi also gave a similar statement, but she was not examined during trial.

v) Upon recording the statements of both the Sisters, the IO completed all the formalities, sent the dead bodies for post-mortem, informed his superior officers, made necessary recoveries from the place of occurrence, etc.

vi) As per Dr. Rajeev Sharma, of Sarvodaya Hospital, Ghaziabad (PW-2), Ms Pinky (PW-1) had suffered injuries on her forearm, face, neck, etc.

vii) As per Dr. K.N. Tiwari (PW-4)’s Post-Mortem Report, the Deceased persons had received wounds on their neck and hands.

viii) The IO later on arrested Mukesh and Braj Pal Singh. As per the confessional statements of Mukesh, Braj Pal Singh, Ravi and Ajai, the IO made recoveries of blood-stained pant and shirt, weapons- khukri and gandasa, motor-cycle of co-Accused, knife and other articles from their respective houses and village. The said recovered articles were sent for forensic examination to Agra.

ix) Upon completion of investigation, the IO registered cases under Section 25 (4) of the Arms Act 1959 (Act) (Punishment for certain offences).

x) The IO also filed a Charge Sheet before the Ld. Additional Sessions Judge, Court No.3, Ghaziabad (Trial Court) in State Vs. Braj Pal and others S.T. No.1371 of 2007, against the four Accused- Mukesh, Braj Pal Singh, Ravi and Ajai.

xi) The Prosecution examined 13 Witnesses. The Accused gave their statements under Section 313 CrPC (Power to examine the accused) and denied their involvement in the alleged offences and also stated that the recovered articles were not at their instance.

xii) But upon appreciating the evidence brought on record, the Ld. Trial Court vide Judgment and Order dated 24-09-2009, held that the Prosecution proved the guilt of the Accused and thus, the Ld. Trial Court convicted all the Accused under various provisions of the Indian Penal Code 1860 (IPC) and the Arms Act as follows:

a) Section 302 IPC (Punishment for murder), Section 149 IPC (Every member of unlawful assembly guilty of offence committed in prosecution of common object) and sentenced them to death penalty.

b) Section 148 IPC (Rioting, armed with deadly weapon) and sentenced them to undergo 3 years of rigorous imprisonment

c) Section 307 IPC (Attempt to murder) read with Section 149 IPC and sentenced to imprisonment for life and a fine of Rs.50,000/- each and in default of payment of fine, they have to undergo 3 months further imprisonment

d) Section 452 IPC (House-trespass after preparation for hurt, assault or wrongful restraint) and sentenced to undergo further imprisonment for 7 years rigorous imprisonment each and a fine of Rs.10,000/- and in default of payment of fine, they have to undergo further simple imprisonment for 1 year.

e) Mukesh and Ravi also convicted under Section 404 IPC (Dishonest misappropriation of property possessed by deceased person at the time of his death) and to undergo rigorous imprisonment for three years and in default of payment of fine, they have to undergo six months simple imprisonment.

f) Mukesh and Ajai convicted under Section 25 (1) and (4) of the Arms Act and sentenced to two years rigorous imprisonment to each and a fine of Rs.5000/- and in default of payment of fine, they have to undergo six months rigorous imprisonment.

g) All sentences were to run concurrently.

xiii) That aggrieved by the Trial Court Judgment and Order dated 24-09-2009, the Accused filed CRLA No.6293/2009, CRLA No.6294/2009, CRLA No.6295/2009, CRLA No.7705/2009 and in CRLR No.12/2009 before the High Court at Allahabad. The High Court vide Judgment and Order dated 22-02-2012 upheld the said convictions, but commuted the sentence of death to life imprisonment which was to extend to the full term of life of the Accused.

Supreme Court

Aggrieved by the High Court Judgment and Order dated 22-02-2012, the Accused filed Appeals before the Supreme Court. The Apex Court vide Judgment dated 15-02-2023 made the following observations:

1. That PW-1- Pinky’s statement under Section 161 CrPC had fully corroborated the Prosecution’s version.
2. Both Sisters had witnessed the Accused murdering their family members and causing injury to PW-1- Pinky. The same was disclosed to the IO.
3. Further, the non-examination of Ms Rashmi and one, Mr. Horam, the father of Deceased-Vijay Pal Singh under Section 164 CrPC, did not have any material bearing on the case and the Trial Court findings, as it is the Prosecution’s discretion to lead as much evidence necessary for proving the charges of the Accused and the Prosecution in this case had led enough evidence against the Accused including Doctor’s Report and witness statements. The Supreme Court further held that it is not the quantity of the witnesses but the quality of witnesses which matters.

Thus, based on the aforesaid observations, the Apex Court held the Accused guilty and thereby, upheld the High Court Judgment and Order dated 22-02-2012, in respect of the conviction of the Accused and commuting of death sentence to life sentence. As a result, the Appeals filed by the Accused were dismissed.

Harini Daliparthy

Senior Associate

The Indian Lawyer