Allahabad High Court
Ram Naresh vs State Of U.P. on 25 February, 2020
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 42 Case :- CRIMINAL APPEAL No. - 1313 of 1996 & Criminal Appeal No. 1315 of 1996 Appellant :- Ram Naresh Respondent :- State of U.P. Counsel for Appellant :- A. Ghosh Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 1316 of 1996 Appellant :- Kamal Respondent :- State of U.P. Counsel for Appellant :- G.S. Hajela,Usha Srivastava,Vinod Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Shri Pradeep Kumar Mishra, learned Amicus Curiae for the accused-appellant Ram Naresh in Criminal Appeal nos. 1313 & 1315 of 1996, Shri Vinod Kumar Srivastava, learned counsel for the accused-appellant Kamal in the connected Criminal Appeal No. 1316 of 1996 and Shri L.D. Rajbhar & Shri Prem Shankar Mishra, learned AGA for the State respondent and perused record.
2. These three Criminal Appeals have been filed by accused-appellants namely Ram Naresh and Kamal against the impugned judgment and order dated 18.6.1996 passed by the Session Judge, Farrukhabad in ST No. 474 of 1993 and 475 of 1993, arising out of Case Crime No.118 & 138 of 1993, Police Station Rajepur, District Farrukhabad, by which accused Ram Naresh and Kamal have been convicted and sentenced under Section 302/34 IPC for life imprisonment and for the offence under Section 25 (i)(c) Arms Act for a term of one year RI each. It has been further directed that both the sentences shall run concurrently.
3. Brief prosecution version is that the incident took place on 3.8.1993 at 1:30 PM village Salempur when the informant Smt. Sudha Devi, her mother Beti Devi and brother Ram Lakhan were going from village through footpath (pagdandi) to village Salempur for taking medicine from doctor. The moment they reached to the footpath of the field of Antu, the accused persons namely Ram Naresh (her elder brother) and Kamal, hidden behind the hedges of mooj, came out having country made pistol in their hands and to the mother who was going ahead to her, the accused Ram Naresh said that today he would not spare her alive as she was the reason for family dispute and she would not let him get his share in the property. Thereafter, in order to kill her mother, he fired on her. The fire hit her mother and the informant and her brother became apprehensive and in order to save their lives ran back shouting to save her mother and her mother ran towards Salimpur. Her mother had sustained injuries by fire and she could not run ahead and fell down. Accused Ram Naresh and Kamal went closer to her mother and by their country made pistol again fired on her mother, who died on spot in the field of Antu. The informant any how concealing herself with her brother went to the police station and gave a written report on the basis of which an offence under Section 302 IPC was registered against both the accused persons. The police went to the place of occurrence and took over the possession of the dead body, prepared inquest report and other papers, sealed the dead body and delivered to the police personnel for post-mortem. The statements of the witnesses were recorded by the Investigating Officer on the same day. From the spot, two empty cartridges and one live cartridge were found near the dead body and the same were taken into possession and sealed. Samples of blood stained and plain earth was also collected from the spot and that was also sealed. A pair of slipper of the deceased Beti Devi and one empty cartridge and one live cartridge was also found there at some distance from the dead body, which were taken in possession and sealed. The memo thereof was prepared in the presence of the witnesses. Subsequently, the accused persons surrendered before court and were taken on police remand as they made confessional statements and stated that they have concealed the country made pistol by which they committed the offences which they have concealed in the courtyard of the accused Ram Naresh. By digging a pit on their instance, the said country made pistol was recovered for which they could not show licence and, therefore, on the basis of recovery of illegal country made pistol, an FIR was lodged under Section 25 Arms Act. The site plan for both the offences was prepared during the investigation, thereafter, finding sufficient evidence against the accused persons, charge sheet was submitted against them under the aforesaid sections.
4. The learned trial court framed charges against the accused persons separately under Section 302 IPC and Section 25 of the Arms Act and in the alternative, also framed charge for the offence under Section 302 read with Section 34 IPC. The accused persons denied the charges and claimed trial.
5. In support, the prosecution examined eight witnesses. The statements of the accused persons were recorded under Section 313 Cr.P.C. and they put forward the case of denial saying that the witnesses had given false statements because of enmity and property disputes. The defence has examined DW-1 Sri Ravindra Kumar, Advocate and DW-2 Krishan Pal.
6. The learned trial court after hearing the prosecution and defence, convicted and sentenced both the accused persons by the impugned judgment.
7. Aggrieved by the conviction and sentence, the accused persons have filed this appeal challenging the impugned judgement being against weight of evidence on record, is bad in the eyes of law and awarded sentence is too severe. Therefore, the impugned order is liable to be set aside and the accused persons are entitled for acquittal.
8. The learned counsel for the appellant-accused has submitted that both the fact witnesses examined by the prosecution are related being daughter and son of the deceased and as such they are highly interested witnesses. No independent witness has been examined. There are material contradiction, improvement and discrepancy in the evidence of fact witnesses. The defence evidence has not been given due weight. There is no such motive alleged for the offence. The recovery of weapon allegedly used for commission of offence is tainted and planted and the same cannot be relied upon.
9. The learned AGA has submitted that the case is based on direct evidence supported by recovery of weapon and and medical evidence and the learned trial court has rightly held the accused persons guilty and has awarded adequate sentence.
10. In the light of rival arguments of parties, let us see the evidence on record on the basis of which the learned trial court has passed the impugned judgement. PW-1 A.K. Kulshrestha, ASI is the formal witness, who has proved chik FIR Ext. Ka-1, GD report No.26 of 6:05 PM Ext. Ka-2, inquest report Ext. Ka-3 and other papers necessary for sending the dead body for post-mortem from Ext. Ka-4 to Ext. Ka-8. The witness also stated that he recorded the statement of informant, recovered two empty cartridges and one live cartridge near the dead body and sealed the same. He also picked up blood stained and plain earth, slippers of the deceased and one empty cartridge and one live cartridge from the place where the slipper was found. All these articles were sealed and memo was prepared before the witnesses which are Ext. Ka-9 to Ext. Ka-12. He has further stated that on 4.8.1993, he made attempt to search the accused persons and recorded the statement of Ram Lakhan and on the pointing of the informant, the site map of the place of occurrence was also prepared, which is Ext. Ka-13. The accused persons surrendered before the Court on 12.8.1993 and they were taken on police remand on 29.8.1993 and on their instance the country made pistol was recovered, which was used in the murder of deceased and which was concealed in the house of accused Ram Naresh, who after digging the place in the house got the country made pistol recovered and gave the same to the police. Their statements have been proved as Ext. Ka-14 and Ext. Ka-15, the country made pistol was sealed on spot and on that basis, recovery memo was prepared, which is Ext. Ka-16 and site plan of recovery was prepared, which is Ext. Ka-18. Prior to it, the witness entered his departure from the police station on GD report no.15 at 10:20 AM on 29.8.1993, copy thereof has been attached and filed by the witness, which is Ext. Ka-17. On the basis of recovery, FIR was lodged for the offence under Section 25 Arms Act, chik FIR and GD report is Ext. Ka-19 and Ext. Ka-20. The witness has also proved the empty cartridge and live cartridge, which were recovered from the spot as material Ext.-1 to Ext.-5. The recovered country made pistol is material Ext.-6 and material Ext.-7. The case under Section 25 Arms Act was investigated by SI Jaipal Singh, who recorded the statement of the witnesses.
11. PW-2 Constable Kamlesh Babu has stated that accused persons Ram Naresh and Kamal, present in the Court, had confessed that they committed murder of Beti Devi and the country made pistol by which she was killed is in the house of accused Ram Naresh and he can get the same recovered. This witness has proved the recovery of country made pistol at the instance of accused persons.
12. PW-3 Smt Sudha Devi (informant and eye witness) has stated that her mother Beti Devi was killed about one year 10 months ago by the accused persons Kamal and Ram Naresh. Three years before her murder, the witness had become widow and she was living with her parents. With her mother, her brothers Ram Pratap, Ram Lakhan were also living. Accused Ram Naresh is her real brother but he used to live separately in the same house. Her father was a teacher and he died on 24.10.1989. She had no share in his property. But she had her share in the money deposited in the fund and she had given affidavit that her share be also given to her mother. The accused Ram Naresh was always angry with her mother as the money and the account was in her control. On the date of incident, she was going to Salempur with her brother and mother. When they reached to the footpath (pagdandi), the accused persons who were hidden in the hedges of mooj (sarpat) came out and said to her mother that they would not let her alive and they fired on her mother which hit her mother who ran towards Salimpur and she and her younger brother Ram Lakhan ran backwards. Her mother could not run much far. The accused persons went close to her mother and fired from close range on her. She sustained injuries and died on the spot. Thereafter, the accused persons ran away from there. She lodged the first information report by giving a written report which she got scribed by Shamsher Singh, which is Ext. Ka-21. On the place of incident, empty cartridge was lying close to her mother's dead body and other was lying at some distance from the dead body and one live cartridge was also found from the place from where the slippers of her mother were recovered.
13. PW-4 SI Ram Naresh Pandey has stated that he was posted at police station Rajepur on 29.8.1993 and on that day the accused persons were taken on police remand and they took the police and witnesses to the house of accused Ram Naresh and got the country made pistol recovered which was used for the commission of offence. The memo was prepared on which he also signed.
14. PW-5 Ram Lakhan Singh (eyewitness) has stated that his father was a teacher who died. His elder sister Sudha Devi is widow and after death of her husband, she used to live with his mother in their house. Accused Ram Naresh also lived with them, who is real brother but he got separated himself from the family from the time of his father. After death of his father, his mother inherited the property. Accused Ram Naresh had instituted a case against his mother regarding the property of his father, which was pending at the time of the murder. About one year and 10 months ago, his mother was killed at 1:30 PM and at that time he, his sister Sudha Devi and his mother were going to Salempur for taking medicine. When they reached to the footpath (pagdandi) of Salempur, the accused persons Ram Naresh and Kamal came out from the hedges of mooj. Ram Naresh said that he would not spare the mother alive as she was the sole reason for the family dispute. Thereafter, he fired on his mother, which hit her on pelvis (kulha). On being injured, she ran away leaving her slippers there. Thereafter, she fell on the ground and both the accused Ram Naresh and Kamal went close to her and both fired on her. Consequently, his mother died on spot. They shouted and on their shout 2-3 persons reached there and later on people from the side of their house also came. His sister went to Rajepur and got FIR scribed by one Shamsher and gave the same to the police station. The accused Kamal is samdhi (father-in-law of son) of accused Ram Naresh.
15. PW-6 SI Kripal Singh took over the investigation when most part of the investigation was completed and filed charge sheet, which is Ext. Ka-22.
16. PW-7 Dr. S.B. Singh has stated that on 4.8.1993, he was posted in District Hospital, Farrukhabad and in the evening, at 3:00 PM, conducted the post-mortem of Smt. Beti Devi, who was brought to the hospital by constable Chote Lal and constable Nawab Singh of PS Rajepur. The deceased was aged about 70 years and she had died one day before. Eyes were closed and mouth was partly opened, rigor mortis had passed from the upper limbs and was present in lower limbs. There was a little swelling on the stomach and the lower part of the stomach was greenish, dried blood, dust, mud and piece of grass were found on the chest and head. On examination, following ante mortem injuries were found on the body of the deceased-
(I) Firearm entry wound 3.5 cm x 2.5 cm x cranial cavity deep left mastoid region, just behind left ear. Margins inverted, lacerated, ecchymosed, mostoid; blackening and tattooing present around the wound in an area of 12 cm x 10.00 cm.
(II) Multiple pellets wound of entry 12 in number, dorso- medial aspect of right forearm in the area of 13.0 cm x 9.0 cm measuring 0.5 cm x 0.3 cm to 0.3 cm x 0.2 cm skin and muscle deep.
(III) Multiple pellet wounds of entry 20 in number, posterior lateral aspect of right buttock in area of 18.0 cm x 14.0 cm measuring from 1.0 cm x 0.3 cm to 0.3 cm x 0.2 cm, muscle to skin deep.
17. In the internal examination, left parietal bone and occipital bone were found broken, brain-lacerated, base of scalp was also broken, spinal cord not opened, heart empty, stomach contained 200 gm semi digested foot. The doctor has proved the post-mortem report as Ext. Ka-23 and has stated that the deceased must have died because of shock and haemorrhage, which must have resulted due to ante mortem injuries. From the body of the deceased, one wad, two ticklies and 26 pellets from scalp, 5 pellets from right arm from the skin and 7 small pellets from right buttock were recovered, which were sealed. One blouse, one sari, one peti-coat, one rudrakhsh mala of deceased were sealed and handed over to the constable. The doctor has also stated that the deceased must have died on 3.8.1993 at 1:30 PM and the injuries caused by firearms found on her body were sufficient to cause death.
18. PW-8 SI Jaipal Singh Yadav prepared inquest report and other papers necessary for sending the dead body for post-mortem. A live cartridge, empty cartridge and slippers, blood stained and plain earth, two empty cartridges and one live cartridge were taken into custody and memos were prepared on the dictation of SO. On all the memos, SO signed. The witness has further stated that in relation to the offence under Section 25 Arms Act, he recorded the statement of SO A.K. Kulsheshtra and statements of accused persons and other witnesses, prepared site plan of place of recovery, which is Ext. Ka-24 and Ext. Ka-25 and after getting sanction for prosecution, charge sheet was submitted against both the accused persons for the offence under Section 25 of the Arms Act, which is Ext. Ka-28 and Ext. Ka-29. The sanction order is Ext. Ka-26 and Ext. Ka-27.
19. The defence has examined DW-1 Sri Ravindra Kumar, Advocate who stated that he is a practising lawyer and he knew Ram Lakhan who came to him for preparing an affidavit, which was got prepared and sworn by oath Commissioner after reading over to Ram Lakhan on which he put his signature. In the cross-examination, he has stated that he has been lawyer of Ram Lakhan and he does not know Ram Prakash and Chhavi Nath. He has denied that he prepared false affidavit for him.
20. DW-2 Krishan Pal has also been examined by defence, who has stated that he knew the accused persons. He also knew the deceased Beti Devi, who belonged to his village. She had three sons and two daughters and the eldest son is Ram Naresh (accused), thereafter, Ram Pratap and then youngest one Ram Lakhan, who is the witness in this case. Daughters are Sudha Devi (witness & informant) and Suman. Suman has been married with his nephew. Three years before, Beti Devi was killed in the noon at 12:00 PM. He was sitting on his door towards road side and some boys rushed crying that the mother of Ram Naresh has been killed by someone. The dead body of Beti Devi was found in the field of Antu. He tried to trace out the sons of Beti Devi, but the two sons had gone to Fatehgarh. They were informed by him. Sudha Devi, Ram Pratap, Ram Lakhan and Shamsher came there after 3:00 PM. The chaukidar was sent to lodge report about the incident to the police station. After sometimes, the SO came there. Inquest report was prepared on which he is also a witness.
21. From the perusal of the evidence on record, it appears that PW-3 Sudha Devi and PW-5 Ramlakhan both are daughter and son of the deceased. PW-3 started living with her mother after death of her husband and at the time of incident, both were accompanying the deceased and were going to Salempur to a doctor for taking medicine for the deceased. In the fact and circumstances, their being together and presence at the time of incident is natural. Both have stated that the accused persons fired on deceased by their country made pistol, injured her and caused her death. Defence has examined DW-2 to show that they were not with the deceased and someone killed the deceased at about 12 PM in the noon and he heard some boys were crying that she had been killed and her body was found in the field of Antu. Her sons had gone to Fatehpur and after 3 PM, Sudha and her brothers reached there. Apparently, DW-2 is not eyewitness nor he has been able to state about or identify any of the boys he heard crying. It is also established that the dead body was found in the field of Antu which supports the case of prosecution to the extent that the incident took place somewhere around the field of Antu. Before the IO, he gave statement that in the afternoon the news spread that Beti Devi has been killed by Ram Naresh and Kamal, but when controverted by prosecution, he has denied this. Remaining statement given under section 161 has been admitted by him which includes the recovery of slipper of deceased and cartridges from the spot. He has stated that he sent the Village Chaukidar to Police Station to lodge FIR. If it was so, the Village Chaukidar was the right person to prove this fact. But, he has not been examined by the defence. On the other side, it has been proved by the informant that she lodged the FIR by giving written report in the Police Station. In absence of any cogent and clinching evidence, the version of DW-2, to the extent it contradicts prosecution version, cannot be believed. Clearly, he has made improvement to shift the time of incident from 1.30 PM to around 12 PM. Moreover, the difference he has tried to create in the timing is just of one hour and 15 to 30 minutes which is not relevant in view of the ocular testimony supported by medical evidence establishing the time of incident alleged by prosecution.
22. The learned counsel to the accused-appellant has challenged the credibility of fact witnesses on the basis of their being related witness, certain contradiction and improvement and lack of any motive for the commission of offence. He has submitted that no independent witness has been examined and both the fact witnesses are relatives and highly interested witnesses and on their evidence no reliance could be placed by the learned trial court. It is admitted fact that both the fact witnesses are brother and sister and the deceased has been their mother. But, it can hardly make a difference as the prosecution case is that at the time of incident, there was none on the place of occurrence except these witness who were accompanying their mother and they were going to the doctor in relation to the ailment of the deceased.
23. 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."
24. 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."
25. 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."
26. 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."
27. 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."
28. 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."
29. 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........."
30. 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."
31. 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.
32. 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.
33. 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."
34. Recently, in Shio Shanker Dubey v State of Bihar AIR 2019 SC 2275, the Supreme Court has reiterated the law as under:
"...... a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
35. 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. There is no rule to the effect that the evidence of related or partisan witness is not acceptable. Association or relation does not render the evidence false and partisanship is no ground to reject the testimony given on oath.
36. So far as non-examination of the independent witness is concerned, the option lies with the prosecution to examine as many witness as is required to be examined to prove the charge. Moreover, no other witness has been alleged to be present on spot at the time of incident and therefore, there was no question of examining any other witness. Moreover, it is not the quantity, rather quality of the evidence which is decisive in arriving at the right conclusion.
36. Certain contradictions, discrepancies and improvements have been mentioned in the statements of fact witnesses. PW-3 has stated that they were going to Dr. Ramprasad of salempur where her mother used to go for injection. She has said that her mother was patient of tuberculosis and on the previous night, because of cough (khansi), blood came out from her mouth. She has also stated that when accused obstructed and gave threatening to her mother and she ran towards Salempur, accused Ram Naresh shot fire at her which hit her on her right buttock. The submission of the learned counsel is that the name of the doctor where the deceased was going or any thing stated above in italics has not been mentioned in the FIR nor in the statement given to IO. The defence has also pointed out discrepancy on the point that the fire was shot while she was running away. PW-5 Ram Lakhan who has been examined as eyewitness has also narrated the whole incident in the similar way. Both the witnesses have stated that when both the accused persons came out in front of the deceased and threatened her, the deceased tried to run away towards Salempur and she sustained the first shot in the process and the other two shots were fired by them from close range when she fell down. Both the witnesses have stated that the deceased sustained three firearm injuries one while running and the other two when she could not run and fell down. They have also stated that her slippers were left at the place where she sustained the first fire.
37. On facts, we find that the contradiction, discrepancy or improvement mentioned above are not in respect of time, place, date and manner of the commission of offence. It needs to be mentioned that where own mother is victim of deadly assault and the eyewitnesses were son and daughter of the deceased, in such a situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident and narrate every aspect related thereto in a uniform way. 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.
38. 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 and on what part of the body, there is some mix-up or confusion.
39. 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. We do not find any contradiction discrepancy or improvement in the statement of the witness and there is consistency so far as narration of the criminal incident.
40. So far as the second limb of argument is concerned, we do not find it at all necessary that all the facts are required to be mentioned in the FIR. The purpose of FIR is to give information about commission of offence and it is not necessary to give every minute detail. 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 our view, a detail description and sequence of incident constituting the offence is not at all required to be mentioned in the FIR.
41. The learned counsel to the accused-appellant has also submitted that the presence of PW-5 is highly doubtful as he had sworn an affidavit and this fact has been stated by DW-1 Ravendra Kumar Misra Advocate, a lawyer who got the affidavit prepared, that Ram Lakhan put his signature thereon. The affidavit has been proved as Ext. Kha-1 and it has been stated therein that on 3.8.1993 at about 1 PM, his mother had left to go to Salempur to her relative Pratap Bhan and when she reached near Salempur, someone killed her by firing. The people passing through came and informed him about it. He and Sudha rushed there and and saw their mother lying dead. There is a case pending in the court between the deceased and Ram Nnaresh in which he, his sister Sudha and Ram Prtap are also parties. On this basis, they suspected that accused persons killed the deceased and lodged FIR. The learned counsel has pointed out that PW-5 was examined and he has stated that the affidavit bears his photograph and signature. But, he has explained it by saying that on the saying of Chhavinath, brother in law of Ram Prtap, that it is so required in respect of the money of his father's provident fund, he signed on blank papers and he did not go to court nor he was produced before any oath commissioner. The explanation given by the witness appears to be convincing looking to his age as he was about 15 years in age when he sworn the affidavit and definitely, there was a dispute with regards to the money of provident fund of his father. It also looks strange that DW-1 has stated that he knew witness Ram Lakhan from the last three years when he prepared the affidavit. Knowing an eleven twelve years boy does not look natural. The Oath Commissioner has not been examined who could have been best person to state about it. In addition to it, it needs mention that in criminal trial, evidence cannot be given on affidavit or by filing an affidavit.
42. In Munir Ahmad v State of Rajasthan, AIR 1989 SC 705, it has been held that in the case of a living person, evidence in judicial proceedings must be tendered by calling the witness. Testimony of such witness cannot be substituted by an affidavit unless the law permits so as u/s 295 and S. 407(3) CrPC or the court expressly allows it. The Supreme Court has deprecated getting affidavit of witnesses in advance in Rachapalli Abbulu v State of AP, AIR 2002 SC 1805 and has held that practice of getting affidavits of witnesses in advance is an attempt aimed at dissuading witnesses from speaking the truth before the court. The Supreme Court has laid down that such interference in criminal justice should not be encouraged and should be viewed seriously. In Smt. Sudha Devi v M.P. Narayanan, AIR 1988 SC 1381 and Ayaaubkhan v State of Maharashtra, AIR 2013 SC 58, it has been held that affidavits have got no evidentiary value as the affidavits are not included in the definition of "evidence" in S. 3 of the Evidence Act and can be used as evidence only if for sufficient reasons court passes an order like the one under O.19, Rule 1 & 2 of the CPC. Therefore, in view of the discussion above, we are of the view that the said affidavit is not significant and on that basis the evidence of PW-5 cannot be rejected.
43. The next submission is about motive and it has been argued that the accused persons did not have motive or adequate motive sufficient to cause the death of own mother. The defence case has been that some unknown person killed the deceased and out of enmity, the accused persons have been falsely implicated. It has been already discussed above that the defence theory that the witnesses did not see the criminal incident as they were not present there, is not convincing. It is a case of broad day murder and the two eye-witnesses were none other but the daughter and son of deceased who were accompanying the deceased and going to the doctor as the deceased was suffering from tuberculosis. Thus, the prosecution case is based on direct evidence and the settled law is that motive goes to the back seat in such cases.
44. 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.
45. We find that the Supreme Court has reiterated the aforesaid view 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. 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.
46. 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 has 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.
47. In the case in hand, evidence shows that motive in terms of enmity has been alleged by the defence side. In addition to it, the prosecution witnesses have stated that the relationship of accused Ram Naresh with his mother was very strained and he used to live in the same house separately. The property dispute was there as after the death of her husband, the deceased inherited the property and also the amount of provident fund. PW-1 has stated that prior to this incident, accused Ram Naresh committed marpeet with her mother in which she was also injured and FIR was lodged in relation thereto for the offence under section 325 IPC and the case is still pending. She has also stated that the accused also lodged a false cross case. This all goes to show that the relationship of the accused was very strained with deceased and civil and criminal case were pending in court. Therefore, motive has been alleged and proved by prosecution. So far as accused Kamal is concerned, it is admitted and proved that he is Samdhi of accused Ram Naresh as his daughter is married with son of accused Kamal and it is no strange if he joined hands for commission of the offence.
48. As pointed out above, both the eyewitnesses are daughter and son of the deceased and the deceased was sick and suffering from tuberculosis. If both were going to doctor with deceased, their presence on spot at the time of incident is quite natural. The incident took place in the day light and there is no possibility of mistake in identifying the accused persons, more so because the accused persons were well known to them. Both the witness have stated that their mother sustained three firearm injuries which was caused by the accused persons and their mother died on spot immediately. The medical report also supports this fact. PW-7 Dr. S.B.Singh, while conducting post-mortem, found on the dead body three firearm entry wounds which are just behind left ear, multiple pellets wound, 12 and 20 in number, on dorso-medial aspect of right forearm and posterior lateral aspect of right buttock. In the opinion of doctor, the injuries were caused by country made pistol and injury no.1 was caused from a very close range as blackening and tattooing was present and other two injuries were from a little distance. Left parietal bone and occipital bone were found broken, brain-lacerated, base of scalp was also broken. The eye-witnesses have stated that the deceased died immediately on spot and the doctor has also expressed the view that the death must have taken place on 3.8.1993 at 1.30 PM and it not only corroborates the time of death but also shows that the injuries were sufficient to cause instant death. The discrepancy tried to have been created by the defence with regards to number of firing is based on imagination and has no base whatsoever.
49. In the FIR, place of occurrence has been alleged to be the pagdandi of the field of Antu towards Salempur which comes just after crossing pakka road when the two accused persons came out from the hedge and committed the offence. Ext. Ka-13 is the site map prepared and proved by IO in which the place of occurrence has been shown as alleged in the FIR and stated by the eye-witnesses. In the site map, the place where dead body was found, from where blood stained and plain earth was picked, place near the dead body where live cartridge was found, place of two empty cartridges, place of slippers of the deceased and one live cartridge, place from where accused persons started firing, hedge where they were hidden, the pathway used by them, way to the house of deceased, way by which both the witnesses turned back and fled, way the deceased tried to escape, pagdandi and mend of the field has been shown. The distance between the place of slippers and dead body of the deceased was about 115 steps. PW-1 and PW-5 have also stated the place of occurrence to be near Antu's field and pagdandi and the same is also established by defence version and the statement of DW-1. On the same day, inquest report was prepared and the officer has mentioned and proved that the dead body was found in the field of Antu. Thus, we find that the place of occurrence has been fully established. It is pertinent to mention that the inquest report has been prepared and dead body has been sealed after appointing 5 punch witnesses including DW-2 and it has been specifically contained therein that the deceased died because of firearm injuries. Ext. Ka-10 is the memo of recovery of slippers of the deceased and on the left slipper, blood stains were found. Similarly, Ext. Ka-11 is the memo of blood stained and plain earth which was lifted from the place of occurrence and Ext. Ka-12 is the memo of live and empty cartridges recovered from the spot. All these memos have been duly proved by prosecution witnesses and they also corroborate the prosecution version.
50. Both the accused persons made confessional statement regarding commission of the offence by them by country made pistols and on their pointing, in the presence of witnesses got two country made pistol, one of accused Ram Naresh and other of accused Kamal, recovered from the house of accused Ram Naresh which were concealed in a dig. They admitted that by the pistols so recovered, they killed the deceased on the fateful day. Both the pistols were sealed and were produced in evidence during trial. The memo of recovery is Ext. Ka-16 which has been proved by the witnesses thereto. The learned trial court has convicted both the accused persons for the offence under section 25 the Arms Act. Thus, the prosecution version is also supported by the fact of discovery of two pistols on the pointing of both the accused persons.
51. The submission of the learned counsel is that the recovery was planted by police and false. The confession cannot be relied upon since made to the police. Since, the accused-appellants have also challenged the conviction under section 25 of the Arms Act, we are required to examine the legality of impugned judgement in respect thereof.
52. We find on record that on the basis of recovery memo of pistols, offence under section 25 of the Arms Act was registered against accused persons as they could not show license for keeping the same and chick was prepared. The offence was investigated, site map was prepared, statement of witnesses recorded and charge sheet was submitted by police against them. The prosecution witnesses have proved the recovery and the accused persons have been also convicted and awarded sentence for the same.
53. The recovery memo of two pistols shows that the accused persons, in custody, made confessional statement and took the police to the house of accused Ram Naresh and after removing a stone tile inside the house, both the accused persons dig out the country made pistol kept in polythene and stated that by those pistols they killed the deceased. PW-1 SI A.K. Kulshresth has stated that both the accused gave statement that the pistols by which they killed Beti Devi are hidden by them in the house of Ram Naresh and they can get the same recovered. Their statement was noted down in the case dairy by him and extract thereof certified by the witness was filed and proved by him as Ext. Ka-14 and Ka-15. Thereafter, he took the accused persons on remand by order of the court and on 29.3.1993, he took them to their village. All the police personnel and witnesses were mutually searched to ensure that there is nothing incriminatory with them and thereafter, the accused persons voluntarily dig out the pistols used for the commission of the offence. The pistols were sealed and memo (Ext. Ka-16) was prepared and the signatures of accused persons and witnesses were obtained after reading and explaining the same. GD report no. 15 (Ext. Ka-17) of 10.20 AM of the same date is of departure of the witness and accused persons from the Police Station. Site map of recovery (Ext. Ka-18) was prepared by the witness and sealed pistols were deposited in the Police Station and on the basis of memo of recovery, offence under section 25 of the Arms Act was registered against both the accused persons and chick (Ext. Ka-19) was prepared and an entry was made in the GD no. 26 (Ext. Ka-20). The witness has also proved the recovered pistols as Material Ext. 6 and 7. the evidence of PW-1 finds full support from the statement of PW-2 CP Kamlesh Babu who is another witness of recovery. Both the witnesses have been cross-examined by defence, but, nothing has come out on the basis of which they could be disbelieved. We find that both the witnesses have proved the recovery of those pistols which were used in the murder of deceased and for keeping the same, the accused persons could not show any licence and as such the learned trial court rightly held both the accused persons guilty for the offence under section 25 of the Arms Act.
54. The law with regards to admissibility and evidentiary value of discovery of material fact and incriminatory articles under section 27 of the Evidence Act has been variously explained and reiterated by the Supreme Court. In Suresh Chandra Bahri Vs. State of Bihar, AIR 1994 SC 2420, it has been laid down that where the accused had made confessional disclosure statement under section 27 of the Evidence Act to the police officer during investigation and on the basis thereof, incriminatory articles were found and seized and the evidence showed that the articles belonged to the deceased, it has been held by the Supreme Court that the disclosure statement can be said to be true and also worthy of credence. Non recording of disclosure statement and non-examination of public witness as regards to the said recovery would be of no consequence.
55. It has been held in Bodh Raj Vs. State of J & K, AIR 2002 SC 3164 that section 27 of the Indian Evidence Act, 1872 is like an exception to Sections 25 to 26 of the Evidence Act and a confessional statement made in police custody leading to discovery of fact has been made admissible in evidence against the accused. The prohibition on admissibility of confessional statement reflects the fear of the Legislature that a person under police influence might be induced to confess because of undue pressure. The statement which is admissible under Section 27 is the one which is the information leading to discovery. The information might be confessional in nature but if it results in discovery of a fact, it becomes a reliable information. But the information permitted to be admitted in evidence is confined to that portion of the information which 'distinctly relates to the fact thereby discovered.'
56. In Geejaganda Somaiah, T.N. v. State of Karnataka AIR 2007 SC 1355, it has been laid down that what is important is the information provided by the accused, which leads to the discovery of the fact, which is connected with the particular crime, provided that the accused is in custody. It is of no consequence that the information amounts to a confession which will not be allowed to be proved by the prosecution. But if a relevant fact is discovered in consequence of such information it furnishes assurance regarding the truth of such information. It is such information as relates to the fact thereby discovered is declared to be relevant and is allowed to be proved by the prosecution.
57. In Sandeep Vs. Stat of UP, (2012) 6 SCC 107 and Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161, it was further laid down that if anything or weapons etc. are recovered at the instance of the accused only in the presence of police party and there is no public witness to such recovery or recovery memo, the testimony of the police personnel proving the recovery and the recovery memo cannot be disbelieved merely because there was no witness to the recovery proceedings or recovery memo from the public particularly when no witness from public could be found by the police party despite their efforts at the time of recovery. Seizure memo need not be attested by any independent witness and the evidence of police officer regarding recovery at the instance of the accused should ordinarily be believed. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises.
58. In Navneethakrishnan v State, AIR 2018 SC 2027, the SC observed-
"The exception postulated under section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by exception postulated by section 27 aforesaid, is limited "..... as relates distinctly to the fact thereby discovered.... ." The rationale behind section 27 of the Evidence Act is, that the facts in question should have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, section 27 aforesaid has been incorporated as an exception to the mandate contained in sections 25 and 26 of the Evidence Act."
59. It has been submitted by the learned counsel for the accused-appellants that the two public witnesses namely, Chhabi Nath and Mahesh have not been examined by the prosecution. It has been also submitted that these public witnesses gave affidavit during investigation in favour of accused persons. If it was so, in our view, it is in itself a good justification for not producing them during trial. So far as the argument that the public witnesses were not examined and they gave affidavit denying such recovery in their presence, the same will not adversely impact the prosecution version nor the recovery would become tainted. The learned trial court has taken the view that even if it was so, the police witnesses have proved the recovery. The Supreme Court in Nathu Singh v State of MP, 1974 Cri. L J 11, their testimony cannot be discarded for the reason that they are police witnesses and it has not been shown that the police had some enmity with accused. Further judgements such as Pramod Kumar Vs. State (GNCT) of Delhi, AIR 2013 SC 3344 and Govindaraju alias Govinda Vs. State of Shri Ramapuram P.S., AIR 2012 SC 1292 also affirm this view in which it has been held that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. As a rule it cannot be stated that Police Officer can or cannot be sole eye witness in criminal case. Statement of Police Officer can be relied upon and even form basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record. Experience shows that local people to avoid enmity and bad relation are often reluctant in giving evidence in criminal cases.
60. We are of the view that there is no error or perversity in the approach of the learned trial court. This instant case is based on direct evidence and the eyewitnesses saw the accused using pistol for causing deadly assault by firing and the recovery has been made from the house of accused. So far as his affidavit is concerned which was given by him during investigation denying such recovery is no evidence as the witness has denied the same and has stated that his statement before the court is correct, and also in view of judgement of the Supreme Court in Ayaaubkhan v State of Maharashtra, AIR 2013 SC 58, where it has been held that affidavits have got no evidentiary value as the affidavits are not included in the definition of "evidence" in S. 3 of the Evidence Act.
61. We are of the view that seizure memo need not be attested in all cases by any independent witness and the evidence of police officer regarding recovery at the instance of the accused should ordinarily be believed. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. There is no such rule that the police as witness of recovery cannot be believed. We get added strength to take this view on the basis of the judgement of the Supreme Court discussed above. There appears to be no error in the impugned conviction of both the accused persons for the offence under section 25 of the Arms Act as the recovery of the two pistols has been proved by the trustworthy evidence of two police witnesses of recovery and the accused persons were not able to show licence for keeping the same.
62. It has also been argued that there is no evidence to link the recovered pistols with the offence and the same has not been sent for chemical examination. Moreover, the blood stained earth and clothings of deceased have also not been sent for chemical examination. Even if it is so, this lapse is attributable to irregularity or deficiency in investigation and in C. Muniappan Vs. State of TN, 2010 (6) SCJ 822, Hema Vs. State, 2013 (81) ACC 1 (SC), State of Karnataka Vs. Suvarnamma, (2015) 1 SCC 323 and Khem Ram Vs. State of Himachal Pradesh, (2018) 1 SCC 202, it has been held that the lapses in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent.
63. In Rahul Mishra Vs. State of Uttarakhand, AIR 2015 SC 3043 and V.K. Mishra Vs. State of Uttarakhand, (2015) 9 SCC 588 it has been remarked by the Supreme Court that the investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions. In Dhanaj Singh Vs. State of Punjab, (2004) 3 SCC 654, Sheo Shankar Singh Vs. State of Jharkhand, 2011 CrLJ 2139(SC) and Maqbool Vs. State of A.P., AIR 2011 SC 184. the Supreme Court has more specifically laid down that non sending of blood stained earth and clothes of the deceased or injured to chemical examiner for chemical examination is not fatal to the case of the prosecution if the ocular testimony is found credible and cogent. Similarly, in Maqbool Vs. State of A.P., AIR 2011 SC 184 State of Punjab Vs. Hakam Singh, 2005(7) SCC 408 and Dhanaj Singh Vs. State of Punjab, (2004) 3 SCC 654, it has been held that non sending of weapons of assault, cartridges and pellets to ballistic experts for examination would not be fatal to the case of the prosecution if the ocular testimony is found credible and cogent.
64. It has been also submitted that there was no reason for accused Kamal to commit the offence as he was only a relative and he was not supposed to be involved in the family dispute of both the sides in relation to the property of the deceased. Two eyewitnesses have stated that the first fire was shot by accused Ram Naresh and when the deceased fell down, both the accused went closer to her and each of them fired by their pistol. This ocular version cannot be ruled out on the basis of hypothetical stand taken by the defence. Both the accused persons are close by virtue of the marriage of their children and accused Ram Naresh had very strained relations with the deceased and as such, there was every reason for both the accused persons to have intimacy and closeness and naturally, accused Kamal was the only well wisher of accused Ram Naresh as his relation with other members of the family were strained. Subsequently also, both surrendered together and were sent to jail. Both together caused death by firing and concealed their pistol in the house of Ram Naresh and the same was recovered on their pointing. Thus, both joined gloves together and shared the common intention for commission of the offence.
65. There is yet another argument that both the witnesses were children of deceased and were no less inimical. They were present on spot. There was occasion for the accused persons to assault and cause injury to them. But no injury was sustained by them. This makes their presence doubtful at the time of incident. This aspect has been adequately addressed by the learned trial court. There may be several reasons for it; the witnesses ran backwards; the accused might not be feeling them to be any hindrance in his goal; witness Ram Lakhan was just 14 years old; no resistance by witnesses during commission of the offence or any thing of like nature. It is not possible to read the mind of the accused why he did not assault or caused any injury to them. But, sustaining no injury is no reason to reject the ocular testimony which is consistent, trustworthy, natural and spontaneous and without any material contradiction and discrepancy. No convincing reason has been assigned by the defence why the real brother and sister will implicate the accused falsely.
66. In view of the above we find that prompt FIR has been lodged in this case; prosecution version has been supported by the account of two eyewitnesses which further finds support and corroboration by medical evidence and recovery of weapon used in the commission of the offence; alleged motive has been proved; the presence of both the eyewitnesses at the time of incident and with the deceased is natural and their evidence is credible, consistent and trustworthy on which reliance has been rightly placed by the learned trial court. Once, it was established by prosecution and defence version both that at the time date and place, the deceased was killed by firearm injury and the injury was sufficient to cause death, the limited question for determination was the role and involvement of the accused persons and that has been proved by two eyewitnesses and there is nothing on record to discard their evidence. As such, we do not find any perversity or illegality in the impugned judgement. The conviction and sentence awarded by the learned trial court is upheld. The appeal is, therefore, liable to be dismissed.
67. All the three Criminal Appeals are accordingly dismissed.
68. The accused-appellants Ram Naresh and Kamal are directed to surrender before the learned trial court forthwith where from they shall be sent to jail to undergo the sentence.
69. Amicus Curiae Shri Pradeep Kumar Mishra, Advocate shall be paid Rs. 10,000/- for his legal assistance to the Court.
70. 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
Mini
(Justice Pradeep Kumar Srivastava) (Justice Sunita Agarwal)