Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.598600 OF 2013
AJAI ALIAS AJJU ETC. ETC. …APPELLANTS
VERSUS
THE STATE OF UTTAR PRADESH …RESPONDENT
WITH
CRIMINAL APPEAL NO.337 OF 2014
AND WITH
CRIMINAL APPEAL NOS.745748 OF 2015
J U D G M E N T
VIKRAM NATH, J.
Criminal Appeals No.598600 of 2013 have been
preferred by accused Ajai alias Ajju, Braj Pal and Ravi
Signature Not Verified
Digitally signed by
Deepak Singh
Date: 2023.02.15
16:39:34 IST
Reason:
respectively. Ajai alias Ajju has since died, as reported
1
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.
2. The above appeals assail the correctness of the
judgment and order of the High Court dated 22.02.2012
whereby the conviction recorded by the Trial Court under
1
section 302/149 of the Indian Penal Code 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.
3. Criminal Appeal Nos.745748 of 2015 have been
preferred by the State of Uttar Pradesh against the above
referred common judgment of the High Court to enhance
the punishment to all the four respondents and award
them death sentence.
1 IPC
2
4. Prosecution 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
with 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 floor in
an injured condition. She was taken to the hospital and
admitted there whereas the deadbodies of the four
deceased persons were lying on the spot where the crime
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was committed. After registering the case, the
investigation started.
5. The Investigating Officer recorded the statements of
the two daughters of the deceased Vijay Pal Singh,
namely Ms Rashmi and Smt Pinky (PW1). According to
Smt Pinky and also Ms Rashmi a very 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 with her parents
on the ground floor. Her sister Ms Rashmi, brotherin
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 see 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
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to save herself but 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 in 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 from
village Noorpur, which is the inlaw’s place of Mukesh.
They used to regularly come to Mukesh and that she had
seen them earlier. When these assailants left after
assaulting, her sister Ms Rashmi 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 place of occurrence and asked Smt Pinky if she
had recognised the assailants. Out of fright both Ms
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Rashmi and Smt Pinky denied having seen anyone.
Thereafter Mukesh called for the vehicle of Ajai alias Ajju
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 threat to her life and also to her sister’s life.
After narrating the entire story Smt Pinky (PW1) 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 deadbodies for postmortem, informed the superior
authorities, prepared the sight plan, made necessary
recoveries from the spot.
6
6. Smt Pinky (PW1) suffered the following injuries as
per the injury report prepared by Dr Rajeev Sharma(PW
2) of the Sarvodaya Hospital, Ghaziabad who had
examined her at 5.25 AM on the same day:
“INJURIES
(i) Amputated little & ring finger at level of
proximal crease (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.) Angle 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.”
7
Xray 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 (PW3).
7. Postmortem was conducted in the afternoon on the
same day by Dr K.N.Tiwari (PW4) and the following ante
mortem injuries were reported on the four deceased:
“
Smt.Rajesh
Antemortem Injuries (Exhibit Ka3)
(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.
Postmortem 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 Ka4)
(1) Incised wound in upper part of neck on
anterior and sides size 10 cm. x 3 cm. bone
8
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 Ka5)
(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 Ka6)
(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
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cartilage and hyoid) vessels are cut in the
wound.”
8. After having recorded the statements of the two
daughters of Vijay Pal Singh, namely Smt Pinky and Ms
Rashmi, the Investigating Officer SubInspector Ram
Babu Saxena (PW9) 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 bloodstained pant, Khukri from his house
which were taken into custody, sealed and memo
prepared. Motor cycle belonging to Abrar, coaccused
was also recovered and taken into custody. Braj Pal
Singh after giving his confessional statement also got a
bloodstained gandasa recovered from his house which
was taken into custody, sealed and memo prepared. On
28.08.2007, coaccused Ravi was arrested and in his
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confessional statement, and on his pointing out, a blood
stained Tshirt and a mobile phone LG Reliance 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.
9. After completing the investigation, a chargesheet
was filed 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 chargesheet was submitted. All the matters were
clubbed together and tried by the Trial Court.
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10. The prosecution examined 13 witnesses. They all
supported the prosecution story. All the relevant material
and documents were proved and exhibited.
11. The four accused gave their statements under
2
section 313 of the Criminal Procedure Code in which
they denied their involvement and alleged that they had
been falsely implicated; they also stated that the recovery
was not at their instance; the witnesses were giving
evidence out of enmity; the accused in defence examined
two witnesses. Dr Islamuddin, a resident doctor in
Sarvoday Hospital was examined as DW1 to prove the
medical papers regarding admission of Smt Pinky in the
hospital Exh. Kha1 to Kha38. Smt Berwati, wife of
Mool Chand, mother of the accused Ajai alias Ajju was
examined as DW2. She stated that her son was arrested
along with Mukesh and Braj Pal, thereafter released and
again after 20 days he was arrested.
2 CrPC
12
12. The 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 (PW1)
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 lesser sentences for different offences proved.
13. Appeals 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 Mukesh was
provided an amicus curiae from the legal aid. The High
Court, after considering the respective arguments and
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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.
14. Aggrieved by the same, present appellants are before
this Court.
15. We 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.
16. On behalf of the appellants, the arguments
advanced are briefly recorded as follows:
(i) This is a case of solitary eyewitness, namely,
Smt Pinky (PW1), her testimony was that of a
witness related to the deceased and also a
witness having enmity with the appellants and,
14
therefore, would not be a reliable witness and
ought not to have been relied upon;
(ii) There is no other evidence to corroborate the
testimony of the solitary eyewitness, PW1;
(iii) Smt Pinky (PW1), 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 case 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 eyewitness
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
15
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 (PW1) was not
recorded 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
(PW1) 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 firsttime
during trial as an improvement. His client has
been falsely implicated.
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(viii) Learned Amicus appearing for appellant
Mukesh has referred to various discrepancies in
the testimony of the witnesses.
17. On the other hand, learned counsel appearing for
the respondent State submitted that the findings
recorded by the Trial Court 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 further 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 act
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 High Court committed an error in
17
commuting the death sentence to life imprisonment.
Accordingly, the sentence of life imprisonment awarded
by the High Court be set aside and that of the Trial Court
of death sentence be restored.
18. The submissions advanced are being dealt with in
the same sequence. PW1 is an injured witness. Her
injuries have not been challenged. There is no reason
why PW1 would make false implication and allow the
real assailants to go scotfree. 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 during crossexamination 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.
19. The 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
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Pinky (PW1) 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 out with the true
sequence of events as they had happened. The
appellants cannot gain anything out of the above
submission.
20. The pressing of the dog squad into service was also
fully 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
prosecution itself that the time when the FIR was lodged
and at the time when Smt Pinky (PW1) was admitted to
the hospital, the names of the assailants had not been
19
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.
21. Nonexamination of Ms Rashmi and Horam, father
of Vijay Pal Singh also has no material bearing. It is the
discretion 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 (PW1) was the injured witness
having received grievous and lifethreatening injuries. We
are not impressed by this argument also.
22. Nonexamination 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 Officer 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
20
the testimony of PW1 and the other material evidence
led during trial.
23. Insofar 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.
24. Learned Amicus for the appellant Mukesh has tried
to point 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.
25. For 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.598600 of 2013 and Criminal Appeal No.
21
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 cogent
reasons for commuting death sentence into life sentence.
Accordingly, the Criminal Appeal Nos.745748 of 2015
also stand dismissed. The appellants are in custody and
they will serve out their sentence.
26. Pending applications, if any, are disposed of.
……................................J.
[B.R. GAVAI]
.………….........................J.
[VIKRAM NATH]
NEW DELHI
FEBRUARY 15, 2023.
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