Allahabad High Court
Chhote Lal vs State Of U.P. on 24 May, 2019
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 14.05.2019
Delivered on 24.05.2019
CRIMINAL APPEAL No.- 3382 of 2010
Chhote Lal ----- Appellant
Vs.
State of U.P. ----- Respondent
And
CRIMINAL APPEAL No. - 2908 of 2012
Sarvesh Kumari ----- Appellant
Vs.
1. State of U.P.
2. Munni Lal
3. Ajay Kumar ----- Respondents
_____________________________________________________________
For Appellant : Sri Rajiv Lochan Shukla, Sri Pradeep Kumar Singh Chauhan
For Respondent/State : AGA Sri Ajit Ray ____________________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per : Pritinker Diwaker, J.
1. As these appeals arise out of common judgement dated 05.05.2010 and order dated 06.05.2010 passed by Additional Sessions Judge, Court No. 5 Aligarh in Sessions Trial No. 544 of 2007, convicting the accused-appellant Chhote Lal under Section 302 of IPC and sentencing him to undergo imprisonment for life and a fine of Rs. 10,000/-, in default thereof, to further undergo six months additional imprisonment and acquitting the accused appellants Munni Lal and Ajay Kumar under Sections 302/34 of I.P.C. and further acquitting the accused appellant Chhote Lal in Sessions Trial No. 545 of 2007 under Section 25 of Arms Act, they are being disposed of by this common order.
2. In the present case, name of the deceased is Kali Charan, brother of accused-appellant Chhote Lal. On 24.10.2006, at about 08:00 pm, when the deceased was in his residential premises, offering food to cattle, accused-appellant Chhote Lal asked him as to why he is disposing of the property, which was replied by deceased that he is selling his own share. Upon hearing this reply, acquitted accused Ajay Kumar, who was standing just behind the deceased, caught hold the deceased. Seeing this quarrel, two sons of the deceased namely, Pradeep Kumar (PW-3) and Shyam Sunder (not examined) reached at the place of occurrence and requested the accused persons to leave Kali Charan. During the said period, other accused person namely Munni Lal (uncle of the deceased) reached there carrying licensed gun in his hand and caused several gunshot injuries to the deceased. After sustaining gunshot injury, the deceased fell down and died at the spot. Incident was witnessed by Sarvesh Kumari (PW-1), wife of the deceased, at whose written report, Ex.Ka.1, FIR Ex.Ka.2 was registered on 25.02.2006 at 12:10 am against accused Ajay Kumar, Munni Lal and Chhote Lal (appellant) under Section 302 of IPC. It is relevant to note here that the distance between the police station and place of occurrence is about 9 kilometers.
3. Inquest on the dead body of the deceased was conducted on 25.10.2006 vide Ex.Ka.6 and body was sent for postmortem, which was conducted on 25.10.2006 vide Ex.Ka.4 by Dr. U.C. Gupta (PW-4).
4. As per Autopsy Surgeon, following six injuries including three gun shot injuries have been found on the body of the deceased:
(i) Fire arm wound of entry 2cm x 1cm x brain cavity deep, margins inverted on the medial angle of Rt. eye.
(ii) Fire arm wound of exit 3 cm x 2 cm x brain cavity deep, margins everted on the left side of face in front of left ear.
Margins and brain found, 50 ml fluid blood present in brain cavity left temporal bone fractured. Injury no. 1 is communicating to injury no. 2.
(iii) abrasion 7 cm x 4 cm on the front of right shoulder.
(iv) Fire arm wound on anterior aspect of left palm gutter shape size 5 cm x 3 cm x bone deep blackening and tatooing present around the wound.
(v) Fire arm wound of entry 2 cm x 1.5 cm direction below upwards towards right. Margins inverted. Blackening present, L3 and L4 vertibra found fractured, a metalic bullet recovered from L3 and L4 vertibra.
(vi) Abrasion 9 cm x 3 cm back of chest lower part in middle.
The cause of death of the deceased was due to shock and coma as a result of antemortem injuries.
5. From accused Chhote Lal, a country made pistol was seized vide Ex.Ka.14 and from the spot empty cartridges vide Ex.Ka.11 were also seized, however, there is no ballistic expert report.
6. While framing charge, the trial court has framed charge against accused-appellant Chhote Lal and two acquitted accused Munnu Lal and Ajay Kumar under Section 302/34 of IPC. Separate charge under Section 25 of Arms Act was also framed against accused Chhote Lal in Sessions Trial No. 545 of 2007.
7. So as to hold the accused appellants guilty, prosecution has examined seven witnesses whereas one court witness Netrapal was examined likewise one defence witness Bhuwnesh Kumar was also examined. Statements of accused appellants were recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.
8. By the impugned judgment, the trial Judge has acquitted accused Ajay Kumar and Munni Lal of the offences under Section 302/34 of I.P.C. but has convicted the accused appellant Chhote Lal under Section 302 of IPC and sentenced him as mentioned in paragraph no. 1 of this judgement. However, accused-appellant Chhote Lal has been acquitted of the offence under Section 25 of Arms Act. Assailing his conviction, accused-appellant Chhote Lal has preferred Criminal Appeal No. 3382 of 2010 whereas acquittal of Munni Lal and Ajay Kumar has been assailed by the complainant Sarvesh Kumari in Criminal Appeal No. 2908 of 2012. Hence these appeals.
9. Learned counsel for the appellant Chhote Lal submits:
(i) that Sarvesh Kumari (PW-1) and Pradeep Kumar (PW-3) are not reliable witnesses.
(ii) that both the so called eye-witnesses i.e. Sarvesh Kumari (PW-1) and Pradeep Kumar (PW-3) have not seen the actual occurrence, the incident occurred in a dark night and, therefore, question of seeing the incident by anyone does not arise.
(iii) that Pradeep Kumar (PW-3) is a child witness does not appear to be competent and trustworthy.
(iv) that the place of occurrence has not been proved by the prosecution.
(v) that FIR appears to be ante-timed and anti-dated. In various documents even crime number has not been mentioned by the prosecution.
(vi) that Sarvesh Kumari (PW-1), in her statement, has stated that written report was lodged in her house itself vide Ex.Ka.1 whereas the FIR was lodged at the police station vide Ex.Ka.2. Learned counsel submits that the written report lodged by PW-1 in her house has been suppressed by the prosecution.
(vii) that motive has not been proved by the prosecution. The entire loan was in the name of Netrapal, father of the deceased and appellant and, therefore, question of selling the said land by the deceased does not arise. The deceased had taken loan from various persons and possibility of his murder by those persons cannot be ruled out.
(viii) that at the place of occurrence, there was no source of light.
(ix) that there is overwriting in general diary.
(x) that Netrapal, father of appellant and the deceased, could have been the best witness to the incident but his diary statement has never been recorded and that is why, he was called as a court witness, where he has categorically stated that he did not see anyone committing murder of the deceased.
(xi) that weapons used in the commission of offence appear to have been planted by the prosecution.
(xii) that Bhuwnesh Kumar (DW-1) has not stated as to who has caused gun shot injury.
10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:
(i) that a very prompt report has been lodged by the complainant.
(ii) that incident occurred at 08.00 pm on 24.10.2006 and at 12.10 am on 25.10.2006, FIR was lodged. State counsel submits that the distance between the place of occurrence and that of police station is about 9 kms. and considering this aspect of the case, FIR can be termed as a prompt one.
(iii) that FIR is not ante timed or anti dated and this fact is also evident that two GD entries were registered. First was registered at 12.10 am on 25.10.2006 and thereafter at 08.00 am, another GD entry was registered in relation to the offence under Section 279 and 304A of I.P.C. He submits that at 08.30 am, copy of the FIR of the present case was also forwarded to the Magistrate.
(iv) that for faulty investigation, accused cannot get any benefit.
(v) that in respect of availability of source of light, it has been argued that normally in villages, earthen lamp burns in the whole night.
(vi) that Pradeep Kumar (PW-3), though is a child witness, however, he appears to be fully mature, reliable, trustworthy and competent.
(vii) that motive part has been duly proved by the prosecution and in the case of two eye witnesses even assuming that there is some lacunae to prove the motive, the same is required to be ignored.
(viii) that statements of Sarvesh Kumari (PW-1) and Pradeep Kumar (PW-3) have been duly proved by the postmortem report of the deceased wherein three gun shot injuries have been found on the body of the deceased.
(ix) that the appellant and the eye-witnesses are close relatives and, therefore, identification of the appellant becomes easy. Even assuming that there was no source of light, it was easy for Sarvesh Kumari (PW-1) and Pradeep Kumar (PW-3) to identify the accused-appellant Chhote Lal as he was 'devar'/brother-in-law of PW-1 and uncle of PW-3. State counsel submits that even on the basis of voice of appellant, they can identify the accused as there is evidence on record that before the incident, there was some altercation between the two brothers.
11. In respect of appeal filed by Sarvesh Kumari, it has been argued by learned counsel for the complainant that acquittal of Ajay Kumar and Munni Lal is contrary to the evidence and they ought to have been convicted by the court below.
12. We have heard counsel for the parties and perused the record.
13. Sarvesh Kumari (PW-1) is a wife of the deceased, informant and eye witness to the incident, states that on 24.10.2006 at about 08:00 pm, when she was working in the enclosure of her house and her husband was offering food to cattle, accused-appellant Chhote Lal, who is her brother-in-law (devar) came there and asked her husband as to why he is selling his land. In reply to this, her husband informed the appellant that he is selling his own share and is not selling the share of the appellant. Upon hearing this, acquitted accused Ajay Kumar, who was standing just behind the deceased Kali Charan, caught hold of the deceased and at that point, her son Pradeep Kumar (PW-3) and Shyam Sunder (not examined) reached to the place of occurrence and asked the appellant to leave their father but instead leaving him, accused-appellant took out a country made pistol from his 'pant' whereas the acquitted accused Munni Lal, who was having his licensed gun with him caused firearm injuries to her husband as a result of which, he fell down and died at the place of occurrence. She further states that acquitted accused Munni Lal is her uncle-in-law whereas acquitted accused Ajay Kumar is a friend of appellant Chhote Lal and Munni Lal. She further states that acquitted accused Ajay Kumar has a criminal background and leaving his village, he used to live with the appellant Chhote Lal and Munni Lal. In cross-examination, this witness admits that the land, which her husband wanted to sell, was in the name of her father-in-law and there was no land recorded in the name of her husband or the appellant Chhote Lal. She further admits that her husband had taken a loan of Rs. 60,000/- from various persons but had never taken any loan from the Bank. She has clarified that for treatment purposes, this loan was taken by her husband. She has further stated that her husband was in fact wanted to sell his share to the appellant even on lesser price but the appellant was of the view that neither he would permit her husband to sell the land nor he would allow anyone to purchase the same. She further states that accused Munni Lal (uncle of the deceased) was having double barrel gun with him and the acquitted accused Ajay Kumar caught hold her husband. She has clarified that Munni Lal caused firearm injuries to her husband on the vital part of his body as a result of which deceased fell down and died at the spot. She further states that after causing injuries to her husband, accused persons fled away from the spot. She states that at the time of occurrence, earthen lamp was burning and in the light of said earthen lamp, she identified the accused persons. In the lengthy cross-examination, but for minor contradictions, which are of no significance, this witness remained firm and has reiterated again and again as to manner in which her husband was done to death by the appellant.
14. Pradeep Kumar (PW-3), is a son of the deceased Kali Charan and Sarvesh Kumari (PW-1). At the time of incident he was about 11 and half years of age. Before recording the court statement of this witness, the trial court has satisfied itself about the mental aptitude of the witness and his competence to make statement in the court. Statement of this witness is like the statement of other eye witness i.e. PW-1. He has stated that accused-appellant caused firearm injuries to his father by a country made pistol whereas acquitted accused Munni Lal caused injuries to him by his licensed gun. He states that after committing the incident, both the accused persons fled away from the spot. In the cross examination, this witness also remained firm and nothing could be elicited from him. Though there are some contradictions in the statement of this witness but those contradictions do not go to the root of the matter and do not affect the credibility of his version.
15. Vinod Kumar (PW-2) registered the FIR vide Ex. Ka. 2. Dr. U.C. Gupta (PW-4) conducted postmortem and found six injuries on the body of the deceased as mentioned in paragraph no. 4 of this judgement. Sanjay Singh (PW-5) is an Investigating Officer of the case, has duly supported the case of the prosecution. Though in paragraph no. 2 of his statement, he states that there was no sufficient source of light and that is why inquest could not be done in the night. Viresh Kumar (PW-6) assisted during investigation and made recovery of weapons. Kishan Singh (PW-7) did investigation of the offence under the provisions of Arms Act.
16. Netrapal (CW-1) is a father of appellant Chhote Lal and deceased Kali Charan aged about 80 years, states that he is not aware as to who committed murder of the deceased.
17. Bhuwnesh Kumar (DW-1) is a neighbour of deceased Kali Charan, has stated that after hearing the sound of fire, he came out from his house and saw that Netrapal (CW-1) was shouting that somebody has killed his son. He states that after hearing hue and cry, number of villagers, including Munni Lal and Chhote Lal also reached to the place of occurrence.
18. Close scrutiny of evidence makes it clear that on 24.10.2006, at about 08:00 pm, accused-appellant Chhote Lal had gone to the house of the deceased, where some altercation took place between them over selling of land. From the statement of Sarvesh Kumari (PW-1) and Pradeep Kumar (PW-3), it is quite apparent that it is the appellant Chhote Lal, who caused firearm injury to the deceased with his country made pistol resulting his instantaneous death. Incident occurred at about 08:00 pm, which was witnessed by PW-1 and PW-3 and at 12:10 am on 25.10.2006, FIR vide Ex. Ka. 2 was registered against the three accused persons including that of appellant under Section 302 of IPC. In the court, both the eye witnesses PW-1 and PW-3 remained firm and we have no reason to disbelieve the statements of these witnesses. Statements of PW-1 and PW-3 finds due support from the postmortem report of the deceased where as many as three gunshot injuries have been found on the body of the deceased. Minor contradictions in the statements of these two witnesses are required to be ignored as they do not go to the root of the matter and do not affect their version in any manner. Law in this respect is very clear. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217, the Supreme Court, while considering the minor contradictions in the statement of the witnesses, held as under:
"5 ... ... ... We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed in the mental screen.
(2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation defer from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in short time span. A witness is liable to get confused or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
19. We find no substance in the argument of the defence that the FIR was ante-timed or anti-dated. Present is a case where the incident occurred at 08:00 pm on 24.10.2006 and at 12:10 am on 25.10.2006, FIR has been lodged. The distance between the police station and place of occurrence is about nine kms, thus, it can be easily said that a very prompt FIR has been lodged. Entry in the general diary was made at 12:10 am and the next entry in the general diary was made at 08:00 am on 25.10.2006. There is absolutely no evidence that as to in what manner it can be said that the FIR is ante timed or anti dated or has been manipulated. Law in this respect is well settled. In Jai Prakash Singh v State of Bihar; (2012) 4 SCC 379, the Supreme Court observed as under:
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. State of T.N. (1972) 3 SCC 393, State of Punjab v. Surja Ram, 1995 Supp. (3) SCC 419, Girish Yadav v. State of MP, (1996) 8 SCC 186 and Takdir Samsuddin Sheikh v. State of Gujarat (2011) 10 SCC 158."
The Supreme Court in Madru Singh vs. State of Madhya Pradesh; 1997 SCC (Crl.) 3527 and Ram Sanjiwan Singh Vs. State of Bihar; (1996) 8 SCC 552, answered the similar question in 'negative'. In the said decisions, it has been held by the Supreme Court that from the cross-examination of prosecution witnesses, circumstances have to be elicited which would show that the FIR was ante-timed and then alone an inference can be drawn that the FIR was ante-timed.
It is further settled position of law that FIR can be proved ante-timed or ante-dated by adducing proper evidence. The lodger of FIR should be subjected to proper cross examination as to on what basis defence pleads the FIR to be ante-timed or ante-dated. Likewise, the police officer, who has recorded the FIR, is also required to be properly cross-examined as to on what basis defence pleads the FIR to be ante-dated or ante-timed. If no such requirement of law is completed and no such proper cross-examination of the witnesses is being done, it cannot be presumed that the FIR is ante-dated or ante-timed.
20. We further find no substance in the argument of defence that as there was no source of light, question of identification of the accused persons does not arise. Pradeep Kumar (PW-3) has categorically stated that earthen lamp was burning and in the light of said earthen lamp, he saw the accused persons and more particularly the incident occurred at 08:00 pm and therefore, it cannot be said that by that time the lamp was off. Even otherwise the accused-appellant was 'devar' of Sarvesh Kumari (PW-1) and uncle of PW-3 and therefore, his identification becomes very easy for these two witnesses. Even on the basis of voice of accused-appellant, he can be identified because admittedly before the incident there was some altercation between the appellant and the deceased. Law in this respect identification of unknown person is very clear. In the case of Dalbir Singh v. State of Haryana; (2008) 11 SCC 425, it has been observed that "in a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible." Earlier, the same issue has also been discussed in Anwar Hussain v. The State of U.P. and Anr. (AIR 1981 SC 2073), wherein it was observed that "even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features etc."
21. We further find no substance in the argument of the defence that as the deceased had taken loan from various persons, possibility of he being killed by some other person, cannot be ruled out. The mere fact that the deceased had taken some money from different persons, it cannot be presumed that he was killed by some third persons specially when there is no contrary evidence available on record. There is no substance in the argument of defence that Pradeep Kumar (PW-3) being a child witness is required to be ignored. It is settled position of law that conviction can be based solely on the testimony of eye witness provided it aspires the confidence of the court and the witness is competent. It is settled proposition of law that it is not the quantity of evidence, which is required to be seen, but it is quality of evidence, which is required to be considered by the courts. In the case of Namdeo vs State Of Maharashtra; (2007) 14 SCC 150, the Supreme Court has held as under:
"It is not seldom that a crime had been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
The Court also stated;
There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect." In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : JT 1995 (8) SC 425, referring to several cases, this Court stated; "On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence." In Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397 : JT 2003 (7) SC 270, this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohamed Sugal and reiterating the law laid down therein, this Court stated:"
Applying the above principal of law Pradeep Kumar (PW-3) is fully reliable and trustworthy. Moreover, it is not the statement of PW-3 alone, who has been examined as eye witness but there is yet another eye witness Sarvesh Kumari (PW-1), who also supports the prosecution case.
22. Even assuming that there was some lacuna on the part of investigating agency while conducting investigation like not mentioning of crime number in the documents and some over writing in the documents, the same will not give any benefit to the accused. These deficiencies in the investigation are of insignificant nature.
It is settled proposition of law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of Tamil Nadu; 2010 ((9) SCC 567, the following discussion and conclusion are relevant which are as follows:-
"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 IO 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 dehors 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.
In Dayal Singh v State of Uttaranchal; 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), the Apex Court held thus:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
In Gajoo v State of Uttrakhand; 2012 (9) SCC 532, while reiterating the same principle again, the Apex Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held: (SCC p. 657, para 5) ''5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that: (SCC p. 398, para 42) ''42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under: (SCC pp. 777-78, para 6) ''6. ..."35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ''majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case, SCC p. 395, para 35)'
32. In State of Karnataka v. K. Yarappa Reddy, this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p.720) ''19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.'
33. In Ram Bali v. State of UP, the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case (SCC p. 604, para 12) ''12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.'
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ''fair trial', the court should leave no stone unturned to do justice and protect the interest of the society as well.
35. This brings us to an ancillary issue as to how the court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, the Court, while dealing with discrepancies between ocular and medical evidence, held: (SCC p.159, para 8) ''8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.'
36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
''34. ... The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but [that] of the court.'"
Above proposition of law has been duly considered by the Apex Court in Hema (supra) and it has been further held by the Apex Court:
"(13) It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
23. Taking cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant Chhote Lal under Section 302 of IPC.
24. The appeal of accused Chhote Lal has no substance. The same is, accordingly, dismissed.
25. As the appellant Chhote Lal is already in jail, no further order is required in his respect.
26. Now we deal with the appeal preferred by Sarvesh Kumari, wife of the deceased assailing the acquittal of accused Munni Lal and Ajay Kumar. In the evidence it has come that Munni Lal was having his licensed gun with him and he caused injury to the deceased with the said gun. It has come in the evidence that the said licensed gun was already deposited by Munni Lal before the arm dealer about five days prior to the incident. This fact has also been admitted by the Investigating Officer. Eye witnesses have categorically stated that accused Munni Lal was having his licensed gun. Considering the reasoning given by the trial court, possibility of false implication of Munni Lal cannot be ruled out. Similar is the position with accused Ajay Kumar. It has been stated that Ajay Kumar initially caught hold the hands of the deceased and as soon as the first firearm injury was caused, he left the deceased and then no role has been assigned to him. The entire evidence in respect of Ajay Kumar has also been considered by the trial court and the trial court has come to the conclusion that benefit of doubt is to be granted to the accused Ajay Kumar as well. Trial court has recorded the finding that there was no motive on the part of Ajay Kumar and Munni Lal to commit the offence. The view taken by the trial court is one of the possible view. Law in this respect is very clear that if on the basis of evidence two views are possible, the view which is favourable to the acccused should be adopted. In the matter of State of Gujarat Vs. Jayrajbhai Punjabhai Varu; (2016) 14 SCC 151 the Hon'ble Supreme Court held as under:
"20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
27. Taking the cumulative effect of the evidence, the trial court cannot be faulted with while acquitting accused Munni Lal and Ajay Kumar.
28. Consequently, appeal preferred by Sarvesh Kumari is dismissed.
29. Resultantly, both the appeals are dismissed.
Order Date :- 24.05.2019
SK/Mohit
(Raj Beer Singh, J.) (Pritinker Diwaker, J.)