Ram Naresh vs State on 23 March, 2018

[Cites 17, Cited by 0]

Allahabad High Court

Ram Naresh vs State on 23 March, 2018

(Delivered by Hon'ble Rajiv Gupta, J.) This criminal appeal is directed against the judgment and order dated 18.02.1987 passed by Sessions Judge, Banda in Sessions Trial No. 19 of 1986 convicting the appellant under Section 302 I.P.C. awarding the sentence of life imprisonment and also under Section 307 I.P.C. awarding the sentence of seven years R.I. Both the sentences to run concurrently. The appellant has questioned the correctness of the impugned judgment averring that the conviction is against the weight of evidence on record and contrary to the law and the sentence awarded is too severe and also bad in law.

For the purpose of consideration of rival contentions emerged in this appeal and with the view whether this Court is required to interfere with the impugned judgment of learned Lower Court, necessary facts as unfolded, during the course of trial are being stated herein below.

Shorn of unnecessary details, the prosecution story in nutshell as emerged from the F.I.R. lodged by PW-2 Shiv Murat is that on 10.11.1985, he along with his brother Ram Murat and his uncle Anandi Prasad had gone to take a dip in the river Yamuna.

It is further alleged that at the said place, the accused Ram Naresh, resident of his own village, was washing his clothes and there was some altercation between Ram Naresh and his uncle Anandi Prasad. Ram Naresh left the place extending threats to his uncle.

It is further alleged that after some time when the complainant along with his brother and his uncle Anandi Prasad were returning back to their house and reached near the door of Bada Pandey, Ram Naresh, armed with double barrel gun, opened fire upon his uncle, which hit him on his neck and thereafter, Ram Naresh tried to drag his uncle in the house of Bada Pandey, however, his brother Ram Murat intervened and tried to stop him, then Ram Naresh opened fire upon his brother, which hit him on his left chest. The said incident is said to be witnessed by Vijayee Mishra and Shiv Mohan Mishra also and on being challenged, Ram Naresh entered in the house of Bada Pandey.

It is further alleged that with the help of persons present there, the victim Anandi Prasad was taken to his house, where he died. On the basis of the aforesaid allegations, the FIR was registered at the Police Station Kamasin on 10.11.1985 at 06:30 PM. The said FIR is said to be registered vide G.D. Report No. 19 on 10.11.1985 at 18:30 hrs. The said G.D. is marked as Exhibit Ka-2.

As per the prosecution case, the FIR is shown to be registered in the absence of Saukhi Ram Chaudhary, Station Officer of the Police Station Kamasin and even the S.I. was also not present at the Police Station and had left for making investigation in some other case.

After registration of the FIR, the relevant papers for conducting the panchayatnama was handed over to the PW-5 Constable Radhey Shyam, Indra Pal and Puttan Singh with the direction that the same may be handed over to the PW-7 SI Lala Ram Pal for conducting the panchayatnama proceedings.

PW-7 SI Lala Ram Pal, on receiving the relevant papers, proceeded to the place of incident and reached there in the morning of 11.11.1985, where Station Officer Saukhi Ram Chaudhary was also present and the relevant papers were handed over to him for conducting the panchayatnama and relevant proceedings and SI Lala Ram Pal was instructed to trace out the whereabouts of the accused person.

The Station Officer Saukhi Ram Chaudhary, who was also the Investigating Officer of the case, conducted the panchayatnama on the person of the deceased Anandi Prasad and took the signature of the panches on the panchayatnama and thereafter, the relevant police papers i.e. photo-nash, challan-nash, chitthi RI, chitthi CMO were made and after concluding the panchayatnama and preparing the relevant papers, the dead body was handed over to the Constable Radhey Shyam and Indra Pal for taking the same to the mortuary for conducting the postmortem and thereafter, the Investigating Officer recorded the statement of the first informant Shiv Murat and on his pointing out, prepared the site plan. The Investigating Officer is also said to have collected the bloodstained earth and plain earth from the place of the incident and prepared the fard and thereafter, he is said to have recorded the statement of injured Ram Murat and prepared the fard recovery memo of bloodstained Agaunchha taken from the possession of the injured Ram Murat and thereafter, prepared the chitthi majroobi and sent him for medical examination through Constable Puttan Lal and thereafter, recorded the statements of other witnesses, namely, Ram Swaroop, Rameshwar, Nanku Lal, Kallu Ram Yadav, Rajendra and others and returned back to the Police Station. PW-7 Lala Ram Pal further tried to apprehend the accused Ram Naresh but he absconded, as such, the proceedings under Sections 82 and 83 CrPC was initiated against him and ultimately, the accused surrendered before the Court on 18.11.1985 and was remanded to the judicial custody.

On 12.11.1985, PW-4 Dr. R.K. Dubey had conducted an autopsy on the person of the deceased Anandi Prasad and had noted the following injuries on the person of the deceased :-

(1) Gun shot wound gutter shaped 13 cm long, width of right side end was 2.5 cm. Depth was muscle deep. Trachea was lacerated and blood vessels of left side were lacerated. Margins of left side everted and right side were inverted. Blackening and charring were present. Direction was from right towards left. The wound was present over front and left side of neck 3 cm below mandible.

(2) Burn 1 cm x 1 cm present over right side neck 3 cm lateral from injury no.1.

(3) Burn 1 cm x .9 cm present over front of right collar bone.

(4) Burn 2 cm x 1 cm present over front of chest 1 cm below right collar bone.

(5) Burn 3 cm x 1.5 cm present over front of right shoulder.

(6) Contusion 6 cm x 4 cm present over right side forehead 3 cm above eye brow.

Internal Examination:- Brain membranes congested. Trachea was lacerated corresponding injury no.1. Right and left lungs were congested. Heart was empty. Carotid artery, internal and external jugular veins were lacerated. Stomach contained about 100 grams undigested food. Small intestine contained semi digested food. Large intestine contained gases and faecal matter.

PW-4 Dr. R.K. Dubey has further noted that the cause of death of the deceased was shock and haemorrhage as a result of ante-mortem fire-arm injury, which was sufficient to cause of death in ordinary course of nature.

On 12.11.1985 itself, PW-6 Dr. M.C. Mittal had also examined the injured victim Ram Murat in District Hospital, Banda and found the following injuries on his person.

(1) Multiple gun shot wounds of entry measuring .25 cm x .25 cm x skin to muscle deep in an area 30 cm x 16 cm of left arm from shoulder to upper part of fore-arm, medially and front and three gun shot wounds of .25 cm x .25 cm x skin to muscle deep on left side of chest front and one on the left cheek (face) .25 cm x .25 cm x muscle deep. All wounds showed margins inverted with abraded collar. No blackening, tattooing or charring was present. Margins of some wounds showed sepsis (pus).

The injuries were kept under observation and was advised for X-Ray of chest of right side and left arm. Duration of the injury was found to be about two days and the injury is said to be caused by fire-arm. The said injury report is marked as Exhibit Ka-8.

As per the Doctor's advice, the injuries of injured Ram Murat were x-rayed on 14.11.1985 at District Hospital, Banda. PW-6 Dr. M.C. Mittal prepared the X-Ray report, which is marked as Exhibit Ka-9.

As per the X-Ray report, the Doctor had noted :

X-Ray of chest of left side:- Two small sized radio opaque shadows of metallic density are seen on the left side of chest.

X-Ray of left arm:- Multiple small sized radio opaque shadows of metallic density are seen on the left arm, however no bony injury was found. No fracture was found in the X-Ray plates and the injury of injured Ram Murat was simple in nature.

It is further germane to point out here that on the chitthi majroobi, specific endorsement has been made that on 11.11.1985, since the Medical Officer was on leave, as such, injuries could not be noted and the victim was referred to the PHC, Baberu for medico legal and proper treatment.

The Investigating Officer, after collecting the relevant materials and recording the statements of the witnesses, completed the investigation and submitted the charge-sheet against the accused on 01.02.1985. The case was then committed to the court of Sessions and the charges were framed against the accused Ram Naresh on 27.02.1986 under Sections 302 and 307 IPC, to which he did not plead guilty and claimed to be tried.

During the course of trial, the prosecution has produced as many as seven witnesses :-

PW-1, being the Head Constable Bahadur Singh, who, on the basis of written report submitted by the first informant Shiv Murat Dwivedi, had drawn the chik FIR and registered the case vide G.D. Report No. 19 at 6:30 PM.

The prosecution has then produced PW-2 Shiv Murat Dwivedi, who is the first informant as well as eye-witness of the incident and he, in his statement, has stated that on 10.11.1985 at about 1:00 PM, the incident had taken place at the door of one Bada Pandey.

He has further stated that he alongwith his uncle Anandi Prasad and his elder brother Ram Murat were returning back after taking a dip in the river Yamuna and his uncle Anandi Prasad was ahead of him and was accompanied by his elder brother Ram Murat. As soon, his uncle reached at the door of Bada Pandey, he saw Ram Swaroop, grandfather of Ram Naresh, was standing at the door, who asked his uncle Anandi Prasad regarding the altercation, which took place between him and Ram Naresh and when his uncle Anandi Prasad entered in the Chaupal, having a talk over the matter with Ram Swaroop and his elder brother Ram Murat was also standing near him, then, suddenly Ram Naresh, armed with double barrel gun, emerged and opened fire upon his uncle, which hit him on his right neck and he fell down in the Chaupal itself. Ram Naresh then tried to drag his uncle inside the house, then he was stopped by his brother Ram Murat, on which, Ram Naresh fired a shot upon Ram Murat also. The pellets of which hit him on his chest and face and on being challenged, Ram Naresh entered in the house of Bada Pandey and closed the door.

It is further stated that PW-2 Shiv Murat alongwith other persons brought his uncle Anandi Prasad to his house, where he died and thereafter, he had gone to the Police Station to lodge the FIR, which was registered at 6:30 PM at the Police Station Kamasin.

Thereafter, the prosecution has produced PW-3 Ram Murat, who is an injured witness and has received gun shot injury on his person and his injuries have been proved by PW-6 Dr. M.C. Mittal and X-Ray report and X-ray plates have also been proved and have been marked as Exhibit Ka-9 and material Exhibit 1 and 2.

PW-3 Ram Murat, in his statement, has fully corroborated the prosecution story as narrated by PW-2 Shiv Murat. He, in his statement, has clearly stated that the incident of murder had taken place on 10.11.1985 at 1:00 PM and prior to the said incident, at about 12:00 hrs, he alongwith his brother Shiv Murat and his uncle Anandi Prasad had gone to take a dip in the river Yamuna near the Hagna Ghat, where some quarrel took place between his uncle Anandi Prasad and the accused Ram Naresh regarding the washing of the clothes and on being objected by his uncle, Ram Naresh had threatened him and left for his house.

He has further stated that at about 1:00 PM, while they were returning back to their house and reached near the door of Bada Pandey, they saw Ram Swaroop, grandfather of the accused Ram Naresh, standing there, who asked his uncle as to why he had quarreled with Ram Naresh and had taken his uncle inside the Chaupal for having a talk over the matter and he stood beside his uncle and when his uncle started narrating about the incident to Ram Swaroop, which took place at the bank of river Yamuna, then Ram Naresh, armed with DBBL gun, came out of the door of Bada Pandey and suddenly opened fire upon his uncle Anandi Prasad, which hit him on his neck and he fell down. The accused Ram Naresh then tried to drag his uncle inside the house and on being challenged, Ram Naresh with an intention to kill opened fire upon him. The pellets of which hit him on his left chest and face and on being alarm raised by the witnesses, Ram Naresh entered in the house of Bada Pandey and closed the door.

The said witness has further reiterated the statement of PW-2 regarding the factum of bringing the body of injured Anandi Prasad at his house on a Charpai and on reaching there, he is said to have succumbed to his injuries and then, information about the said incident has been given at Police Station by his brother. On the basis of the said information, the FIR was lodged and the investigation proceeded and the Investigating Officer reached at this house on next day, who took his statement and after completing necessary formalities, sent the body for postmortem and had sent him for medical examination.

The said witness has been subjected to lengthy cross-examination by the defence but the defence has not been able to point out any material contradiction in his statement. The defence has not challenged the injuries found on the person of the said witness, which has been specifically proved by the prosecution witness.

The prosecution has then produced PW-4 Dr. R.K. Dubey, who has conducted an autopsy on the person of the deceased. The details of which has already been stated in earlier part of the judgment and need not be repeated.

The prosecution has then produced PW-5 Radhey Shyam, who is said to have handed over the relevant papers regarding registration of the FIR and GD Report and relevant papers for conducting the panchayatnama as at the relevant time of registration of present case, neither the Station Officer of the Police Station Kamasin nor any Sub-Inspector was present at the Police Station.

The said witness is said to have handed over the relevant papers to the SI Lala Ram Pal on the same day, who is said to have reached the place of the incident on 11.11.1985 and handed over the relevant papers to the Investigating Officer, who conducted the panchayatnama and proceeded the investigation.

The said witness has also stated that after conducting the panchayatnama, the dead body was handed over to him alongwith Constable Indra Pal for taking it to the Mortuary for conducting the postmortem.

The prosecution has then produced PW-6 Dr. M.C. Mittal, Radiologist, who had examined the injuries of injured Ram Murat on 12.11.1985 and thereafter, on 14.11.1985, his X-Ray was performed under the supervision of the said witness and on the basis of which, X-Ray report was prepared, which has been proved by the said witness. The details of injuries has already been discussed in earlier part of the judgment.

The prosecution has then produced PW-7 SI Lala Ram Pal, who has proved the panchayatnama and other relevant documents sent to the Doctor for conducting the postmortem and the majroobi chitthi etc. sent for medical examination of injured Ram Murat.

Thereafter, the prosecution evidence has been closed and the appellant has been called upon to enter on his defence. However, the defence has not led any evidence and the statement of the accused has been recorded under Section 313 CrPC, in which, he has stated that on account of enmity and under the pressure of police, he has been falsely implicated in the present case.

He has further stated that on account of animosity at the instance of Shiv Sagar and others, who are inimical to him as he had appeared as a witness against them in a criminal case of maar-peet and as such, he has been falsely implicated in the present case.

We have heard Ms. Katyayini, learned Amicus Curiae for the appellant, learned AGA for the State/respondent and perused the material available on record.

Learned Amicus Curiae for the appellant has vehemently argued that there was absolutely no motive on the part of accused to have committed the present offence and the motive, as suggested in the FIR is too trivial to be believed.

From the perusal of the FIR, so far as the motive is concerned, it has been mentioned that on account of washing of the clothes, there was some altercation between the appellant Ram Naresh and the deceased Anandi Prasad and consequent to which, Ram Naresh had left the place threatening Anandi Prasad to face the consequences. Thereafter, while they were returning back after taking dip in the river, the present incident is alleged to have been taken place.

Learned Amicus Curiae for the appellant has tried to impress upon the Court that for such trivial matter, the appellant would not commit such heinous offence of killing the deceased and causing injuries to Ram Murat.

In this respect, it may be mentioned that motive always remains in the mind of the person, who knows the circumstances and cause of action leading to the commission of crime, different persons reacts differently under the given circumstances. The murder can be committed only on a very trivial issues. It is difficult to say as to how and in what manner, the person could react and may go to the extent to achieve his motive in the commission of crime under the particular circumstances.

It is also not possible to measure the feelings, sentiments and reactions, as may be, who under frustration or on mere possibility may take decision to commit the crime. In fact, it all depends upon the person, who can react upon in a given circumstances.

The Hon'ble Apex Court in the case of Ranganayaki Vs. State by Inspector of Police (2004) 12 SCC 521 has held as under:-

"The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."

In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:

"There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been provided."

It is further germane to point out here that even if the motive is very weak, it is of no importance, particularly in a case of direct evidence as the present one, where it has been repeatedly held that in case of direct evidence, motives pales into insignificance.

Coming to the present case, the arguments of learned Amicus Curiae for the appellant that the motive in the present case is too weak to have impelled the accused to commit the heinous crime of murder does not stand to reason, particularly, in view of the fact that there is occular evidence to support the prosecution story, as such, we are of the view that there is not much substance in the said arguments of learned Amicus Curiae for the appellant.

Learned Amicus Curiae for the appellant has then submitted that in the present case only related, interested and partisan witness has been produced, though the incident is said to have taken place, where number of inhabitants are living and their houses are situated nearby but they have not been produced. Much emphasis has been laid on the fact that even two witnesses Vijayee and Shiv Mohan Mishra have also not been produced, as such, the prosecution story cannot be believed.

So far as the arguments regarding related and interested witness is concerned, in the case of Dalip Singh and others Vs. State of Punjab reported in AIR 1953 SC 364, it has been held that :-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation 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 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 generalization. Each case must be judged on its own facts."

Observations of the Hon'ble Apex Court in the case of Masalti and others vs. State of U.P., reported in A.I.R. 1965 SC 202, are worth mentioning :-

"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. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698, in which, Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in the case of Israr vs. State of U.P. [2005 (51) ACC 113]. Para-12 of the judgment is also important, which is quoted herein 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 analyze evidence to find out whether it is cogent and credible."

The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which, reference has been made to some other cases also.

The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC) dealing the evidence of related/interested witnesses, has observed as under :-

"...... 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 an 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."

In para 8, their Lordships have further observed:

" The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..."

The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses.

Apex Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7 SCC 759] took the following view :

"12. 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. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under :

"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."

Coming to the present case and analyzing the evidence of PW-2 and PW-3 on the anvil of truthfulness and castigating their testimonies, we are of the opinion that the presence of two witnesses has been clearly and unequivocally established in the present incident, they are said to be accompanied by the deceased at the time of incident and PW-3 is an injured witness, whose presence is natural and the defence has not been able to point out any circumstance, which may make their presence doubtful, as such, their testimonies cannot be discarded and they have given a truthful version of the incident.

Learned Amicus Curiae for the appellant has tried to castigate the testimony of PW-2 mainly on the ground that some improvement has been made in his testimony before the court, which has not been mentioned in the FIR registered at the instance of PW-2.

She has tried to point out that in the FIR or in the statement of the witness given to the Investigating Officer, there is no mention of the fact that the accused has been washing his clothes near the ladies ghat.

In this respect, it has been submitted that the FIR is not an encyclopedia, in which, each and every fact may be vividly described. The purpose of lodging of the FIR is just to set the ball rolling regarding the commission of offence and its brief particular, therefore, on the basis of the said minor improvement, we are of the opinion that the testimony of PW-2 can not be discarded.

Learned Amicus Curiae for the appellant has further attempted to castigate the testimony of PW-2 on the ground that in the FIR, there is no mention of the fact that while he alongwith deceased and his brother Ram Murat were returning back to their home and reached near the door of Bada Pandey, then on the calling of Ram Swaroop, Anandi Prasad went inside the Chaupal being accompanied by Ram Murat, where the incident of firing is alleged to have taken place. However, in the FIR, the said factum has not been mentioned at all and therefore, in the statement of PW-2, the prosecution has completely departed from its version as mentioned in the testimony of the PW-2, therefore, the said witness cannot be said to be reliable witness and his testimony is liable to be rejected.

In this respect, it may be taken note of that in the FIR, though this fact has not been specifically mentioned and has been omitted by the witness but the same has been clearly mentioned in the statement given before the Investigating Officer as well as his testimony before the Trial Court.

The factum of incident, which had taken place at the house of Bada Pandey, is clearly mentioned in the FIR and merely on account of this slight omission, otherwise reliable and trust-worthy evidence of PW-2 cannot be discarded.

It is further germane to point out here that from the careful perusal of the testimony of PW-2, the said omission has been clearly explained by the witness by stating that at the time of lodging of the FIR, he did not deem it proper to give detailed description of the said facts and he has further categorically denied the fact that the said factum has been mentioned by him in his testimony on account of tutoring and that the incident has not taken place in his presence.

Explaining such circumstances, the said witness, in his testimony, has stated that " eSus vkt tks c;ku fn;k gS fd jkeLo:i njokts ij [kMs feys vkSj mUgksus esjs pkpk dks pkSiky ds vanj cqyk fy;k vkSj >xMs dh ckcr iawNk vkSj esjs pkpk tc crkus yxs rks eqfYte jkeujs'k cM+k ikaMs ds edku ds vanj njokts ls fudy vk;k vkSj esjs pkpk ij Qk;j dj fn;k ;g c;ku Hkh fcydqy lgh gS D;ksafd eSaus vkt c;ku iwjs foLrkj ls fn;k gS fd ?kVuk dSls gqbZA fjiksVZ esa eSaus la{ksi esa fy[kk Fkk brus foLrkj ls fy[kuk eSaus t:jh ugha le>k FkkA The said witness has further categorically denied the fact that the incident has taken place at the door of Bada Pandey, when they had reached near it and that Ram Naresh fired and now he is changing the story that the fire was made from the inside the door and the incident had taken place inside the Chaupal, where his uncle and brother had received the injuries by fire arm.

He has further reiterated the fact to the Investigating Officer that the incident had taken place inside the Chaupal and the said factum has not been stated for the first time before the court. The exact statement is being quoted herein below :-

";g dguk xyr gS fd fjiksVZ esa eSaus Li"V :i ls ;g ckr fy[kh gks fd ?kVuk njokts ds ikl ge yksxksa ds utnhd igqapus ij gqbZ gks vkSj jkeujs'k dks Hkh njokts ds ckgj ls gh Qk;j djuk fy[kk gks vkSj vc eSa dkuwuh e'kfojs ls dgkuh dks jaxr nsus ds fy, ;g ckr dj jgk gwW fd vUnj igqpus ij Qk;j fd;k vkSj reke ?kVuk pkSiky ds vUnj gqbZ vkSj esjs pkpk o HkkbZ nksuksa dks pkSiky ds vUnj xksyh yxhA आज [kqn dgk fd pkSiky ds vUnj ?kVuk gksuk eSaus njksxk th dks Hkh crk fn;k FkkA vkt igyh ckj eSaus ;g ckr ugha dghaA 11& edku ds ckgjh fgLls es gh pkSiky gS ftldk njoktk mRrj dks lM+d dh rjQ gS vkSj ml njokts ds lkeus nfD[ku esa njoktk edku ds vUnj tkus dks gSA"

Thus, factum of the incident, taking place inside the Chaupal, has been clearly explained by the witness and the same has also been reiterated by PW-3, who is an injured witness. Thus, only on the basis of minor omissions, the entire testimony of PW-2 who otherwise appears to be a reliable witness cannot be discarded.

PW-3 Ram Murat, who is an injured witness, in his statement, has also corroborated the manner of incident in all material particular and has clearly and clinchingly proved the time and place of incident, which has been further cemented by the fact that the Investigating Officer has found blood in the Chaupal and had made the recovery of bloodstained and plain earth from the said place, as such, his testimony cannot be thrown over board and the argument of learned Amicus Curiae for the appellant in this regard that on account of such omission, whole of the testimony be discarded, cannot be accepted.

Learned Amicus Curiae for the appellant has further submitted that the other witnesses, namely, Vijayee and Shiv Mohan Mishra, who are the independent witnesses, have not been examined by the prosecution which creates serious dent in the prosecution case.

In this respect, it has been submitted that from perusal of the evidence on record even the said two witnesses Vijayee and Shiv Mohan Mishra are not the independent witnesses but they are also related to the PW-2 and PW-3 as PW-2, in his statement, has clearly stated that the sister of Shiv Mohan Mishra was married to his grandfather Dharam Pal and was his real grandmother, whereas the sister of Vijayee was married to his brother Ram Murat, as such, the said witnesses cannot be said to be an independent witnesses. The relevant portion in this regard is being quoted herein below :-

esjs firk ds 4 HkkbZ eaMkyh] ijes'oj n;ky] Hkxokunhu vkSj vauUnh e`rd FksA esjs firk thfor gSaA ijes'oj n;ky ds yM+ds nso ujk;u o lR; ujk;u gSA /kjeiky esjs ckck FksA f'ko eksgu xokg dh cfgu esjs ckck /kjeiky dks C;kgh Fkh vkSj esjh lxh nknh FkhA fotbZ xokg dh cfgu esjs HkkbZ jkeewjr dks C;kgh gSA From the aforesaid testimony, it is thus absolutely clear that Vijayee and Shiv Mohan Mishra were not independent witnesses but were related to the eye-witnesses PW-2 and PW-3 and therefore, by not examining the said two witnesses, the prosecution story, in any case, is not effected. Moreover, it is well settled principle of law that quality and not quantity of evidence is relevant and evidence is to be weighed and not counted.

The Hon'ble Apex Court in the case of 2012 (4) SCC 722, Govindaraju Vs. State has clearly held that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine large number of witnesses if prosecution can bring home guilt of accused even with limited number of witnesses.

Thus, in view of the settled law laid down by Hon'ble Apex Court, the said arguments of learned Amicus Curiae for the appellant also does not have much substance as PW-1 and PW-2, in their statements, have clearly proved the prosecution story, which cannot be discarded.

Learned Amicus Curiae for the appellant has next submitted that the injuries of PW-2 has not been examined promptly and from the evidence on record, it is evident that he had been examined on 12.11.1985 at 9:50 AM at District Hospital, Banda and the delay in his medical examination clearly shows that his injuries have been manipulated and creates serious dent in the prosecution story.

However, from the perusal of the record, it is evident that the injuries of injured Ram Murat has been examined on the basis of chitthi majroobi, which has been drawn by the Investigating Officer on 11.11.1985 itself and from the perusal of the said chitthi majroobi, the victim Ram Murat had visited the hospital, Kamasin with a constable for getting his injuries medically examined, since the Medical Officer, In-charge was on leave, as such, the injuries could not be noted and he was referred to PHC, Baberu for medico legal and proper treatment. On the said date, the Medical Officer, In-charge, PHC, Baberu was also on leave, as such, the victim was referred to the District Hospital, Banda for medico legal and proper treatment, where he was examined on 12.11.1985 by Dr. M.C. Mittal, who has proved his injuries as PW-6. The said factum has been clearly endorsed in the chitthi majroobi, on the basis of which, the victim Ram Murat was sent for medical examination and has not been seriously challenged by the defence.

This factum has further been corroborated from the statement of PW-3 Ram Murat, who has clearly stated that njksxk th nwljs दिन lqcg 8 cts djhc vk, FksA yk'k dk eqvkbuk djds lhy oxSjk fd;k vkSj yk'k dks ckWnk phj QkM+ ds fy, HkstkA esjk c;ku njksxk th us fy;k vkSj esjk Hkh MkDVjh eqvk;uk ?kVuk ds rhljs fnu ftyk vLirky esa gqvk FkkA esjk ,Dl&js Hkh gqvk FkkA njksxk th us esjk Ck;ku ysus ds ckn mlh oDr flikgh ds lkFk igys dekflu vLirky Hkstk o MkDVj ekStwn ugh feys rc ccs: vLirky x,] ogka Hkh MkDVj ugha feys flQZ dEikmUMj feykA jkr dks ccs: esa jgsA nwljs fnu lqcg ckWnk vk, vkSj ftyk vLirky esa esjk MkDVjh eqvkbuk gqvkA Thus, from the aforesaid circumstance, the factum of receiving injuries in the incident and his medical examination is clearly proved by testimonies of PW-3 and PW-6. The suggestion made by the defence that the incident has taken place in somewhat different manner and the two victims have received injuries in some other incident of dacoity and due to fear, the victim remained absconding and subsequently, got his injury examined to corroborate the prosecution story has been categorically denied by PW-3. The relevant portion of denial by PW-3 in this regard is being quoted herein below :-

;g dguk xyr gS fd esjs o esjs pkpk ds pksVsa dgh fxjksg o MdSrh dh dk;Zokgh esa dgha nwljh txg vkbZ gksa vkSj eSa nks fnu rd Mj dh otg ls Qjkj jgk gWW vkSj ckn es iqfyl dks geokj djds o feykdj eSa lkeus iqfyl ds vk;k gwW rc esjk MkDVjh eqvkbuk ftyk vLirky esa djk;k x;k gks vkSj eq>s dekflu o ccs: vLirky dHkh u Hkstk x;k gksA Thus, the medical evidence completely corroborates the statement of injured Ram Murat and also corroborates the statement of PW-6 Dr. M.C. Mittal, who conducted the medical examination and opined that the injuries, found on the person of the deceased, was caused by fire arm and was about two days old and could possibly be caused on 10.11.1985 at 1:00 PM.

Thus, the factum that the injured Ram Murat received the injuries in the same incident, in which, Anandi Prasad had also received injuries and later succumbed to his injuries is clinchingly proved by the prosecution and clearly establishes the presence of PW-3 at the time of the incident.

Learned Amicus Curiae for the appellant has then submitted that while making the site plan, the Investigating Officer has not pointed out to have found any cot at the place of the incident, on which, Ram Swaroop is said to be sitting at the time of shooting, which again creates serious dent in the prosecution story.

It is well settled principle of law that any lapses on the part of the Investigating Officer will not give any benefit to the accused persons.

Hon'ble Supreme Court in the case of Paras Yadav and others Vs. State of Bihar reported in (1999) 2 SCC 126 has held that if the lapse or omission is committed by the investigating agency or because of the negligence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of the officials should not stand in way of evaluating the evidence by the courts otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

Hon'ble Apex Court in case of Ram Behari Yadav and others Vs. State of Bihar, reported in (1998) 4 SCC 517 has confirmed the legal position by observing that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice.

The said view has further been reiterated by the Hon'ble Apex Court in case of 2004 (3) SCC 654 Dhanaj Singh and others Vs. State of Punjab and also in (2012) 3 SCC (Cri) 838 Dayal Singh and others Vs. State of Uttaranchal.

In the light of the above mentioned cases, no benefit can be given to the accused person on account of omission and lapses on the part of the Investigating Officer.

In this regard, it may be noted that as per the settled principle of law, lapses on the part of the investigating Officer, which do not go to the root of the case, cannot make the entire prosecution story doubtful and therefore, in our opinion, the said arguments of learned Amicus Curiae for the appellant also does not have much substance.

Learned Amicus Curiae for the appellant has further submitted that the postmortem report does not corroborate the prosecution story. She has tried to point out that as per the prosecution story, only one fire was made on the deceased Anandi Prasad. However, from the perusal of the postmortem report, it is evident that the Doctor has noted as many as six injuries on his person, out of which, one is gutter shaped wound and other four injuries are burn injuries and one contusion, which have not been explained by the prosecution.

The said arguments of learned Amicus Curiae for the appellant does not have much substance as the Doctor, who conducted the postmortem, in his statement, has clearly stated that the burn injuries could be the result of powder of fire arm and the contusion may be on account of fall of the victim on the ground.

Thus, from the statement of PW-4 Dr. R.K. Dubey, who had conducted the postmortem and who had been cross-examined, has clearly explained that the injuries found on the person of the deceased could be caused by single fire and other injuries have also been explained by him, which is in complete corroboration to the ocular evidence. The relevant deposition of the Doctor in this regard is being quoted herein below :-

;g pksVs ekSr ds fy;s lk/kkj.kr;k dkQh Fkh vkSj fnukad 10-11-85 dks 1 cts fnu vkuk laHko FkhA cuZ batjht Qk;j ds ck:n ls vkuk laHko FkkA pksV ua 6 dUVwtu xksyh yxus ds ckn fxjus ij vkuk laHko gSA xksyh yxus ij 3] 4 feuV rd fcuk esfMdy ,M ds Hkh thfor jg ikuk laHko gSA ,d gh Qk;j ls yxdj cuZ batjht o xu 'kkV m.M vkuk laHko gSA Thus, the said arguments of learned Amicus Curiae for the appellant has also no substance and the prosecution story, as narrated by PW-2 and PW-3, finds complete corroboration from the medical report.

Learned Amicus Curiae for the appellant has then tried to castigate the prosecution story on the basis of delay in conducting the panchayatnama and the postmortem of the deceased.

In this respect, it may be noted that the Head Constable, in his statement, has clearly stated that at the time of lodging the FIR, neither Station Officer Saukhi Ram Chaudhary nor SI Lal Ram Pal were present at the Police Station and after lodging of the report, immediately a chik FIR and relevant papers for conducting the panchayatnama, was handed over to the constables, namely, Indrapal, Radhey Shyam and Puttan Singh for handing over the same to SI Lal Ram Pal, who on his turn, handed the relevant paper to SI Lala Ram Pal and he, in discharge of his duties, had reached the place of the incident on the next day and handed over the said papers to SO Saukhi Ram Chaudhary, who was also present at the place of the incident and had conducted the panchayatnama and prepared the relevant police papers and thereafter, sent the dead body for postmortem.

Thus, the delay in conducting the panchayatnama and postmortem, if any, as argued by learned Amicus Curiae for the appellant has been sufficiently explained by the prosecution and in any case, it cannot be said that there has been any vital delay in conducting the panchayatnama and postmortem proceedings, which makes the FIR ante-timed.

Learned AGA for the State, on the contrary, has submitted that the prosecution has clinchingly proved the time, place and manner of the incident. The testimony of PW-2 and PW-3 inspires confidence and has a ring of truth and they are reliable and truthful witnesses. Minor contradictions and omissions are bound to occur in their statements, which do not goes to the root of the case and thus, on the said basis, their testimony on the whole cannot be discarded.

Thus, in view of the foregoing discussion, we are of the opinion that the in present case, the prosecution has clinchingly established that the incident has taken place on the relevant date, time and place, as has been stated by the prosecution and the medical evidence fully corroborates the prosecution story. The occular testimony of PW-2 and PW-3 proves the prosecution case to the hilt and by no stretch of imagination, it can be said that the incident had taken place in some other manner. The defence suggestion that the incident had taken place during the course of dacoity, in which, the witnesses have received injuries, has been categorically denied by the witnesses and does not stand to reason.

Considering the facts and circumstances of the case, we are of the opinion that the prosecution, on the basis of its ocular evidence, which has been corroborated by the medical report, has proved its case beyond all reasonable doubt against the appellant and there appears no illegality and infirmity in the judgment of the Trial Court so far as the conviction and sentence of the appellant is concerned.

The appeal is devoid of merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The appellant Ram Naresh is on bail. His bail is cancelled and sureties are discharged. The Chief Judicial Magistrate, Banda shall cause the appellant Ram Naresh to be arrested and lodged in jail to serve out the sentence.

Let a certified copy of this judgment and order alongwith Lower Court record be sent to the court below for its intimation and necessary compliance.

Judgment be certified and placed on record.

Registrar General is directed to ensure the payment of Rs.10,000/- as remuneration to Ms. Katyayini, learned Amicus Curiae for the appellant for her assistance to the Court within a period of one month from today.

Order Date :- 23.03.2018.

Nadim (Rajiv Gupta, J.) (Rajesh Dayal Khare, J.)

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