Madhya Pradesh High Court
Jitendra vs The State Of Madhya Pradesh on 19 March, 2019
Bench: Huluvadi G. Ramesh, B.K. Shrivastava
CRA-1053/2009 & CRA-1227/2009
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HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
Criminal Appeal No. 1053 of 2009
1. Jitendra s/o Hariram Awasthy
2. Mahesh Mishra s/o Bhagwat Prasad Mishra .........Appellants
Versus
State of Madhya Pradesh .......Respondent
WITH
Criminal Appeal No. 1227 of 2009
Ashish Tiwari @ Baba s/o Madan Mohan Tiwari .........Appellant
Versus
State of Madhya Pradesh ......Respondent
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CORAM:
Hon'ble Shri Justice Huluvadi G. Ramesh,
Hon'ble Shri Justice B.K. Shrivastava, JJ.
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APPEARANCE:
Shri Sharad Verma, Advocate for the appellants in CRA No.1053/2009
Shri Siddharth Datt, Advocate for the appellant in CRA No.1227/2009
Shri Shamim Ahmad, Public Prosecutor for the respondent-State.
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Whether Approved for Reporting: No
Reserved for Judgment on: 07.03.2019
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CRA-1053/2009 & CRA-1227/2009
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JUDGMENT
(Delivered on this 19th day of March, 2019) Per: Huluvadi G. Ramesh, J.:
Both the present appeals under Section 374(2) of the Code of Criminal Procedure, 1973 have been filed by the appellants against the impugned judgment of conviction and order of sentence dated 05.05.2009 passed by the learned First Additional Sessions Judge, Chhatarpur (M.P.) in Sessions Trial No.28/2009. Therefore, both the appeals were heard together and are being decided by this common judgment.
2. In Criminal Appeal No.1053/2009, the appellants Jitendra s/o Hariram Awasthy and Mahesh Mishra s/o Bhagwat Prasad Mishra have been convicted for the offence punishable under Section 302/34 of IPC and sentenced to R.I. for life and fine of Rs.2000/-; in default of payment of fine to undergo simple imprisonment for one month each. Appellant, Ashish Tiwari @ Baba in Criminal Appeal No.1227/2009 has been convicted for the offence punishable under Section 302 of IPC and sentenced to R.I. for life and fine of Rs.2000/-; in default to further undergo S.I. for one month and further convicted under Section 27 of the Arms Act and sentenced to R.I. for seven years and fine of Rs.500/-; in lieu of fine to further undergo S.I. for one month; all sentences to run concurrently.
3. Co-accused Ashwani Saxena also preferred separate Criminal Appeal No.1134/2009 against the impugned judgment of conviction and order of sentence dated 05.05.2009 and he was released from jail on 22.11.2012. At the time of commission of offence, he was juvenile, therefore, in view of the judgment of the Apex Court rendered in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh reported as (2012) 9 SCC 750, the matter was ordered to be placed before the Juvenile Justice Board. But, since he had already suffered more than three years of jail sentence, the appeal has been disposed of vide order dated 01.12.2018.
CRA-1053/2009 & CRA-1227/2009
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4. The prosecution story, in brief, is that one Santosh Kumar Yadav (PW-7) lodged a dehati nalishi to the effect that he is resident of Himmatpura, Police Station Satai and that he works as a driver on the Bolero vehicle of his maternal uncle's son Deshraj Yadav of village Bagauta. Deshraj Yadav runs a Dhaba (roadside Indian restaurant) named as Krishna Dhaba at Sagar Road, Chhatarpur. In the night on 19.10.2008, he had gone to said Dhaba on Bolero, as he used to sleep there in the night. The younger brother of Deshraj, namely, Harbal Yadav (hereinafter referred to as "the deceased") aged 26 years was at Dhaba along with staff Avdhesh, Rakesh, Suresh and Dilip. At about 12.00 in the night, after finishing the work and shutting down Dhaba, they were going to sleep. At that time, four boys came on two motorcycles, out of them appellant Ashish Tiwari alias Baba and Ashwani (juvenile) are known to him. They asked the deceased that they want to drink liquor and have dinner. They were sitting near the Dhaba. The deceased told them that it is 12.00 a.m. now and Dhaba has been shut down for the day, therefore, neither the food is available nor is the liquor entertained at their Dhaba. Whereupon, all the four boys got annoyed and started hurling filthy abuses to the deceased and also threatened that whenever they want they can have liquor and meal at any Dhaba and no Dhaba owner can dare to refuse them and if anyone does so, they shoot at him. The deceased protested. Whereupon, appellant Ashish Baba, who cripples and co-accused Ashwani Saxena called their accomplices by name as Mahesh Mishra and Jitendra Awasthi that they should stay there and keep watch till they bring the article (Saman) and that today only these Ahirs are to be killed. Thereafter, appellant Ashish Baba and co-accused Ashwani Saxena went towards Chhatarpur market on a black colour pulsar motorcycle No. MP16MB 2405 and thereafter, appellants Mahesh Mishra and Jitendra Awasthi sitting on victor motorcycle No. MP16 BA 8416 stood at some distance from Dhaba and hurled abuses. After some time at about 12.30 a.m., appellant Ashish Baba and co-accused Ashwani Saxena came back on Pulsar motorcycle with Kattas (country made pistol) in their hands and asked the deceased to tell how he is to be dealt with now. Thereafter, appellants Mahesh and Jitendra also came back on their motorcycle and both said that do not talk to them but just shoot. Thereupon, Ashwani Saxena CRA-1053/2009 & CRA-1227/2009
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fired from his country made pistol with the intention to kill but instead of the deceased the gunshot hit the wooden bed on which deceased was sitting. Thereafter, the deceased is said to have tried to catch appellant Ashish Baba whereupon Ashish Baba fired and the gunshot hit on the head of the deceased. The deceased fell down and blood started oozing. Thereafter, the accused persons ran away towards Chhatarpur. The complainant ran to call Deshraj and Mulayam Yadav and incident was narrated to them. Thereafter, all three of them reached Dhaba and took the deceased to hospital in their Bolero vehicle. The deceased had become unconscious and thereafter died.
5. Complainant Santosh Kumar Yadav gave a Dehati Nalishi (Ex.P-17) report to the Police Station, Chhatarpur and on the basis of the same, First Information Report (Ex.P-40) was recorded. The Investigating Agency arrived at the spot; prepared the spot map (Ex.P-1); recorded the statement of the witnesses and seized the ordinary and blood stained earth; an empty cartridge of .315 bore and another cartridge of .315 was also seized through Ex.P-2; the seized articles were sent for ballistic examination to Forensic Science Laboratory, Sagar through Superintendent of Police, Sagar; the accused persons were arrested and after completing the usual investigation, charge sheet was submitted in the Committal Court which committed the case to the Court of Session from where it was received for trial.
6. The learned Trial Judge on the basis of the averments made in the charge-sheet framed charges punishable under Section 302 of IPC and Section 27 of the Arms Act against appellant Ashish Tiwari while charges under Section 302 read with 34 of IPC were framed against appellants Jitendra and Mahesh, which they denied and requested for the trial.
7. The prosecution thereafter examined as many as 15 witnesses and also placed Ex. P/1 to P/13, the documents on record. The defence of the appellants is of false implication and the same defence they set-forth in their statement recorded under Section 313 Cr.P.C. However, they did not examine any witness in support of their defence.
8. The learned Trial Judge on the basis of the evidence placed on record found the charges against the appellants to be proved and CRA-1053/2009 & CRA-1227/2009
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consequently, convicted and sentenced them in the manner as mentioned in the impugned judgment and that is how the present appeals have been filed by the appellants challenging their judgment of conviction and order of sentence.
9. Shri Siddharth Datt, learned counsel appearing for appellant Ashish Tiwari submitted that as per the prosecution story the gunshot injury was fired from close range but as per eyewitness account there is nothing to show that it was a close range fire. The eyewitnesses account says that the first fire missed the deceased and hit the wooden bed. He further submitted that in the sketch map Ex.P-1, the place from where the gunshot was fired and where the deceased was standing is not mentioned. In this context, learned counsel for the appellant has placed heavy reliance upon a Division Bench decision of this Court reported in 2005 CRI.L.J. 299 (Vijay Singh v. State of M.P.). Relying upon the said decision, it is submitted that there is a serious infirmity in the site plan. He has contended that preparation of site plan is not mere formality but it is essential feature in order to reach firm conclusion by the Court as to whether offence was committed by the accused or not. Learned counsel for the appellant further contended that empty cartridges and fired cartridges were sent to Forensic Science Laboratory nearly one month after their seizure and no explanation is given for the delay in sending the same and on that basis it is argued that it would be unsafe to rely on such evidence as to whether the seized articles which were sent to ballistic expert were the same articles were seized. On this score, learned counsel for the appellant has also placed reliance upon Supreme Court judgment reported in AIR 1997 SC 2960 (Mohd. Aman and another v. State of Rajasthan) to contend that prosecution failed to prove that seized articles were not tampered before sending to FSL.
10. Learned counsel for the appellant further submitted that the incident is alleged to have occurred in the month of October at around 12.00 a.m. and nowhere it is stated in the FIR that there was sufficient source of light at the place of occurrence in which the witnesses identified the accused persons, therefore, it creates doubt on the story of the prosecution with regard to identification of the accused persons. To bolster this submission, CRA-1053/2009 & CRA-1227/2009
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learned counsel for the appellant has placed reliance upon the Supreme Court decision reported in (2006) 10 SCC 542 (Arokia Thomas v. State of T.N.). He has further submitted that the Court cannot ignore serious doubts cast on the prosecution story and in this regard he has placed reliance upon the Supreme Court decision reported in (1976) 1 SCC 750 (Nachhattar Singh and others v. The State of Punjab).
11. Shri Sharad Verma, learned counsel appearing for the appellants Jitendra and Mahesh Mishra submitted that these appellants have not exhorted the co-accused to cause injury by firearm nor have they directed the co-accused to commit the offence and the finding of the learned Trial Court in this behalf is perverse. The eyewitnesses have stated that they were present at the spot at the time of incident but that part of their version is missing in their statement recorded under Section 161 Cr.P.C. He further submitted that no test identification parade was held.
12. On the other hand, learned Public Prosecutor for the State submitted that there are three direct eyewitnesses to the incident. They have named the appellants to be involved in the crime and that it has come on record that there was sufficient source of light at the time of incident. Therefore, the argument of the appellants that there is nothing to prove as to from what distance the gunshot was fired, cannot be accepted. It is further contended by him that nothing has been put to the Armorer as to from what distance the gunshot could have been fired. It is further contended by him that there is ample evidence on record to prove that the seal was intact. The Armorer has found the seal to be intact and after examining he has handed over the sealed articles to the Investigating Officer from where it was received by the Forensic Science Laboratory in sealed condition. There is no question of any lacuna being there so that any benefit could be given to the appellants on that count. He has thus, contended that the delay of one month in sending the articles for FSL report would not be fatal to the case of the prosecution. As such, the learned Public Prosecutor has argued in support of the impugned judgment and prayed for dismissal of the appeals.
CRA-1053/2009 & CRA-1227/2009
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13. We have heard learned counsel for the appellants and learned Public Prosecutor for the State and find that both the present appeals deserve to be dismissed.
14. In the present case, there are as many as four eyewitnesses to the incident; they are Suresh Yadav (PW-1), Dilip (PW-3), Ramswaroop (PW-5) and Santosh (PW-7). Out of these four eyewitnesses, the author of Dehati Nalishi is Santosh Yadav (PW-7), who has also proved the Dehati Nalishi (Ex.P-17) on the basis of which FIR (Ex.P-40) was recorded. On going through the testimony of Santosh Yadav (PW-7), we find that he has specifically deposed that on 19.10.2008 at about 12.00 a.m., all the four accused persons came at Dhaba and asked the deceased for providing meal and liquor. On being refused, all the accused persons started abusing while appellant Ashish told the deceased that no Dhaba owner dares to forbid him because if someone refuses, he shoots him. Thereafter, appellant Ashish Baba asked appellants Jitendra and Mahesh to await there and he along with co-accused Ashwani went away. He has further stated that after half-an-hour, appellant Ashish came back along with co-accused Ashwani followed by appellants Mahesh and Jitendra. He has further stated that Mahesh and Jitendra exhorted that let there be no talks with the deceased and he be gunned down. Thereafter, co-accused Ashwani fired the gun which did not hit the deceased but hit the wooden bed where the deceased was sitting. The deceased stood up to catch hold of appellant Ashish. Thereupon, Ashish fired the gun and the gunshot struck the head of the deceased. He has stated that he lifted the deceased and touched his chest and head and saw that blood was oozing. The deceased was taken to Chhatarpur Hospital wherefrom he was referred to Gwalior but on the way he succumbed to injuries. In cross- examination, in para 7, this witness has stated that deceased was sitting on the wooden bed and the first gunshot was fired from the distance of two- three yards (two-three steps), which was fired while sitting on the motorcycle itself by keeping the hand close to the body. The fire was made from the front seat of motorcycle. The gunshot hit the plank of the wooden bed and not the leg. While sitting on the motorbike the feet of the assailant were on the ground. The motorbike was not standing on its stand. He has CRA-1053/2009 & CRA-1227/2009
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further deposed in para-15 that appellant Ashish frequently visits Dhaba, therefore, he knows him. In para-16, he has further stated that he also knew appellants Mahesh and Jitendra by face from prior to date of incident. The statement of Santosh Yadav (PW-7) is also corroborated by the evidence of other eye witnesses, namely, Suresh Yadav (PW-1), Dilip (PW-3), Ramswaroop (PW-5).
15. Suresh Yadav (PW-1) in his statement has also deposed that he knows the accused persons. He was serving as Waiter at Krishna Dhaba. About eight days before Dipawali festival, at about 12.30 a.m. he was sitting on the wooden bed. Appellants Mahesh and Jitendra exhorted appellant Ashish Baba not to argue and straightway shoot at the deceased. Co-accused Ashwani Saxena fired but the gunshot hit the wooden bed while gunshot fired by appellant Ashish Baba struck in the head of deceased. In cross- examination, in para-15 he has stated that Dhaba is usually closed at about 11.00 p.m. and after washing the utensils etc. they would sleep by 1.00 a.m. After Dhaba is shut down, big mercury light is switched off but all small lights remain switched on. In para 19 he has stated that appellants had come to Dhaba on two motorcycles. He has further stated that he also knows appellants Mahesh and Jitendra, who often used to visit Dhaba for meal. He has further stated that in front of Krishna Dhaba there is one more hotel on the other side of road about 150 paces away. He has also stated that owner of that other hotel had also come there and asked him not to touch anything.
16. Dilip (PW-3) has deposed that he used to work as Waiter at Dhaba of the deceased. On the date of incident, at about 12.30 a.m., Dhaba was being closed. He has stated that apart from him, Suresh Yadav (PW-1), Rakesh Soni and Avadhesh Yadav were also at Dhaba while Santosh Yadav (PW-7) was sitting with the deceased. The accused persons came on two motorbikes. They asked the deceased to provide liquor and meal, who refused and thereupon, appellant Ashish Baba started abusing. Appellant Ashish Baba called Ashwani by name and went away while Jitendra and Mahesh stayed at some distance. After half-an-hour Ashish Baba and Ashwani came back. Ashish Baba asked the deceased how he is to be dealt with now. Thereupon, appellants Jitendra and Mahesh came and said that don't talk just fire.
CRA-1053/2009 & CRA-1227/2009
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Ashwani who was having long hair, fired but the gunshot missed the deceased and struck on the wooden bed. Thereafter, the deceased tried to catch hold of appellant Ashish but Ashish fired which hit in the head of the deceased. Santosh (PW-7) lifted the deceased to ascertain whether he was hit. Thereafter, Santosh (PW-7) ran to call brother of the deceased, Deshraj and thereafter, Deshraj and Mulayam came to the place of occurrence and took the deceased to hospital. In cross-examination, in para-7, he has stated that both the gunshots were fired from the distance of 4-5 steps.
17. Ramswaroop has been examined as PW-5. He has deposed that he runs a Dhaba named as Kanchan Dhaba at Sagar Road. On the opposite side of his Dhaba, the deceased is running his Krishna Dhaba. On 19th October at about 12.00 a.m., when he was having dinner, appellants Ashish, Mahesh, Jitendra and co-accused Ashwani were quarrelling with the deceased. They were abusing motherly and sisterly. Thereafter, all four of them went towards Chhatarpur. After about half-an-hour, at 12.30 a.m., he was sleeping at his hotel on wooden bed when he heard the sounds of two gunshots being fired. He saw that deceased was lying on the ground. Appellants Ashish and co-accused Ashwani were seen running away on their black-coloured motorbike. He had identified them. In cross-examination, he has stated that he knows all the four accused from before as they often used to visit his Dhaba. In para-6, he has admitted the omission of this fact in his police statement Ex.D-3 and explained that police had not asked for such information.
18. Jagdish (PW-6) is the witness of recovery of .315 bore country made pistol from appellant Ashish vide Ex.P-9 and his disclosure memorandum Ex.P-5. He has also proved recovery of a live cartridge of .315 bore from the house of appellant Ashish and an empty cartridge from the spot which were wrapped and sealed vide Ex.P-10. He is also the witness of disclosure statements Ex.P-7 and Ex.P-8 of appellants Jitendra and Mahesh with regard to two motorbikes involved in the incident. He is also the witness of seizure of motorbikes from the house of appellants Jitendra and Mahesh vide Ex.P- 11 and P-12. He is also the witness of arrest memos Ex.P-13 to Ex.P-16.
CRA-1053/2009 & CRA-1227/2009
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19. Pannalal (PW-8) is Patwari posted at Chhatarpur. On 3.11.2008, on the instructions of Tehsildar, he prepared the spot map (Ex.P-18) in the presence and at the instance of Ramswaroop Yadav and Ghanshyam Das Raikwar.
20. Dinesh (PW-9) is the elder brother of the deceased. He has stated that his younger brother deceased runs a Dhaba in their land situate at Sagar road. On the date of incident, at about 12.45 a.m., he was sleeping at his house when he heard the hue and cry. His wife Smt. Usha Yadav told him that deceased had sustained a gunshot. Thereafter, he reached the spot on his motorcycle. Dilip Saini (PW-3), Avadhesh Yadav (not examined) and Suresh Yadav (PW-1) asked him to take the deceased to hospital. Santosh (PW-7) narrated the incident to him.
21. Ramkanth Shukla (PW-10) is posted as Constable Armorer. He has stated that seized country-made-pistols and cartridges were brought for examination in sealed cover and on examining the same; he found that both the country-made-pistols were in working condition. The cartridges were alive and they were fitting in the pistols. The report is Ex.P-19.
22. The evidence of the eye witnesses to the incident, namely, Suresh Yadav (PW-1), Dilip (PW-3), Ramswaroop (PW-5) and Santosh (PW-7) has been corroborated by the evidence of autopsy surgeon Dr. R.S. Tripathi (PW-11) who has proved the postmortem report of the deceased Ex. P/20. As per postmortem report (Ex.P/20), on external examination, following injuries were found:-
(1) One lacerated penetrated wound present in scalp over parietal region near midline going right side. Soft tissue of brain protruding through the wound 1½ cm x 1½ cm x cranial cavity deep. Margins are lacerated. Edges are conversed and collar of abrasion and contusion look like a dark ring around the wound.
Irregular dark colour blackish abrasion marks present on right forearm post aspect right side of face and, left elbow region multiple in number and innumerable tattooing marks. All are CRA-1053/2009 & CRA-1227/2009
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antemortem in nature. Scalp hair are blood stained and clothes, one half shirt is blood-stained. Intra cranial cavity contained blood clotting with lacerated (sic) and brain tissue.
During the course of examination, the doctor has also seized one pinkish colour half shirt with vertical blackish brown lining blood stained and one blue colour Chaddi (underwear) sealed for medico-legal purpose and handed over to police constable. One Metallic F.B. purple yellow colour entangled cone like removed from I/C tissue, sealed and handed over to police constable and sealed packet for medico legal forensic science examination purpose. The doctor has opined that cause of death is coma due to injury to brain due to firearm injury.
23. Apart from the medical evidence, it is also seen that the bullet heads were preserved for FSL examination. The seized articles were sent by the Superintendent of Police, Chhatarpur to FSL, Sagar vide Ex.P-22, which has been proved by Investigating Officer R.K. Ghati (PW-12). One .315 bore country-made-pistol was recovered from appellant Ashish Tiwari, which is marked as article Ex."E". An empty cartridge of .315 bore was marked article "B" and bullet round .315 bore was marked article "D". An empty cartridge .315 bore which was marked as article "G". A bottle containing bullet received from Hospital, Chhatarpur marked article "K". In the FSL report Ex.P-23 it is clearly mentioned that article A1 is a country-made- pistol from which .315 bore bullets could be fired. The said pistol was found to be in working condition and on its barrel brown colour remains were found and on chemical examination of the same the presence of Nitrate was found to be positive. The test fire was done successfully. Similar situation was found with article A-2. From the report Ex.P-23 it is vivid that the empty cartridges were fired from the seized country-made-pistols.
24. The argument of the learned counsel for the appellant that there is nothing to show that the gunshot was fired from close range is only in the realm of submission and is misconceived. On this point, there are more than one eyewitness to the incident and their version cannot be easily discarded. Moreover, from the report of the ballistic expert Ex.P-23 it is clearly CRA-1053/2009 & CRA-1227/2009
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established that the empty cartridges were fired from the country-made- pistols, which were seized from the appellant. The memorandum of seizure also fortifies the story of the prosecution in this regard. Dr. R.S. Tripathi (PW-11) who conducted the postmortem examination, has also stated that the injury on the head of the deceased was ante-mortem in nature and could be sustained by firearm. With regard to the dia of the .315 bore gun and the firearm injury and its projectile, he has opined that ballistic expert could give specific opinion in this regard. In cross-examination, he has stated there was blackening around the firearm injuries and diameter of most of the injuries could not be ascertained. He, however, has admitted that he could not mention in his report that there was blackening on the firearm injury on the head. A query was made by the court to this witness that if there had been blackening, would he not have mentioned the same in the report, whereupon, this witness has stated that he may have forgotten to write the same. However, the doctor has stated that there was fracture on the parietal bone of the head and the margins of the wound contained darkening and there was blackening around the wound and burn, which clearly probablizes the fact that shot was fired from a short distance and it fortifies the involvement of the appellant in commission of the heinous and grave murder. The Apex Court in a judgment reported in AIR 1956 SC 526 (Santa Singh v. State of Punjab) has held that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches.
25. The second submission of the learned counsel for the appellant is that in the present case, absence of sketch map Ex.P-1 showing the place from where the accused fired the gunshot and the place where the deceased was standing would inure to the benefit of the appellant. In our considered opinion, the version of the eyewitnesses in this regard is quite believable and there is nothing to disbelieve their testimony. Suresh Yadav (PW-1) has proved the sketch map Ex.P-1. He has stated that the sketch map was prepared in his presence but in cross-examination nothing was put to this witness that when the site plan was prepared whether he was asked as to where the deceased was standing and where the appellant was standing at CRA-1053/2009 & CRA-1227/2009
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the time when the gunshot was fired. However, in his examination-in-chief Suresh (PW-1) has specifically stated that when first shot was fired, deceased stood up from the wooden bed and tried to catch hold of appellant Ashish when appellant Ashish fired the gun which hit the head of the deceased. This version is corroborated by Dilip (PW-3) and Santosh (PW-7). Thus, when the exact location of the appellant and the deceased at the time of incident has been specifically stated by the eyewitness account, which is corroborated by medical evidence, merely because sketch map is not mentioned in detail, would not be fatal to the case of the prosecution. The prosecution has been able to prove the presence of light at the time of incident and the witnesses have volunteered to have witnessed the incident with the help of electric light.
26. The Supreme Court in a judgment reported in AIR 1962 SC 399 (Tori Singh and another vs. State of Uttar Pradesh) considered the argument that the deceased was not likely to receive injury where he is reflected in the site plan. Relying upon Santa Singh (supra), the Court held that the marking of the spot on the sketch-map would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure. The Court held as under:-
"7............ In the second place, the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the Police during investigation............
8. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the CRA-1053/2009 & CRA-1227/2009
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witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh vs. The State of Punjab, AIR 1956 SC 526. It was held that such a plan drawn to scale was admissible if the witness corroborated the statement of the draftsman that they showed him the places and would not be hit by S. 162 of the Code of Criminal Procedure. In that case there was another sketch prepared by the Sub-inspector which was ruled out as inadmissible under S.
162. The sketch-map in the present case has been prepared by the Sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-inspector are inadmissible under S. 162 of the Code of criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the- sketch-map."
27. In another judgment reported as (1996) 8 SCC 199 (Jagdish Narain and another vs. State of U.P.), the prosecution evidence was sought to be disputed inter alia on the ground that the failure of the Investigating Officer to indicate in the site plan as to where from the shots were fired, makes the prosecution case doubtful. The High Court held that such failure did not detract from the truthfulness of the eye-witnesses and only amounted to omission on the part of the Investigating Officer. The Court held that when a site plan is prepared by an Investigating Officer, he prepares what he sees and observes. That would be direct and substantive evidence. But, information derived in respect of an incident such as when, where and how it happened, is hearsay evidence. The person from whom he heard, when examined is not the direct evidence. Such statement cannot be used even to corroborate the maker thereof and can be used only to contradict him. Thus, the Division Bench decision in Vijay Singh (supra) placed reliance upon by the learned counsel for the appellant is distinguishable on facts and is not applicable in the present case.
28. The next argument of the learned counsel for the appellant is that it would be unsafe to rely on the evidence as there is nothing to show whether the seized articles which were sent to ballistic expert were the same articles which were seized. The said argument is also stated to be rejected. Firstly, CRA-1053/2009 & CRA-1227/2009
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for the reason that Ramkanth Shukla (PW-10), the Armorer, has stated that seized country-made-pistols and cartridges were brought for examination in sealed cover. After examining the same, he has handed over the sealed articles to the Investigating Officer from where it was received by the Forensic Science Laboratory in sealed condition. There is nothing to reveal that there was any tampering with the evidence. Thus, mere delay in sending the articles for examination does not warrant consideration. Otherwise also, it is a settled law that the defective investigation by itself cannot be a ground for acquittal. The Supreme Court in a judgment reported in (2010) 9 SCC 567 (C. Muniappan and others vs. State of Tamil Nadu) has held as under:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, (1974) 3 SCC 626; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517; Paras Yadav v. State of Bihar, (1999) 2 SCC 126; State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715; Amar Singh v. Balwinder Singh, (2003) 2 SCC 518; Allarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57; and Ram Bali v. State of U.P., (2004) 10 SCC 598."
29. Keeping in view the aforesaid, the decision of the Apex Court in Mohd. Aman (supra) placed reliance upon by the learned counsel is of no help to the appellants.
CRA-1053/2009 & CRA-1227/2009
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30. As regards the argument of the learned counsel for the appellant that there is nothing to show that there was sufficient source of light at the place of occurrence and omission in this regard is concerned, it is seen that on perusal of the evidence of one of the eyewitness namely Suresh Yadav (PW-
1) who is believed to have seen the incident, in his cross-examination in para 15, he has stated that he knows the accused persons as they used to visit their Dhaba and at the time of incident, after Dhaba was closed although big mercury light was switched off but all small lights remained switched on. He has also stated that he and Rakesh (not examined) have had the dinner but other workers at Dhaba were doing their work. This fact also shows that not all the lights were switched off at the time of incident and there was sufficient source of light to identify the assailants, who could be easily identified because they frequently used to visit not only at the Dhaba of the deceased but also they were known to Ramswaroop (PW-5) as the appellants also used to visit his Dhaba which was in front of the Dhaba of the deceased, as well as Dilip (PW-3) who was working as Waiter at the Dhaba of the deceased and Santosh (PW-7) who was also present at the spot. Except Suresh Yadav (PW-1) nothing has been put to other eyewitnesses on behalf of the appellants in cross-examination regarding the insufficiency of source of light at the time of incident. There is no reason to disbelieve the testimony of Suresh (PW-1) on the point of availability of source of light at the time of incident, which was sufficient for the eyewitnesses to identify the accused persons. Thus, the argument of the learned counsel for the appellant in this regard is stated to be rejected and the decision of the Supreme Court in Arokia Thomas (supra) also does not come to the rescue of the appellants.
31. In the present case, appellant Ashish was armed with dangerous weapon while the deceased was unarmed. He along with appellants Jitendra and Mahesh earlier came at Dhaba half-an-hour prior to incident and threw a challenge upon the deceased and then he again returned to the incident armed with dangerous weapon along with co-accused Ashwani and asked the deceased as to what is to be done with him. Thereupon, appellants Jitendra and Mahesh exhorted appellant Ashish and co-accused Ashwani (juvenile) that they should not talk but just fire at the deceased. Therefore, CRA-1053/2009 & CRA-1227/2009
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though there may not be any intention to kill but it could safely be said that appellant Ashish voluntarily caused the death of the deceased. Had there been no intention of the appellants to kill, he could have fired the shot in the air and tried to threaten the deceased to provide meal to them at the odd hours or to fire on a non-vital part of the body but nothing of the sort was done and instead appellant Ashish and co-accused Ashwani (juvenile) on the exhortation of appellants Jitendra and Mahesh fired from a close range and the shot fired by appellant Ashish hit on the head of the deceased, as a result of which he died.
32. There is vivid evidence on record to prove the involvement of the appellants in the commission of the crime coupled with the identification of the accused persons as earlier also they used to frequently visit at the Dhaba so they were easily identified by the witnesses. The appellants not only retorted at the first instance when they came at the Dhaba at the time of incident and threw a challenge on the deceased and others for having expressed that there is no food to serve at the odd hours but as a matter of arrogance they returned with the country-made-pistols and fired at the deceased as a result of which the deceased died due to gunshot injury. The country-made-pistol was recovered from appellant Ashish and the ballistic expert has found brown colour remains from the barrel on which presence of Nitrate was found to be positive. The presence of appellants Jitendra and Mahesh Mishra at the place of occurrence is also proved and corroborated by the eyewitnesses account and the specific role of exhortation assigned to them is also proved. Nothing has been argued and no material has been shown that the complainant had any intention to falsely implicate the appellants.
33. We have examined the statement of witnesses thoroughly and we could not find that there is anything in order to disbelieve their testimony. On the contrary, we find their evidence to be clear, cogent and trustworthy. We find that the findings recorded by the learned Trial Court are based on correct appreciation of facts and law. We do not find any reason to differ with such findings.
CRA-1053/2009 & CRA-1227/2009
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34. In view of the foregoing analysis, in our considered view, the learned Trial Court did not commit any error in convicting and sentencing the appellants in the manner enumerated above. Both the appeals fail and are hereby dismissed.
35. In CRA No.1053/2009, appellants No.1 Jitendra and appellant No.2 Mahesh Mishra are on bail. The bail bonds stand cancelled. The appellants be taken into custody to serve out the remaining part of the jail sentence.
(HULUVADI G. RAMESH) (B.K. SHRIVASTAVA)
Judge Judge
S/
SACHIN CHAUDHARY
2019.03.19 15:17:36 +05'30'