Ajai Alias Ajju vs The State Of Uttar Pradesh

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.598-600 OF 2013

AJAI ALIAS AJJU & ORS. …APPELLANTS

VERSUS

THE STATE OF UTTAR PRADESH …RESPONDENT

WITH

CRIMINAL APPEAL NO.337 OF 2014

AND WITH

CRIMINAL APPEAL NOS.745-748 OF 2015

JUDGMENT

VIKRAM NATH, J.

Criminal 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 Signature Not Verified Digitally signed by

the learned counsel for both the sides. Deepak Singh Date: 2023.02.15 13:48:09 IST Reason:

Accordingly,

Criminal Appeal No.598 of 2013 stands abated. Criminal 1 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

section 302/149 of the Indian Penal Code1 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.745-748 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 dead-bodies of the four deceased

persons were lying on the spot where the crime was

3 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 (PW-1). 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, 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 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 to save herself but

then she fell down and lay quietly. She also narrated that 4 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 in-law’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 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 5 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 (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 authorities, prepared the sight plan,

made necessary recoveries from the spot.

6. Smt Pinky (PW-1) 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

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(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.”

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).

7. Post-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

7 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,

8 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.”

8. After having recorded the statements of the two

daughters of Vijay Pal Singh, namely Smt Pinky and Ms

Rashmi, the Investigating 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 9 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 statement 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 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.

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9. After completing the investigation, a charge-sheet 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

charge-sheet was submitted. All the matters were clubbed

together and tried by the Trial Court.

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 section

313 of the Criminal Procedure Code2 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

2 CrPC 11 examined 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

arrested.

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 (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

lesser sentences for different offences proved.

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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 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.

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16. On behalf of the appellants, the arguments advanced

are briefly recorded as follows:

(i) This is a case of solitary eye-witness, namely,

Smt Pinky (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

testimony 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

case of improvement;

(iv) There is evidence to show that a dog squad was

summoned in the morning, as such it was a case 14 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

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

(PW-1) did not take his name before the

Investigating Officer while giving her statement

under section 161 CrPC. According to him, the 15 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

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 16 hand. No leniency needs to be shows to them. The High

Court committed an error in 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. 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

during 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.

19. The two daughters of the deceased Vijay Pal Singh

having seen the assailants murdering their family 17 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 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 (PW-1) was admitted to

the hospital, the names of the assailants had not been

disclosed deliberately and for justifiable reasons. The 18 daughters of the deceased Vijay Pal Singh needed to

protect their lives otherwise they would also had been

done to death.

21. Non-examination 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 (PW-1) was the injured witness having

received grievous and life-threatening injuries. We are not

impressed by this argument also.

22. Non-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 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 the

testimony of PW-1 and the other material evidence led

during trial.

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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.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 20 given sound and cogent 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.

26. Pending applications, if any, are disposed of.

……................................J. [B.R. GAVAI]

.………….........................J. [VIKRAM NATH] NEW DELHI FEBRUARY 15, 2023.

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