Madhya Pradesh High Court
Radheshyam @ Radhe Radhe vs The State Of Madhya Pradesh on 10 July, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Hirdesh
1 CRA-568-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 10 th OF JULY, 2024
CRIMINAL APPEAL No. 499 of 2014
RAJESH @ SUKKHU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
(SHRI BHASHKAR AGRAWAL, LEARNED COUNSEL FOR THE
APPELLANT)
(MS. BHARTI LAKKAD, LEARNED PUBLIC PROSECUTOR FOR THE
RESPONDENT/STATE)
CRIMINAL APPEAL No. 568 of 2014
RADHESHYAM @ RADHE RADHE
Versus
THE S TATE OF MADHYA PRADES H
Appearance:
(SHRI NILESH MANORE, LEARNED COUNSEL FOR THE APPELLANT)
(MS. BHARTI LAKKAD, LEARNED PUBLIC PROSECUTOR FOR THE
RESPONDENT/STATE)
ORDER
Per: Vijay Kumar Shukla, J.
Both the criminal appeals are filed under Section 374(2) of Cr.P.C. arising out of common order of conviction and sentence dated 11.02.2014 passed by Sessions Judge, Indore in Sessions Trial No.885/2010, therefore, both the appeals are being decided by common order.
2. Appellant Rajesh in Criminal Appeal No.499/2014 has been convicted under Section 302 of IPC and sentenced to RI for life imprisonment and fine of Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 2 CRA-568-2014 Rs.10,000/- and in default of payment of fine, 6 months additional RI.
3 . Appellant Radheshyam in Criminal Appeal No.568/2014 has been convicted and sentenced under Section 302/34 of IPC and sentenced to life imprisonment and fine of Rs.10,000/- and in default of payment of fine, 6 months additional RI.
4. The prosecution case is that an FIR was lodged on 18.07.2010 by complainant Nitesh Jain alleging that along with his friends Ankush Jain, Anil, Ajay Thakur and Subham Khare, he had gone for dinner on Bherughat Dhaba on motorcycle. While returning at about 10:45 PM when Ajay Thakur and Nitesh Jain reached near the petrol pump at Asravad Fata, at that time from the left side, on one motorcycle 2 unknown persons came near their vehicle at parallel and out of them, one fired on Ajay Thakur. The other fire was also made. Thereafter both the persons fled away. The deceased was taken to hospital and he was declared dead at about 11:15 PM. On the basis of the said report, FIR Crime No.660/2010 for commission of offences under Section 302/34 of IPC vide Ex.P/1 was registered. PW-7 S.K. Yadav Sub-Inspector on receiving the intimation about the death registered Merg intimation No.74/2010 Ex.P/3. PW-11 M.G. Shrivastava the then Sub-Inspector, Police Station Bhawarkua immediately proceeded at the scene of crime. NakshaMaukaEx.P/2 at the instance of the complainant was prepared. The dead body was sent for post-mortem report Ex.P/7. He had given intimation regarding death of the deceased through saffina form Ex.P/4 and panchayatnama of dead body Ex.P/5 was prepared. The postmortem report Ex.P/7 and Ex.P/8, short P.M.'s were received from District Hospital, Indore. Ashok Kumar Head Constable, PW-10 after the post-mortem of the deceased had seized clothes, shoes and two bottle viscera and one bullet and 3 samples were seized vide Ex.P/11 which was Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 3 CRA-568-2014 brought by Constable Jaiprakash. PW-11 M.G. Shrivastava, the then Sub- Inspector conducted the investigation and the accused persons, who were already arrested in other offence at Police Station Rajendra Nagar, during investigation they confessed commission of present offence and they were formally arrested vide Ex.P/12 and P/13. On the disclosure statement of accused persons, pistol and cartridges were recovered vide Ex.P/14 & P/15 and one country made pistol with magazine, one live cartridge and one already fired cartridge on which K.F.7.65 was written, one empty cartridge and one pink colour scarf was also seized by Ex.P/16. During investigation, the statement of PW-1 Nitesh Jain and PW-2 Ankush Jain were recorded under Section 161 Cr.P.C. and they disclosed that prior to the commission of offence, the vehicle of the deceased and complainant was dashed with the bike of the accused persons and, therefore, they had committed the said offence. An identification parade was conducted in Central Jail, Indore by Upper Tehsildar Ajay Kumar Shrivastava PW-8 vide Ex.P/6. The accused persons were identified. The seized articles through the letter of Superintendent of Police Ex.P/17 were sent to the scientific lab, Indore. The report is Ex.P/18 & P/19.
5. After the investigation, the charge-sheet was filed and the matter was committed for trial. The appellants abjured their guilt and pleaded not guilty and opted for trial.
6. Prosecution examined as many as 15 witnesses and 21 exhibits. The defence did not examine any witness and filed 2 documents Ex.D/1 & D/2 which are the statement of PW-1 Nitesh Jain and PW-2 Ankush Jain recorded under Section 161 Cr.P.C.
7. Before considering the submissions of counsel for the appellants, it is Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 4 CRA-568-2014 apposite to consider the issue that whether the death of deceased Ajay Thakur is homicidal or not. As per the testimony of PW-7 S.K. Yadav, who deposed that he was posted as Sub-Inspector at Police Station - Bhawarkua on 18.07.2010 as per FIR, he registered Merg intimation 74/2010 which is Ex.P/3 and his signature is B to B. Copy of the Merg intimation was sent to SDM. PW- 1 Nitesh Jain on affidavit deposed that on the date of incident at about 11:30 PM, he reached Police Station - Bhawarkua and informed the police about the incident which was registered as Merg 74/2010 which is Ex.P/3 and his signature is A to A. The statement of PW-7 and PW-1 in respect of Ex.P/3 has not been put to any cross-examination in rebuttal by the defence. Thus on the basis of the statement of these witnesses, the Merg intimation is proved. PW-14 Sub-Inspector F.M. Qureshi deposed that after registration of Merg, he prepared saffina form Ex.P/4 and his signature is E to E. He informed the witnesses for preparation of Naksha Panchayatnama and in presence of witnesses. Dead body panchayatnama is Ex.P/5 was prepared which was sent for postmortem. His testimony gets corroborated with the testimony of other prosecution witnesses PW-1 Nitesh Jain, PW-2 Ankush Jain, PW-4 Shubham Khare and PW-5 Jai Singh Thakur. There is nothing in the cross-examination of these witnesses by the defence to disbelieve their testimony and exhibited documents. In Ex.P/5 dead body panchayatnama, it is stated that deceased is died due to gunshot injury. PW-3 Dr. Bharat deposed that on 19.07.2010, he was posted as Medical Officer in District Hospital. He conducted postmortem. He found an oval lacerated wound measuring 1.3 x 1.1 cm. with margin contuse abraded on left side of back and upper part of scapula bone 19 cm. left from thoracic vertebra. The extent of the said wound was 26 cm. long and passed through scapula muscle, scapula bone and chest wall passing through third and Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 5 CRA-568-2014 fourth ribs respectively and piercing upper tip of left lung and a bullet was found between cardiac membrane and major blood vessels. Left lung was slightly compressed and thoracic cavity had blood content of about 3.5 liters. The said injury was caused by a fire weapon fired within twelve hours before death. The bullet recovered from the chest was made of metal and measured 1.1 x 6 c.m. He preserved viscera, clothes and bullet recovered from chest and the same was handed over to the Constable. He opined that the deceased died due to excessive bleeding because of the chest injury. His report is Ex.P/7. Thereafter he also had given short postmortem report and his signature is on A to A. According to him, the fire was made on the left back of the deceased from distance of about 3 ft. Thus, the prosecution has proved beyond doubt that the death of deceased Ajay was homicidal.
8. The conviction of the accused/appellants is based on the testimony of PW-2 Ankush Jain, identification parade Ex.P/16, seizure of arms from Appellant Rajesh, FSL report and ballistic report Ex.P/18.
9. Counsel for the appellants while assailing the order of conviction raised following grounds:-
(i) There is no description of accused persons in the FIR.
(ii) Spot map does not indicate source of light at the spot so as to enable the witnesses to identify the accused persons.
(iii) There is delay of 45 days in conducting identification parade and the accused persons were exposed to the witnesses in police station, therefore, the identification parade is not legal and valid, therefore, the trial Court committed an error while convicting the appellants on the basis of illegal identification parade.Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM
6 CRA-568-2014
(iv) Seizure of arms from appellant Rajesh is illegal as one of the seizure witness has not supported the prosecution witness. PW-13 Nicky @ Vishal has turned hostile and the testimony of other seizure witness PW-15 Ravi is not trustworthy though he has supported the prosecution case.
(v) If the seizure of arm from the Appellant Rajesh is not duly proved, further FSL report and ballistic report does not have evidentiary value. FSL report and ballistic report are doubtful as they were sent for examination after two months from the date of seizure and, therefore, tampering of these articles cannot be ruled out. Delay in sending the articles to FSL is fatal and creates doubt.
(vi) Non-examination of FSL expert is fatal and, therefore, the entire investigation is tainted investigation, therefore, the conviction is liable to be set aside and the appellants be acquitted as the prosecution failed to prove its case beyond reasonable doubt.
10. Learned counsel for the State supports the order of conviction and sentence and submits that the judgment is based on proper appreciation of facts and evidence, hence, no interference is called for.
11. It is apt to appreciate the contentions raised by counsel for the appellants on the anvil of facts and evidence of the present case. The first contention is that in the FIR lodged by PW-1 Nitesh Jain, the description of accused persons was not mentioned and, therefore, the identification of the accused persons is doubtful. The date of incident is 18.07.2010 at 23:15 hours and the FIR was got immediately registered on the intimation on the same day on 23:15 means just after 15 minutes. In the FIR, he has stated that when they were coming on bike after dinner, 2 unknown persons came on bike by side and Signature Not Verified out of them, one fired on deceased Ajay and another fire was made and Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 7 CRA-568-2014 thereafter they had run away from the spot. The statement of the complainant PW-1 Nitesh Jain and PW-2 Ankush Jain were recorded on 19/07/2010 on the next day under Section 161 of Cr.P.C. and in that statement, they had disclosed the description of the accused persons. Only on this ground that the description of accused person was not mentioned in the FIR, the prosecution case cannot be discarded. FIR was registered on intimation after 15 minutes of the incident and it cannot be expected that in the FIR everything would be mentioned by the complainant when the deceased was being taken to the hospital. It is settled law that FIR is not an encyclopaedia. In the case of Rameshwar Singh vs. State of Jammu & Kashmir, AIR 1972 SC 102, the Apex Court held as under:-
"Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM
8 CRA-568-2014 proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witnesses."
1 2 . In the case of Jayawant Dattatraya Suryarao vs. State of Maharashtra (2001) 10 SCC 109, the Apex Court held as under:-
"We would also reiterate that substantive evidence of a witness in his evidence in Court. Identification parade is not primarily meant for the court but is meant for investigation purposes. It serves two purposes, namely, to enable the witness to satisfy that prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for satisfying the investigating authority that suspect is the real person whom the witness had seen in connection with said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imagine that as the witness has seen the accused for few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. power of perception and memorising differs from man to man and also depends upon situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witness."
13. In the Superintendent of Police, CBI and Ors. vs. Tapan Kumar Singh, (2003) 6 SCC 175, the Apex Court elaborately dealt with the need of an FIR. It was held as under:-
"It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 9 CRA-568-2014 given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."
The same has been reiterated in the case of Rattan Singh vs. State of M.P. - 1997 SC 768, State of U.P. vs. Krishna Master & Ors. (2010) 12 SCC 324 and Ranjit Singh vs. State of M.P. (2011) 4 SCC 336.
In view of the aforesaid, the first contention of the counsel for the appellants that since description of the accused persons is not mentioned in the FIR, therefore, the prosecution case has to be disbelieved; cannot be accepted and the same is repelled.
14. The second contention of the appellant that in the spot map Ex.P/5, Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 10 CRA-568-2014 source of light has not been mentioned. The incident had taken place in the night in the month of July, the accused persons could not have been seen by the complainant PW-1 & PW-2. He vehemently argued that in spot map, it was not mentioned that there was any electric pole and light and, therefore, in absence of mentioning of source of light, the prosecution case becomes doubtful. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the case of Ashoksinh Jayendrasinh vs. State of Gujurat, (2019) 6 SCC 535. He referred para-12 of the said judgment in which it was held that in absence of any evidence of the light, the possibility of identifying the accused in the darkness of the agricultural field of the complainant particularly at 9 PM becomes doubtful. The said judgment relied by the counsel for the appellants would not render any assistance to the facts of the present case. As per the testimony of PW-2, the deceased, complainant and other persons were going on motorcycle in the night and since earlier the vehicle of the deceased got dashed with the accused persons, they came on motorcycle parallel to the deceased's motorcycle and fired on him. The incident had taken place on road and the motorcycles were moving with headlight and there is nothing to indicate that light was switched off. The I.O. PW-11 M.G. Shrivastava has categorically stated that in para-9 that it was a public road and near the place of incident, there was a petrol pump and shops. In view of the testimony of these witnesses, the contention of counsel for the appellant cannot be accepted that since source of light was not mentioned in the spot map, the identification of the accused person is doubtful. The judgment relied by counsel for the appellants would not be helpful in the facts of the present case. In the said case, the incident had taken place in the agricultural field and admittedly, there was no source of light.
Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM11 CRA-568-2014 1 5 . The Supreme Court in (2004) 13 SCC 279 (Prithvi (minor) vs. Mam Raj and others) opined that site plan is not a ground to disbelive the otherwise credible testimony of eyewitnesses. This principle was followed with profit in a subsequent judgment reported in (2017) 11 SCC 195 (Yogesth Singh vs. Mahabeer Singh and others). In (2000) 4 SCC 515 (State of U.P. vs. Babu Ram), it was held that it is not possible to understand the rationale of the reasoning that if an Investigating Officer did not instruct the person, who drew up the site plan to note down certain details that would render the testimony of material witnesses unreliable. In view of these judgments of Supreme Court, in our view, the alleged flaw in the 'site map' is not fatal to the prosecution story.
1 6 . Counsel for the appellants vehemently argued that identification parade Ex.P/6 is illegal and not trustworthy because there was delay in conducting the identification parade. He argued that the accused was arrested on 16.08.2010 and TIP was conducted on 07.10.2010 after delay of 45 days. It is further argued that as per the testimony of PW-1 Nitesh Jain, he had gone along with PW-2 Ankush Jain to Police Station and before identification, the accused persons were shown by the police to him. In support of his submission, he placed reliance on the judgment by the Apex Court in the case of Gireesan Nair & Ors. vs. State of Kerala (2023) 1 SCC 180. He referred para - 50 of the said judgment. The Apex Court held that undue delay in conducting the TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case, it is imperative to hold the TIP at the earliest. The Signature Not Verified aforesaid judgments have to be seen in the light of the facts of the present case.
Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM12 CRA-568-2014 As per the testimony of PW-11 M.G. Shrivastava after arresting the accused persons, the request was made for conducting the identification to the concerned officer and after completing the necessary formalities the identification parade was conducted. In the testimony of prosecution witnesses PW-7 S.K. Yadav, PW-11 M.G. Shrivastava, PW-14 F.M. Qureshi, there does not appear to be any undue delay in conducting the identification parade. In the case of Budhsen vs. State of U.P. (1970) 2 SCC 128 , it is held that the identification parades belong to the stage of investigation, and though there is no provision in the Criminal Procedure Code which obliges the investigating agency to hold a test identification parade, but it is quite desirable that the Test Identification Parade should be conducted as early as possible, however, at the same time, the very purpose of conducting Test Identification Parade during the investigation is for the satisfaction of the investigating officer that the suspect is the real culprit, but the substantive evidence is the identification of the accused in the Court. There is no hard and fast rule that in every case, where the Test Identification Parade was conducted belatedly, the identification of the accused by the victim should be discarded.
17. So far the contention of the appellants that the accused persons were exposed and shown to PW-1 complainant and PW-2 has to be considered on the anvil of testimony of PW-1 Nitesh Jain and PW-2 Ankush Jain. The testimony of PW-1 Nitesh Jain has been discarded by the Trial Court and the conviction is not based on the testimony of PW-1 Nitesh Jain. The conviction is based on the testimony of PW-2 Ankush Jain and the identification parade, FSL and ballistic report. PW-2 Ankush Jain stated in para-2 that the fire was made by accused Rajesh on deceased Ajay Thakur. He did not state that the Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 13 CRA-568-2014 accused persons were shown to him by the police. In para-6, he stated that he was called in Central Jail, Indore on 07.10.2010 between 12-1 PM for identification and the identification was conducted.
1 8 . Counsel for the appellant vehemently argued that as per para-10 of PW-1, it is clear that the PW-2 had also gone to the police station along with him and, therefore, the presence of PW-2 in Police Station is established and, therefore, possibility of showing the accused persons to the PW-2 also cannot be ruled out. On careful examination of para-10 of PW-1 Nitesh Jain, it is manifest that he stated, he had gone to the police station along with PW-2 Ankush Jain, but he did not state that the accused persons were shown to PW-2 also. He stated that the accused persons were shown to him. On examination of PW-2, the submission of counsel for the appellants cannot be accepted that the accused was shown to PW-2 Ankush Jain also. He has specifically stated that in para-9 that he has not gone to the police station. Therefore, the trial Court has rightly discarded the testimony of PW-1, but believed the testimony of PW-2.
19. Counsel for the appellants further argued that in identification parade Ex.P/6, the description of the other persons, who were mixed along with the accused persons for identification is not mentioned. Upon perusal of Ex.P/6, it is evident that the persons of same age and height and physical appearance were mixed for identification. In identification memo Ex.P/6, it is clearly stated that no police officer was present at the time of identification. PW-8 Ajit Kumar Shrivastava, who was working as Tehsildar has categorically stated that identification was conducted by him and the persons of same height and physical appears as many as 12 were mixed along with the accused persons. PW-1 & PW-2 had identified them. Thus, there is no reason to disbelieve the identification memo Ex.P/6.
Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM14 CRA-568-2014
20. The next challenge to the order of conviction in respect of appellant Rajesh is that seizure of pistol is not proved by the prosecution. The pistol was recovered on the memorandum of appellant Rajesh from the house. Counsel for the appellant submits that there was delay in recovery. He was arrested on 16.08.2010 and the seizure was made on 17.08.2010. He further submits that the prosecution could not prove that the house was in exclusive possession of the appellant. As per the testimony of PW-11 M.G. Shrivastava, on the memorandum of appellant Rajesh, the pistol was seized from the house vide Ex.P/14. The pistol was seized under the bed. Seizure memo is Ex.P/16. The article was seized from the place of the house which was hidden place and, therefore, the submission of the counsel for the appellant cannot be accepted that prosecution has to prove that the house was in exclusive possession of the appellant. The seizure of pistol has been duly proved by the testimony of I.O. PW-11 M.G. Shrivastava and seizure witness PW-15 Ravi Pintu. One seizure witness PW-13 Nicky @ Vishal has turned hostile, but PW-15 Ravi Pintu other seizure witness has supported the case.
2 1 . He argued that if the seizure of the pistol is not proved, the FSL report and ballistic report are of no consequences and they have no significance. We do not find any substance in the contention of counsel for the appellant. The pistol has been seized from the hidden place of house on the memorandum of the accused. The same has been proved by PW-15 Ravi Pintu and PW-11 M.G. Shrivastava, I.O. In the case of Karamjeet Singh vs. State (Delhi Adm.) (2003) 5 SCC 291, it has been held that evidence of police officer cannot be disbelieved if it is corroborated with the other evidence.
22. In the FSL report and ballistic report Ex.P/18, it has been found that Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 15 CRA-568-2014 the bullet which has been recovered from the dead body of the deceased was fired from the pistol which was seized on the memorandum of Rajesh from his house. Counsel for the appellant submitted that there was delay in sending the sample to FSL and, therefore, the FSL report cannot be relied. In support of his submission, he has placed reliance in the case of Santa Singh vs. State of Punjab, AIR 1956 SC 526. He further submitted that the expert, who submitted FSL and ballistic report has not been examined and, therefore, the FSL report cannot be relied for the purpose of holding the appellants guilty. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the case of Suresh and Another vs. State of Haryana, (2018) 18 SCC 654. The aforesaid judgments would not render any assistance to the contention of the counsel for the appellant in view of the facts of the present case. From the testimony of PW-7 S.K. Yadav, PW-10 Ashok Kumar and PW-11 M.G. Shrivastava, it cannot be held that there was any delay in sending the sample to the FSL. Their testimony reveals that after the seizure of pistol, the same was kept intact and thereafter was sent for FSL. The case relied by counsel for the appellant Suresh (supra) is a case of circumstantial evidence and extra-judicial confession whereas the present case is of direct evidence where the accused persons were seen by PW-2 and they have been identified. The FSL report is admissible in evidence under Section 293 of the Code of Criminal Procedure even in absence of examination of FSL report.
2 3 . The submission of the counsel for the appellant that there are lacunas in the investigation and, therefore, conviction is not sustainable. A Division Bench of this Court in Criminal Appeal No.629 of 2009 (Vinoda, son of Baburam vs. State of MP) decided on 28.10.2021 held that conviction of accused cannot be assailed merely because of some lacuna in the Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 16 CRA-568-2014 investigation and any failure or omission of investigating officer cannot render prosecution case doubtful or unworthy in belief in a case where prosecution is fully established by direct testimony of the injured witnesses duly corroborated by medical evidence. [State of U.P. vs. Hari Mohan - AIR 2001 SC 142, State of U.P. vs. Jagdeo & Ors. - AIR 2003 SC 660, Sachdeo & Ors. vs. State of U.P. - (2004) 10 SCC 682 ]. The Apex Court in the aforesaid cases held that lacuna in investigation itself is not a ground for acquittal if other evidence is available.
24. In view of the aforesaid assimilation of facts and evidence, I do not find any substance in the grounds raised by counsel for the appellant. The prosecution has successfully proved its case against the appellant Rajesh under Section 302 of IPC on the basis of testimony of PW-2 Ankush Jain, identification parade Ex.P/6, the seizure of pistol from him, FSL and ballistic report Ex.P/18.
Cr.A. No.568/2014 (Radheshyam alias Radhe Radhe)
25. So far the appellant Radheshyam in Criminal Appeal No.568/2014 is concerned, he has been convicted with the aid of Section 34 under Section 302 of IPC. Counsel for appellant Radheshyam adopted the arguments advanced by counsel for appellant Rajesh. As per the testimony of PW-2 Ankush Jain, he has identified appellant Radheshyam stated the appellant Radheshyam came on the bike along with the accused Rajesh, who fired on the deceased. This Court has already discussed all the grounds raised by counsel for appellant Rajesh and did not accept the submissions made by counsel for the appellant Rajesh. The prosecution has established that the appellant Radheshyam also came on bike along with Rajesh, who fired on the deceased. Thus, he has been rightly Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 7/12/2024 7:34:01 PM 17 CRA-568-2014 convicted with the aid of Section 34 under Section 302 of IPC. We do not find any error in the order of conviction of appellant Radheshyam.
26. In view of the aforesaid, both the appeals filed by Rajesh @ Sukkhu and Radheshyam are dismissed.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
soumya
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 7/12/2024
7:34:01 PM