Allahabad High Court
Vidya Sagar Dwivedi vs State Of U.P. on 25 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 826
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 42 Case :- CRIMINAL APPEAL No. - 1826 of 1997 Appellant :- Vidya Sagar Dwivedi Respondent :- State of U.P. Counsel for Appellant :- M.C.Chaturvedi,V.P.Srivastava,Vikas Tiwari Counsel for Respondent :- D.G.A.,I.K.Chaturvedi,J.S.Sanger,Vinod Kumar Sahu,Virendra Singh Parmar Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Vikas Tiwari learned Advocate for the appellant, Sri V.S. Parmar and Sri Hari Om Singh learned Advocates for the complainant and Sri L.D. Rajbhar and Sri Prem Shankar Mishra learned AGA for the State-respondents.
2. This criminal appeal has been preferred against the judgment and order dated 23.10.1997, passed by District and Sessions Judge, Hamirpur, in Sessions Trial No. 299 of 1994 (State vs. Vidya Sagar Dwivedi), arising out of Case Crime No. 126 of 1994, under Sections 302/504 IPC, Police Station Kotwali, District Hamirpur, whereby the accused-appellant has been convicted and sentenced to rigorous imprisonment for life under Section 302 IPC.
3. Brief facts of the case is that the incident took place on 08.06.1994 at about 10:00 PM in the night at Village Tikrauli, Police Station Kotwali, District Hamirpur near the house of Ram Das Pal. The informant Jagjeet and the accused-appellant Vidya Sagar Dwivedi are residents of that village. On the date of incident, there was Tilak Ceremony of Tula Ram (son of informant), wherein his guests had come. His elder son namely Babu Lal (deceased) went to invite the guests for dinner who were staying in the neighbor house of Ramdas Pal and Rambharose. The informant Jagjeet and his brother Raghuveer were sitting on the Chabutara in front of their house. There was light of petromax and electricity. When Babu Lal reached to the electric pole near the house of Ram Das Pal, accused Vidya Sagar Dwivedi came with his licensee double barrel gun and said to Babu Lal using abusive language that "have you gone mad as you have not invited us in the Tilak". Saying this, the accused-appellant Vidya Sagar Dwivedi fired on Babu Lal by his licensee double barrel gun in order to cause death of Babu Lal. The fire hit Babu Lal in his armpit and he fell down. Thereafter, the informant and his brother reached there and they challenged the accused, whereupon, he ran away. The condition of Babu Lal was serious and he was immediately taken to Government Hospital, Hamirpur by a tractor. In the hospital, Babu Lal was examined and he was referred to Halat Hospital, Kanpur and from Halat Hospital, Kanpur, the injured was referred to Lucknow. On 22.06.1994 at about 08:40 PM, Babu Lal died because of the injuries caused by the accused Vidya Sagar.
4. Prior to the death of the injured, the informant Jagjeet after admitting the injured in Halat Hospital Kanpur, came back to Hamirpur on 11.06.1994 and got the written report inscribed by Kamlesh and gave the same to Kotwali, Hamirpur at 2:10 PM in the noon and on that basis, the offence was registered and chik FIR was prepared for the offence under Sections 307, 504 IPC. The Statement of Babu Lal was also recorded on 15.06.1994 in the Halat Hospital, Kanpur. On 23.06.1994, in the night at about 12:30 AM, the police prepared the inquest report of the deceased before the Panches along with the necessary letters and papers and the dead body was sealed and sent for postmortem. The postmortem was conducted in Lucknow on 24.06.19. The informant sent the death report of Babu Lal to the police through one Shyam Lal Sahu of the village and on that basis, the offence was converted under Sections 302 and 504 IPC. The Investigating Officer prepared the site map of the place of occurrence, took over possession of petromax and prepared memo thereof and delivered it back in the presence of the witnesses. The statement of Jagjeet, Ram Kishore, Prem Narayan were recorded by the Investigating Officer. Thereafter, the charge sheet was submitted against accused for the offence under Section 302 IPC. The charge was framed against the accused for the offence under Section 302 IPC who denied charge and claimed trial.
5. The prosecution examined as many as 13 witnesses in support of the prosecution case. PW-1 is Jagjeet, who is informant and eye witness. PW-2 Prem Narain, PW-3 Kamlesh, PW-4 Raghuvir are the witnesses of fact. PW-5 Tula Ram Sahu is a witness of inquest and memo of petromax delivered to police by him. PW-6 Dr. U.C. Sinha has proved the injury report of deceased. PW-7 Dr. T.N. Agarwal has conducted the postmortem of the deceased. PW-8 SI Tulsi Ram Dohre, PW-9 SI Shri Krishna Vidyarthi, PW-10 Constable Ram Jeevan Bind, PW-11 Head Constable Ram Sanehi Pal, PW-12 Constable Brijesh Kumar Singh and PW-13 SI Tribhuwan are the formal witnesses and have proved the police papers.
6. After completion of the prosecution evidence, the statement of accused-appellant Vidya Sagar Dwivedi was recorded under Section 313 Cr.P.C., wherein he has stated that the statements of the fact witnesses are false and they have given the false evidence because of group rivalry in the village and jealousy. He has also stated that in the Tilak, a ceremonial firing took place by the guests of the informant and the deceased sustained injuries and to save the guests, the informant has falsely implicated him in the present case. The defence examined Thakur Das as DW-1 in defence.
7. The learned trial court after hearing the prosecution and defence and considering the material available on record has passed the impugned judgment convicting and sentencing the accused appellant Vidya Sagar Dwivedi for the offence under Section 302 IPC.
8. Aggrieved by the impugned judgment, the accused-appellant has preferred this criminal appeal on the ground that the points which were raised by defence, were not considered by the learned trial court. The eye witnesses produced by the prosecution did not prove the case beyond shadow of doubt and the learned trial court has wrongly appreciated the evidence. It was also not considered that the accused was not having inimical relations with the accused. There was no motive for the commission of crime. The prosecution evidence is entirely different from the medical evidence and the conclusion arrived at by the learned trial court is illegal and arbitrary and the impugned judgment is liable to be quashed and the accused-appellant is entitled for acquittal.
9. Learned counsel for the accused-appellant has argued that the accused-appellant was falsely implicated in the present case and it was a case of ceremonial firing and by the firing of the relatives, the deceased sustained injuries and died. Further submission is that the incident took place on 08.06.1994 at about 10:00 PM in the night and the FIR has been lodged on 11.06.1994 at about 02:10 PM in the noon. Therefore, there is inordinate delay in lodging the FIR and the delay has not been explained by the prosecution. it has also been submitted that there is lack of adequate motive with the accused-appellant to commit the offence and all the fact witnesses who have been examined by the prosecution are relatives and closely associated with the complainant side and they gave false evidence to save their relatives. There is discrepancies and contradictions in the statements of the witnesses and on that account also, the prosecution version is doubtful.
10. On the other hand, learned AGA and the learned counsel for the complainant have submitted that the learned trial court after due appreciation of the evidence on record and finding that four eye witnesses have proved the prosecution case, convicted and sentenced the accused-appellant.
11. It appears necessary that the evidence given by the prosecution before the learned trial court may be referred in order to appreciate the legality and correctness of the findings of the learned trial court.
12. PW-1 Jagjeet is the informant and eye witness who has stated on oath that the accused Vidya Sagar Dwivedi belongs to his village. One year before, there was Tilak Ceremony of his younger son Tula Ram and the relatives from Chandpurwa had come and they stayed in the house of Ram Das and Ram Bharose. After the Tilak Ceremony, the informant and his younger brother Raghuveer were sitting on their door. Petromax and electricity lights were there. At about 10:00 PM in the night, his elder son Babu Lal went to invite the guests for dinner to the house of Ram Das Pal. Accused Vidya Sagar Dwivedi met him on the door with his double barrel licensee gun. The accused used abusive language using castist words and said Babu Lal that "have you gone mad and not invited us in the Tilak Ceremony." Thereafter, in order to kill the deceased, the accused fired on him by his gun which hit the deceased on his armpit. Babu Lal fell down. The incident was seen by the informant, his brother Raghuveer, Prem Narain and Ram Kishore in the light of electricity and petromax. Babu Lal was taken to the District Hospital, Hamirpur by tractor. His condition was serious and therefore, the informant did not go to lodge FIR. Babu Lal was taken to Halat Hospital, Kanpur, where he was put under treatment. Thereafter on 11.06.1994, he lodged FIR by getting the written report scribed by Kamlesh. The witness has further stated that because of the injuries, Babu Lal died in Lucknow Hospital. The witness has proved the written report as Ext. Ka-1.
13. PW-2 Prem Narain (eye witness) has stated that he knows Vidya Sagar (accused) who belongs to his village. One year before, on 08.06.1994, there was Tilak Ceremony of Tula Ram and the guests had come for Tilak Ceremony and they were staying in the house of Ram Das and Ram Bharose. He was attending the guests. At about 10:00 PM, in the night, Babu Lal (deceased) reached the door of Ram Das Pal to invite the guests. There was light of petromax and electricity. The accused Vidya Sagar Dwivedi came there with a double barrel licensee gun and started using abusive language saying why he did not invite him in the Tilak Ceremony and thereby insulting a "Brahmin". Thereafter, the accused fired with intention to kill Babu Lal and the fire hit him. The incident was seen by Jagjeet, Raghuveer, Ram Kishore and him. They all challenged the accused, whereupon, he fled away. Babu Lal was taken to District Hospital on tractor where from he was referred to Kanpur and from there, he was taken to Lucknow. Because of injuries, he died in Lucknow hospital.
14. PW-3 Kamlesh (inscriber of the written report) has stated that at about one year before, he had come to village Tikrauli to see his grandfather Ram Aadhar, who was seriously ill. There, guests had come for Tilak Ceremony of Tula Ram, the brother of Babu Lal. The guests were staying in the house of Ram Das. At about 10:00 PM, when Babu Lal reached on the door of Ram Das Pal. There was light of electricity and petromax. On the way, accused Vidya Sagar Dwivedi fired by his gun on Babu Lal on his stomach who sustained injury and fell down. Because of the injuries, after 14-15 days, Babu Lal died in the hospital. Babu Lal was first taken to District Hospital, Hamirpur. The FIR was lodged by Jagjeet. He scribed the report and after hearing the same, Jagjeet put his thumb impression on the report. The witness has stated that the name of the son of Ram Aadhar is Ram Prasad and he saw the incident from the house of Ram Aadhar and when Babu Lal sustained fire arm injury, he was near the house of Ram Das Pal.
15. PW-4 Raghuveer is also an eye witness. He has stated that on the date of incident, there was Tilak Ceremony of his nephew Tula Ram and for that the guests from Chandpurva had come and were staying in the house of Ram Das and Ram Bharose Sahu. He and his brother Jagjeet and other relatives were sitting on the Chabutara of his house. After the Tilak Ceremony, Babu Lal went to invite the guests for dinner. At that time, it was 10:00 PM in the night. There was electric light on the pole and patromax was also lightening. Babu Lal hardly reached to the door of Ram Das Pal, the accused Vidya Sagar Dwivedi, who was coming from the side of his house started abusing him by castist words and said, "have you gone mad and not called me, a "Brahaman," in the Tilak Ceremony." The accused was carrying a double barrel licensee gun and saying that Babu Lal had insulted a Brahamin, with the intention to kill, fired on Babu Lal. Babu Lal sustained injuries on his armpit. On hearing the sound of fire, he and his brother Jagjeet reached on the spot. The incident was seen by Prem Narain, Kamlesh and Binda also. On being challenged, accused Vidya Sagar Dwivedi ran away from there. Babu Lal was taken to District Hospital, Hamirpur by tractor, from where he was referred to Kanpur Halat Hospital. After three days, finding some improvement in the condition of the deceased, the report was lodged.
16. PW-5 Tula Ram has proved the inquest report and has stated that the inquest report was prepared before him on which he signed and thereafter the dead body was sent for postmortem. He gave two petromax to the SO as he asked for the same and the memo was prepared and he also signed on it. Thereafter the petromax was delivered back to him. At the time of evidence, petromax was placed before the trial court and the same was proved.
17. PW-6 Dr. U.C. Sinha, Surgeon, U.H.M. Hospital, Kanpur has stated that on 08.06.1994, he was posted as EMO, District Hospital, Hamirpur. In the night, at about 11:30 PM, Babu Lal Sahu aged about 25 years son of Jagjeet Sahu of village Tikrauli was brought to the hospital by Raghuveer Sahu and he was examined by him. He found following injury on the body of Babu Lal :
(1) Fire arm entry wound 2cm. x 1.5 cm. x cavity deep in stomach in oval shape on the front side and below the left ribs margin, 3 cm away from the middle line. The margin of the injury was torn and bending towards inside. There was blackening and tattooing. The nearby hairs were scorched. The injury was bleeding. X-ray was advised and the injured was admitted in the hospital.
18. The doctor has stated that the injury was fresh and was caused by fire arm which was kept under observation. The police was informed. He proved the medical report and stated that the injury was possibly caused on 08.06.1994 at 10:00 PM in the night. The injury must have been caused from the distance of 2 to 3 feet.
19. PW-7 Dr. T.N. Agarwal conducted postmortem of the dead body of Babu Lal on 23.06.1994. The dead body was sent by SO, Police Station Cant, Lucknow. Babu Lal had died in the Command Hospital, Lucknow on 22.06.1994 at about 08:40 PM. Rigor Mortis was not found in the upper extremity and it was present in the lower extremity. Four pellets were recovered during postmortem which were put in an envelope and sealed. Following ante-mortem injuries were found on the body of deceased Babu Lal:
(1) 10 cm long wound with nine stitches on the upper left part of the abdomen.
(2) incised wound stitched internally with imprints of stitching externally 18 cm long extending from ..... to cm below ebulliences.
(3) Stitched wounds of 1.5 cm long with three stitches present on lateral aspect of chest 15 cm. below the left axilla.
(4) Five stitched wounds, 5 cm long present on lateral aspect of left side chest 8 cm below left axilla.
(5) Two incised wounds each with two stitches with indwelling of connected drainage flag present one on left side and other on right side of abdomen 3 cm above iliac on either side.
(6) Stitched wound with stitching of protrude intestine 3 cm in diameter present one on left side and other on right side of abdomen.
(7) septic wound 1.5 x 1.5 cm .......(not readable paper being torn) The doctor has stated that the injuries found on the body of the deceased were sufficient to cause death.
20. PW-8 SI Tulsi Ram has stated that on 23.06.1994, he was posted as Sub Inspector, Police Station Cant. With reference to Report No. 15 of 10:30 AM of that date, he went to Command Hospital mortuary with Constable Brijest Kumar Singh for preparing the inquest report. The people and relatives of family who were present in the mortuary were made Panch witnesses of the inquest. He prepared the inquest report and sealed the dead body and prepared the other papers proved as Exts. Ka-7 to Ka-9 and sent the dead body for postmortem.
21. PW-9 IO Shri Krishna Vidyarthi has stated that on 13.06.1994, he got the investigation of the case, went to the place of occurrence on 13.06.1994 and recorded the statements of Jagjeet, Ramkishore, Prem Narain and inspected the place of occurrence. On 15.06.1994, he recorded the statement of the injured Babu Lal and of witness Reghuveer. On 22.06.1994, the accused Vidya Sagar Dwivedi had surrendered before the court. Thereafter the investigation was taken over by Sri T.P. Banaudha, SHO. He has further stated that he went to the place of occurrence but he did not get any blood there as it was a public way and the blood was already destroyed. He prepared the site map of the place of occurrence on the identification of the informant Jagjeet. The witness has also proved the chik FIR as secondary witness.
22. PW-10 Constable Ram Jeevan Bind has stated that on 11.06.1994 at about 02:10 PM in the noon, the informant Jagjeet gave a written report on the basis of which the offence was registered and chik FIR was prepared.
23. PW-11 Head Constable Ram Sanehi has proved the written report regarding the death of Babu Lal in the Hospital which was entered into the GD Report No.14 at 11:00 AM on 24.06.1994 and the offence was converted into that of Section 302 IPC.
24. PW-12 Constable Brijesh Kumar Singh has stated that he took the dead body with relevant papers and letter of CMO and delivered the same for postmortem. Thereafter he submitted postmortem report in the police station.
25. PW-13 Inspector Tribhuan has stated that in the year 1994, he was In-charge Inspector of PS Kotwali, Hamirpur. On 11.06.1994, the case was registered in his presence. Initially it was investigated by SI R.K. Vidyarthi. On 24.06.1994, the death report of Babu Lal was given by Shyam Pal Shahu and the offence was converted into Section 302 IPC. On 26.06.1994, he took over the investigation and recorded the statements of some of the witnesses, obtained the injury report of Babu Lal from Jagjeet Sahu and inner wear of the deceased and memo was prepared and was sealed before the witnesses. The clothes of the deceased were also sealed. The witness has proved the clothes and has stated that he recorded the statement of witnesses of inquest report and other witnesses and thereafter submitted charge sheet. He has been recalled and re-examined as CW-1 and he stated that on 15.06.1994, he recorded the statement of injured Babu Lal in the Halat Hospital. At that time the injured was conscious. The witness has submitted a copy of his statement which was recorded by him in the case diary and the same was proved by the witness as Ext. Ka-14.
26. After the statement recorded under Section 313 Cr.P.C. of the accused appellant Vidya Sagar Dwivedi, DW-1 Constable Thakur Das was was examined who proved the GD report dated 09.06.1994 which he brought and submitted on being summoned by the court.
27. The first argument of the learned counsel to the accused-appellant is that the FIR has been lodged on the fourth day from the date of incident and as such, it is grossly delayed. From the perusal of the written report on the basis of which offence has been registered and chick FIR has been prepared, we find that the incident took place on 8.6.1994 at 10 PM and the FIR has been lodged on 11.6.1994 at 2.10 PM. In the FIR, it has been stated that in the incident, Babu Lal sustained firearm injuries and his condition was critical and serious. He was taken to District Hospital, Hammirpur and finding his conditions to be serious, he was referred to Helat Hospital, Kanpur where he was kept under treatment. PW-1 informant Jagjeet has stated that he was referred to Military Hospital, Lucknow on the fourth day. He has stated that he came back on the fourth day to his village and and got the written report scribed by Kamlesh and lodged FIR by giving the report to the Police. He has stated that because the condition of Babu Lal was serious, he could not go to lodge FIR earlier. It is pertinent to mention that the injured remained in treatment and on 22.6.1994, he died during treatment. His death and his being under treatment continuously till he died further shows his serious condition after he got injured in the incident.
28. The Supreme Court has time and again expressed the view that delay in lodging FIR is not relevant if the prosecution has explained the delay by giving reasonable explanation. Thus, Marudanal Augusti v State of Kerala 1979 CAR (SC) 296 , the Supreme Court has observed:
"The entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."
29. In Meharaj Singh v State of UP (1994) 5 SCC 188, it was laid down by the Court:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story."
30. Again, in State of HP v Gian Chand (2001) 6 SCC 71 followed by Dilawar Singh v State of Delhi (2007) 12 SCC 641, the Supreme Court expressed the view as under:
"Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
31. In Ashok Kumar Chaudhary v State of Bihar, 2008 (61) ACC 972 (SC) and Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 and Mallikarjun v State of Karnataka, 2019 (4) Crimes 468 (SC), it has been held that in lodging of FIR, if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging FIR and the delay would not adversely affect the case of the prosecution.
32. In the case in hand, it is clear that the son of the informant sustained firearm injury and was taken to District Hospital and from there he was referred to Halat Hospital, Kanpur. In such situation, the primary consideration of the family was to first ensure best available treatment to the injured. The Supreme Court has laid down in Ravi Kumar v State of Punjab, AIR 2005 SC 1929 that the concern of the relatives of the victim of deadly assault is first to save life of the victim. PW-1 has stated that the condition of the deceased was serious and therefore, he could not go to lodge FIR. We find that in the facts and circumstances of the case, there is no delay in lodging the FIR and, for the sake of argument, if it is assumed that there is delay in lodging FIR, the prosecution has adequately and reasonably explained the delay.
33. It has been further argued by the learned counsel that the incident took place in the night at 10 PM and there was not enough light to identify the assailant. The Supreme Court has clarified the law on this point in various judgments and has laid down that a witness, who is accustomed to live in darkness, poor light or no light, and acquainted with the accused, can identify the accused even in darkness. In Kalika Tewari v State of Bihar, JT 1997(4) SC 405, the Supreme Court held, "The visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights."
34. In Ram Gulam Chowdhary v State of Bihar, 2001(2) JIC 986 (SC), it was argued that it was not possible for the eye witnesses to have identified the accused persons in poor light of lantern in the night. The Supreme Court rejected the argument and remarked that "as the incident took place in village and the visibility of villagers are conditioned to such lights and it would be quite possible for the eye witnesses to identify men and matters in such light."
35. In Sheoraj Bapuray Jadhav v State of Karnataka, (2003) 6 SCC 392, in a trial u/s 302/34 IPC, accused persons were known to prosecution witnesses. Occurrence had taken place at about 11.00 PM, two days prior to the new moon day. Parties were used to live in the midst of nature and accustomed to live without light. Further, they were close relatives and living in the neighboring huts. Similarly, in State of UP v Sheo Lal, AIR 2009 SC 1912, the murder had taken place at night and the source of light was not indicated in the FIR and the accused and the eye witnesses were closely related. It has been held by the Supreme Court in both the cases that the evidence of eye witnesses cannot be discarded on the basis of non-disclosure of source of light or insufficiency of light as well-acquainted persons can be well identified in darkness. In Durbal v State of UP, 2011 CrLJ 1106 (SC) and Hari Singh v State of UP, AIR 2011 SC 360, Where the parties belonged to the same village and were well known to each other, it has been held that merely because torch not taken into possession by the IO would not mean that witnesses were not credible and conviction under Section 302 IPC was held proper.
36. In this case, it has been mentioned in FIR that there was Tilak Ceremony of the younger brother of the deceased. All the fact witnesses have stated during trial that because of the Tilak Ceremony, there was enough light all around of electric and petromax and they saw the accused causing fire on deceased by his double barrel gun by which the deceased sustained serious injury. The fact of Tilak Ceremony of the younger brother of the deceased has not been denied by the defence. On the contrary, it has been defence version that in ceremonial firing on the occasion of Tilak, the deceased sustained injury of firearm. Two petromax was taken into possession during investigation by IO and delivered back to the younger brother Tularam and it also supports the version of prosecution regarding the source and availability of light on the place of occurrence at the time of incident. We find no contradiction in the statements of fact witnesses on this point. As such, there is no force in the submission of the learned counsel to the accused-appellant.
37. Other argument is regarding presence and credibility of the eye-witnesses. The submission of the learned counsel for the accused-appellant is that out of four witnesses of fact examined by the prosecution, PW-1 Jagjit is informant who is father of deceased and PW-4 Raghuveer is his real brother and he is the only witness, besides informant, whose name finds mention in the FIR. They are related and highly interested witnesses and their testimony requires strict scrutiny before placing reliance. The name of PW-2 Prem Narain is not named in FIR whereas, PW-4 Kamlesh is scriber of written report and he belongs to other village, not mentioned in FIR as eyewitness, whose presence at the time of incident is doubtful, and in any case he is only a chance witness and cannot be relied.
38. So far as the argument in respect of related witness is concerned, in the fact and circumstances of the case, they are the most natural witnesses. They are brothers and they live together. The Tilak of the son of informant had taken place and the guest and relatives were gathered there in whose presence the incident took place. It was month of June also and the time of incident being 10 PM, it cannot be said that the people must have gone to sleep or their presence out side the house is any how unnatural.
39. The law in respect of the testimony of related witnesses has been time and again reiterated by the Supreme Court that the testimony of related witnesses cannot be discarded merely on the basis of relationship. The only requirement is that the testimony of such witness should be scrutinized cautiously and carefully. In Dalip Singh v State of Punjab (1954) SCR 145, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
40. In Masalti v State of UP AIR 1965 SC 202, the Supreme Court observed:
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."
41. The Supreme Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial. In Darya Singh v State of Punjab, AIR 1965 SC 328, followed by State of UP v Kishanpal (2008) 16 SCC 73, the Court held as under:
"On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
42. Again, in Appa v State of Gujarat, AIR 1988 SC 698, the Court has observed:
"Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused."
43. Similar view has been taken in State of AP v S. Rayappa (2006) 4 SCC 512, where the court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court stated the principle as follows:
" ....by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
44. Further, in Pulicherla Nagaraju @ Nagaraja Reddy v State of AP (2007) 1 SCC (Cri) 500, the Supreme Court has held as under:
"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
45. Similarly, in Satbir Singh v State of UP, (2009) 13 SCC 790, the Court has held as under:-
"It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."
46. In M.C. Ali v State of Kerala AIR 2010 SC 1639; and Himanshu v State (NCT of Delhis, (2011) 2 SCC 36, Bhajan Singh and others v State of Haryana; (2011) 7 SCC 421, it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Again, in Jayabalan v U.T. of Pondicherry, 2010(68) ACC 308 (SC), the Supreme Court has made following observation:
"We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
47. Dharnidhar v State of UP, (2010) 7 SCC 759 referred the above observation of Jaya Balan (supra) and held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. Similar view has been taken in Ram Bharosey v State of UP AIR 2010 SC 917, where the Court stated that a close relative of the deceased does not become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice.
48. Again, in Balraje @ Trimbak v State of Maharashtra, (2010) 6 SCC 673, it has been held that when the eye-witnesses are stated to be interested and inimically deposed against the accused, it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyze the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
49. Subsequently, in Jalpat Rai v State of Haryana AIR 2011 SC 2719 and Waman v State of Maharashtra AIR 2011 SC 3327, it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. This view has been reiterated in Shyam Babu v State of UP, AIR 2012 SC 3311, Dhari & Others v State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad (supra). Recently, in Ganapathi v State of Tamilnadu, AIR 2018 SC 1635, the Court found no force in the argument that the conviction based on the evidence of family members in a murder trial is not sustainable. In Rupinder Singh Sandhu v State of Punjab, (2018) 16 SCC 475, it has been reiterated by the Supreme Court that relationship by itself will not render the witness untrustworthy. The Supreme Court laid down as below:
"Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ...... A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
50. Thus, in view of aforementioned decisions of the Supreme Court, it is settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased and inimical with the accused. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.
51. So far as the non-mentioning of the other two eye-witnesses in the FIR is concerned, it makes hardly any difference. In Jarnail Singh v State of Punjab, 2009 (6) Supreme 526, Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Ramji Singh v State of UP, 2019 (4) Crimes 585 (SC), it has been held that the FIR is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. In Raj Kishore Jha v State of Bihar, 2003(47) ACC 1068 (SC) and Chittarlal v State of Rajasthan, (2003) 6 SCC 397, it has been laid down that mentioning of names of all witnesses in FIR or in statements u/s 161 CrPC is not a requirement of law. Such witnesses can also be examined by prosecution with the permission of the court. Non-mentioning of the name of any witness in the FIR would not justify rejection of evidence of the eye-witness.
52. PW-3 Kamlesh has been said to be chance witness as he belongs to another village Banjauli and it has been said that he was not a guest on the occasion of Tilak. In his statement, he has stated that he had gone to village Tikrauli at the time of incident to see his grandfather Ramadhar who was running sick. He has further stated that he saw the incident from the house of Ramadhar. The witness has stated that he also comes from the family of deceased and he is a cousin brother. He has denied the suggestion given to him during cross-examination that he was not present there and did not see the incident. In Ramesh v State of UP, 2010 (68) ACC 219 (SC) and Kallu v State of Haryana, AIR 2012 SC 3212, it has been laid down that it is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. Evidence of chance witness requires very cautious and close scrutiny. The witness has not been challenged from the side of defence on the point of sickness of his grandfather nor on the point that he lives in the same locality. Therefore, we find that the presence of the witness is natural. He has given vivid description of the incident in which the accused caused firearm injury to the deceased. He has also stated that he scribed the written report on the dictation of Jagjeet who after hearing the same, put his thumb impression. He has further stated that he had gone to Hospital at Hammirpur with injured and had also gone to Police Station with informant to lodge the FIR.
53. We also find that the other fact witnesses have narrated the incident in the like manner and there is no unusual contradiction, discrepancy or improvement in their evidence. They all have stated that the moment the deceased reached to the door of the house of Ram Das Pal, the accused met him, challenged him angrily for not inviting him on Tilak which was an insult of a brahmin like him and shot fire causing injury by the double barrel gun he was carrying with him. All the witnesses have stated that there was sufficient light of electricity and petromax at the place of occurrence and this fact appears to be correct in view of occasion of Tilak Ceremony of the younger brother of deceased.
54. Place of occurrence has been shown by the IO in the site map prepared by him during investigation which is Ext. Ka-10 which was prepared as pointed out by the informant and other witnesses. There is a pathway from north to south and on both sides of the pathway, houses of the inhabitants of that locality have been shown which includes the house of informant where Tilak Ceremony took place and the house of Ramdas Pal and Rambharose where the guests were staying. The informant and his brother Raghuveer and others were sitting on the chabutara shown as B which is situated in front of the house of informant and seemingly, the place of incident shown as A is visible from there and is situated at about 50 steps away and this has been also stated by PW-1 in his statement. From the house side, the deceased went towards the house of Ramdas Pal where the guests were staying, to invite them for dinner. Seeing that the deceased fell down on sustaining injury, informant and his brother rushed to the place. The IO has demonstrated appropriately the places from where the witnesses saw the accused firing on deceased and the number of houses shown on both sides and in view of Tilak Ceremony, many more persons must have seen the incident. IO has also shown the electric poll and the places where petromaxes were lighting. It has been argued from the side of defence that no pellet or blood stains were recovered from the place of occurrence which creates doubt whether such incident took place there. PW-9 SO Sri Krishna Vidyarthi (IO) who has prepared and proved site map has stated that he got the investigation on 13.6.1994 and on inspection of spot, he did not find any blood stains as more than 7 days were passed and the place of occurrence being a pathway, blood stains were destroyed. We find that the explanation given by the prosecution is convincing as on the fourth day from the date of incident, the FIR was lodged and place of occurrence being on the pathway, the blood stains must have been destroyed. All the four witnesses have proved the place of occurrence as mentioned in the site map prepared by the IO. As such, we do not find any force in the submission on this point and the place of occurrence has been fully established.
55. Certain discrepancies, improvement and contradictions have been pointed out in the statements of fact witnesses. It has been said that in the FIR, it has been written that the Tilak was to take place, but, all the witnesses have stated that Tilak Ceremony was over when the incident took place. PW-1 has been cross-examined on this point and he has stated that he does not see any difference between the two. We find that all the fact witnesses have stated that when the incident took place, the Tilak Ceremony was over and the deceased was going to invite the guests for dinner. It has been further pointed out that PW-1 has stated that when the Inspector took statement of the deceased in Kanpur Halat Hospital, the FIR was not lodged whereas, CW-1 has stated that he took the statement of deceased on 15.6.1994 in the presence of Raghuveer and the injured was conscious and on his statement, Raghuveer also signed. The FIR was lodged on 11.6.1994. The defence has not clarified during cross-examination that PW-1 stated so with reference to the statement of deceased which was recorded by CW-1. It should also be taken into consideration that the witness is rustic, illiterate villager and he may not have any idea on such technical matter. CW-1 has not been put any question regarding presence of PW-1 at the relevant time when the statement of deceased was recorded. Apparently, the statement given by PW-1 referred above in 'italics' is not correct and appears to have been given in some confusion and it cannot be given any weight as it does not go to the root of the prosecution case.
56. It has been also pointed out that PW-3 Kamlesh has stated that for lodging FIR, he, Jagjeet, his son Ramcharan and his brother Raghuveer had gone to Police Station. Whereas, PW-4 Raghuveer has stated that Jagjeet went back to Hammirpur to lodge FIR and he stayed in Kanpur Hospital. PW-1 Informant has also stated that with him, Kamlesh also went to Police Station to lodge FIR. GD report dated 11.6.1994, Ext. Ka-12, also makes mention that Jagjeet with Kamlesh came and gave written report scribed by Kamlesh on the basis of which offence was registered against accused for the offence under section 307/504 IPC. Had Raghuveer been also accompanying, the same must have found mention in the GD. We find that the statement of PW-3 Kamlesh is to that extent is incorrect and mistaken. But this mistake hardly impacts the credibility of witness.
57. It needs to be mentioned that where own son of 25 years in age who was in army and the eyewitnesses were in close relation of the victim, in such a horrendous situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident and narrate every aspect related thereto in cyclostyle form. Some sort of contradiction, improvement and embellishment is bound to occur in the statement. As laid down in State of UP v Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
58. In Gosu Jayarami Reddy and another v State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion.
59. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068, Shivappa v State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 and Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the prosecution witness are bound to be there and in fact they go to support the truthfulness of the witnesses. In view of the above, we are of the view that there is nothing in the deposition of the eye-witnesses on the basis of which their evidence can be discarded.
60. The learned counsel has submitted that it was specific case of defence as stated in the statement under section 313 that the deceased sustained injuries in ceremonial firing on the occasion of Tilak. PW-3 Kamlesh has stated that there was ceremonial firing on the occasion of Tilak and his statement supports the defence version. We find that the defence version in fact goes to corroborate at least the fact that the deceased sustained firearm injuries on the place, date and time of incident. Except PW-3, other witnesses of fact, PW-1, PW-2 and PW-4, have denied that any ceremonial firing took place. Even if it so happened, it is not possible to jump to a conclusion that the deceased sustained injuries in ceremonial firing, particularly when all the four eye-witnesses have categorically stated that they saw the accused firing on the deceased who sustained injuries and fell down.
61. Another submission is with regards to the credibility of the dying declaration which has been recorded by IO. The submission of the learned counsel is that the dying declaration has been recorded by IO which is not admissible and cannot be relied upon. It has been also submitted that there is no certification of the doctor regarding mental and otherwise fitness of the of the injured at the time of giving statement to the IO. Para 115 of the Police Regulation has also not been complied with.
62. In Bijoy Das v State of West Bengal, (2008) 4 SCC 511 and Jayabalan v U.T. of Pondicherry, 2010 (68) ACC 308 (SC), it has been held that it is settled law that a dying declaration is an important piece of evidence under section 32(1) of the Evidence Act and if a dying declaration is found to be true and voluntary and is not a result of tutoring or prompting or a product of imagination then there is no need for corroboration by any witness and conviction can be recorded on its basis alone. In Narain Singh Vs. State of Haryana, (2004) 13 SCC 264, the Supreme Court explained the sanctity of dying declaration and said that a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person.
63. In State of Gujarat Vs. Jayrajbhai Punjabhai Varu, AIR 2016 SC 3218, the Supreme Court has laid down the principle for appreciation of dying declaration and has remarked that the courts have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there, is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the Court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction.
64. In Laxman v State of Maharashtra, (2002) 6 SCC 710, a Five-Judge Bench of the Supreme Court has held that certificate by doctor as to mental fitness of the deceased is not necessary in all cases because certificate by doctor is only a rule of caution. Voluntary and truthful nature of the declaration can be established otherwise also. But it must be proved that the maker was in a position to make dying declaration and it is not a result of tutoring or imagination. Recording of dying declaration by Magistrate is not mandatory and the same can be recorded by any person. It is also not necessary that Magistrate must be present, although to provide authenticity a Magistrate is usually called. No oath is required for dying declaration. A dying declaration cannot be rejected merely because it is not recorded in question and answer form but in the narrative form. Dying declaration can be made by gestures also. If evidence shows that he/she was conscious and in stable position, dying declaration cannot be discarded because of grave injury. The Court observed:
"The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may effect their truth."
65. In State of Karnataka v. Sheriff; AIR 2003 SC 1074 and Gulam Hussain v State of Delhi, AIR 2000 SC 2480, it has been held that a dying declaration can also be recorded by police personals and it cannot be discarded merely because it has been recorded by a police personnel. Evidence of state of mind can be given by witnesses who heard and saw the dying declaration being given by the injured.
66. Applying the principle of law discussed above, we find that the statement of the deceased was recorded by the IO in the hospital in this case in presence of the eye-witness PW-4 Raghuveer who signed on the statement. CW-1 who has proved the dying declaration as Ext. Ka-14 has stated that the injured was in a conscious state of mind. The dying declaration shows that the injured narrated the whole incident and stated that when he was going to invite guests for dinner after Tilak Ceremony, the accused Vidya Sagar met in front of the house of Ramdas with a double barrel gun, used abusive language and out of old enmity fired on his stomach from very close distance in order to kill him. He sustained injury. His father and uncle rushed towards him. He then became unconscious. It is established by evidence on record that the deceased remained hospitalized for treatment and died in the hospital after 14 days. The dying declaration was recored on 15.6.1994 and after 7 days, the injured died in the hospital.
67. The learned trial court has considered the statement of the deceased to be dying declaration and there appears to be no illegality in it. It has been argued that while recording the said dying declaration, the IO has not complied with the requirement of Para 115 of the Police Regulation which requires it to be recorded in presence of two respectable witnesses obtaining their signature or thumb impression and the same should be signed by the deceased also. There are two reasons that we are not inclined to attach any importance to this guideline provided in Para 115 of the Police Regulation. Firstly, it cannot have an overriding effect on statutory provisions, and secondly, it cannot be made applicable to a statement recorded by the IO under section 161 of the Criminal Procedure Code for which the signature of the witness is not required to be taken. There is yet another reason why we do not deem it necessary to attach any importance to it as in this instant case, the conviction is not based on the dying declaration and there are four eye-witnesses who have proved the prosecution version and the dying declaration also finds support from their statement. It is all about attaching the amount of importance to a dying declaration. We hold that all dying declaration recorded by any body, in any manner, may be even oral are relevant and admissible in evidence and it depends on the facts and circumstances of every case how much importance it deserves to be given. If the dying declaration is recorded by magistrate or doctor with medical certification about mental fitness of the maker, certainly, it will be relied upon to convict the accused. If the dying declaration is not duly recorded or oral, it will be considered in order to render support to the prosecution case. The evidentiary value may differ, but in no case it can be ignored unless found to be false or tutored. The learned trial court has rightly pointed out that the IO who recorded the dying declaration had no enmity with the accused and there is no reason to discard the same. We find that the dying declaration is quite in consonance with what has been stated by the eye-witnesses to prove the prosecution case during trial and therefore, the same can be validly relied upon.
68. It has been also submitted by the learned counsel to the accused-appellant that Ext. Ka-4 is injury report and on the back page thereof, brother of deceased namely, Tularam has made an endorsement in writing on the date of incident addressing the Emergency Doctor, District Hamirpur for medical examination of his brother (deceased) stating that he has sustained firearm injury during marpeet. Firstly, Tularam has been examined as PW-5 as witness of inquest. No explanation has been sought by defence from him in his cross-examination. It is not the case of defence even that the deceased sustained injury in any marpeet on the date, place and time of incident. On the contrary, the case of the defence has been that the deceased sustained injury in ceremonial firing. We have already discussed this aspect and have found that there is no evidence on record to support the defence version of ceremonial firing.
69. It has been also mentioned by the learned counsel to the accused-appellant that DW-1 Thakurdas has been examined who has proved GD no. 2 of 9.6.1994 of 00.35 AM of midnight as Ext. Kha-1 stated that ward boy Mataprasad of District Hospital, Hamirpur gave a memo in the Police Station to the effect that Babulal having sustained serious injury of firearm has been admitted for treatment in the Emergency of District Hospital for treatment on 8.6.1994 at 11.30 PM. The IO (PW-9) has denied this fact in his cross-examination. Even if it is correct, it further supports the date and time of incident. The report of the Hospital is a routine report in such situation. Maximum, it can be said that required attention was not paid by the police even though the said memo was indicative of commission of offence against the injured. This may be a lapse committed by the police, but, it can hardly render any advantage to the accused.
70. It has been also argued on behalf of the accused-appellant that there was no motive available to the accused to cause death of the deceased, nor it has been explained by the prosecution what was the enmity between the accused and deceased as mentioned in the dying declaration. On being asked about it, PW-9 IO has stated that he could not ask about it as the condition of the deceased was not good and he was physically in trouble. The learned trial court has pointed out that both accused and deceased were in Army and were of equal age and accused being Brahmin was annoyed for not being invited in the Tilak of the younger brother of deceased and felt insulted he committed this offence. We are of the view that it may be a reason for the commission of the offence by the accused. But, what was in the mind of accused and why he caused death of the deceased, can be explained only by the accused as the victim of the deadly assault did not survive to explain anything. Caste and group rivalry or neighborhood jealous, as it normally exists in society, may also have prompted the accused to commit offence. Moreover, the question of motive is not relevant in this case as the case is based on direct evidence. In a number of decisions, like Abu Thakir v State AIR 2010 SC 2119, State of UP v Nawab Singh AIR 2010 SC 3638, Bipin Kumar Mondal v State of West Bengal 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka (2003) 6 SCC 392, Thaman Kumar v State of Union Territory of Chandigarh (2003) 6 SCC 380, State of HP v Jeet Singh; (1999) 4 SCC 370, it has been repeatedly held by the Supreme Court that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.
71. We find that the Supreme Court has clearly opined in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72 and in the recent judgment of Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that the prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons.
72. We are of the view that when there is sufficient direct evidence regarding the commission of offence, the question of motive should go away from the mind of the Court. Motive is a double edged weapon and the key question for consideration in cases based on direct evidence remains whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by adducing reliable and cogent evidence. As such, the proof of the existence of a motive is not necessary for a conviction for any offence. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record establishes the guilt of the accused. In the case in hand, evidence shows that motive in terms of annoyance and insult for not being invited in Tilak has been alleged. As such and in view of the case law discussed above, we find no force in the submission with regards to absence of adequate motive.
73. It has been also argued by the learned counsel to the accused-appellant that the deceased died after 14 days from the date of incident and as such, the case is covered under section 304 IPC and the accused could be punished only for the offence of culpable homicide not amounting to murder. The learned counsel has also draw attention towards the cross-examination of PW-7 Dr. T.N. Agrwal who conducted postmortem of the dead body of the deceased in which he has stated that there was 250 ml puss found in the body of deceased and it developed in septicemia which resulted in death of the deceased. He has therefore, argued that the cause of death cannot be attributed to firearm injury.
74. We gave thoughtful consideration to this argument and perused the postmortem report and statement of the doctor. The deceased remained in treatment in three hospital and clearly best treatment was ensured to him. He died during treatment after 14 days. We find that the Doctor has stated that 4 pellets were recovered from abdominal wall from the back of lever and it shows that the pellets penetrated the abdomen and lever. Apparently, for the exit of recovery, the deceased was operated on abdomen massively which is clear from the seven stitched would found on abdomen, intestine and around. Naturally, it was necessary for the proper treatment to save the life of deceased. The Doctor has stated that the deceased died because of shock and septicemia because of firearm injury and the injury was sufficient to cause death.
75. It is pertinent to mention that firearm injury and injury caused by explosive substance are kept on different footing from the death caused by other weapon. Causing injury by firearm on the vital part of body from close range indicates the intention to cause death and extreme culpability on the part of accused, as, the moment fire is shot, it cannot be controlled by the person and there is no concept of slow firing as the pellets will come out with the mechanically designed speed and force. In case of other cutting or stab weapon, one can claim that enough force was not applied in causing injury. The death resulted during continuous treatment because of firearm injury and in such cases, operation is always complicated and can result in further complication and if death occurs, the reason can only attributed to the firearm injury caused by the accused. In such factual situation, the gap between injury and death is not decisive and the culpability is assessed on the basis of weapon used and the seriousness of injury caused on the vital part of the body. We do not find any force in the argument and there is nothing wrong in the conviction of the accused for the offence of murder under section 302 IPC.
76. On the basis of above discussion, we find that the delay in lodging FIR is natural in the facts and circumstances of the case and well explained. The defence version of ceremonial firing though not based on any evidence on record, indicates acceptance on the part of accused-appellant that the deceased sustained firearm injury which is further proved by medical and postmortem report. Entry wound was found of very close range on the stomach of the deceased which is certainly vital part of body. The doctor conducting postmortem has stated that four pellets were recovered from the dead body and the ante-mortem injury found on the body of deceased was sufficient to cause death. Four eye-witnesses whose presence near the place of occurrence has been found to be natural have proved the prosecution case and their testimonies find support from the dying declaration of the deceased. There is no contradiction, improvement or embellishment in their ocular account on any material aspect such as time, date, place and manner of occurrence and the eye-witnesses are trustworthy and spontaneous in their narration of the incident. We find that there is no perversity or illegality in the impugned judgment and sentence. The Criminal Appeal is liable to be dismissed.
77. The Criminal Appeal is accordingly dismissed.
78. The accused-appellant Vidya Sagar Dwivedi is directed to surrender before the learned trial court forthwith where from he shall be sent to jail to undergo the sentence.
79. Office is directed to send a copy of this order to the court below for communication and compliance along with lower court record.
Order Date :- 25.02.2020
sailesh
(Justice Pradeep Kumar Srivastava) (Justice Sunita Agarwal)