Allahabad High Court
Dharampal vs State on 5 April, 2018
Bench: Shashi Kant Gupta, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 21.03.2018 Delivered on : 05.04.2018 Court No. - 45 Case :- JAIL APPEAL No. - 787 of 2011 Appellant :- Dharampal Respondent :- State Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Shashi Kant Gupta,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Ajit Kumar, J.)
1. This jail appeal is directed against judgment and order dated 22.12.2012 passed in Sessions Trial No. 533 of 2010, convicting the appellant for murder and sentencing him for life under Section 302 of the Indian Penal Code (for short ''IPC').
2. Prosecution case is that the appellant who is already in jail along with his wife and son in connection with offence of murder of one Hansa Ram of the same village, could not be released from the jail initially, whereas, his wife and son Kapil were bailed out with the aid and help of one Akbar and resultantly he got somewhat inimical towards his wife. Later on, after his release on bail, he entered his house at around on 08.02.2010 between 9.00 to 9.30 p.m. armed with a country made pistol and fired upon his wife from a very close range while his son, daughters (including the informant) and victim were watching television. The victim was rushed to the hospital by the members of the family present, but could not survive the fatal injury and was declared by the doctor brought dead. The body was placed at mortuary of district Hospital and in the early morning of the next day i.e. 09.02.2010, the first information report (for short "FIR") was lodged by the younger unmarried daughter Poneet at police station which is reported to be 12 kms away from the place of incident. The investigation was set into motion with the police arriving at the mortuary and the inquest was conducted till 3.00 p.m. and the report was prepared and marked as exhibit-2 and thereafter the body was deported for post mortem examination. The police also collected blood stained clothes including Dutai (homemade bed sheet) from the place of incident and sealed them all and prepared memo (exhibit - 26).
3. Autopsy was conducted by Medical Officer of District Hospital, Bijnor namely Dr. Sanjay Walker at 3.40 p.m. on 09.02.2010 and vide post mortem report (for short ''PM') (Exhibit - 8) following ante-mortem injuries were reported:-
1. Gun Shot Wound of entry 1 x 1 cm x cavity deep on back of right chest, 5 cm below capula, blackening and tattooing are present around the wound in an area of 2 x 2 cm
2. Gun Shot Wound of exit 1.5 x 1 cm connecting first injury on left oxila, both lungs lacerated. 11th vertebra fractured.
4. The police also claimed recovery of fire arm namely country made pistol on the pointing of the accused from the bushes just before half kilometre from village Bankhala on 12.02.2010 and the country made pistol was recovered with empty cartridge from its barrel. The police prepared the recovery memo (Exhibit - 14) and the fire arm so recovered was sent for ballistic examination on 17.04.2010 under the orders of Chief Judicial Magistrate dated 15.04.2010.
5. As per the Ballistic Expert's opinion dated 02.11.2010 (Exhibit - 65), the empty cartridge, which was found inside the barrel of pistol, was fired from the same pistol and thus prosecution claimed use of firearm of which recovery was made by the police on the pointing out of the accused, in the commission of crime.
6. The first informant Poneet, the daughter of the accused was examined as PW-1, whereas, the elder son Kapil of the accused was examined as PW-4, both as witnesses of fact. Sub Inspector Udaiveer Sharma of Police Station Kotwali Dehat, District Bijnor who had held the inquest and prepared the report, was examined as PW-2. Constable (CP1098) Manoj Kumar of the same police station was examined as PW-3 and constable (CP1193) Dangal Singh of same police station who had taken material evidence to the Forensic Science Laboratory, Agra was also examined as PW-11. Sub Inspector Satish Kumar, who had prepared memo of recovery of fire arm was examined as PW-9. Dr. Sanjay Kumar Walker of District Hospital, Bijnor, who conducted the autopsy, was examined as PW-5 to prove the PM report.
7. PW-1 in her examination in chief, reiterated the FIR version and during her cross examination by defence, she clearly stated that it was her father who had fired shot upon her mother which proved to be fatal. She also stated that her father was very angry with her mother, as she got herself and her son bailed out and did not bother to get her husband out on bail and this has been attributed to be the motive of the offence. She, however, admitted that Akbar had good relation with her mother and also with her father and it is Akbar who had ultimately managed finances for the release of her father as well. She, denied, however, that there was any extra marital affair between Akbar and her mother. It is noticeable that PW-1 was a minor daughter and was studying in High School at the time of incident. PW-4 Kapil, who was the elder son of the accused, claimed to be only class-Vth pass out, supported the prosecution case. In his cross examination, he also admitted that it was Akbar who arranged finances for getting them bailed out and also admitted that his father did not have good relations with his mother over landed property.
8. The accused was also examined under Section 313 of Cr.P.C. All the incriminating and material evidence were put to him, but he denied the commission of crime by him. However, he claimed that his wife had illicit relations with Akbar and for this reason he had been falsely implicated in the present case.
9. DW-1 Gudiya is the married daughter of the accused, has been examined as defence witness and has denied that her father had killed her mother, however, she admitted that it was when they were all watching television, somebody entered into the house and fired shot upon her mother on the fateful day in the night hours, but the assailant could not be identified as it was all dark outside and it was also raining. She claimed that her father and mother had very good relations with each other and there was no reason for her father to kill her mother. The trial court has appreciated the entire evidence available on record. Having scanned the entire evidence, the trial Judge has recorded findings of fact to the effect that time and place of the incident had been proved, inasmuch as, the death, per post mortem report, was caused by ante mortem fire arm injuries affecting the vital part of the body of the victim. The trial Judge observed that testimonies of daughter and son of the accused pointing towards their father as being the assailant, so identified by them on the fateful night, could not be doubted. The recovery of the fire arm on the pointing out of the accused which was allegedly used in the commission of crime and consequent Ballistic Expert's opinion in this regard against the appellant has been duly considered by the trial court. The trial Judge has not found the statement of the married daughter DW-1 Gudiya to be reliable enough to cast doubt about the identity of the appellant who committed the crime in the light of unimpeachable testimonies of minor son and daughter of the accused. Thus, having held the accused appellant guilty of the murder under Section 302 IPC, sentenced him for life.
10. We have heard Ms. Seema Shukla, the learned Amicus Curiae, for the appellant (in jail) and Sri Ajit Ray, the learned Additional Government Advocate for the State and have perused the original records.
11. The learned Amicus Curiae has argued several points very vehemently to urge that findings of the trial Judge, if tested on the veracity of the statement of witnesses of fact and the material evidence on which the court below placed heavy reliance, there is no an element of perversity or illegality hitting at the root of the prosecution case.
12. As a first argument, the learned Amicus Curiae argued that there were serious inconsistencies and contradictions between the FIR version and the statement of PW-1, the first informant. The second point urged is, that no bullet was recovered from the place of incident, which should have been recovered looking to the exit wound. Point No. 3 is that recovery of the country made pistol was doubtful as there was no public witness to the said recovery which have been claimed to be on the pointing out of the accused and this stands supported from the fact that initially on 07.04.2010 it reached to the laboratory with broken seal and was again sent to the laboratory on 15.04.2010 but the fact of broken seal on the bundle was not mentioned in the receipt dated 07.04.2010 issued by the laboratory. On this count, the report of the Ballistic Expert qua the recovered firearm has also been questioned. Yet another argument is to the effect that blood stained clothes including Dutai, though were admittedly sent to the Forensic Laboratory for examination but no forensic report in respect thereof from the Forensic Science Laboratory was produced before the court and so it created doubt about the place and timing of the incident. The last argument is, that the trial court manifestly erred in discarding the testimony of DW-2 Gudiya, the married daughter of the accused.
13. Per Contra learned Additional Government Advocate has argued that the findings recorded by the trial Judge in the impugned judgment is quite cogent, convincing and satisfactory. He has further argued that the children who have given depositions against their father, have remained intact in every detail pertaining to the incident, place and time. There is consistency in the evidence of prosecution witnesses to prove the guilt of the accused. He has further argued that minor discrepancies between the FIR and testimony of first informant is not of such nature that it would hit at the root of prosecution case. He, therefore, argues that the appeal deserves dismissal and the conviction and sentence awarded by the court below is liable to be upheld.
14. In so far as the first argument regarding inconsistencies and contradictions between the FIR version and the statement of the first informant PW-1 is concerned, the thrust of the argument on behalf of learned Amicus Curiae is that the FIR stated that two shots were fired but the first informant PW-1 deposed that only one bullet was fired and it hit her mother on her chest. The argument is that nothing has come in the spot memo regarding recovery of pellets or the bullet, though, PM report clearly depicted exit wound. The entry and exit wounds also do not support the FIR version, as the first informant had stated that father first abused her mother and then opened fire upon her before they could understand anything,. According to learned Amicus Curiae, obviously as her father hurled abuses upon his mother while entering the room, her mother turned towards her father and so the shot hit on her chest, but this statement did not match the medical evidence and so she did not maintain the said version of FIR during her testimony as PW-1 in court. Learned counsel has further drawn our attention to the inquest report in which also injury has been shown on the left side underarm whereas PM report records injury on left side connected with the first injury, as the only exit wound puncturing the lungs and resulted in fractured eleventh vertebra. According to him, medical evidence does not support the inquest report as far as injuries are caused and its casts doubt about the place of incident and also manner of assault.
15. We have carefully examined the arguments raised, as above, by the learned Amicus Curiae and have ourselves also gone through the FIR, inquest report, PM report, statements of PW-1, PW-2. Both PW-1 daughter of the accused and first informant and PW-2 son of the accused, who were minors at the time of incident and were eye witness account. They have, we find very clearly and in a quite unequivocable terms narrated the entire incident and have assigned the role to their father for murdering their mother. Both have clearly stated that while they were watching television in the night of the fateful day, their father entered the room, armed with country made pistol and fired a shot upon their mother. PW-2 Kapil has been more specific in saying that his father fired shot from a close range of 1 to 2 feet. The source of light is the running television placed on the box inside the room. The television set which was placed on the box was being run on battery, was obviously an old model box television, which used to run on battery in villages. Such television sets emit sufficient light to enable the children (PW-1 and PW-4) to recognize the assailant, particularly when he himself is the father of the eye witnesses. The age of the children at the time of incident was between 16 and 17 years, as such, they were grown up children. We may point out here that it is a case of direct evidence and in case of direct evidence, there must be a very compelling circumstance to doubt the testimony of an eye witness account, particularly when he/ she is member of family and more specially when children are giving evidence against father. No inimical behaviour of accused, in the present case, has been shown towards his children, so as to cast doubt over their statement naming their father, nor, any such circumstance exists to presume that they have named their father for certain ulterior motives. Minor discrepancies between the FIR and the testimony of first informant in the present case, in our considered opinion, would not be fatal in the face of fact that PW-2 has given an unimpeachable oral record of the incident implicating his father. The FIR is merely a statement of fact bringing to the notice of police to set into motion the investigation, but in no way it is an evidence to dislodge the oral testimony. In the case of King Emperor v. Khwaja Nazir Ahmad (1944) 71 IA 203 : AIR 1945 PC 18, it has been observed that recording a first information report is not precedent to set the criminal investigation in motion. It is therefore, from the view point of investigating agencies, an earliest information regarding the circumstances. So it is a mere information and has been held [State of A.P. v. Golconda Linga Swamy and Anr (2004) 6 SCC 522] not intended to be an encyclopaedia of the background scenario and yet even skeletal features it must disclose the commission of an offence. Therefore, the minor discrepancy in the details would not cast doubt on the statements of the eye witness account, if that are consistent and unimpeachable. Eleborating the object, value and use of FIR, the Apex Court in the case of Sheikh Hasib @ Tabarak v. State of Bihar (1972) 4 SCC 773 vide para 4 held thus:
"4. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence thou its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Evidence Act, 1872 or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses.
16. Again it has been held in State of Maharashtra v. Ahmad Shaikh Babajan (2009) 14 SCC 267 that though it is trite that the first information report does not constitute substantive evidence and can, strictly speaking, be of the only use as previous statement for the purpose of either corroborating or contradicting its maker, yet omission of material facts pertaining to the crime is undoubtedly relevant in judging veracity of the prosecution case. However, the ocular evidence has to be tested looking to the entire attending circumstances. The plain and simple statement of fact narrating the story by a witness, if otherwise found to be intrinsically reliable and the version inherently probable, it may, itself, be sufficient in the circumstances of a particular case has been held, [Hari Obula Reddy & Ors v. State of Andhra Pradesh (1981) 3 SCC 675] to base a conviction thereon. In the case of Murli and another v. State of Rajasthan (2009) 9 SCC 417 : 2010 AIR (SCW) 412 it is held that insignificant discrepancies between the FIR version and the testimony would not weaken the prosecution case, if the testimony of the witness is otherwise believable and unimpeachable. The court has gone on to hold that even the criminal background of a witness would not be of much consequence in judging the credibility of a witness, if the testimony of witness narrating the incident, in all its probability is inspiring, it can be placed reliance to bring home the charge. So even if, in the FIR and the first informant's version bear minor discrepancies regarding seat of injury or details in the manner of incident, if the offence in its broader spectre provable with the aid of other ocular evidence, such discrepancies would not be fatal to the prosecution case. In the instant case, father kills mother in presence of minor children and that too in a village where television focus radiation is the source of light, description of the seat of injury could vary a little, but could not be used to dismantle the whole edifice of otherwise well laid prosecution case. It is a case where there is direct relation between victim and assailant and those who were eye witness account, the much source of light loses its significance and even if it is not mentioned in the FIR, such absence would not adversely affect the prosecution version and has been so held in the case of S. Sudershan Reddy & Ors v. State of Andhra Pradesh (2006) 10 SCC 157. Further in the case of Nathuni Yadav v. State of Bihar (1998) 9 SCC 238, it has been held that artificial light does not per se preclude identification of the assailants. It has been held in the case of Bachhitar Singh & Anr v. State of Punjab (2002) 8 SCC 125 that simplicity of the statement is indicative of naturalness and truthfulness and in the present case, we find that both the children of the accused have detailed out the incident in a very simple manner with an utmost natural behaviour, as could be of an eye witness account if he is a close relation.
17. The inquest report is merely indicative of the position of a dead body at the place of incident and account of articles in its surrounding, and for prima facie forming opinion of unnatural death of the victim inviting a post mortem examination. Here, in this case, the inquest has taken place at mortuary. The seat of first injury is of course, shown on the left underarm and the other one on the back with a blackening and burning effect of a fire arm shot. We may quote injuries as reported in the inquest (exhibit - 2):
pksVs & e`frdk lkseorh dh cka;h cxy esa vUnj dh lkbZM esa pksV&[kwu vkywn o pksV ihB ij [kwu vkywn tks Qk;j vkeZ~l dk tyk izrhr gks jgk gSA mDr pksVsa Sic dk /;ku j[krs gq, e`frdk dh yM+dh ikSfur ls pksVsa fn[kok dj vafdr dh xbZ [Injury under the left side underarm and injury with blood on the back which appears to be turn due to fire arm. Considering the injuries, we got it seen by daughter Poneet and then entered in the report.] (Translated by Court)
18. It is worth noticing that the ante-mortem injury no. 1 in the PM report corroborates the description of injury in the inquest (supra).
19. From the perusal of two reports quoted as above, we find that later (PM report exhibit - 8) corroborates the former (Inquest exhibit - 2) and we do not find any contradiction between the two. The argument that inquest report contradicts the PM report and supports the FIR and the statement of PW-1 that the shot fired hit the chest first is fallacious.
20. Even otherwise, an inquest report is not an evidence to belie the testimonies of witnesses of fact who were eye witness account. It has been held that these reports are prepared by the police who are not experts like doctors, therefore, no such weightage could be given to it. It has been so held vide para 23 by the Apex Court in the case of State of U.P. v. Shobhanath and others (2009) 6 SCC 600 : 2009 AIR 2395:
"So far as the inquest report is concerned, the same is prepared by the police who are not experts like the doctors and therefore no such weightage could be given to the inquest report. It is also settled law that inquest report cannot be treated as a piece of admissible evidence. One of the main grounds for acquitting the respondent-accused by the High Court was alleged discrepancies in the aforesaid reports which according to us, is based on misreading of evidence and misappreciation."
21. Now dealing with the non-recovery of the empty cartridge by the police, we are of the opinion that this could be only indicative of laxity in police investigation and under no circumstance would be fatal to the prosecution case altogether brushing aside other cogent evidence. Once it has come to be proved that death is caused by fire arm injury and PM report describes the injury to be serious enough to cause death, merely because the alleged bullet which had passed through the exit wound could not be recovered can not be said to have caused so much dent to the prosecution case so as to render it unbelievable. In Nankaunoo v. State of U.P. 2016 AIR (SC) 447 = 2016 (1) SCC (Cri) 857 the court has noted that in the face of unimpeachable oral evidence non recovery of a fire arm does not materially affect the prosecution case and has been so held vide para 9:
"learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon ''countrymade pistol' was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of ''çountrymade pistol' does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
22. Learned Amicus Curiae has questioned the recovery of fire arm on the pointing out of the accused and its connection with the commission of offence and has based her arguments chiefly on the testimony of PW-11 who had gone with material evidence collected by the police at the time of preparing spot recovery memo at the place of incident and later the fire arm namely the country made pistol, to the Forensic Science Laboratory, Agra. In order to buttress her arguments, learned Amicus Curiae has first taken us to Exhibit - 20 which is the paper that acknowledges the submitting of material evidence to the laboratory and we find from its perusal that materials in sealed bundles have been noted down as under (as sent under seal and signature of the Station House Officer, P.S. Kotwali Dehat, District Bijnor):
oLrq eky dk fooj.k oLrq dk fooj.k fo'ks"k fooj.k 1& ,d iqfyUnk lhy loZ eksgj egewyk ,d fMCck esa feV~Vh lknk o ,d fMCck esa feV~Vh [kwukywnk 2& ,d iqfyUnk lhy loZ eksgj egewyk ,d iqVbZ [kwukywnk 3& ,d iqfyUnk ikUph tkr e`rdk lkseorh 4& uewuk eksgj mijksDr 5& ,d iqfyUnk lhy loZ eksgj egewyk ,d reapk 315 cksj e; ,d [kks[kk dkj0 tks uky esa Qalk gS 6& uewuk eksgj 1& feV~Vh [wku vkywnk esa tks jDr gS D;k ekuo jDr gS\ 2& iqVbZ ij yxk jDr D;k ekuo jDr gS\ 3& e`rdk ds diM+ks ij yxk jDr D;k ekuo jDr gS\ 4& tks [kks[kk dkj0 reapk dh uky esa Qalk gS D;k mlh reaps ls Qk;j gS\ 5& D;k lHkh oLrqvksa ij yxk jDr ,d gh xq:i dk gSA DETAILS OF ARTICLES Details of Articles Special Notes
1. One sealed bundle containing a box of clay and
2. one box containing blood stained clay.
3. One sealed bundle containing blood stained clothes of Somwati,
4. Sealed as above.
5. One sealed bundle containing country made pistol of 315 bore empty cartridge congested in its barrel.
6. Specimen Seal
1. Whether there is human blood on blood stained clay.
2. Whether there is human blood on blood stained Dutai.
3. Whether there is human blood on blood stained clothes of the deceased.
4. Whether the empty cartridge congested in the bundle of country made pistol was fired from that very pistol.
5. Whether blood group of blood found on all the other articles is of the same group.
(Translated by Court)
23. It is noticeable that first column contains the details of material sent and the second column contains query that laboratory is required to answer after due examination. From the perusal of Exhibit - 20 we find that country made pistol of .315 bore with empty cartridge having in its barrel, is item no. 5 in the sealed bundle.
24. Our attention then is drawn to Exhibit - 23 which is another paper sent on 15.04.2010 to the Laboratory and submitted on 17.04.2010. Again there are two columns and in the first column, country made pistol of .315 bore wit empty cartridge congested in its barrel is mentioned, with same query in the second column as in Exhibit - 20. The column is reproduced hereunder:
oLrq eky dk fooj.k oLrq dk Ø-l-
oLrq dk fooj.k fo'ks"k fooj.k 1& 2& ,d iqfyUnk lhy loZ eksgj egewyk ,d vnn reapk 315 cksj ftldh uky esa [kks[kk Qalk gSA uewuk eksgj tks [kks[kk dk0 reapk dh uky esa Qalk gS D;k blh reaps ls Qk;j gS\ Details of Articles Special Notes
1. One sealed bundle containing country made pistol of 315 bore empty cartridge congested in its barrel.
2. Specimen Seal Whether the empty cartridge congested in the bundle of country made pistol was fired from that very pistol.
(Translated by Court)
25. The argument advanced by learned Amicus Curiae is that once the country made pistol recovered by the police was sent on 07.04.2010, there was no occasion to send it again on 17.04.2010 and this casts doubt as to whether the pistol allegedly recovered on the pointing of the accused was sent to the Laboratory for Ballistic Examination or it was a deliberate act of mischief by police to change the pistol to bring home the charge against the accused.
26. It is necessary, therefore, here to refer to the testimony of Constable PW-11 Dangal Singh, who carried the material evidence to the Laboratory. PW-11 says that since seal of the bundle that contained country made pistol, was not intact and broken, therefore, the laboratory returned the same on 07.04.2010 but retained the other bundles containing material evidence. He proved the entries of General Diary (for Short GD) of police station concerned of the relevant dates when he departed for the laboratory and then deposited back the pistol on return and then again departed with the sealed bundle of pistol to submit it to the laboratory. The relevant GD entries with these specific numbers and dates were produced and proved as exhibits 19, 21, 22 & 24 by PW-11. G.D. entry dated 05.04.2010 bearing no. 24 details the first departure by PW-11 to the Laboratory and GD entry no. 29 dated 09.04.2010 is related to the depositing back the fire arm at the police station after return from the Laboratory. It is necessary to quote here G.D. entry no. 29 entered at 17.20 hours on 09.04.2010.
C. 1193 naxy flag dh Sic fof/k foKku iz;ksx'kkyk vkxjk ls gkftj vk;k Sic ,d iqfyUnk o ,d reapk Fkkuk esaa nkf[ky fd;s tks eky jktdqekj ds lqiqnZ fd;s x;s eky Hk.Mkj Constable No. 1193 Dangal Singh reported back to police station with pistol and empty cartridge and deposited with the Raj Kumar of Store Room.
(Translated by Court)
27. G.D. entry no. 38 dated 15.04.2010 entered at 16.50 hours (Exhibit - 22) is equally important, as it relates to the second departure with the fire arm to the Laboratory and is quoted hereunder:
bl le; dka0 1193 naxy flag dks sic ls ,d iqfyUnk lhy loZ eksgj egewyk ,d vnn reapk 315 cksj dk uky esa [kks[kk Qalk Fkk uewuk eksgj ds eq0v0la0 31@10 /kkjk 302 IPC cuke /keZiky vkfn es sic dk okLrs ijh{k.k gsrq sic fof/k foKku iz;ksx'kkyk vkxjk jokuk fd;k x;k rkyk cUn lhy eky sic dks fn;k x;kA One pistol of 315 bore with an empty cartridge conjected in its barrel given to Constable No. 1193 Dangal Singh in a sealed bundle for examination at Forensic Science Laboratory, Agra in connection with case crime no. 31 of 2010, u/s 302 IPC (Dharampal and others) (Translated by Court)
28. From the perusal of the above exhibits that were proved before the trial court, we find these entries clearly explain away the second time sending of the fire arm in question to the Laboratory for its examination. We also find that PW-11 has also explained the same in his testimony as quoted hereunder:
^^fnukad 07&4&10 dks eky eSus fof/k foKku iz;ksx'kkyk vkxjk nkf[ky fd;k vkSj ogka ls eSus izkfIr dh j'khn izkIr dh tks i=koyh ij miyC/k gS ftl ij esjs gLrk{kj gSA bl ij izn'kZ d 20 Mkyk x;kA fof/k foKku iz;ksx 'kkyk us lkjk eky j[k fy;k FkkA reUpk eq>s okfil dj fn;k FkkA ml reUps dks eSus fnukad 9&4&10 dks jiV ua0 29 le; 17&20 cts Fkkus ij ykdj nkf[ky fd;k okilh dh ewy th0Mh0 eSa lkFk yk;k gwWaA ftldh lgh QksVksizfr eSa izekf.kr djrk gWwa ftl ij izn'kZA d&21 Mkyk x;kA fnukad 15&4&10 dks eSa eq0v0la0 31@10 /kkjk 302 vkbZ0ih0lh0 cuke /keZiky dk eky eqdnek reUpk 315 cksj lhy cUn c.My ysdj vkxjk fof/k foKku iz;ksx'kkyk x;k fnukad 17&4&10 dks nkf[ky fd;kA^^ [I submitted the articles with Forensic Science Laboratory, Agra on 07.04.2010 and obtained the receipt in respect thereof which bears my signature and is available on record. It is marked as Exhibit- 20. The Forensic Science Laboratory has accepted all the articles but had returned the country made pistol which I had deposited back on 09.04.2010 at the police station vide G.D. entry no. 29 dated at 17.20 hours. Original G.D. I have brought and I have proved the photostat copy thereof which is marked as Exhibit - 21.
On 15.04.2010 in connection with Case Crime No. 31/10 under Section 302 IPC v. Dharampal, I had taken the country made pistol of 315 bore in a sealed bundle to the Forensic Science Laboratory, Agra and submitted the same on 17.04.2010.] (Translated by Court)
29. We have also carefully perused the ballistic expert's examination report (Exhibit - 65 ). The report as it records in para 2 "one sealed bundle that have inscription "one pistol 315 bore with empty cartridge of 315 bore, case crime no. 31/10, u/s 302 IPC..... case crime no. 34/10, u/s 25 Arms Act in Dharampal Singh P.S. Kotwali Dehat, BJR" on being opened wrapped in a polythene were country made pistol and 315 bore KF empty cartridge fired, was received. Country made pistol was marked as 1/2010 and empty cartridge was marked as EC-1". Thus, it is sufficient to indicate that it was the same fire arm which is mentioned in the recovery memo (Exhibit - 14 ) and the other two exhibits (22 & 23) in which it has come like this a country made pistol of 315 bore with cartridge congested in its barrel. The ballistic report refers to the bundle received on 17.04.2010 (exhibit 23) very particularly.
30. In the face of material evidence (supra) well proved before the Court and as we also find fully established from the record, the second argument by learned Amicus Curiae questioning the recovery and Ballistic Expert's opinion report is also fallacious.
31. The next argument that the material evidence collected by police from the place of incident remained with the laboratory and no report was obtained and produced by prosecution despite repeated orders and reminders by the court. The trial judge was not justified in proceeding with the trial. From the perusal of order sheet of the trial court, we find that no doubt court ordered for the forensic report and the same was never placed, however, question is how far absence of such report affects the prosecution case adversely and whether does it go to the root of the case to demolish the entire prosecution theory of guilt. Legal position as far as material evidence is concerned, has come to be settled.
32. The Apex Court in Criminal Appeal No. 297 of 1992, Leela Ram (dead) through Duli Chand v. State of Haryana has held that evidence is to be considered from the point of trustworthiness and if this element is satisfied, it stand inspire confidence in the mind of court. A mere irregularity or even illegality during investigation ought not to be treated as a ground to reject prosecution case. Further it has been held that corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Vide para 8 it has been held:
"Before, however, proceeding with the matter on two counts as above, it would be convenient to note another aspect of the matter, namely, the observations pertaining to the investigation by the Investigating Agency. It is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring a decision of this Court (vide State of Rajasthan v. Kishore, AIR 1996 SC 3035)."
33. Again in the case of State of Punjab v. hakam singh (2005) 7 SCC 408 the court held that infirmities/ lapses/ omission during investigation would not be fatal to disbelieve the testimonies of eye witnesses implicating the accused. Vide para 11 to 14 the court observed:
"11. The High Court has disbelieved her testimony on the grounds i.e. on the manner of firing and recovery of the guns, non-seizure of bloodstained clothes but these shortcomings hardly impeach her testimony. In order to impeach her testimony technical questions were asked to her which was not the correct approach for discarding her testimony. Therefore, we are of the opinion that the High Court has committed an error in discarding the testimony of this witness on technical grounds dehors the factual statement given by her.
12. Learned counsel for the respondent has also tried to make out that the defence version is more probable. The defence version was that in fact Bhola Singh who was coming for bus stop was first attacked by the prosecution party and in retaliation the accused persons went there and that the prosecution could not explain the second injury to the deceased Bhola Singh. We do not think that the defence version improbablises the prosecution story. It is just an afterthought theory put up by the defence to improbablise the prosecution story. But the facts as mentioned above particularly the testimony of P.Ws. 3 & 4 sufficiently lend support to the prosecution story.
13. It was also pointed out by learned counsel for the respondent that no fire arms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the fire arms and recovering the empties and sending them for examination by the Ballistic expert would have only corroborated the prosecution case but by not sending them to the Ballistic expert in the present case is not fatal in view of the categorical testimony of P.W. 3 about the whole incident.
14. During the course of investigation a serious doubt was cast on the fair investigation by the Investigating Officer and the investigating Officer was subsequently changed but that does not render the testimony of P.W.3 unreliable. After going through the testimony of P.W.3, the wife of the deceased, Harbans Kaur it leaves no manner of doubt in our mind that she is a truthful witness and her testimony fully supports the case of the prosecution. The technical grounds sought to be utilized by the High Court in discarding the testimony of this witness no where shakes the truthful version given out by P.W.3, Harbans Kaur. Therefore, we are of opinion that the conviction of Hakam Singh under Section 302, I.P.C. by the trial court for causing the death of Harbans Singh was correct and it should not have been reversed by the High Court."
34. Even the identification of the accused in T.I. parade or court has been held in Visveswaran v. State (2003) 6 SCC 73 not to be sine qua non in every case. The court further observed that any deficiency or irregularity in the investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved, the court held that in defective investigation, the only requirement is extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation.
35. Applying the above exposition of law to the facts of the present case, we find that it is such a case of direct evidence and so crystal clear on facts devoid of any hypothesis that even on the basis of testimonies of minor children of the accused, he could be held guilty. There must be reason to doubt eye witness accounts and particularly when a close family member is giving evidence against the other member, it becomes all the more difficult to brush aside. We find not a single reason to disbelieve the daughter and the son deposing against their own father. We see no motive for the same. We appreciate that daughter and son in this case were very clear and specific in describing the incident and pointing at the accused like a photographic details of events.
36. Furthermore, the married daughter Gudiya, who appeared as defence witness (DW-1), except the identity of appellant committing the crime, has admitted the time, place and date of incident. Thus, she claimed to be an eye witness account and supported the statement of her sister and brother except with regard to the identity of the assailant for want of sufficient source of light, as light emitting from the TV was blurred. With regard to this the trial court has rightly observed, is not true in the light of PM report and the statement of PW-4 Kapil. PM report records that there was blackening and tattooing around the fire arm injury (on the back of the victim). PW-4 Kapil too stated that fire was shot from a distance of 1-2 feet. ''When there is a close shot ......... partially burned and unburned grains of powder are blasted into the skin causing a tattooing which cannot be easily wiped off................... (Modi's Medical Jurisprudence and Toxicology 21st Edn. 6th reprint 1994, pp. 264)'.
37. So the medical evidence completely belies the statement of DW-1. Moreover, she was only a chance witness visiting her mother's place and her presence was a co-incident. She lives with her husband and it is difficult to understand as to why she was not the first informant though eldest in the family who were present at the time of incident as she admitted the incident. There is no explanation to it and her conduct in the overall scenario renders her statement qua the incident untrue
38. In view of the above, we are convinced with the findings on the guilt of the accused in the commission of crime by the trial Judge and accordingly uphold the conviction and sentence of the appellant. The appeal therefore, lacks merit and is dismissed.
39. Before we part with the case, we record our appreciation for useful assistance provided by the learned Amicus Curiae Ms. Seema Shukla and we direct for payment of special fee quantified as Rs. 12,000/- to her. Necessary formalities for payment will be completed by the Registry and payment shall be made within a month.
Order Date :- 05.04.2018 IrfanUddin