AJAI ALIAS AJJU ETC. ETC. VERSUS THE STATE OF UTTAR PRADESH

AJAI ALIAS AJJU  ETC. ETC. VERSUS THE STATE OF UTTAR PRADESH

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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

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

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.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, brother­inlaw 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. 

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6. Smt Pinky (PW­1) suffered the following injuries as

per the injury report prepared by Dr Rajeev Sharma(PW2)   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.” 

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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 antemortem 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

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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 bloodstained 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

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 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

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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,

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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

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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

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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

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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

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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.

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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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