Allahabad High Court
Pawan Kumar @ Tamatar vs State Of U.P. on 27 November, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Criminal Appeal No. 1510 of 2004
Pawan Kumar @ Tamatar Versus State of U.P.
Connected with
Criminal Appeal No. 2423 of 2004
Vinod Kumar Tripathi Versus State of U.P.
Counsel for the appellant: Sri V. P. Srivastava, Senior Advocate assisted by Sri Santosh Tripathi and Shri Ram Rawat
Counsel for the respondent : Sri Amarjeet Singh, A.G.A.
Counsel for the Complainant: Sri D. K. Tiwari
Hon. Rakesh Tiwari, J.
Hon. Anil Kumar Sharma, J.
( By Hon. Anil Kumar Sharma, J.) Both these appeals emanate from common judgment and order dated 4.3.2004 passed by Dr. Manju Nigam, the then Additional Sessions Judge (Court no. 1), Allahabad in S.T. No. 936 of 2000 State Vs. Pawan @ Tamatar and two others, under section 302/34 IPC and 30 Arms Act, (Case Crime 21 of 2000), and in S.T. No.32 of 2002 State Vs. Vinod Kumar Tripathi, under section 302/34 IPC, P.S. Kokhraj, district Kaushambi, whereby both the accused-appellants have been convicted and sentenced to undergo imprisonment for life with fine of Rs.10,000/- each, therefore, they have been heard and being decided together.
2. Succinctly stated, the prosecution case is that on 31.1.2000 at about 2.30 p.m., complainant Ram Prakash Pandey son of late Hanuman Prasad Pandey, resident of Village Bidanpur, police station Kokhraj, district Kaushambi submitted a written report in Police Station Kokhraj stating that he is permanent resident of Village Bidanpur, Police Sation Kokhraj, district Kaushambi. Today, he along which his wife Hem Lata, sons Pankaj Pandey, Surya Narain Pandey and servants Ram Pratap and Budh Ram had gone to Village for irrigating the agriculture field. His wife Hem Lata Pandey and servants Ram Pratap and Budh Ram were at the field, while he along with his two sons was at the tube-well. At about 2.00 p.m. Vinod Kumar Tirpahti, son of Radhey Shyam Tripathi armed with a DBBL gun, his nephew Pawan @ Tamatar son of Ashok Tripathi carrying a SBBL gun along with Deepu son of Paras Nath came at the field and surrounded his wife. On her alarm they saw that Pawan fired a shot on her chest. She fell down and thereafter Vinod Kumar Tripathi shot fire from his gun on her chest and all the three accused persons made their escape good towards western side. This incident was witnessed by the complainant and his aforesaid companions. It has been further stated in the written report that his wife had deposed in a murder case against Vinod Kumar Tripathi and he was sentenced to imprisonment for life in that case. On account of this fact Vinod Kumar Tripathi and his family bore enmity with them.
3. On the basis of this report case at Crime No. 21 of 2000, under section 302 IPC and 30 Arms Act was registered in Police Station Kokhraj, district Kaushambi, investigation whereof was taken up by Station Officer Arun Kumr Shukla. The Investigating officer reached at the spot, interrogated the complainant and eye witnesses Pankaj Pandey and Surya Narain Pandey. He inspected the spot and prepared site-plan. He recovered an empty cartridge 12 bore and also seized plain and blood stained earth from the spot through memos. He instructed Sub- Inspector Ram Sakal Tiwari to conduct inquest of the deceased. After inquest the dead-body of the deceased was sent for postmortem examination in a sealed cover along with usual papers. He arrested accused Pawan Kumar @ Tamatar and Deepu @ Akhilesh Pandey on 5.2.2000. Accused Pawan Kumar confessed his guilt and offered to get the SBBL gun used in the crime recovered. He took them to village Bidanpur and from near his residence he took out an SBBL gun from a Kothri. Dr. J.B. Singh on 1.2.2000 at 4.40 p.m. conducted autopsy on the corpse of the deceased. He found that 45-years old deceased was thin built, her eyes and mouth were semi closed. Rigor Mortis was present in all the four limbs and there was no sign of decompositon. The doctor had found the following ante-mortem injuries on the person of the deceased :
(i)Fire arm wound of entry 3 cm.x 2.5cm. x chest cavity on the right side of chest plus 1cm. below from right sternoclavicular joint. Blackening was found present ;
(ii)Fire arm wound of entry 4 cm. x 2 cm. on the left chest, 1 cm. below left nipple. The 6th, 7th and 8th rib of the left side was fractured and sternum is also fractured.
4. On internal examination, the doctor found that both sides of pleura were lacerated and torned. The pleural cavity was full of blood clot on both sides. Both lungs, heart and pericardium were lacerated. Twenty pellets and three pieces of wadding were also recovered from the body of the deceased. In the opinion of the doctor, the deceased suffered death due to shock and hemorrhage, as a result of ante-mortem fire-arm injuries.
5. On transfer of Sri Arun Kumar Shukla, the investigation was taken over by Sub-Inspector N.N. Singh, who interrogated accused Ram Bahadur in Central Jail, Naini on 2.5.2000 and after completing investigation submitted charge-sheet against accused Pawan @ Tamatar and accused Deepu @ Akhilesh Pandey, under section 302/34 IPC and under section 30 Arms Act against accused Ram Bahadur. Accused Vinod Kumar Tripathi could be apprehended by the police on 7.9.2001 and Sub-Inspector Rajeev Yadav submitted supplementary charge-sheet against him. The Investigating Officer had sent the sample of plain and blood stained earth seized from the spot for examination to Forensic Science Laboratory, Lucknow, who have opined that the samples appeared to be the same. The SBBL gun handed over by Pawan Kumar @ Tamatar bearing No.12803 along with 20 pellets, two Motiwad and a Tickli as also two empties 12 bore were sent for examination to ballistic experts of FSL, Lucknow. After examination the Laboratory vide report dated 24.1.2000 has opined that empty cartridges E.C.-1 was fired from SBBL gun No.12803, while the other cartridge E.C.-2 was not shot from that gun. The Laboratory could not give definite finding about the pellets and Tickli. In another report the Serelogist of the aforesaid Laboratory has found blood on the wearing apparels of the deceased and human blood on pellets and tickli. However, its origin could not be ascertained on account of disintegration of the blood.
6. After committal of the case to the Court of Session, charge for the offence punishable under section 302/34 IPC was framed against accused Pawan @ Tamatar and Deepu @ Akhilesh Kumar Pandey, Ram Bahadur and Vinod Kumar Tripathi. Charge for the offence punishable under section 30 of the Arms Act, was also framed against accused Ram Bahadur. The appellants abjured their guilt and claimed trial.
7. In order to substantiate the charges framed against the accused persons, the prosecution has examined the complainant Ram Prakash Pandey PW-1, son of the deceased Pankaj Pandey PW-2, Constable Dharam Pal PW-3, Dr. J.B. Singh PW-4, Constable Ram Sanehi Singh PW-5, Bassan PW-6, Sub-Inspector Arun Kumar Shukla PW-7, SI Ram Sakal Tiwari PW-8, SI Rajiv Yadav PW-9 and Sub-Inspector N.N. Singh as PW-10.
8. The accused persons in their separate statements under section 313 Cr.P.C. have again denied the entire prosecution story and claimed false implication. Accused Vinod Kumar Tripathi and Pawan Kumar have stated that the deceased used to pick up quarrel everywhere and she had several enemies. She was killed by someone at another place and in connivance with the police they have been indicted in the case. In defence the accused persons have examined Ballistic Expert Budul Rai as DW-1. Thereafter, Dr. N.K.Tiwari Ballistic Expert, who had examined the fire-arm and ammunition in this case, was examined by the Court as CW-1.
9. After hearing the parties counsel and perusing the evidence on record, the learned Additional Sessions Judge had convicted both the appellants under section 302/34 IPC and sentenced to imprisonment for life along with fine of Rs.10,000/- each. However, accused Ram Bahadur and Deepu @ Akhilesh Kumar Pandey were acquitted of the charges punishable under section 302/34 IPC. Accused Ram Bahadur was further acquitted under section 30 Arms Act.
10. Aggrieved, the appellants have come up in appeal. We have heard the learned counsel for the parties at length and have personally perused the original record of the case carefully.
11. Learned counsel for the appellants assailing the impugned judgment of the trial Court has argued:
I. that the FIR is ante-timed and had come into existence after post-mortem examination of the deceased;
II. that the deceased was of rowdy character and she had several enemies. She was killed by any other unknown person(s) and appellants have been falsely implicated in the case on account of old enmity;
III. that the prosecution has examined only highly interested, inimical and partisan witnesses and no independent witness had been examined;
IV. that the presence of PW-1 and PW-2 at the alleged time of occurrence on the spot is highly doubtful;
V. that the police has fabricated the recovery of gun against accused Pawan Kumar Tripathi;
VI.that the alleged eye witness account is contradictory to the medical evidence and report of Ballistic Expert does not match with the statements of PW-1 and PW-2 with regard to manner of incident and arms used in the crime.
12. Refuting the above arguments the learned AGA and learned counsel for the complainant has contended that there is no delay in lodging the FIR; that there was strong motive for the both accused to eliminate the deceased as accused Vinod Kumar Tripathi was sentenced to imprisonment for life on the deposition of the deceased in the murder case of his wife; and deceased Smt. Hem Lata and PW-2 Pankaj Pandey were acquitted in the murder case of Ashok Kumar Tripathi father of accused Pawan Kumar Tripathi @ Tamatar; that there are no contradictions in the testimony of witnesses of fact which stands fully corroborated from the medical evidence and if there is any lapse in the investigation, the otherwise reliable prosecution case cannot be thrown away. The learned trial Court in its well discussed judgment had rightly found the appellants guilty for the murder of the deceased and appropriate sentence had been awarded to the appellants, therefore, the appeal has no force and is liable to be dismissed.
13. Learned counsel for the appellants has vehemently argued that that the FIR of the case has been ante-timed by the police and has come into existence even after post-mortem examination of the deceased. To buttress his argument learned counsel has pointed out -
i.that material particulars of the case in the inquest report were written subsequently as would appear from the testimony of investigating officer;
ii.that the dead body of the deceased was kept at the police station during night;
iii.that the complainant was not present at the spot and he was called from Allahabad and thereafter FIR came into existence;
iv.that PW-8, who has prepared the inquest had admitted in his cross-examination that at the time of preparation of inquest, copy of FIR was not with him, and v.that the FIR was sent with inordinate delay to the Magistrate.
Refuting these arguments learned AGA and the learned counsel for the complainant have submitted that the first informant was present on the spot and is eye witness of the incident. He lodged the report of the crime promptly at 4.50 P.M. i. e. about two hours after the incident. The distance between the place of incident and the police station is about 9 Kilometers. It has been further contended that the case was registered in the absence of I.O. and it has come in evidence of SI Arun Kumar Shukla PW-7 that the copy of FIR, copy of GD regarding registration of GD and zild panchyatnama were received by him on way to the spot; that SI Ram Sakal Tiwari PW-8 has negligently not noted the material particulars in the carbon copy of the inquest report by using carbon and the careful perusal of the inquest report would show that Sri Tiwari was having copy of FIR; that no doubt both PW-1 and PW-2 have stated that the dead body was kept in the police station during night, but this fact has been denied by all the police officials. They have concluded that the police has started the investigation of the case soon after the registration of the FIR, so if it reached a bit late to the Magistrate, it would not mean that the FIR was ante-timed.
14. Much emphasis had been laid by learned counsel for the appellants on the testimony of 1st invesgtigating officer SI Arun Kumar Shukla, PW-7 who had been subjected to cross-examination on the basis of carbon copy of inquest report summoned by the defence. The questions which had been asked from this witness with reference to the carbon copy of inquest report have not been asked from its author, who was the best person to explain the circumstances, in which he had left certain blanks in the inquest report. The proper and legal course for the defence was to confront the writer of inquest report and not any other person, who may be accompanying him. The inquest report is not the substantive piece of evidence and can be used to contradict the maker thereof. SI Shukla PW-7 has stated in his examination-in-chief that the inquest was performed by SI Ram Sakal Tiwari under his supervision. In cross-examination Sri Shukla has admitted that crime no., sections, time of beginning of inquest and completion thereof have been written in the carbon copy of inquest with dot pen. This witness has denied the suggestion that till the inquest the FIR was not prepared. The name of the complainant and distance between village Bidanpur and police station have been written using carbon in the copy of inquest. If the FIR (check report) was not in existence, these particulars could not have find place in the carbon copy of inquest report. SI Tiwari PW-8 on this point as under:
" iapk;rukek dh lkjh izfof"V;kW eSaus ,d lkFk Hkjh FkhA ,slk ugha gS fd iapk;rukek Hkjrs le; rd ,Q- vkbZ- vkj- ugha FkhA ;g lgh gS fd iapk;rukek Hkjrs le; esjs ikl ,Q- vkbZ- vkj- ugha Fkh vkSj blh dkj.k o'k dqN LFkku fjDr NksM+s x;s Fks ftUgas ckn esa Hkjk x;k FkkA "
From perusal of the statement of this witness it appears that the jild panchyatnama i. e. copy of inquest report was not put to him. If the defence wanted to have any benefit from this lapse of Sri Tiwari, it was imperative for them to confront him with the carbon copy of inquest. Further it has not been asked from him as to when he filled the blanks allegedly left by him. The copy of the check report was with the 1st investigating officer of the case, who had immediately reached at the spot and interrogated the eye witnesses, inspected the spot, prepared site plan and seized articles from the spot. In this connection it will be useful to refer to a latest case decided by the Apex Court. In the case of Brahm Swaroop & Anr. Vs State of U.P. (2011) 6 SCC 288 dealing with the omissions and lapses on the part of investigating officer in preparing inquest report, where he has left several blanks in the inquest report, the Apex Court has observed in paras 6 to 10 as under:
6.Undoubtedly, there are five blanks in the inquest report. The crime number and names of the accused have not been filled up. The column for filling up the penal provisions under which offences have been committed is blank. The time of incident and time of dispatch of the special report have not been mentioned. Therefore, Shri Tulsi has submitted that the FIR is ante-timed and there is manipulation in the case of the prosecution.
7. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C') is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See Podda Narayana & Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252; Khujji v. State of Madhya Pradesh, AIR 1991 SC 1853; George & Ors. v. State of Kerala & Anr., (1998) 4 SCC 605; Shaikh Ayub v. State of Maharashtra, (1998) 9 SCC 521; Suresh Rai v. State of Bihar, (2000) 4 SCC 84; Amar Singh v. Balwinder Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh alias Lal Sahab & Ors.v. State of Uttar Pradesh, (2006) 2 SCC 450; and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC 1271).
8. In Radha Mohan Singh (supra), a three Judge bench of this Court held:
"No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in court." (Emphasis added)
9. Even where, the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court. (Vide: Dr. Krishna Pal & Anr. v. State of Uttar Pradesh, (1996) 7 SCC 194).
10.In view of the law referred to hereinabove it cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution's case and such omissions would necessarily lead to the inference that FIR is ante-timed.........."
Thus the discrepancies found in the carbon copy of inquest report or in the statement of its author would not be sufficient to hold that the FIR is ante-timed.
15. As regards delayed sending of check report to the Magistrate is concerned we find that the original check report is torn at places and the date of its receipt in the Court of Magistrate is not deciperable. In the instant case, the defence did not put any question in this regard to the investigating officer Arun Kumar Shukla PW-7 thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. In the case of Motilal and another Vs. State of Rajasthan (2009) 7 Supreme Court Cases 454, the Apex Court in para-9 of the report has observed as under:
"9. It is true as observed by the High Court that if the FIR is timely lodged and investigation is undertaken immediately, in a given case, the delayed receipt of the by the Ilaqa Magistrate would not be fatal to the prosecution. It would depend upon the facts of each case. There cannot be any generalisation. There is purpose behind the enactment of Section 157 of the Code of Criminal Procedure (in short 'the Code'). The statutory requirement that the report has to be sent forthwith that itself shows the urgency attached to the sending of the report. In a given case it is open to the prosecution to indicate reasons for the delayed dispatch or delayed receipt. This has to be established by evidence."
HCP Ram Sanehi Singh PW-5, who had registered the case on the basis of written report of PW-1 has stated in cross-examination that the check report has been sent to the Court through C.O. and there is no date below the signature of the C.O. However, it has not been asked from this witness as to when the check report reached the office of the Magistrate. Thus, the contention of defence about ante-timing of FIR cannot be accepted.
16. There is oath against oath with regard to keeping the dead body of the deceased at the police station during night. The PW-1 and PW-2 have stated that after inquest the dead body was sent to police station in sealed condition and in the morning it reached mortuary, while the police witnesses deny these facts. The prosecution has examined the carrier of the dead body namely Constable Dharam Pal PW-3, who has stated that that they took the dead body on a tractor to the mortuary. In cross-examination he has stated that he reached the mortuary at 5 a.m. It took 7-8 hours to reach the mortuary. The police station was on way to the mortuary, but he has specifically denied that the dead body was detained at the police station during night. Form no. 13 shows that the papers relating to inquest and autopsy reached Police Lines on 1.2.2000 at 11.10 A.M. This is certainly the lapse on the part of this witness, but for his fault the victim cannot be penalised. Although from the foregoing discussion, we have concluded that the FIR is not ante-timed, but it is also the law that if the FIR is ante-timed this is not the sole ground to throw away the prosecuton story. Ultimately the success of the prosecution story would depend upon the reliability of witnesses of fact as also the medical evidence.
17. There is deep rooted enmity between the parties. In the written report itself the complainant has stated that the deceased has deposed against accused Vinod Kumar Tripathi in the murder case of his wife, and he was convicted in that case. Leanred AGA has further contended that the deceased was expecting threat on her life at the hands of the accused and for this purpose she had filed writ petition in this Court and police security was provided to her. It has come in the statement of PW-2 that they were provided police security prior to this incident. He had visited his village 20-25 times before the incident and every time police security with two armed police constables accompanied them. PW-1 has also stated that on the day of incident prior going to village they had gone to police station Kokhraj for police security, but it was not provided. Both the witnesses of fact have stated that the deceased was President of Durga Vahini of District Kaushambi, which is affiliated with Vishwa Hindu Parishad and BJP. Although the police personnel examined in the case have denied that on the day of incident, the deceased had visited P. S. Kokhraj for police help, but it is quite natural for them, because after the murder of the deceased how they could admit this fact? As in this situation they would be liable to dereliction of duty. Accused Vinod Kumar Tripathi has admitted the deposition of the deceased against him in his statement u/s 313 CrPC stating that he has filed an appeal. Thus, the motive for the crime stands fully proved.
18. The next limb of argument of learned senior counsel for the appellants is that the prosecuation had examined highly interested and inimical witnesses and they have not produced any independent witness in support of its case. No doubt the witnesses of fact examined in the case are father and son and both of them are closely related with the deceased. Relationship itself is not ground to reject the testimony of a witness, rather he would be last person to leave the real culprit and falsely implicate any other person.
19. In the case of Brahm Swaroop & Anr. Vs State of U.P. (2011) 6 SCC 288, the Apex Court in para-21 of the report has observed as under:
"Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364; Masalti v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. v. State of Chhattisgarh Through The Chief Secretary, Government of Chhatisgarh, Raipur, Chhatisgarh, (2003) 2 SCC 661)."
Perusal of the evidence on record shows that the complainant although is original resident of village Bidanpur, but since 1995 they had left the village and shifted to Allahabad. Both the accused are also residents of village Bidanpur. Accused Vinod Kumar Tripathi is already a previous convict in the murder case of his wife. How any independent witness of the village would come forward and depose against a person having criminal background, particularly when he has no concern with the incident. The place of incident has been proved by the prosecution through the testimony of PW-1 and PW-2 as also from the statement of investigating officer, who has visited the scene of occurrence soon after the regisration of the case at the police station. Although the accused persons have disputed the place of incident by saying that the deceased was killed some where else, but they have not examined any witness of their village to say that the incident had not taken place in the field of the complainant. The investigating officer has also seized samples of plain and blood stained earth and an empty cartridge from the spot which were also sent for examination to Forensic Science Laboratory. The recovery of these articles also fixes the place of occurrence. The contention of defence that PW-1 and PW-2 were not present at the spot could not be established from any other circumstance appearing in the case. It has come in evidence that on account of enmity with the accused, the deceased never visited the village alone or without any police security, so it was quite natural that she had accompanied her husband, sons and servants for irrigating her agricultural fields. In the site plan Ex.Ka-7, the investigating officer had also shown the irrigated and unirrigated fields of the complainant. Thus, the criticism about the presence of PW-1 and PW-2 at the spot is devoid of any force.
20. PW-1 and PW-2 have corroborated the prosecution story with regard to manner of assault. PW-1 has stated that at the time of incident he was living with family in Keet Ganj in a rented house and on the day of incident they had left for village from there at about 7.30 A.M.. He did not carry his gun with him and first of all his wife went to P.S. Kokhraj for police. They reached the village at about 1.00 P.M. He did not think to go back Keet Ganj for fetching his gun. On the day of incident his agricultural field was being irrigated from tube-well. They had eaten green chana at the field. Only two fires were shot on his wife from close range and at that time he was sitting in western side of the tube well on a cot. He had seen the accused persons prior to the incident along with weapons, but he did not suspect any untoward incident. The distance between the place of his sitting and the spot is about 130 steps, which also corroborates the site plan. According to this witness the first fire was made by accused Pawan from his gun on her chest and when she fell down, the other gun shot was fired by Vinod Kumar on the chest of his wife and then they made their escape good towards western side. On commotion of wife and sound of fires no one from the village reached the spot out of fear and when he reached at the spot, his wife had died. He has further stated that the incident was seen by many others like Harish Chand Pasi and Baramdin Lohar. He has also described the jewellery worn by his wife.
21. PW-2, the eldest son of the deceased is also an eye witness of the incident and scribe of the FIR. He has also corroborated the statement of his father on all material particulars. This witness has also proved the site plan Ex. Ka-7 as also the topography of the spot. The investigating officer had shown the position of tube-well where complainant and his sons were sitting at the time of incident. The position of deceased and servants had been depicted and these persons were about 130 steps from the tube-well. Since the fields had no crop, so there was no obstruction in the view of complainant and his sons. The incident had taken place in broad-day light, therefore, question of any misidentity of the assailants does not arise. Thus we find that the testimony of PW-1 and PW-2 corroborate each other and the prosectuion story as depicted by the complainant in his written report.
22. Learned counsel for the appellants has vehemently argued that according to PW-1 and PW-2, both the accused have fired shots with guns from point blank range, but the doctor has not noted any blackening or tattoing on ante-mortem entry gun shot injury no. 2. Dr. J. B. Singh PW-4 has stated that injury no. 1 could be caused from a distance of 3 feet and the other from more than a yard. Twenty pellets and three pieces of wadding were also recovered from the dead body of the deceased by the doctor. The accused have examined Senior Govt. Ballistic Expert Budul Rai as DW-1 who had been summoned them by name through the process of the Court. After examining the post-mortem report of the deceased, this witness has stated:
" LVSUMMZ xu ds uky dk O;kl 0-729 bap gksrk gSA ;fn LVSUMMZ xu ls 3 fQV ds vUnj Qk;j fd;k tk; rks ?kko ds fdukjs dkfyek vkrh gS vkSj ?kko dk O;kl uky ds O;kl ds lekukUrj gksrk gSA ;fn LVSUMMZ xu ls Qk;j fd;k tk; rks high izs'kj mRiUu gksrk gS tks 2 ls 18 Vu izfr Ldok;j bap gksrk gSA gseyrk dh pksV ua0 1] 3 ls-eh- x 2-5 ls-eh- ds O;kl esa gSa vkSj mlds pkjks vksj blackening rks fy[kh x;h gS bl pksV dh end ¼fudkl dk ?kko½ ugha gSA pwafd bl pksV esa blackening present gS vkSj NjksZ dk QSyko Hkh 'kq: gks pqdk vkSj dksbZ fudkl dk ?kko Hkh ugha gS blfy, ;g pksV fdlh LVSUMMZ xu dh u gksdj fdlh nslh reUps 12 cksj dh gksxhA "
The autopsy report of the deceased clearly show that she had sustained two gun shot entry wounds on her chest, which had been responsible for her death. The SBBL gun of acquitted accused Ram Bahadur used in the crime was got recovered by accused Pawan Kumar and it was sent for examination to Forensic Science Laboratory along with two empties recovered from the spot and pellets etc. found by the doctor in the body of the deceased. These articles were examined by CW-1 and after examination vide report dated 24.1.2000 he had opined that empty cartridge E.C.-1 was fired from SBBL gun No.12803, while the other cartridge E.C.-2 was not shot from that gun. This report has been given after test firing the gun in the laboratory with test cartridges. DW-1 has given his opinion about ante-mortem injury no. 1 only and when asked about injury no. 2 in cross-examination, he could not give any definite reply whether it can be caused by standard gun or country made pistol. On the other hand CW-1 agreeing with the opinion of DW-1 has stated that injury no. 1 could be caused by standard gun but from a distance. The only controversy appears to be with regard to distance of firing.
23. Both the witnesses of fact namely PW-1 and PW-2 have stated in unison that the firing was made by putting the weapon on the chest of deceased. The incident had been seen by these witnesses from a distance of about 130 paces, so it is not very much material. No witness howsoever intelligent he may be during trial cannot state with mathematical precision and accuracy the exact distance of firing particularly when the difference between the weapon and the object is within range of feet and inches particularly when he is witnessing the distance from about 130 paces. The incident takes place in few minutes and it is not like viewing a videographic film, where one can rewind and see the shots again and again. The manner and method of assault, the position of the victim and the assailants, the resistance offered by him or her, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. Considering all these aspects in the facts and circumstances of the case, the so called difference in firing range is too small, which cannot wash away the ocular evidence of material witnesses PW-1 and PW-2.
24. It has also been urged by the counsel for the appellants that the doctor has found 200 gms. digested food material in the stomach of the deceased, which belies the statement of material witnesses that the deceased had not eaten anything since morning. Dr. Singh PW-4 has stated in cross-examination that it is difficult to tell the amount of food material found in the stomach of the deceased, because that part of his autopsy report is torn. However, in next sentence he has stated that 200 gms. digested food material was found in her stomach. It is difficult to appreciate this contention. When the doctor was unable to read his report on account of its having been torn, then on what basis he had stated that stomach of the deceased contained 200 gms. digested food material? Nevertheless, this fact is not very much relevant in this case, as from the stomach contents of any deceased it is difficult to ascertain the time of his or her death. The digestive process differs from man to man. It depends upon several factors. Further, we find that it has come in the deposition of PW-1 that after break-fast they had left for the village. No-doubt at one place he has stated in cross-examination that the deceased had not eaten any thing till death, but it is not significant, as from the report we cannot decipher the amount of food found in the stomach of the deceased. Moreover it is trite law that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of the witness has a greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved. [Vide - Rakesh and another Vs. State of Madhya Pradesh; (2011) 3 SCC (Cri) 803]. In the case in hand the doctor has not noted the estimated time of death of the deceased. He has explained this omission in his cross-examination by stating that this column was not printed in the proforma of report of post-mortem examiantion, so he forgot to mention it. However, he has further stated that since rigor mortis was present in both limbs, so the death must have occurred within 24-hours, which may be 20-hours before. It does not mean that the doctor was able to fix any exact time of death. Thus, we find that there is no variance in ocular evidence and medical evidence in the instant case.
25. Learned counsel for the appellants has argued that the police has fabricated the recovery of gun against accused Pawan Kumar Tripathi. Refuting this argument the learned AGA has submitted that the recovery of gun has been duly proved from the statement of investigating officer, and nothing could be elicited from his cross-examination, which may create doubt on the veracity of his statement and the recovery. PW-7 has stated that on 5.2.2000 accused Pawan Kumar and Deepu @ Akhalesh Pandey were arrested and on interrogation Pawan Kumar confessing his guilt had offered to get the SBBL gun used in the crime recovered. He took them to village Bidanpur and near his house from a heap of straw he took a SBBL gun which sealed at the spot and memo Ex.Ka-6 was prepared. He has also proved the gun as Ex.-1 This recovery has not been challenged on behalf of the defence in cross-examination of PW-7.
26. Learned senior counsel for the appellants has strenously argued that the recovery of two empties from spot, their sending to FSL and examination by the Laboratory was not put to accused-appellants in their statements u/s 313 Cr.P.C., so these incriminating circumstances cannot be read against them. The provisions of Section 313 CrPC clearly states that it is obligatory for the Court to question the accused on the prosecution evidence and circumstances against him so as to enable the accused to explain it. However, it would not be enough for the accused to contend that he has not been questioned or examined on a particular fact or circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words, in the event of an inadvertent omission on the part of the trial court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the Court. After perusing the original record of the case we find it difficult to agree with this contention. The recovery of two empty cartridges 12 bore had been testified by investigating officer PW-7. The report Ex.C-1 of FSL had been proved by CW-1. In the report it has been mentioned that following articles were sent to the Laboratory for examination:
i. SBBL gun no. HIM-12803, ii. 20 small deformed pellets, iii. 2-Moti wads, and iv. two empties 12 bore, which were marked as EC-1 and EC-2 in the Laboratory.
The report further indicates that three cartridges 12 bore were test fired which have been marked as TC-1 to TC-3. After microscopic examination the Laboratory has found that empty cartridge Ex-1 had been fired by SBBL gun HIM-12803. Question no. 3 and 4 regarding recovery of two empties had been asked from accused Vinod Kumar Triapathi and Pawan Kumar Tripathi respectively. Regarding examination of the aforesaid articles and statement of CW-1 additional statement of accused u/s 313 CrPC was recorded on 21.8.2003, which reads as under:
"iz'u& vkius Mk0 ufyu dqekj frokjh] vkXus; 'kL= fo'ks"kK fof/k foKku iz;ksx'kkyk] egkuxj y[kuÅ dk c;ku lqukA bl ekeysa esa mUgksaus iz'uxr cUnwd ,l- ch- ch- ,y- uEcj ,p- vkbZ- ,e-&12803 12 cksj dk ijh{k.k fd;kA bUgksaus fod`r NjsZ] nks eksVhokV rFkk fVdqyh dk Hkh ijh{k.k fd;k gSA pys gq;s dkjrwl dk Hkh ijh{k.k bUgksaus fd;k gSa mDr cUnwd ds 3 dkjrwl] tks pyk;s x;s Fks] dk Hkh ijh{k.k bUgksaus fd;kA muds }kjk ijh{k.k ,oe~ rqyuk lw{en'khZ ;U= ,oe~ gS.M eSaxu }kjk fd;k x;kA bUgksaus ik;k fd NjsZ dk vkSlr Hkkj yxHkx 0-25 Fkk ,oe~ O;kl 18-5 FkkA Qk;fjax fiu ,oe~ czhp ds fpUg mu ij mifLFkr FksA bUgksusa viuh jk; izdV dh gS fd NjsZ ,oe~ fVdfy;kW mDr cUnwd }kjk pys gq;s gks ldrs gSaA fuf'pr jk; nsuk lEHko ugha gSA budh lk{; vkius lqukA buds lk{; ij vkidks D;k dguk gS\ mRrj& dqN ugha dguk gSA"
Thus we find that all the incriminating circumstances appearing in the case against the accused persons have been put to the accused-appellants for enabling them to give explanation. As such we do not find any force in the arguments of the learned counsel for the appellants.
27. In view of the foregoing discussion after reassessment of evidence available on record we find that the prosecution has successfully proved its case against the accused-appellants beyond all reasonable doubt. Smt. Hem Lata was killed in broad-day light on account of enmity by the accused-appellants. They have been rightly found guilty for the offence punishable u/s 302 IPC and adequate sentence had been awarded to each of them. However, the learned trial Court has erred in not awarding any sentence in default of payment of fine amounting to Rs. 10,000/- to each appellant. In these circumstances, while dismissing the appeal we direct that each appellant would further under go simple imprisonment for six months in default of payment of fine.
28. Both the appellants are in jail and would serve out the sentence.
29. Let certified copy of the judgment be forthwith sent to the Court concerned and the Chief Judicial Magistrate, Kaushambi for compliance, which should be reported in 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
November 27, 2012
Imroz/-