Allahabad High Court
Pradeep vs State Of U.P. on 24 February, 2022
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 RESERVED A.F.R. Case :- CRIMINAL APPEAL No. - 6987 of 2009 Appellant :- Pradeep Respondent :- State of U.P. Counsel for Appellant :- Vijay Singh Sengar, Azad Khan, Ramesh Pandey, Sanjeev Mishra, Shyam Singh Sengar Counsel for Respondent :- Govt. Advocate, Nitinjay Pandey And Case :- CRIMINAL APPEAL No. - 6988 of 2009 Appellant :- Akhilesh Respondent :- State Of U.P. Counsel for Appellant :- Vijay Singh Sengar, S.C.Tewari, Sanjeev Mishra Counsel for Respondent :- Govt. Advocate, Nitinjay Pandey Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. This judgment will dispose of Criminal Appeal No.6987 of 2009 and the connected Criminal Appeal No.6988 of 2009, both arising from the judgment and order of Mr. Umesh Chandra, the then Additional Sessions Judge/ Fast Track Court No.1, Etah dated 27.10.2009, convicting the appellants, Pradeep and Akhilesh in Sessions Trial No.149 of 2007 of the offences punishable under Section 302 read with Section 34 IPC and the appellant, Akhilesh alone in Sessions Trial No.148 of 2007 of the offence under Section 25 of the Arms Act, 19591. The appellants have been sentenced in the manner as hereinafter detailed. While the appellants, Pradeep and Akhilesh have been sentenced to life imprisonment for the offences punishable under Section 302 read with Section 34, Indian Penal Code, 18602, the appellant, Akhilesh has been sentenced separately for the offence under Section 25 of the Arms Act to suffer three years' rigorous imprisonment. The appellants have further been sentenced to a fine of Rs.5000/- each for the offence under Section 302 read with Section 34 IPC and upon default, ordered to suffer six months' simple imprisonment additionally. A fine of Rs.1000/- has been imposed upon the appellant, Akhilesh for the offence punishable under Section 25 of the Arms Act and upon default, he has been ordered to suffer a month's simple imprisonment additionally. So far as the appellant Akhilesh is concerned, there is a direction that both sentences shall run concurrently.
2. The facts giving rise to the Appeals are these:
A First Information Report3 dated 18.11.2006 was lodged by Satya Prakash son of Buddhpal Singh, a resident of Village Diuna Kalan, falling within the local limits of Police Station Jaithra in the Sessions Division of Etah. The FIR was registered at 10 minutes past noon (12.10 p.m.) on 18.11.2006, regarding an incident that took place earlier in the day, at half past ten (10.30 a.m.), in the morning hours. The FIR was registered at Police Station Jaithra as Case Crime No.238 of 2006, under Sections 302 and 504 IPC, Police Station Jaithra, District Etah.
3. According to the FIR, the informant was a native of Village Diuna Kalan, Police Station Jaithra. To the south of the village, the informant and Pradeep son of Jagdish, also a native of the same village, had a common tubewell (described in the FIR as a boring). It was said that on 18.11.2006, that is the day when the FIR was lodged, the informant, along with his son Harveer, had proceeded to the tubewell to irrigate his fields. They had reached the tubewell to start the engine when Pradeep and Akhilesh alighted there, and abusing the two, asked the informant and his son not to run the tubewell. This led to a dispute between them with two on each side, whereupon Pradeep and Akhilesh went back to the village and fetched a country-made pistol and a country-made rifle. The informant and his son, upon seeing the two approach carrying fire-arms, fled towards the village. Both the brothers gave the informant and his son a chase and at 10:30 in the morning, shot the informant's son in front of one Ram Prakash's house. The informant's son died on the spot. The first information further records that Rajendra Singh son of Khem Karan, Ajaypal son of Ramdeen and Ram Prakash son of Pokhpal Singh, besides other natives of the village, were present, who witnessed the occurrence. It was also reported that the dead body was lying at the site of occurrence. This written information was signed by the first informant and scribed by Ram Autar son of Gokul Singh, also a resident of Village Diuna Kalan.
4. On the basis of the said information, Case Crime No.238 of 2006, under Sections 302, 504 IPC was registered at Police Station Jaithra vide G.D. No.30. The Station Officer left the station at 12:10 hours. The Police reached the spot at 12:45 p.m. and held inquest. The inquest report was drawn up under the directions of the Station Officer by Head Constable Nepal Singh. The Station Officer, Udai Vir Singh Malik took up the investigation. He collected samples of blood-stained and plain earth from the spot, drawing up a common memorandum for the purpose. The place of occurrence was inspected and on identification by the first informant, a site plan was drawn up.
5. After proceedings of the inquest were over, the Investigating Officer addressed a memo to the Chief Medical Officer, requiring him to do an autopsy. He also did a sketch of the corpse (photo lash) and sent the dead body for autopsy. Dr. Pradeep Kumar Gupta, PW-5, who conducted the autopsy on 18.11.2006 at 4:55 p.m., found the following ante-mortem injuries on the person of the deceased :
"(1) A Firearm wound of entry: 2cm X 1cm X through & through on the right side lower part of chest and only 10cm below right nipple at 7 o'clock position margins inverted.
(2) A Firearm wound of exit 2.5 cm X 1.5cm X communicating e injury no.(1) on the lower back left side 4cm from middle and 15cm from left ant. sup. Iliac spine, margins everted.
Direction: anterior to posterior."
6. In the opinion of the Doctor, death had occurred one-third of a day before autopsy and it was due to shock and haemorrhage as a result of ante-mortem injuries.
7. On 20th November, 2006, that is to say, the third day following the occurrence, PW-9, Udai Vir Singh left the station at 7:30 a.m. in his official Jeep in connection with investigation into Case Crime No.238 of 2006, under Sections 302, 504 IPC. He had with him Constable No.718 Mahesh Chandra, Constable No.1158 Nand Lal, Constable No.529 Vinod Kumar and the driver of the official Jeep, Constable-Driver No.824 Brijesh Kumar. He was on the lookout for the wanted accused in the case. The Investigating Officer was proceeding on the Jaithra - Dariyabganj Road and had reached the Baniadhara Trivium, when he received information from a secret informer that near Village Baniadhara at the trivium of the kachcha road, that connects Village Diuna Kalan, the appellants were waiting to board a vehicle to escape to Etah. They could be apprehended if prompt action were taken. The Investigating Officer proceeded to the spot, and on the pointing out of the informer, found the appellants sitting by the side of the Trivium of the roads leading to Baniadhara and Diuna Kalan.
8. Shorn of unnecessary detail, the appellants were arrested employing of necessary force. Nothing was recovered from possession of the appellant, Pradeep, but a search of the appellant, Akhilesh led to the recovery of a country-made pistol of .315 bore from his right pocket and two live cartridges of the same caliber from the left. A recovery-cum-arrest memo was drawn up, where it is mentioned that the appellant, Akhilesh confessed that this was the weapon that he had used in murdering Harveer on 18.11.2006. Arrest followed as both the appellants were wanted in Case Crime No.238 of 2006. It was also recorded in the recovery-cum-arrest memo that no member of the public volunteered to witness the recovery and the recovery-cum-arrest memo was signed by members of the police party and the two accused.
9. On the basis of the recovery-cum-arrest memo dated 20.11.2006, Case Crime No.239 of 2006, under Section 25 of the Arms Act, Police Station Jaithra, District Etah was registered against Akhilesh alone. The aforesaid crime was registered on 20.11.2006 at 1:15 p.m. The investigation of this case was entrusted to Sub-Inspector, Shiv Nandan Singh, while Case Crime No.238 of 2006 was investigated by the Station Officer, Udai Vir Singh Malik, PW-9, who after investigation, filed a charge sheet dated 24.11.2006 against the appellants in Case Crime No.238 of 2006, under Sections 302, 504 IPC. Sub-Inspector Shiv Nandan Singh filed a charge sheet against the appellant, Akhilesh Singh on 27.12.2006 in Case Crime No.239 of 2006, under Section 25 of the Arms Act.
10. Cognizance of the charge sheet in Case Crime No.238 of 2006 was taken by the Magistrate on 20.12.2006, whereas of the charge sheet in Case Crime No.239 of 2006 against the appellant, Akhilesh, cognizance was taken cognizance on 18.01.2007. The cases were committed to the Court of Sessions by the Magistrate. After committal, the case was received by the Sessions Judge on 14.02.2007, but cognizance of both cases was taken vide separate orders dated 24.09.2007 passed by the learned Sessions Judge. Sessions Trial No.149 of 2007 was assigned to the case arising out of Case Crime No.238 of 2006, under Sections 302 read with 34, 504 IPC whereas Sessions Trial No.148 of 2007 was assigned to the case arising out of Case Crime No.239 of 2006, under Section 25 of the Arms Act against the appellant Akhilesh alone. Both the trials were consolidated, with S.T. No.149 of 2007 being tried as the leading case. Charges were framed in both the Sessions Trials also on 24.09.2007. For more than obvious reasons, common evidence was recorded in both the trials.
11. In order to prove their case, the prosecution have examined the following witnesses:
(1) PW-1, Rajendra Singh (a native of the informant's village and a witness of fact who turned hostile);
(2) PW-2, Ram Autar (scribe of the written report);
(3) PW-3, Ajay Pal (witness of fact);
(4) PW-4, Smt. Girja Devi (another witness of fact and the deceased's mother);
(5) PW-5, Dr. Pradeep Kumar Gupta (the doctor who conducted postmortem examination on the deceased's corpse);
(6) PW-6, Constable-Clerk Makkhan Lal (who registered the case, drew up the Check FIR relating to Crime No.238 of 2006 and made the requisite G.D. Entry in the Station Diary. He is a formal witness);
(7) PW-7, Constable Mahesh Chandra (a witness of recovery-cum-arrest memo);
(8) PW-8, Constable Raj Narain (who registered the case, drew up the Check FIR relating to Crime No.239 of 2006 and made the requisite G.D. Entry in the Station Diary. He is a formal witness);
(9) PW-9, S.O. Udaivir Singh Malik (Investigating Officer of the leading case); and, (10) PW-10, Constable Gopi Chandra (who proved the site-plan and charge-sheet relating to Crime No.239 of 2006).
12. The prosecution have relied on the following documentary evidence:
Sr. No. Exhibit No. Exhibited documents with brief particulars
1.
Ex. Ka-1 Written report lodged with the Police Station Jaithra by Satya Prakash and proved by PW-2, Ram Autar, scribe of the written report.
2. Ex. Ka-2 Postmortem report of the deceased dated 18.11.2006, proved by PW-5, Dr. Pradeep Kumar Gupta.
3. Ex. Ka-3 Check FIR dated 18.11.2006 relating to Crime No.238 of 2006, drawn up by PW-6, Constable Makkhan Lal.
4. Ex. Ka-4 Carbon Copy of G.D. Entry No.30 time 12:10 p.m. relating to Crime No.238 of 2006, made by PW-6, Constable Makkhan Lal.
5. Ex. Ka-5 Recovery-cum-arrest memo proved by PW-7, Constable Mahesh Chandra.
6. Ex. Ka-6 Check FIR dated 20.11.2006 relating to Crime No.239 of 2006, drawn up by PW-8, Constable Raj Narain.
7. Ex. Ka-7 Carbon Copy of G.D. Entry No.19 time 13:15 p.m. relating to Crime No.239 of 2006, made by PW-8, Constable Raj Narain.
8. Ex. Ka-8 Site plan of the place of occurrence, where the deceased was done to death, dated 18.04.2006, proved by PW-9, S.O. Udai Vir Singh Malik.
9. Ex. Ka-9 Inquest report drawn up by HCP-Nepal Singh and proved by PW-9, S.O. Udai Vir Singh Malik.
10. Ex. Ka-10 Letter sent by the S.S.P., Etah to the C.M.O. dated 18.04.2006 requesting an autopsy, proved by PW-9, S.O. Udai Vir Singh Malik.
11. Ex. Ka-11 Sketch of the corpse (Photo Lash), dated 18.04.2006, proved by PW-9, S.O. Udai Vir Singh Malik.
12. Ex. Ka-12 Challan Lash (Police Form - 13), dated 18.04.2006, proved by PW-9, S.O. Udai Vir Singh Malik.
13. Ex. Ka-13 Letter to the C.M.O. dated 18.11.2006 drawn up by HCP Nepal Singh, proved by PW-9, S.O. Udai Vir Singh Malik.
14. Ex. Ka-14 Memo regarding collection of plain and blood-stained earth, proved by PW-9, S.O. Udai Vir Singh Malik.
15. Ex. Ka-15 Recovery memo of empties, proved by PW-9, S.O. Udai Vir Singh Malik.
16. Ex. Ka-16 Charge-sheet no.143/06 relating to Crime No.238 of 2006, dated 24.11.2006, drawn up and proved by PW-9, S.O. Udai Vir Singh Malik.
17. Ex. Ka-17 Site plan relating to Crime No.239 of 2006, dated 27.12.2006, drawn up by S.I. Shiv Nandan and proved by PW-10, Constable Gopi Chandra.
18. Ex. Ka-18 Charge-sheet relating to Crime No.239 of 2006, dated 27.12.2006, drawn up by S.I. Shiv Nandan and proved by PW-10, Constable Gopi Chandra.
19. Ex. Ka-19 Case Diary (S.C.D.-I dated 17.01.2007) relating to Crime No.239 of 2006, under Section 25 of the Arms Act, drawn up by S.I. Shiv Nandan Singh, proved by PW-10, Constable Gopi Chandra.
20. Ex. Ka-20 Sanction of prosecution relating to Crime No.239 of 2006, under Section 25 of the Arms Act granted by the District Magistrate, Etah.
13. In the statement under Section 313 Cr.P.C., the appellants have denied the incriminating circumstances appearing in the evidence against them, but have not entered defence. To the last question under Section 313 Cr.P.C., asking the accused if they had anything else to say in their defence that they wished, they answered in the negative. The Trial Judge, upon conclusion of the trial, has proceeded to convict the appellants by the judgment impugned.
14. While Pradeep has preferred Criminal Appeal No.6987 of 2009 from the impugned judgment and order, Akhilesh has preferred Criminal Appeal No.6988 of 2009. Both the Appeals have been connected and heard together with Criminal Appeal No.6987 of 2007 being treated as the leading case.
15. Heard Mr. Shyam Singh Sengar, learned Counsel for the appellants and Mr. Mohd. Shoeb Khan, learned A.G.A. for the State.
16. The prosecution seek to establish the charge against the two appellants about the deceased being done to death by them in furtherance of a common intention on 18.11.2006 at 10:30 a.m. in front of the house of one Ram Prakash son of Pokhpal at the parties' Village Diuna Kalan within the local limits of Police Station Jaithra, District Etah. It would be convenient to evaluate the prosecution case under distinct heads of relevant facts, relating to which evidence has been led.
Time, place and manner of occurrence
17. There is not much issue about the date and time of incident. It is 18.11.2006 at 10:30 a.m. The place of occurrence, that the prosecution urge, is in front of the house of Ram Prakash in Village Diuna Kalan, Police Station Jaithra, District Etah. The earliest account about the manner of occurrence is to be found in the FIR, where it is said by the first informant, Satya Prakash that he had gone to the tubewell, located towards the south of the village, along with the deceased, his son on 18.11.2006 in order to irrigate his fields. There, the informant and his son were abused by the appellants, who prevented them from starting up the engine. This led to a dispute between parties, in consequence whereof, the appellants went back to the village and fetched illegal weapons. Seeing the two appellants approach armed, the father and the son made a dash for the village. They were given a chase. The appellants shot the deceased, employing their illicit firearms at 10:30 in the morning hours, in front of Ram Prakash's door. The deceased died on the spot. The prosecution seek to sustain the charges largely by the evidence of two out of the four witnesses of the fact, to wit, Ajaypal, PW-3 and Smt. Girja Devi, PW-4.
18. Ajaypal, PW-3, in his examination-in-chief, has said that the deceased, Harveer was murdered about a year or a year and a quarter ago. He was murdered at 10:30 in the day, 20-25 paces away from his house. Those, who killed him, are Akhilesh and Pradeep. Pradeep was wielding a rifle, while Akhilesh was armed with a country-made pistol. It is also said that Pradeep and the first informant, Satya Prakash had a common tubewell. The two had a quarrel over it, that led to the murder. In his cross-examination, this witness has testified as follows:
"घटना वाले दिन मैं अपने गांव में था। मैं अपने घर पर मौजूदा था। जब फायर की आवाज सुनी तब अपने घर से चल दिया। कुल 20 कदम का फासला है। इंजन रखने की बात कहाँ हुई मुझे नहीं मालुम। जब तक मैं पहुँचा एक फायर हो चुका था। दूसरा हुआ था। गोली हरवीर के पीठ में लगी थी। गोली मारते ही दोनों आदमी भाग गये थे। दोनों ने हरवीर पर फायर किये। जिस समय मैं पहुँचा वहाँ पूरा ही गाँव मौजूद था। किस किसका नाम बताँऊ।
घटना स्थल पर मैं वहीं बना रहा तथा लाश के साथ साथ ही रहा। जब तक दफना नही दिया तब तक साथ ही रहा कहीं नहीं गया। रिपोर्ट मेरे सामने नहीं लिखी गई थी।"
19. Again, about the manner of occurrence, the other witness, who has testified, is Smt. Girja Devi, PW-4. She has said in her examination-in-chief that the incident happened a year and five months ago. Her husband and son had left for the tubewell at 8 o'clock in the morning. The tubewell is a common facility with the appellant Pradeep. There was an exchange of sharp words, involving use of the tubewell, after which Akhilesh and Pradeep (the appellants) went home. They fetched a rifle and a country-made pistol. Her husband, Satya Prakash and her son, Harveer (the deceased) were standing at the house of Ram Prakash. Akhilesh shot her son. Pradeep had fired the first shot. When Pradeep had fired, the witness was at home. She has then corrected herself to say that she was just outside. It is then said that it was Akhilesh who shot the deceased. The deceased died on the spot. In her cross-examination recorded on the same day, PW-4 has stated thus:
"मेरे लड़के ने 10 बजे कलेऊ (नाश्ता) किया था। मेरे लड़के ने फूलगोभी की सब्जी व रोटी खाई थी। 2 रोटी खाई थी। पानी भी पिया था। रोटी खाने के बाद 1/2 घंटा घर पर ही रहे। उसके बाद प्रकाश के दरवाजे पर प्रकाश ये अजय पाल, राजेन्द्र, सत्य प्रकाश थे और कोई नहीं था। गोली लगने के बाद सभी गाँव के लोग आ गये। 10 बजे मैं अपने घर में खाना बना रही थी फिर कहा कि 10 बजे तक खाना बना चुकी थी। उसके बाद घर के बाहर मैं अपना काम कर रही थी। प्रकाश के दरवाजे पर अखलेश व प्रदीप ने कहा कि आप इंजन मत लगाइये इंजन मेरा लगा था बोरिंग साझे-2 का था इंजन सुबह लगाया था। इस बोरिंग से 3-4 साल से हम खेत भरते चले आ रहें हैं। इस घटना से पहले हमारे और प्रदीप के बीच कोई वाद विवाद बोरिंग के बारे में नही हुआ। प्रदीप व अखलेश मेरी सगी बहन के लड़के हैं। पहले फायर के बाद तुरन्त ही दूसरा फायर कर दिया था। फायर करीब 20-25 कदम की दूरी से किया था। गोली तमंचे की लगी थी जो करीब एक हाथ लम्बा होगा। जो पीतल की लम्बी वाली पतली गोली होती है वहीं चलाई थी। गोली कोख में लगी थी। जहाँ गोली लगी थी वह जगह देखी थी मेरा लड़का पेंट शर्ट पहने था। टी शर्ट चोखना था नेक नेक काली नेक नेक हरी थी। पेंट आसमानी रंग की थी। चप्पल पहने था। बनियान पहने था। इसके अलावा और कोई कपड़ा नहीं था बोरिंग घर से करीब 100 कदम दूर होगा। बोरिंग के पास झगड़ा नही हुआ था। वहाँ मुँह चावर हुई थी। मुँह चावर सुबह 9 बजे के करीब हुई थी मैं उस समय बोरिंग पर मौजूद थी। जब मुँह चावर हुई थी। मैं उन्हें वहीं छोड़ आई थी और घर चली आई थी। उसके बाद वही 10 बजे लौट कर आये। मुँह चावर के समय हमारे व अखलेश और प्रदीप के अलावा और कोई नहीं था। मैं इसकी शिकायत करने अपनी बहन के यहाँ नहीं गई थी। अपने घर चली आई थी।"
20. There is a distinctive feature about this case, where the first informant, Satya Prakash has been abducted some time in the year 2007, a fact that can be reckoned about the time of its occurrence from the testimony of PW-2, Ram Autar. Ram Autar, in his examination-in-chief on 02.04.2008, has stated that Satya Prakash was abducted 6-7 months ago. He does not know, whether he is dead or alive. It has figured in the judgment of the learned Trial Judge that a photostat copy of the FIR is on record, where, relating to the abduction of Satya Prakash, a crime was registered against Pradeep and some other persons under Section 364 IPC. Thus, Satya Prakash was no longer available to testify in the dock. It is for this reason that the FIR lodged by Satya Prakash has been proved by PW-2, Ram Autar, who is the scribe of the written first information.
21. It is argued by the learned Counsel for the appellants that the manner of occurrence described in the FIR is quite different from what the two witnesses of fact, PW-3 and PW-4 have said. While the FIR clearly makes it out to be a case where the deceased along with the first informant, Satya Prakash, was chased by the appellants and the deceased shot in front of Ram Prakash's house, the testimony of PW-3, Ajaypal shows that the deceased was standing outside Ram Prakash's house, when the appellants came over and shot him. The testimony of PW-4, Smt. Girja Devi also suggests that the deceased, after eating his breakfast, had gone out of his home, when he was shot by the appellants in front of Ram Prakash's house. It is urged that in the account of the two witnesses, there is nothing about an immediate quarrel at the tubewell, followed by the appellants fetching firearms and then chasing the victim party to shoot the deceased. It is urged, therefore, by the learned Counsel for the appellants that the manner of occurrence, or to speak more precisely, the manner of assault is so differently described by the two witnesses of fact from the way it is put in the FIR that the prosecution falls under a cloud of doubt.
22. We have perused the evidence on record and considered the totality of circumstances. We are afraid that the learned Counsel for the appellants is not right about his submission on this score. For one, the testimony of the first informant is not available and for that reason, the contents of the FIR cannot be looked into, except the fact that it was dictated by the informant, written by the scribe, signed by the two and lodged at the police station on the date and time recorded. Therefore, the testimony of the two eye-witnesses has to be evaluated, putting aside the account of the occurrence carried in the FIR. We would shortly dwell upon the law that impels us to discount the FIR for the contents of it. We are of opinion that the evidence of both witnesses, about the occurrence, is truthful from their individual vantage. The two witnesses, who, according to their account, were in their homes located a few paces away from the place of occurrence, came out on hearing the first shot ring. The first shot is attributed to Pradeep, using his rifle, which did not hit target. The second shot by Akhilesh, employing his country-made pistol, was the fatal one, that the witnesses saw.
23. It is fallacious for the learned Counsel for the appellants to say that the version of the two witnesses, PW-3 and PW-4 be tested with reference to the account of the occurrence in the FIR. That would be a possibility if the first informant were available and produced in the dock to prove the FIR. He could then be contradicted or corroborated with reference to it. The other witnesses' account would also then be tested on the anvil of the first information version. Here, the contents of the FIR, for reasons that we would presently indicate, cannot be looked into at all. There is absolutely no warrant to test the veracity of the dock evidence of PW-3 and PW-4 with reference to the first information version, that has not been proved because of the informant's disappearance attributed to an abduction. The testimony of PW-3 and PW-4 has to be assessed for its worth on other parameters. What is consistent about the account of the two witnesses relating to the manner of occurrence is that the deceased was shot at by the two appellants. PW-4 says that Pradeep missed target and Akhilesh fired the fatal shot from his country-made pistol. PW-3 does not go into this detail, but says that both the appellants opened fire. It is also the consistent version of the two witnesses of fact that the deceased was shot in front of Ram Prakash's house.
24. The fact that it was the appellants who shot the deceased employing their respective weapons and they shot him in front of Ram Prakash's house at 10:30 in the morning is a consistent account in the evidence of both the eye-witnesses. PW-4 has specified and attributed the fatal shot to Akhilesh. PW-3, in his account, is generally consistent about the assault by the appellants, employing firearms, though he does not specify as to which of the appellants hit target.
25. It also figures in the testimony of both PW-3 and PW-4 that the genesis of the dispute was a quarrel over a shared tubewell facility. PW-4 Smt. Girja Devi, being the mother of the deceased and the informant's wife, has naturally described the details of events about the verbal altercation between the two sides a little earlier over the use of the shared tubewell. Her account is logically more detailed about the genesis of the occurrence, which was a dispute over use of the tubewell, compared to the other witness. But, there is nothing in the evidence of these witnesses, that may cast a shadow of doubt over the projected manner of occurrence, which originated in a dispute between parties regarding use of the common tubewell and ended in this crime.
26. We are, therefore, not in agreement with the submission of the learned Counsel for the appellants that there is any doubt about the manner of occurrence, which the prosecution allege. We, therefore, hold that the time, place and manner of occurrence is established by the prosecution beyond reasonable doubt.
The FIR whether admissible as substantive evidence under Section 32 of the Evidence Act or available to contradict or corroborate eye-witness account, where informant not available at the trial
27. There is a peculiar feature of this case, where the first informant has disappeared some 6-7 months back prior to the case going to trial. The prosecution say that the informant had been abducted and an FIR was lodged against Pradeep for an offence punishable under Section 364 IPC. In the examination-in-chief of PW-2, Ram Autar, it has been testified:
"सत्य प्रकाश का आज 6-7 माह पहले अपहरण हो गया था। मुझे नहीं पता कि वह मर गये हैं या जिन्दा है।"
28. The learned Sessions Judge has remarked that PW-2 proved that Satya Prakash had been abducted. This conclusion appears to have been drawn because the testimony of PW-2 in the examination-in-chief extracted above was never challenged or contradicted. The learned Sessions Judge has taken additional note of the fact that a photostat copy of the FIR relating to the case reporting Satya Prakash's abduction is on record, where the appellant, Pradeep and some other men are the accused. We must take judicial notice of the fact, on the basis of records of this Court, that Pradeep was tried on the charge of abducting Satya Prakash by the Additional Sessions Judge, Court No.4, Etah in S.T. No.48 of 2010 (arising out Case Crime No.543 of 2007), under Section 364 IPC, Police Station Jaithra, District Etah and sentenced to seven years' rigorous imprisonment together with a fine of Rs.5000/-. Pradeep carried an appeal to this Court, being Criminal Appeal No.2978 of 2019, that has come to be disposed of vide judgment and order dated 22.05.2019, upholding the conviction, but reducing the sentence to a term of six years.
29. PW-2 has also said that he does not know whether Satya Prakash is dead or alive. For the purpose of determining whether the FIR is admissible as substantive evidence, the first informant having gone traceless or killed, or is it still available to the appellants to contradict or corroborate the prosecution witnesses, it has to be seen whether the informant was available at the time of trial. There is no doubt that the informant was not available. From what we understand, he has never returned because at the hearing before us, none of the parties said that Satya Prakash is now around.
30. Learned Counsel for the appellants has urged that until time when the trial was held, hardly two years had passed by and apart from the FIR accusing Pradeep of causing Satya Prakash to be abducted, there was no proof that he was dead. He further argues that Satya Prakash's death cannot be presumed until the lapse of seven years without him being heard of by any one of those, who would naturally have known of his whereabouts. In short, Satya Prakash cannot be presumed to have suffered a civil death by time the trial was held.
31. We are of opinion that unless the case be one where the first informant is dead and what he reports through the FIR are facts related to the cause of his death, the FIR is not admissible as substantive evidence under Section 32 of the Indian Evidence Act, 18724. Their Lordships of the Supreme Court in Munnu Raja and another v. The State of Madhya Pradesh5 and other decisions, do not doubt the principle that an FIR can qualify as a dying declaration, if the informant dies in consequence of injuries that he reports through the FIR, or to put it more in the form of principle, if the FIR has some nexus with the informant's death. If the informant, after lodging the FIR, were to die a natural death, the FIR cannot be read as substantive evidence with the aid of Section 32 of the Evidence Act. Here, the informant has not reported anything that bears any nexus with his death. Moreover, it is not established whether the informant is dead or alive. What is true is that he is untraceable and there is an allegation that he has been abducted by the appellant, Pradeep, which now stands vindicated with Pradeep's conviction for that offence. The fact remains, however, that the first informant, who is the author of the FIR, could not be produced at the trial.
32. The moot question is whether the FIR, in the absence of the informant being produced in the dock, would be admissible for the purpose of corroborating or contradicting the eye-witnesses who have testified at the trial. In our opinion, that cannot be done. In fact, the FIR is the earliest account of the occurrence and it is only the author of the FIR, that is to say, the first informant, who can prove its contents. It is he alone who can be cross-examined to contradict or corroborate him. Once he proves the FIR, the account can be looked into to judge the probity of other witnesses and their testimony also. But, in the absence of the informant entering the witness-box to prove the FIR, its contents cannot be held to be proved by examining the scribe, who has written it, or the police personnel, who have registered it. The scribe i.e. PW-2 has testified that the informant dictated the FIR to him by word of mouth, which he reduced to writing. He read over the contents to the first informant, who signed the FIR after understanding the same. The evidence of PW-2, Ram Autar, is competent to establish that the written information is one that was narrated to the scribe by the informant and is faithfully transcribed. It proves that it was written by the scribe, PW-2 and signed by the informant, but does not prove the contents of the FIR.
33. An FIR is nevertheless the basis to set the process of criminal law in motion and it is proved that the FIR here was lodged by the first informant and registered at the police station. On its basis, investigation could and did commence, where material had to be collected and was collected. It is on the basis of that material that the appellants have been charge-sheeted and tried. It is on the basis of evidence led at the trial that the appellants have been found guilty beyond reasonable doubt, a conclusion that they assail before us. Admissibility and evidenciary value of an FIR, in the context of a dead first informant, whose death was not connected to the occurrence reported through the FIR, was considered by the Gujarat High Court in Bhavanbhai Premjibhai Vaghela & 4 others v. State of Gujarat6 in an interlocutory challenge raised to the order of the Trial Court. The order challenged before the High Court had permitted the contents of the FIR to be proved by the Investigating Officer entering the witness-box, because pending trial, the first informant had suffered a natural death. The accused had objected to it and said that the Investigating Officer could not prove the contents of the FIR. The Trial Court rejected the objection and permitted the Investigating Officer to prove the FIR. This order was challenged under Article 227 of the Constitution, where, after survey of authority bearing on the issue, it was held in Bhavanbhai Premjibhai Vaghela (supra):
"11. The basic purpose of filing a First Information Report is to set the criminal law into motion. A First Information Report is the initial step in a criminal case recorded by the police and contains the basic knowledge of the crime committed, place of commission, time of commission, who was the victim, etc. The term ''First Information Report' has been explained in the Code of Criminal Procedure, 1973 by virtue of Section 154, which lays down that:
"Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
12. F.I.Rs. can be registered by a victim, a witness or someone else with the knowledge of the crime. The police can record three different kinds of statements. The first kind of statement is one which can be recorded as an F.I.R., the second kind of statement is one which can be recorded by the police during the investigation, and the third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. Evidence is the matter of testimony manifesting the fact on a particular precision or circumstances. The First Information Report is not by itself a substantial piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32 of the Evidence Act. It is an admitted fact that the original first informant because of the injuries caused by the applicants. The relative importance of a First Information Report is far greater than any other statement recorded by the police during the course of the investigation. It is the foremost information the police gets about the commission of an offence and which can be used to corroborate the story put-forward by the first informant under Section 157 of the Evidence Act or to contradict his version by facts under Section 145 of the Act in case he is summoned as a witness in the case by the Court. It may happen that the informant is the accused himself. In such cases, the First Information Report lodged byjhim cannot be used as an evidence against him because it is embodied in the basic structure of our Constitution that a person cannot be compelled to be a witness against himself.
13. x x x
14. If the informant dies, the First Information Report can be, unquestionably, used as a substantive evidence. A prerequisite condition must be fulfilled before the F.I.R. is taken as a substantive piece of evidence i.e. the death of the informant must have nexus with the F.I.R. filed or somehow having some link with any evidence regarding the F.I.R. This is what has been explained by the Supreme Court in the case of Damodar Prasad v. State of U.P. [(1975) 3 SCC 851 : AIR 1975 SC 757].
15. There are plethora of decisions taking the view that an F.I.R. can be a dying declaration if the informant dies of his injuries after lodging the same. [See Munna Raja v. State of M.P. ((1976) 3 SCC 104 : AIR 1976 SC 2199)].
16. Another important thing is that for an F.I.R. lodged by a deceased person to be treated as substantial, its contents must be proved. It has to be corroborated and proved for there to be any value of the same in the case. The F.I.R. can be used by the defence to impeach the credit of the person who lodged the F.I.R. under Section 154(3) of the evidence Act. In case the death of the informant has no nexus with the complaint lodged i.e. he died a natural death and did not succumb to the injuries inflicted on him in relation to a matter, the contents of the F.I.R. would not be admissible in evidence. In such circumstances, the contents cannot be proved through the Investigating Officer. The Investigating Officer, in the course of his deposition, should not be permitted to depose the exact contents of the F.I.R. so as to make them admissible in evidence. All that is permissible in law is that the Investigating Officer can, in his deposition, identify the sgnature of the first informant and that of his own on the First Information Report and he can depose about the factum of the F.I.R. being registered by him on a particular date on a particular police station.
17. It is absolutely incorrect on the part of the Trial Court to say that in the absence of the first informant, the police officer can prove the contents of the F.I.R. as per Section 67 of the Evidence Act.
18. In the case of Harkirat Singh v. State of Punjab [(1997) 11 SCC 215 : AIR 1997 SC 3231], the Supreme Court observed as under:
"In our considered view, the High Court was not justified in treating the statement allegedly made by Kharaiti Ram during inquest proceedings as substantive evidence in view of the embargo of Section 162, Cr. P.C. Equally unjustified was the High Courts reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence."
19. In the case of Hazarilal v. State (Delhi Administration) [(1980) 2 SCC 390 : AIR 1980 SC 873], the Supreme Court, in para 7, observed as under:
"The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by S. 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of S. 32 (1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri. H.S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in Section 3 of the Evidence Act which is, "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists". We need say no more on the submission of Shri. Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred."
20. I have to my benefit a very lucid and erudite judgment rendered by a learned Single Judge of the Madhya Pradesh High Court in the case of Umrao Singh v. State of M.P. [1961 Criminal L.J. 270]. In this case, the petitioners Umrao Singh and Kunwarlal were convicted of the offence punishable under Section 323 of the Penal Code and sentenced to two months rigorous imprisonment. The case of the prosecution was that on 27th August 1959, the petitioners named above belaboured Barelal who had gone out to graze his cattle, and who was blamed by the accused to have caused damage to their crops. Barelal, however, died a natural death after six months of the occurrence, but before he could be examined as a witness. It was contended that the F.I.R. lodged by Barelal could not be considered by the Courts below and that the evidence of the solitary witness, Pannala was unreliable, as he was not mentioned in the list of witnesses filed by the prosecution. In this set of facts, the Court observed as under:
"4. It is true that the first information report is not by itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of S. 32 of the Evidence Act. It is an admitted fact that Barelal did not die because of the injuries caused by the petitioners. Section 32 was inapplicable.
5. It is true that in the list of witnesses Pannalal's name has been mis-spelt as ''Dhannalal', but this doubt is removed when the first information report is looked into. There, Pannalal's name is mentioned. Shri. Dey contends that it is not permissible to look at the F.I. R. at all. In my opinion this argument cannot be accepted. It is proved by Ram Ratan P.W. 6 that he recorded the report which was lodged by Barelal There is a distinction between factum and truth of a statement. It has been aptly pointed out by Lord Parker C.J. in R. v. Willis (1960) 1 W.L.R. 55 that evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hearsay.
It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. According to Ram Ratan, Barelal mentioned Pannalal's name to him. Applying the above dictum, Ramratan's evidence is inadmissible to prove that Pannalal was in fact present at the time of the occurrence; but Ram Ratan's statement is admissible to prove that Barelal had mentioned the name of Pannalal to the witness."
34. There is a clear endorsement of the principle that the FIR cannot be used to corroborate or contradict any other witness except the informant in Shanker v. State of U.P.7, where it has been held:
"11. It is well settled that unless a first information report can be tendered in evidence under any provision contained in Chapter II of the Evidence Act, such as a dying declaration falling under Section 32(1) as to the cause of the informant's death, or as part of the informant's conduct under Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting (under Sections 157, 145 and 155, Evidence Act) its author, if examined, and not any other witness. As already noticed, in the present case, Smt Ishwari the informant was not examined as a witness. It is admittedly not a statement falling under any provision in Chapter II of the Evidence Act. The High Court was thus in error in using Exhibit Kha 2, as they did. The High Court did not record a positive finding that Persoti and Uttam were falsely implicated. It merely held that the case against these two accused was "not free from reasonable doubt" because the possibility of "their being falsely implicated in the case on account of enmity cannot be excluded"."
35. The first informant, for whatever reason not being available or produced in the witness-box to prove the contents of the FIR, we are of opinion that the FIR cannot be looked into to corroborate or contradict the prosecution witnesses. The contents of the FIR are not proved. It is also held that the FIR is not one that has any nexus with the death of the informant and, therefore, not admissible as substantive evidence under Section 32 of the Evidence Act. However, the fact that the FIR was dictated by word of mouth by the informant to PW-2, who has transcribed it and that it bears the signatures of the first informant and the scribe, are well proved. The registration of the FIR at the police station on the date and the time specified is also proved. This Court must also say that the fact that the FIR is not proved for the informant's absence does not impair the prosecution in establishing its case at the trial on the basis of material collected during investigation and proved by leading cogent evidence.
The presence of eye-witnesses whether doubtful
36. The learned Counsel for the appellants has mounted a scathing attack on the prosecution by saying that the two witnesses, by whose testimony alone, the charges are sought to be established against the appellants, were not at all present at the place and time of occurrence. It is, amongst other things, submitted by Mr. Sengar, to this end, that the house of PW-3, Ajaypal is not shown in the site plan. He is an eye-witness named in the FIR and yet his house has not been shown. The ocular evidence of this witness is doubtful. He has been planted by the prosecution to support the prosecution by parroting the first information version.
37. A more serious objection, that the learned Counsel for the appellants takes to the testimony of both the eye-witnesses, is that their statements were never recorded by the Police under Section 161 of the Code of Criminal Procedure8 during investigation. It is urged that the fact that the statements of these two eye-witnesses were never recorded under Section 161 of the Code shows that they are got up by the prosecution later on to falsely depose against the appellants. It is particularly submitted that in the absence of the statements of PW-3 and PW-4 recorded under Section 161 of the Code, the appellants have lost the advantage of effectively cross-examining these witnesses and a fortiori, their right to meaningfully defend themselves. The absence of an earlier statement of the two eye-witnesses ipso facto prejudices the appellants. Making elaborate submissions on this count, the learned Counsel for the appellants submits that the evidence of PW-3 and PW-4 is entirely unreliable in the absence of a previous statement from these witnesses to test their veracity. It is urged that the evidence of witnesses, whose previous statements could be recorded but were not, ought to be approached with caution. The evidence of PW-3 and PW-4, therefore, cannot be relied upon, unless corroborated in material particulars by some other evidence that lends assurance to it. It is urged that the presence of these witnesses in the sequence of events is highly doubtful and cannot form the basis of conviction, that must rest on surer ground.
38. The learned A.G.A., on the other hand, has submitted that the absence of record of statements under Section 161 of the Code does not necessarily erode the credibility of evidence that is otherwise convincing. He submits that the course of investigation in this case has gone awry, because the most important witness, Satya Prakash, who is the first informant, was abducted, soon after the appellant, Pradeep was enlarged on bail. Pradeep was an accused in the case relating to his abduction and later on convicted in that case. Satya Prakash was never found thereafter. The Investigating Officer has explained in his testimony the reason and circumstances under which the statement of PW-4 under Section 161 of the Code was not recorded. The learned A.G.A. points out that the Investigating Officer has clearly said in his examination-in-chief that he recorded the statement of Ajaypal son of Ramdeen, that is to say, PW-3. He also points out that statement of PW-3 noted under Section 161 of the Code is available on record.
39. We have considered the submissions advanced by the learned Counsel appearing for both sides on this score very carefully. We have looked into the record and find that so far as the statement of Ajaypal, PW-3 is concerned, it finds place in CD-III of the Case Diary dated 21.11.2006. The witness, in his cross-examination, has said in categorical words that the Investigating Officer had never taken down his statement. He has further said that he was speaking about the occurrence for the first time in Court. The Investigating Officer, PW-9, on the other hand, in his examination-in-chief, that was recorded much after the evidence of PW-3, has clearly said that on 21.11.2006, he recorded the statement of Ajaypal son of Ramdeen, that is to say, PW-3. PW-9 took stand in the dock on 18.05.2009 to testify for the prosecution and was available to the appellants for cross-examination. He was cross-examined too. But, no question was put to him about the stand of PW-3 that his statement was never recorded by PW-9. PW-9, the Investigating Officer, is a public servant and has testified to the fact that he recorded the statement of PW-3 on 21.11.2006, that has gone unchallenged on behalf of the appellants. In the circumstances, it cannot be inferred that the statement of PW-3 was not recorded by the Police under Section 161 of the Code. Thus, so far as PW-3 is concerned, his evidence in the dock is not one that is without the advantage of a previous statement available to the appellants to contradict him in accordance with the proviso to Section 162(1) of the Code in the manner provided under Section 145 of the Evidence Act. The statement recorded under Section 161 shows that it was taken down by the Investigating Officer in the course of investigation without unreasonable delay. The contention of the learned Counsel for the appellants and the remarks of the learned Sessions Judge that the statement of PW-3 was not recorded by the Investigating Officer, are not borne out by the record. There is no case on behalf of the appellants that the statement of this witness was recorded, but not supplied. It is that it was never recorded. That for a fact is incorrect, as CD-III dated 21.11.2006 would show. For the said reason, the testimony of PW-3 is not required to be approached with the kind of caution necessary in the case of a witness, who testifies before the Court without a previous statement of his recorded during investigation.
40. So far as the presence of PW-3, Ajaypal is concerned, it is urged by the learned Counsel for the appellants that this witness's house is not shown in the site plan, which he says, was located 20 paces away from the scene of crime. The omission does not cast any doubt about the presence of the witness. The location of house of a witness in the site plan, relating to a crime, drawn up by the Investigating Officer is not the centre of his attraction, so much so that its absence in the thumbnail sketch, that the site plan is, may lead to an adverse inference about the witness not living close by. What is important is that, in his cross-examination, the witness has said that his house is located at a distance of 20 paces, but no question appears to have been put to him about this assertion. In fact, there is nothing in the testimony of this witness, that may derogate from his presence at the scene of crime. He has described the occurrence naturally as he has seen it with reference to distance, time and place of the crime. In his cross-examination, he has given graphic details about the location, distance and direction of his house and that of the deceased. He has said that between Satya Prakash's house and the witness's, there is the house of one Shiv Ram. He has detailed the orientation of the road, where the crime happened and the relative direction of his house to the said road.
41. Likewise, about his presence in the village, PW-3 has said that he has joined a security agency as a Guard, nine months ante-dating the time that his testimony was recorded, though the offence had taken place about a year and a half earlier. Therefore also, there is no reason to doubt his presence in the village. He has also dispelled the suggestion on behalf of the accused that he had been working with the Security Agency in Delhi for the past 2-3 years. In the above circumstances, the presence of this witness at the scene of crime cannot be doubted.
42. The learned Sessions Judge has, more or less for the same reason, believed him to be an eye-witness, and not doubted his presence. We are in agreement with the learned Sessions Judge, for the added reasons that we have indicated.
43. So far as PW-4, Girja Devi is concerned, the Investigating Officer has admittedly not recorded her statement during investigation. In his cross-examination, about the part relating to his failure to record the statement of Smt. Girja Devi, PW-4, PW-9 has said:
"घटना के दूसरे दिन चार दिन बाद गवाहों के ब्यान देउना कलां में लिये। जिन जिन गवाहों ने घटना देखी उन उन गवाहों के ब्यान लिये थे। गिरजादेवी के ब्यान मैने अंकित नहीं किये। गिरजादेवी का पति इस केस का वादी था इसलिये उसके ब्यान नहीं लिये थे। और न ही गिरजादेवी ने अपनी इच्छा से ब्यान देने की कोशिश की। और न ही उसने घटना के बारे में मुझे बताया चूंकि औरते कोर्ट कचहरी से बचती है। उसके पति का ब्यान लिया था उसके ब्यान कि आवश्यकता नही समझी। वादी के ब्यान में यह कही भी अंकित नही है कि मेरी पत्नी की घटना स्थल पर मेरे साथ थी। चूंकि वादी तथा अन्य गवाहान ने यह बात नही बतायी थी कि घटना स्थल पर गिरजादेवी मौजूद थी इसलिए गिरजादेवी का ब्यान व नाम घटना स्थल पर मौजूदगी पर नही लिखाया।"
44. The Investigating Officer says that he did not take down the statement of PW-4, Smt. Girja Devi for the reason that her husband was the first informant and his statement had been recorded. The Investigating Officer has further said that neither did Girja Devi volunteer to get her statement recorded. She did not tell the Investigating Officer anything about the occurrence, because womenfolk avoid going to Court. The Investigating Officer also clarified that since her husband's statement had been recorded, he did not consider her statement necessary. It is on the aforesaid stand that the Investigating Officer has explained why he did not record Girja Devi's statement.
45. It must be remarked that Girja Devi is not a witness mentioned in the FIR or one cited in the charge-sheet. She has, according to the Investigating Officer, never spoken about the case. Thus, according to the Investigating Officer, this witness is not one whom he has questioned, but not recorded; according to him, she is a witness, who said nothing to him during investigation. Girja Devi, PW-4 too has said that the Police did not question her and she did not tell them anything, but has said in her cross-examination, to which more wholesome reference would shortly be made, that she had told the Darogaji the same day that the deceased was shot in her presence. Taking a holistic view of the evidence with reference to the scene of occurrence, one cannot miss the part that figures in the evidence of PW-3, where he says that when he reached the place of occurrence, the whole village was present there. He says that they were in such multitude that he would find it hard to name them. In a scenario such as this, given the fact that the place of occurrence was a few paces away from the deceased's home, where Smt. Girja Devi, PW-4 would be around, her presence at the scene of crime is logical and natural.
46. It is no matter of suspicion why this witness, though not named in the FIR, or cited in the charge-sheet, was put up by the prosecution to prove their case. They were least expecting that the first informant, who was an eye-witness and had been recorded during investigation, would become the victim of abduction without trace. It is this unusual event that very logically would make the prosecution look to some other person, who had witnessed the occurrence. In contemporary times experience dictates, of which Courts have taken the judicial notice that strangers seldom risk testifying to a heinous crime. It is a sombre reality that the office of a witness to a heinous crime, when faithfully discharged, is one of the most perilous of enterprises. It is no matter of surprise that it is the blood relatives of a victim, who take upon themselves the risk of discharging the society's trust to bring the offender to justice. We think that it is precisely this situation that has impelled the prosecution to put up a witness, whom they have not questioned during investigation, that is to say, Smt. Girja Devi, PW-4.
47. This would require this Court to look into the law about the probative value of the evidence of a witness, whose statement during investigation was never recorded and who was not cited in the charge-sheet. One of the early decisions after the provisions of Section 161(3) were introduced in the present form to the Code of Criminal Procedure, 1898 is In re Bheemavarapu Subba Reddi and another9, where the issue was about the legality of the practice amongst Investigating Officers of taking down notes of whatever was ascertained from witnesses and then setting them out formally in the case diary. This practice was assailed on behalf of the accused not only as one that ran counter to the mandate of the then newly amended provision of sub-Section (3) of Section 161 of the Code of Criminal Procedure, 1898, but a practice that prejudiced the accused in the matter of his defence. It was argued that the statement had to be recorded separately for each person, if the Investigating Officer chose to reduce it to writing. The statements, if recorded as short notes or rough notes, would be different from the ones elaborated in the case diary and that would handicap the accused from contradicting a witness with reference to his earlier statement. In a context very detailed and may be different, the remarks of Horwill, J. in his separate but concurring opinion have enlightening bearing on the point:
".........It is often of great assistance to the Court to know what the earlier statements of witnesses were; and an accused who cannot point to contrary statements made by witnesses when first examined, because those statements were not recorded, labours under a disadvantage that should be avoided unless the exigencies of the investigation make the recording of statements undesirable."
(Emphasis by Court)
48. In a much later decision, a Division Bench of the Madhya Pradesh High Court in Gabbu vs. State of M.P.10, taking note of the decision of the Madras High Court in In re Bheemavarapu Subba Reddi (supra) did not accord any value to the evidence of a witness for the prosecution, whose statement was not recorded during investigation. In Gabbu (supra), it was held:
"11. Another witness Dinesh Kumar (PW 6) also could not be relied on because admittedly, his statement was not recorded under section 161, Criminal Procedure Code during the course of investigation. Therefore, appellants were not aware that on what point and purpose this witness was cited in the charge sheet and in Court they were taken into surprise when he was examined as eye witness. Mr. J.S. Ahluwalia (PW 13), Investigating Officer was also not in a position to state before the Court whether he was cited as eye witness in the charge-sheet or not. He has specifically stated that along with charge-sheet, statement of this witness recorded under section 161, Criminal Procedure Code was not filed. Though it is not mandatory to record statement of witness during the course of investigation but when the witness was available and cited in the charge-sheet, the prosecution has to explain as to why his statement was not recorded and on what point he was going to be examined especially when he was one of the important eye witnesses of the incident.
.........."
49. It must be remarked about the decision in Gabbu, that their Lordships did not accord weight to the evidence of the witness whose statement was not recorded by the Police, for the reason that he was a witness cited in the charge-sheet and the Investigating Officer, apparently, did not explain why his statement was not recorded. Here, the position is much different. There is evidence to indicate that almost the whole village had witnessed the incident and the Investigating Officer had taken down the statements of those who were logically the best and dependable witnesses. Of these, the first informant, most unexpectedly, disappeared a few months after the occurrence, leaving the prosecution without its star witness who had seen the occurrence from its origin. It was logical in these circumstances for the prosecution to look for those witnesses who had seen the occurrence, but for exigencies more than obvious were not considered necessary to be examined by the Investigating Officer. Smt. Girja Devi, PW-4 falls precisely into that category.
50. The evidence of a witness, whose previous statement has not been taken down, is not inadmissible. It has merely to be approached with some caution and relied upon after seeking some corroboration. There could be situations where an eye-witness has a dependable account of the occurrence to tell, but the Police, for some reason, discount him/ her at the time when they investigate. Here, PW-4 was kept out of the Investigating Officer's diary for reasons he has convincingly explained. The remarks of Horwill, J. in Subba Reddi, where His Lordship has emphasized the disadvantage to the accused if the statement of a witness during investigating is not available and the consequent importance of recording them, make clear allowance for exigencies of investigation that render recording of such statements "undesirable". To the exception, on account of recording of the statement being ''undesirable', one can safely add another based on ''sheer unnecessity' at the time when the Investigating Officer went about his task. Of course, a witness though unnecessary at the time of investigation to record, can be considered for his testimony in Court, if later exigencies make it imperative. But, the evidence of such a witness has to be carefully scrutinized, given the disadvantage that the accused suffers from in the absence of a previous statement to contradict and shake his veracity.
51. In Babar Ali vs. State of Assam11, a Division Bench of the Gauhati High Court was seized of a case, where the sole eye-witness and the first informant, for some reason had not been examined by the Investigating Officer under Section 161 of the Code. In considering the weight of his evidence to reach a just decision, it was observed:
"12. Thus, we find that P.W.-5 was the only eye witness, who was present at the place of occurrence and who has come forward to depose. He was not a stranger to the prosecution or to the defence as it was he who lodged the FIR. He was also present at the time of inquest. The Investigating Police Officer for the reasons best known to him did not record his statement under Section 161 Code of Criminal Procedure in such a serious case of homicide. It may be a case of genuine mistake omission or it may be intentional but the question is if the Investigating Police Officer with some ulterior motive omits to record the statement of the solitary eye witness, does it mean that the entire prosecution should fail on that count? If such unbridled power is given to the investigating police officer some unsecuruplous Investigating Police Officer may play havoc. Offence of murder are categorized as serious offences and as per the police Mannual, investigation in such a case is required to be supervised by senior Police Officer. In the present case the eye witness statement was not recorded and even the supervising Police Officer, if any, could not detect the above defect. ..........."
14. In view of the above, we hold that for mere non-recording of the statement under Section 161 Code of Criminal Procedure by the Investigating Police officer, the evidence adduced by P.W. 5 before the Court cannot be thrown out. However, considering the above omission, we have analyzed the evidence of P.W.-5 and find that his testimony is true, reliable and trustworthy. His statement inspire confidence and as a matter of fact, there was earlier version in the form of FIR. We have no hesitation to hold that the testimony of P.W.-5 is wholly reliable."
52. The testimony of a witness may have to be approached with caution, whose previous statement recorded under Section 161 or 164 of the Code is not available to test his veracity, but it cannot be discarded as inadmissible or of no probative value. It has to be tested for its worth in the foreshadow of other evidence and circumstances.
53. Although Smt. Girja Devi, PW-4, is not cited in the charge-sheet as an eye-witness, but has said that she was present. PW-4 would either have been working inside or outside her house, when the crime happened. It is but logical that she would have witnessed it, given the location of the deceased's house and the place of crime being just 20-25 paces apart. PW-4 is a very natural witness of the occurrence. To doubt her presence at the scene of crime would be an inference based on strained logic. The testimony of PW-4 is graphic in its detail about the occurrence. It recounts the genesis of the dispute between parties, much earlier in the day, to which she was privy. This witness, during her cross-examination, about her statement to the Police, has said thus:
"गोली लगने के करीब 1 घंटे बाद पुलिस आई थी। पुलिस के आने के बाद रिपोर्ट लिखाने सब लोग गये। मुझसे पुलिस ने कोई पूँछ ताँछ नहीं की थी। मैंने भी पुलिस वालों को कुछ नहीं बताया था। मैंने यह बात कि मेरे सामने गोली मारी थी दरोगा जी को उसी दिन बताई थी दरोगा जी को बताने के बाद आज अदालत में बता रही हूँ। मैंने वकील साहब से कोई पूँछताँछ मुकदमें के बारे में नहीं की। दरोगा जी दुवारी आये थे पर मैं नहीं मिली थी।"
She was also questioned by the Court about the fact of her statement being taken down by the Police. The relevant part of her answer to the Court's question is as follows:
"To Court. मैंने अपने पति से नहीं पूँछा था कि मेरा नाम गवाही में लिखाया है या नहीं क्योंकि मुझे मालुम था कि मेरा नाम गवाही में है।"
54. The learned Counsel for the appellants has said that the presence of this witness is demonstrably doubtful at the scene of crime going by her cross-examination as above extracted. It is pointed out that in one breath, she has said that she did not say anything to the Police and in the next, says that she told the Darogaji the same day of having witnessed her son being shot, a fact that she has testified to in Court.
55. The testimony of a witness about his/ her presence has, like any other evidence, to be read as a whole and co-related with other evidence and circumstances. Also, the intellectual accomplishment of a witness or mental capabilities have to be borne in mind. PW-4 is a house-wife, staying home all time with no formal training or education. The first part of her statement, where she says that she has said nothing to the Police, is obviously a response in answer to the question if the Police had questioned her and the next part, where she says that she had told the Darogaji the same day of witnessing her son being shot, is something said in answer to a different question about the fact of telling the Police if she had seen the crime. It is but obvious that an uneducated woman, living in a rural milieu, would have her own notions about the Police questioning her and about telling them some facts of her own. It is all the more logical because the Investigating Officer, PW-9, in his cross-examination, has clearly stated that he never questioned Girja Devi nor did she volunteer a statement before him. He has said that the informant never told him that his wife was with him at the place of occurrence.
56. Upon a holistic view of the said testimony of Girja Devi and the Investigating Officer, it is pellucid that she was located in her home, too close to the spot, to be doubted about her presence on the scene of crime. The minor vacillations in her testimony about the Police not asking her anything and the witness not making a statement to the Police in one breath, and in the second, saying that she told the Police the same day about witnessing the shooting, are to be understood in the context of the locale of the crime and the rural way of life, where the Police had the first informant for a witness and a number of menfolk volunteering to testify. No matter, the Police would have paid little attention to whatever PW-4 said to them. PW-4 would be right in saying that she must have told the Investigating Officer or some other Sub-Inspector about the occurrence, but never being formally questioned, she has said elsewhere that the Police did not question her and she did not tell them anything.
57. In answer to the Court's question, the witness has said that her name was there amongst witnesses and has further said that she did not know, till the date she was testifying in the dock that her name was not there. She has further said that because she believed that her name was there as a witness, she did not ask her statement to be recorded. It is apparent from this part of the evidence of PW-4 that she believed all along that her name had been cited as a witness and she would testify in Court. The learned Sessions Judge has remarked about the testimony of this witness that she is an illiterate woman, who has thumb marked her application made to the Court to volunteer as a witness, which shows that she is a rustic woman. She would not understand the niceties of the law, but her stand clearly shows that she has, all along, considered herself to be a witness and has, therefore, applied to the Court to testify.
58. In the circumstances, the learned Sessions Judge has believed the presence of this witness on the scene of crime and we see no reason to differ from that conclusion of his. We, therefore, find that both PW-3 and PW-4 are not got up witnesses, though the statement of PW-4 was not taken down by the Police under Section 161 of the Code. They are, indeed, natural witnesses. Of course, since a prior statement of PW-4 is not available, her testimony has to be carefully considered about its probative value, because the accused have been disadvantaged in the matter of contradicting her with reference to her previously recorded statement.
Material contradiction between the eye-witnesses
59. It is argued by Mr. Sengar, learned Counsel for the appellants that it is a case where there is material contradiction in the evidence of the two witnesses. It is submitted by the learned Counsel that in case of material contradiction between the evidence of the two witnesses of fact here, that is to say, PW-3 and PW-4, conviction is unsustainable. In support of his submission, the learned Counsel has taken this Court through the testimony of PW-3 and PW-4, pointing out contradictions that he castigates as material. We have carefully perused the testimony of both the witnesses. Our attention has been drawn to the part of cross-examination of PW-3 Ajaypal, where the witness has been questioned about the occurrence. He has said there that when he reached the spot, one round had been fired. The second was in his presence. The bullet struck Harveer on his back. This part of his testimony has been extracted in this judgment. It is pointed out that, by contrast, PW-4, Smt. Girja Devi, in describing the fatal event, has said that the second round was fired soon after the first. The deceased was shot from a distance of 20-25 paces. It was the shot from the pistol, that struck the deceased just below the chest, described in Hindi vernacular as 'kokh'. Broadly speaking, according to this witness, the bullet struck the deceased from the front and it is the submission of the learned Counsel for the appellants that according to PW-3, the deceased was shot in his back.
60. Seen in isolation, this does appear to be a contradiction in the account of the fatal occurrence by the two witnesses. Mr. Sengar says that this is a material contradiction, which cannot be overlooked. He buttresses his submission with the holding of their Lordships of the Supreme Court in Harkirat Singh v. State of Punjab12, where it was observed:
"3. To sustain the charges levelled against the appellant the prosecution relied principally upon the ocular version of Gurmit Singh (PW 3), Kharaiti Lal (PW 4) and Ajit Singh (PW 5). Walaiti Ram who had seen the incident and lodged the FIR could not be examined as he died in the meantime. Of the three eyewitnesses Gurmit Singh however turned hostile. In their testimonies Kharaiti Lal (PW 4) and Ajit Singh (PW 5) supported the entire prosecution case as stated above but their cross-examination revealed that in their statements recorded under Section 161 CrPC both of them had stated that the appellant was armed with dang (stick) -- and not pistol -- and that it was accused Raghbir Singh (since acquitted) who was armed with a pistol and had fired as a result of which Kharaiti Ram died and Gurmit Singh sustained injuries. Undoubtedly, these material contradictions made the evidence of these two witnesses suspect but still then, we find, the trial court and the High Court relied upon their testimonies ignoring the above material contradictions with a finding that the investigation was perfunctory and that with the ulterior object of shielding the real accused the statements of the above two eyewitnesses were recorded under Section 161 CrPC. In drawing the above conclusion, the High Court made the following comments:
"PW 4 Kharaiti Lal has made his statement in the inquest proceedings and a perusal of the same shows that he had mentioned in that statement that it was Harkirat Singh who had fired the shots from the pistol. Even in the first information report, it is clearly mentioned that Harkirat Singh had fired the shots. The statement in the inquest report and the statement under Section 161 CrPC were recorded on the same day, i.e., 29-11-1986. The contradiction in these two documents shows that the investigation was not fairly conducted in this case. It appears that an effort was made to give benefit to Harkirat Singh. We do not attach any importance to the fact that the statement under Section 161 CrPC shows that it was Raghbir Singh who had fired the shots."
4. In our considered view, the High Court was not justified in treating the statement allegedly made by Kharaiti Lal during inquest proceedings as substantive evidence in view of the embargo of Section 162 CrPC. Equally unjustified was the High Court's reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence. Having regard to the facts that except the evidence of the two eyewitnesses there is no other legal evidence to connect the appellant with the offences for which he has been found guilty and that in view of the material contradictions the evidence of the two eyewitnesses cannot be safely relied upon the appellant is entitled to the benefit of doubt. ........."
61. Mr. Sengar submits that the holding in Harkirat Singh (supra) has a decisive bearing not only on principle, but as the principle works on facts. He emphasizes that the facts in Harkirat Singh have a striking similarity to those here in that, that the first informant there was also dead before the case went to trial and of the three eye-witnesses, one had turned hostile, whereas the other two had supported the prosecution. The similarity does not end there. Of the two witnesses, who supported the prosecution, their Lordships held their testimony in the dock to be contradictory to the statements recorded under Section 161 of the Code.
62. This Court is of opinion that the principle in Harkirat Singh would not be attracted to the facts here at all. The reason is that in Harkirat Singh, the discrepancy between the statements to the Police and the dock evidence was that, in Court, the witnesses said that the appellant was armed with a pistol and had shot the deceased, whereas in their statements to the Police, they said that the appellant was armed with a stick. Another accused, Raghbir Singh, who had since been acquitted, was spoken of in their statements by the witnesses to the Police as the one armed with a pistol, who had shot the deceased and caused injuries to another victim. Thus, it was on this kind of a contradiction about the weapons wielded and the author of the fatal injury that their Lordships opined the investigation to be one that was perfunctory and done with the ulterior object of shielding the real accused. In those circumstances, taking note of the prosecution's handicap caused by the absence of the first informant, who too was an eye-witness, benefit of doubt was extended to the accused.
63. Here, by contrast, what this Court finds is that there is not the slightest contradiction in the testimony of both witnesses of fact, that the deceased was shot at by both the appellants. PW-4 has specified the the fact that the deceased was hit by the bullet that spewed from the country-made pistol wielded by Akhilesh. This is an added observation coming from PW-4, that PW-3 does not contradict. PW-3 and PW-4 are also unanimous about the place of occurrence, that is to say, almost at the door or in front of Ram Prakash's house. The contradiction, that is built upon by the learned Counsel for the appellants, is the difference in the version of the two witnesses, about the site where the bullet hit the deceased. PW-3 says that the deceased was hit on his back, whereas PW-4 says he was struck in the chest/ stomach (described as 'kokh').
64. In a witness's account of the occurrence about something as violent as murder, where events happen in the split of a second, observational discrepancies may arise. Different persons may have varying perceptions of an event like the one about the part of the body, where the bullet struck. It is very logical in the nature of things for two witnesses to perceive the precise situs of the shot, particularly, in case of a crime as dangerous and gory as murder, with observational differences.
65. Contrary to what is urged on behalf of the appellants, rather than discrediting the two witnesses for the discrepancy where the bullet hit the deceased, we are inclined to think that both witnesses are utterly truthful and have given an unvarnished account of the occurrence, as they have perceived it. We would think that the witnesses are so truthful that they have stated without improvement what they have perceived. It was not difficult for them to say, after the lapse of a year and a half between the occurrence and the trial, that the deceased was hit in the chest just below the rib cage, going by the medico-legal evidence, that was available in plenty by that time. If the two witnesses were mouthpieces for the prosecution or the Police, they would have spoken with perfection about the site of the injury. The fact that they have spoken about the occurrence in the manner that they have perceived it, shows them to be dependable witnesses. The facts that both PW-3 and PW-4 are ad idem about the place of occurrence and that both the appellants opened fire, targeting the deceased, with PW-4 specifying that Akhilesh fired the fatal shot from his pistol, wholesomely make the account of the two witnesses free from the blemish of contradiction; particularly, embellishment or tutoring.
66. In appreciating discrepancies in the evidence of witnesses, that do not render the evidence utterly suspect or false, it was observed by the Supreme Court, after reference to earlier authority, in Jayaseelan v. State of Tamil Nadu13:
"13. Stress was laid by the appellant-accused on the non-acceptance of evidence tendered by PW 1 to a large extent to contend about the desirability to throw out the entire prosecution case.
"10. ... In essence the prayer is to apply the principle of ''falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim ''falsus in uno falsus in omnibus' has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim ''falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366] ) In a given case, it is always open to a court to differentiate the accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460] .) The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir v. State of Bihar [AIR 1965 SC 277] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [AIR 1954 SC 15] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601] .) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. The courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri) 1220] and in Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697] . It was further illuminated in Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] , Ram Udgar Singh v. State of Bihar [(2004) 10 SCC 443 : 2004 SCC (Cri) Supp 550] , Gorle S. Naidu v. State of A.P. [(2003) 12 SCC 449 : 2004 SCC (Cri) Supp 462] and in Gubbala Venugopalaswamy v. State of A.P. [(2004) 10 SCC 120 : 2004 SCC (Cri) 1764] "
See Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601 : (2007) 1 SCC (Cri) 34] at SCC pp. 605-06, para 10."
67. The learned Sessions Judge has explained the discrepancy in the incongruent observation of PW-3, about the deceased being shot in the back, on the basis of the FIR version which shows that the deceased and his father were chased by the appellants and the deceased shot in the chase. The learned Sessions Judge has thought that to an observer, who was watching the victim flee and shot at, it would appear that the bullet hit him on the back. Here, the learned Sessions Judge has conjectured a bit to say that while fleeing, the deceased must be looking back, which caused him to receive the bullet injury on the front of his body. We do not think that so much of conjecture is required to recapitulate the scene of crime. The essential facts about the manner, place and perpetration of the crime are spoken about unanimously by both the witnesses of fact. The discrepancy about the situs of the entry wound is more on account of fallacies of perception of one of the witnesses, depending upon many factors that aberrate human observations, in a situation like the present one. We have spoken about it earlier and need not dilate further. Moreover, the FIR, for reasons already shown, is not to be looked into for its contents about the account of the occurrence. In our considered opinion, there is no material discrepancy between the testimony of the two witnesses of fact.
Variation between medical and ocular evidence
68. It is argued by the learned Counsel for the appellants that the prosecution case is under a grave cloud of doubt, because there is a serious and material discrepancy between the ocular and medical evidence. Dilating on this submission, Mr. Sengar says that whereas according to Ajaypal, PW-3, the deceased was shot in the back by Akhilesh, a perusal of the autopsy report, Ex. Ka-2, shows that the deceased received a single firearm wound of entry in the right side of the lower part of his chest. This, at least, discredits Ajaypal as a witness of fact, if not the other witness Smt. Girja Devi, PW-4, whose testimony is consistent with the medico-legal evidence.
69. We have considered the aforesaid submission of the learned Counsel for the appellants very thoughtfully. It need not detain us for long, because we have already dealt with the same submission from another vantage while considering the criticism of the prosecution case by the appellants on the premise of a material variation between the two witnesses of fact. We have opined there that there are many factors causing errors of perception in the nature of an event as gory as murder. The error may be attributed to the directional orientation of the deceased vis-à-vis the witness, the suddenness of the event, the very nature of a firearm injury, which may escape human attention about its site and many other similar factors. This discrepancy between the medico-legal evidence and the testimony of one of the witnesses of fact is not at all so material so as to place the prosecution under a shadow of 'reasonable doubt'.
Evaluation of the testimony of PW-3 and PW-4
70. We have held elsewhere in this judgment that evidence of PW-3 does not suffer from any kind of infirmity on ground that his previous statement recorded during investigation is not available. That criticism of his testimony by the learned Counsel for the appellants and the remarks of the learned Sessions Judge, that seem to support it, are both utterly contrary to the record. The statement of this witness was recorded by the Police and finds place in CD-III dated 21.11.2006. This witness in his cross-examination has not been confronted with his previous statement when he took a stand that his statement was never taken down by the Police. The Investigating Officer has clearly said in his testimony that he has recorded the statement of this witness, about which he has not been challenged. The witness figures in the charge-sheet and his presence at the scene of crime is established. His testimony is consistent about the date, time, place and the manner of occurrence. He is a dependable witness, who has come out with an account of the crime that is corroborated by the testimony of PW-4 and the other circumstances noticed by us.
71. The Investigating Officer, PW-9 in his cross-examination has reasonably explained his inaction in not taking down the statement, particularly, of PW-4, Smt. Girja Devi. We have noticed elsewhere that there is no reason to doubt the presence of this witness at the scene of crime. She is a natural witness given the location of her house, a few paces away from the place of occurrence. The other circumstances, that we have noticed earlier in this judgment, clearly show that she witnessed the crime. There are very plausible reasons why the Investigating Officer did not record her statement. It was largely on account of the fact that the first informant was available and the most authentic eye-witness to testify. She has volunteered to testify for the prosecution after the first informant was abducted, clearly establishing her presence. Nevertheless, since her previous statement is not available, we have carefully scrutinized her testimony seeking corroboration with other evidence, direct and circumstantial. Her account of the occurrence is corroborated about essential facts and circumstances attending the crime by the evidence of PW-3, besides the medico-legal evidence.
72. The next fact of relevance in judging the probative value of the evidence of the two witnesses is their relationship to the deceased; and also to the appellants. PW-3 has said in his cross-examination that Satya Prakash was his nephew and so is Pradeep. PW-4 Smt. Girja Devi has said that both the appellants, Pradeep and Akhilesh are the sons of her sister. Thus, both witnesses are close relatives, both of the deceased and the two appellants. This is a fact, which in our opinion, lends inherent weight to the testimony of these witnesses, particularly, PW-4. There is no reason, going by the common and established experience of human nature and the world, for an aunt (maasi) to falsely implicate her sister's sons in a crime, carrying the highest penalties of the law, including death. We are alive to the fact that a false implication by an aunt is not an absolute impossibility, but to draw that kind of inference, the accused would have to explain the motive for the different, discordant or peculiar behaviour. In their statements, under Section 313 of the Code, both the appellants, who are nephews of PW-4 Smt. Girja Devi, have not assigned any particular reason why she would choose to falsely implicate them. In the absence of an explanation about false implication by a blood-relative of this proximity, it is difficult to look at Girja Devi's evidence with suspicion. Likewise is the case with the testimony of PW-3 Ajaypal, about whom no reason to falsely implicate has been given by the accused in their statement under Section 313 of the Code, except omnibus words that they have been falsely and wrongly implicated.
73. Quite apart, there is another aspect of the matter also. It is an acknowledged principle in assessing the testimony of close relatives of the deceased or the victim of a crime, which has come to be settled over time that such relatives, far from being regarded as what are known as interested witnesses, are to be trusted as inherently reliable, unless there be some cause to show animosity or motivation. Their probity comes from the fact that the relative of a victim of the crime would be the last person to get an accused convicted in error by their false evidence, thereby paving way for the real offender to go free. In this connection, reference may be made to the guidance of the Supreme Court in Rizan v. State of Chhattisgarh14, where it has been held:
"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close 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 a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222] in which Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case [AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- ''Rameshwar v. State of Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] ' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
74. In Namdeo v. State of Maharashtra15 while judging the solitary evidence of the deceased's son, who was castigated by the defence as an interested witness, it was held by their Lordships of the Supreme Court thus:
"29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive.
37. Recently, in Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213] the conviction of the accused was challenged in this Court, inter alia, on the ground that the prosecution version was based on testimony of relatives and hence it did not inspire confidence. Negativing the contention this Court said: (SCC p. 198, para 7) "7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused."
38. From the above case law, it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
75. We have carefully scrutinized the evidence of both the witnesses and our analysis of it finds it to be a very dependable account of the occurrence. There is no reason shown by the appellants, even remotely, as already remarked, for their aunt (mother's sister) to falsely implicate. The same holds true for PW-3 as well, who is also a relative of the deceased as well as the appellants. No element of taint, originating from any reason to falsely implicate, has remotely been suggested or shown to us. There is no reason why the evidence of the two witnesses of fact, whose presence on the spot is not in doubt and who are very natural witnesses, should not be accepted. While the advantage of contradicting one of these witnesses, PW-4, with reference to her previous statement might not be there, a searching cross-examination, both of PW-3 and PW-4, otherwise done, has not shaken them in the least measure about the basic fabric of the prosecution case. Both of them were consistent and unwaivering about the date, time, place and the weapons of assault. PW-4 has consistently spoken about the author of the fatal injury. The origin of the dispute, emanating from the use of common facility of a tubewell, has also figured consistently. The slight differences that appear are essentially the result of the point in time and the vantage that the witnesses had to view the occurrence.
76. There is yet another corroborating fact of consequence that lends credence to PW-3 and PW-4, the witnesses of fact. The conduct of an accused, absconding from the place of occurrence, is very relevant as res gestae. Both the accused were apprehended by the Police on way to Etah. It is possible that being named in an FIR and talked about in the community, a person may abscond out of fear. But, where the evidence against an accused is an eye-witness account, the conduct in fleeing the locale of the occurrence lends support to the prosecution. It is certainly relevant evidence that would support the prosecution hypothesis. In this connection, reference may be made to the holding of the Supreme Court in Mritunjoy Biswas v. Pranab alias Kuti Biswas and another16, where it has been observed:
30. Be it noted, the other two witnesses have deposed about the accused running away from the place of occurrence immediately. That apart, the accused had absconded from the village. We are absolutely conscious that mere abscondence cannot from the fulcrum of a guilty mind but it is a relevant piece of evidence to be considered along with other evidence and its value would always depend the circumstances of each case as has been laid down in Matru v. State of Uttar Pradesh, (1971) 2 SCC 75, State of M.P. through C.B.I. and others v. Paltan Mallah and others, (2005) 3 SCC 169 and Bipin Kumar Mondal v. State of West Bengal, (2010) 12 SCC 91. In the instance case, if the evidence of the witnesses are read in a cumulative manner, the abscondence of the accused gains significance."
77. Here also, placed against the consistent eye-witness account of the two witnesses of fact, the conduct of the appellants in moving away from the village, only to be apprehended by the Police, while waiting to board a vehicle to Etah, lends much support and assurance to the testimony of PW-3 and PW-4. Wholesomely, the evidence of both the witnesses of fact is free from blemish and is, therefore, dependable.
Non-examination of weapon, blood-stained clothes and earth by forensics
78. It is argued by the learned Counsel for the appellants that though blood-stained clothes, blood-stained soil and the weapon of assault were all recovered by the prosecution, these were not sent for forensic examination to ascertain use of the weapon in the assault and to connect the blood-stains on the clothes and the soil with the deceased. It is submitted that unless it is done, the appellants are entitled to acquittal. Reliance has been placed by the learned Counsel for the appellants on the decision of the Supreme Court in State of Uttarakhand v Jairnail Singh17. Learned Counsel has particularly drawn our attention to the following remarks of their Lordships in State of Uttarakhand v Jairnail Singh:
"18. First, the parties involved in the case namely, the victim, his brother, who was one of the eye-witnesses with other two eye-witnesses and the accused were known to each other then why the Complainant-brother of victim in his application (Ex-P-A) made immediately after the incident to the Chief Medical Superintendent, Pilibhit did not mention the name of the accused and instead mentioned therein "some sardars".
19. Second, according to the prosecution, the weapon used in commission of offence was recovered from the pocket of the accused the next day, it looked improbable as to why would the accused keep the pistol all along in his pocket after the incident for such a long time and roam all over.
20. Third, the weapon (pistol) alleged to have been used in the commission of the offence was not sent for forensic examination with a view to find out as to whether it was capable of being used to open fire and, if so, whether the bullet/palate used could be fired from such gun. Similarly, other seized articles such as blood-stained shirt and soil were also not sent for forensic examination.
21. Fourth, weapon (Pistol) was not produced before the concerned Magistrate, as was admitted by the Investigating Officer.
22. Lastly, if, according to the prosecution case, the shot was hit from a very short distance as the accused and the victim were standing very near to each other, then as per the medical evidence of the Doctor (PW-6) a particular type of mark where the bullet was hit should have been there but no such mark was noticed on the body. No explanation was given for this. This also raised some doubt in the prosecution case.
23. In our considered opinion, the aforesaid infirmities were, therefore, rightly noticed and relied on by the High Court for reversing the judgment of the Sessions Court after appreciating the evidence, which the High Court was entitled to do in its appellate jurisdiction. We find no good ground to differ with the reasoning and the conclusion arrived at by the High Court."
79. It is the third of the listed infirmities about the prosecution case that the learned Counsel for the appellants has pressed in aid of his submission here. We must say at once that it was in the totality of five other relevant facts indicated by their Lordships that the non-examination of the weapon of offence and the blood-stained shirt and soil by the Forensic Science Laboratory, was held to vitiate the prosecution. To our understanding, it has not been laid down as an infallible rule, in cases of direct testimony of eye-witnesses, that failure to send the recovered weapon of crime to the Forensic Science Laboratory or the blood-stained clothes and earth would subject the prosecution to any kind of doubt. The well acknowledged principle is that, where the testimony of eye-witnesses is clear, consistent and confidence inspiring, forensic co-relation is not essential to sustain a conviction. In this connection, we may refer to with profit what was said about lack of support by forensic evidence to a clear ocular version in Rakesh and another v. State of Uttar Pradesh and another18, where it was held:
"12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW 1 and PW 2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A-1 Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocular evidence of PW 1 and PW 2 -- eyewitnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW 1 and PW 2 that A-1 shot deceased with a gun, particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW 2 and PW 5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW 1 and PW 2."
80. It appears from the evidence that the weapon of offence, the blood-stained earth and the clothes were sent to the Forensic Science Laboratory, but not produced at the trial due to some lapse of the Investigating Officer. In our opinion, mere failure of the Investigation Agency in producing reports of the F.S.L. relating to the weapon of offence and the blood-stained earth and clothes would not derogate from the veracity of the prosecution, established by a dependable and tested eye-witness account.
Mere recovery of murder weapon does not establish a charge under Section 302 IPC
81. It is urged by the learned Counsel for the appellants that evidence led by the prosecution to prove the case under Section 25 of the Arms Act could not be the basis to hold the charge under Section 302 IPC established against the appellants. This submission of the learned Counsel for the appellants draws inspiration from a decision of the Delhi High Court in Saddak Hussain v. State (NCT of Delhi)19, where it was held by a Division Bench of the Delhi High Court:
"26.Considering the fact that at no stage did the prosecution project a case that it was the appellant, who had fired at the deceased, rather it was their consistent stand that it was A-5, who had taken out a pistol from his possession and fired at the victim on his chest and he had succumbed to the said injuries, we are left wondering as to where was the occasion for the trial court to have convicted the appellant for the offence under Section 302 IPC on the ground of recovery of the weapon of offence? The only role allegedly attributed to the appellant in the entire incident was that he had grabbed the victim by his face and thrashed him by saying that "Tu hamare khilaf gawahi dega". Thereafter, the appellant alongwith the other accused persons had started beating Jeet, who tried to save himself by running towards a nearby country liquor shop. On reaching near the said country liquor shop, the appellant and the other accused persons had again caught hold of Jeet and thrashed him. The prosecution version has consistently been that it was A-5, who had taken out a pistol and fired at Jeet. That being the admitted case of the prosecution throughout and the trial court having acquitted A-5 for the offence punishable under Section 302 IPC, the conviction of the appellant for the said offence is not sustainable only on the basis of alleged recovery of the weapon of offence on his disclosure statement."
82. A reading of the decision in Saddak Hussain (supra) shows that on facts the allegation of shooting the deceased was credited to another accused, since acquitted and referred to as 'A5'. There was a solitary eye-witness account of PW-7, which the Trial Court had discarded on the ground of inconsistencies noticed. His presence was considered doubtful on the scene of crime. Their Lordships of the Division Bench remarked that after the testimony of PW-7 was discarded, all that was left was circumstantial evidence. The sole circumstance against the appellant was recovery of the weapon of offence based on his disclosure statement. It was in those circumstances that mere recovery of the weapon of offence was held not evidence enough to convict him of the offence punishable under Section 302 IPC. Much by contrast here, there is a dependable ocular version of two witnesses, whom we have believed to have seen the occurrence. It is not a case which, like the one before the Division Bench of the Delhi High Court, stands with the eye-witnesses account lost as undependable. On this state of evidence, the decision of the Delhi High Court and the principle enunciated there would not at all come to the appellants' rescue. The appellants cannot, therefore, take advantage of non-production of the FSL Report relating to the firearm and other material evidence.
The charge under Section 25 of the Arms Act, if established against Akhilesh
83. So far as the offence under Section 25 of the Arms Act is concerned, it is argued that sanction by the District Magistrate was granted on 15.01.2007, whereas the charge-sheet was filed in the case on 27.12.2006, vitiating conviction for the said offence. It appears from the record that cognizance of the offence under Section 25 of the Arms Act was taken by the Magistrate on 18.01.2007. What is relevant is the date of the cognizance and not submission of the charge-sheet. On the date the cognizance was taken, the case was validly instituted with due sanction by the District Magistrate.
84. The other submission, that has been advanced against conviction for the offence under Section 25 of the Arms Act, is that the weapon and the cartridges were not sent to the Forensic Science Laboratory and in the absence of a report from the F.S.L., the offence cannot be established. It appears that the weapon and cartridges were sent, but the report was not available. However, the District Magistrate, while granting sanction, has recorded his satisfaction that he has found the country-made pistol of .315 bore to be in working order as also the two cartridges to be live. Before the Trial Court, the Investigating Officer of the case under Section 302/34 IPC, that is to say, PW-9 was recalled on 13.08.2009, in whose presence the country-made pistol was unsealed, together with the two cartridges. PW-9 identified the weapon and the cartridges, whereupon they were marked as Material Exhibits 1, 2 and 3. The enclosing cloth, that was employed to seal the country-made pistol, was marked as Material Exhibit 4 and that used for the purpose of the two live cartridges as Material Exhibit 5. Three empties, one of which was recovered from the scene of occurrence and the two others that were test fired, were also produced and marked as Material Exhibits 6, 7 and 8.
85. It was said by PW-9 in his cross-examination that the seized country-made pistol and the live cartridges were sealed on the spot and necessary endorsement made on the sealed packet. It is also said in the cross-examination that the package was duly signed by the appellant, Akhilesh. It was not signed by witnesses. It is also said that the memo of seizure bears the appellant Akhilesh's signature, but no date. It is also said that the country-made pistol seized was sent for examination, duly sealed. To a suggestion on behalf of the accused, PW-9 has said that it is incorrect to say that no country-made pistol or cartridges were recovered from the appellant Akhilesh or that these were planted to bolster the prosecution.
86. It is noticeable that PW-9 was not cross-examined at all about the issue of the country-made pistol being in working order or the cartridges being live. It is true that there are authorities that say that a weapon produced before the Court should carry with it a certification about it being in working order. Generally, this certification must come from the Forensic Science Laboratory or an expert. Here, the Police Officer, who was called to prove the recovery of the country-made pistol and the two live cartridges, has testified to it without being cross-examined in the least about the weapon being in working order. If that question had been put to PW-9, a report from the Forensic Science Laboratory could be immediately summoned. Since that question was not put at all to PW-9, who testified to the recovery of the weapon and two live cartridges, it has to be held that the question, if put and the report, if summoned, would have established the fact and gone against the appellant, Akhilesh. The fact is, therefore, held to be amply established that the weapon recovered was in working order and the two cartridges recovered were live. In the circumstances, the conviction recorded by the Trial Court for the offence under Section 25 of the Arms Act cannot be faulted.
87. So far as the principal offence under Section 302 read with Section 34 IPC is concerned, the following facts are amply proved:
(1) Time, place and manner of occurrence;
(2) The transcription of the FIR by PW-2 at the dictation of the disappeared first informant, Satya Prakash and its registration at the police station on the date and time mentioned;
(3) The presence of the two eye-witnesses, to wit, PW-3, Ajaypal and PW-4, Smt. Girja Devi on the scene of crime is well established and not doubtful;
(4) There is no material contradiction between the eye-witness accounts of PW-3 and PW-4 that support each other;
(5) There is no material discrepancy between the ocular testimony and the medico-legal evidence;
(6) The slight difference between the ocular version of one witness and the medico-legal report is not so material, as to place the prosecution under a shadow of reasonable doubt; wholesomely the evidence of PW-3 and PW-4, the two eye-witnesses, is free from blemish and dependable;
(7) The mere failure of the prosecution in producing reports from the Forensic Science Laboratory relating to the weapon of offence and the blood-stained earth and clothes would not derogate from the veracity of the prosecution, established by a dependable eye-witness account.
88. The facts found established, including the presence of witnesses, their broad and robust support to the basic fabric of the prosecution case about the date, time and place of occurrence, the genesis of the dispute and the identity of the assailants, including the specific role played by the two, that is to say, the two appellants, the absence of a plausible motive for the two eye-witnesses to falsely implicate the appellants, who are relatives of the appellants as well as the deceased and very natural witnesses, in our opinion, establish the prosecution case beyond reasonable doubt. We think that the prosecution have proved it.
89. In the result, these appeals fail and are dismissed. Appellant, Akhilesh, who is on bail, shall surrender to his bail bonds to serve out the sentence awarded to him. The other appellant, Pradeep is in jail. Let a copy of this order be communicated to him through the Superintendent of the Jail, where he is serving.
90. Let a copy of this order be certified to the Trial Court and the lower court records sent down at once.
Order Date :- 24.2.2022 Anoop