Madhya Pradesh High Court
Sulabh Jain vs The State Of Madhya Pradesh on 13 June, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUJOY PAUL
&
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
CRIMINAL APPEAL No.348 of 2012
Between :-
Sulabh Jain, son of Shri Sobodh
Jain, aged about 23 years,
resident of Ward No.19, Near
Meerabai temple, Dhumarpura,
Ganjbasoda, Distt. Vidisha.
....Appellant
(By Shri Anvesh Jain and Shri B.K. Upadhyay, Advocates)
AND
State of Madhya Pradesh,
through S.H.O. Police Station,
M.P. Nagar, Bhopal.
....Respondent
(By Shri Pramod Thakre, Government Advocate)
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Reserved on : 10/5/2022
Delivered on : 13/6/2022
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JUDGMENT
Sujoy Paul, J. :
In this appeal filed under Section 374 (2) of the Code of Criminal Procedure 1973, the appellant has called in question the legality, 2 validity and propriety of the impugned judgment dated 6 th January 2012, passed in S.T. No.383 of 2009, whereby he has been convicted for committing offence under Section 302 of IPC and Sections 25 and 27 of the Arms Act and directed to undergo the sentence of Life Imprisonment for committing offence of murder and three years RI relating to offence under the provisions of Arms Act with fine and default stipulation. The sentences were directed to run concurrently.
The factual backdrop :
2. As per prosecution story, the deceased, Princy Jain was residing in Room No.307 of Vindhshri Girls Hostel, M.P. Nagar, Zone-2, Bhopal.
She was a student of First Year in B.E.T. College. Basically, Princy Jain was a resident of Ganjbasoda. On 2.3.2009, at around 6.30 pm, she left the said hostel alongwith her friend Shefali Goel. They were going to attend computer coaching class in Zone -2, M.P. Nagar, Bhopal. When they entered a lane near Computer Class, the appellant Sulabh Jain came there with a bag and told Princy that she may do whatever she wants to do and immediately fired on her back. With a gunshot sound, Princy fell down. The appellant fled away from the place of incident. Akhilesh Mishra (PW-6) and Shailendra Dwivedi (PW-7) reached the place of incident and took Princy to the City Hospital. After examining her, the 3 Doctors declared her as dead. A Police report was lodged in the Police Station, M.P. Nagar, Bhopal. During the investigation, a spot map was prepared. The post-mortem report revealed that reason of death is hemorrhage because of gunshot injury. Thus, death of Princy was admittedly homicidal in nature. The appellant was arrested and during investigation, as per information furnished by him, a country made pistol was recovered by the Police.
3. The hand-bag of Princy Jain was recovered from the place of incident. Apart from other material, a letter was also found in the said bag, which was in-fact an application to the Police Authorities regarding the conduct of Sulabh Jain with a prayer to take appropriate action against the appellant. From the room of deceased in the hostel, her laptop and a diary was recovered. As per the prosecution case, the signature of Princy Jain in the said letter written to Police tallies with her signature contained in the diary.
4. An empty cartridge was recovered from the place of incident, which was duly sealed and sent for scientific analysis to Forensic Science Laboratory (FSL), Sagar. The Senior Scientists, in turn, opined that the bullet is indeed fired from the weapon (country made pistol) recovered at the instance of the appellant.
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5. The appellant abjured his guilt and pleaded innocence. He denied the allegation that he had one sided love affair with the deceased. On the contrary, there is a previous enmity between his and deceased's family because of which Om Prakash (PW-15), father of deceased falsely arraigned him in criminal case from which he has already been acquitted.
6. The trial court framed four issues and decided the same in the impugned judgment.
7. The court below after considering the evidence led by the parties, opined that the prosecution has proved its case beyond reasonable doubt. Accordingly, the appellant was convicted for committing offence under Section 302 of IPC and Sections 25 and 27 of the Arms Act. After hearing the parties on the quantum of punishment, the court below passed the aforesaid sentence mentioned in the impugned judgment. The Argument of appellant :
8. Shri Anvesh Jain and Shri B.K. Upadhyay, learned counsel for the appellant submits that prosecution produced as many as sixteen prosecution witnesses. Spot map was proved by Meena Pandey (PW-1). Her statement shows that she is not the eye-witness. On the next date of the incident, the spot map, (Ex.P/1) was brought to her notice by the 5 Police Authorities and her signatures were obtained. The Police informed her that it is the spot, which is reduced in writing in the shape of a map. This witness is of no help to the prosecution and spot map is not duly proved. Apart from the above, if the details given in the spot map are seen, it will be clear that at Sl. No.1, the crime spot is shown which is near the Ashish Glass House. However, the same is not available in the map drawn by the prosecution. The FIR shows that crime scene is near the 'Ace Computer Ke Samane Wali Gali' (the lane in front of Ace Computer). The spot map does not reflect any lane opposite to Ace Computer and, therefore, the map does not inspire any confidence. The map further shows that no physical evidence of commission of crime is available on spot and no blood stains were present. The map was prepared on 02.3.2009 at 7:20 pm. The report also recites that Investigating Officer (I.O.) informed that he found an empty cartridge at the spot whereas Ex. P/7 shows that said cartridge was allegedly seized at 8:30 pm from the spot and hence, by no stretch of imagination the I.O., who visited the spot at 8:30 pm can tell the crime team at about 7:20 pm regarding recovery of empty cartridge from the spot. This creates a substantial doubt and suspicion in the prosecution story and about recovery of empty cartridge.
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9. The attention of this court is drawn on the statement of Akhilesh Mishra (PW-6) where he deposed that in the place of incident, the blood stains were there and an empty cartridge was found. As per crime team report, no blood stains were found at the spot. This serious contradiction creates serious doubt on the prosecution story.
10. The statement of Sourabh Sahu (PW-2), a witness of seizure of fire arm is relied upon wherein he deposed that appellant informed that gunshot injury was caused by a pistol which is kept near Habibganj Railway track and Chetak bridge. It is further pointed out that in a slip affixed on the packet of seized weapon, it is mentioned that it is recovered from the BHEL Puliya underneath an 'Akauwa' tree. However, this description is not mentioned in Ex.P/2. At the time of recovery of weapon, no fingerprints were obtained. Shri Anvesh Jain, learned counsel for the appellant contended that when appellant was taken to the place where weapon was kept underneath a tree, the appellant after digging the ground, took out a polythene bag containing a country made pistol used in the commission of crime. Criticizing the seizure memo, Ex.P/3, it is argued that there is no recital in the seizure memo that the accused dug any hole in the ground and took out any polythene bag containing the pistol. Thus, seizure memo is not trustworthy. One 7 Mayank was accompanying PW-2 during seizure but he was not made witness by the prosecution for the reasons best known to it.
11. Creating doubt on the seizure, it is submitted that place of seizure does not match with the description given in the memo prepared under Section 27 of the Evidence Act. Another witness, Rahul Rohile was not examined to establish the seizure.
12. Umang Jain (PW-4) is an important witness submits Shri Jain, learned counsel for the appellant. His statement under Section 161 of Cr.P.C. has been recorded after a period of one month and thirteen days of the incident i.e. on 15.4.2009. He projected himself to be the relative of Princy Jain and had a talk with her prior to the incident. He claimed that he was present on the spot and gone to the hospital on his own motorcycle when Princy Jain was taken to the hospital. He also informed parents of the deceased about the incident. By placing reliance on the various paragraphs of his deposition, it is urged that Umang Jain claims himself to be the brother (in distant relation) of the deceased but he did not choose to resist the accused and safeguard his sister when a gunshot injury was caused by the appellant. This shows that he was not present at the time of incident. Inordinate delay in recording her statement vitiates the investigation and creates serious doubt about correctness of his 8 statement. Reliance is placed on (1971) 3 SCC 192 (Balakrushna Swain vs. State of Orrisa), (1976) 4 SCC 288 (State of Orrisa vs. Mr. Brahmananda Nanda), (1978) 4 SCC 371 (Ganesh Bhavan Patel & another vs. State of Maharashtra), (2016) 16 SCC 418 (Harbeer Singh & another vs. Sheeshpal and others).
13. Assailing the findings of the impugned judgment, it is strenuously contended that no one can be a bystander if his sister is being teased. Despite the alleged presence on the spot, no attempts were made by Umang (P.W.4) to report to the Police regarding the incident from the spot itself. In Para-42 of the statement of Umang Jain, he stated that he has not taken name of Sulabh Jain as murderer while mentioning the incident of murder to the Police. This shows that this witness is not at all reliable.
14. Akhilesh Mishra (PW-6) is not an eye-witness. In his statement recorded under Section 161 of Cr.P.C., he stated that Shefali told him that Princy has been shot by Sulabh whereas in his court statement, he deposed that when he reached to the place of incident, the people present there were discussing that Princy is murdered by a boy namely Sulabh Jain.
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15. Similarly, statement of Shailendra Dwivedi (PW-7) was relied upon to contend that this witness did not depose that any third person was accompanying them when the deceased was taken to the hospital by two persons. Thus, presence of Umang at the place of incident is doubtful. The learned trial court has committed an error in holding that third person present at the place of incident was Umang Jain (P.W.4).
16. Praveen Saxena (PW-8), the hostel owner where Princy resided deposed that deceased on various occasions informed him that Umang Jain used to tease her. However, the hostel owner did not lodge any complaint to the Police Station. Praveen Saxena (PW-8) admitted that a photograph was received by him in one sealed envelope containing the photograph of Princy Jain with a boy. However, the photograph was not obscene. The only language written on the photograph was obscene. The witness did not state that he himself has seen the appellant teasing the deceased. Para-4 of his statement was highlighted to show that there was previous enmity between the family of deceased and the present appellant.
17. Om Prakash's statement was relied upon wherein he contended that the appellant had one sided love affair with the deceased and on account of that only, quarrel had taken place between the family members of the 10 accused and the deceased. The reports in this regard lodged on 10.12.2008 (Ex.P/21) and (Ex.P/24) were relied upon by contending that a glance of these reports show that there is no recital that the said incident had taken place due to one sided love affair of accused with that of deceased. The statement of Om Prakash (P.W.15) falls in the category of hearsay evidence and cannot be a ground to hold the appellant as guilty.
18. The State Examiner of questioned documents letter/complaint addressed to police ('Article-2') deposed that no comparative material/specimen signature/handwriting was made available to him and, therefore, he is unable to give any definite opinion regarding Q-1 on 'Article-2'. The expert did not express any opinion about the handwriting in 'Article -2'. He also admitted that no signature of Princy Jain from the bank account was provided for the purpose of comparison. Similarly, the documents containing signature of Princy Jain from the hostel were also not provided to him. In 'Article-2', the signature is mentioned as Q-2, but in-fact it is not a signature. It is only a handwriting. The material sent for comparison of Q-1 was inadequate and no opinion could have been formed on the said basis. Thus, it is urged that document 'Article-2' is not proved to be in the handwriting of deceased and there is no authenticated 11 document whereby any comparison can be made of portion marked as Q- 2 on 'Article -2'.
19. Shri Anvesh Jain learned counsel for the appellant submits that as per prosecution story, the alleged 'Article-2' is a letter/complaint written and signed by Princy Jain. The witness Shefali Goel (PW-12) neither in the FIR nor in the statement recorded under Section 161 of Cr.P.C. disclosed this fact that she is the author of letter 'Article-2'. In her court's statement, for the first time, she deposed that 'Article-2' is in her hand writing.
20. Deceased-Princy Jain was an educated lady. The prosecution has miserably failed to establish the reasons as to why she herself has not written the complaint 'Article-2'. Thus, 'Article-2' appears to be an implanted document and it can be assumed that the prosecution has found one blank paper containing signature of deceased and thereafter created the evidence. The trial court failed to scrutinize and appreciate the ocular and scientific evidence in a judicious manner with a judicial mind and came to an erroneous finding that 'Article-2' was indeed written by Shefali Goel and signed by the deceased.
21. Regarding phone calls and location, it is argued that a mobile of deceased was allegedly recovered at around 7:10 pm on 02.3.2009 from 12 the bag of deceased, which is marked as Ex.P/9. The call details show that calls were made from the said mobile phone till 20-15-11 p.m., which clearly demonstrates that evidence has been created or manipulated in order to get the appellant arraigned in the offence.
22. The next statement is of Dr. Geetarani Gupta (PW-11), who has conducted the post-mortem of the deceased. Heavy reliance is placed on Para Nos.-9,11 and 15 of her deposition. It is urged that dimensions of bullet were : length 119 mm, diameter 7.85 mm and weight was 4.58 gram. The bullet was brass jacketed. Dr. Geetarani Gupta (PW-11) further deposed that the bullet must have been fired from a distant range. The bullet remained inside the body of the deceased. On chemical analysis of bullet, the report shows that the bullet contained the element of nitrate whereas on the clothes of deceased, no traces of nitrate were found as per opinion (Ex. P/56). The statement of (PW-4) Umang Jain [if considered in the light of statement of Dr. Geetarani Gupta (PW-11)], in which Umang Jain (PW-4) stated that the accused at the time of causing fire was at the distance of 3-4 steps away from deceased and in that situation nitrate must have been available on the skin around the entrance wound and also in the wound track but nothing has been shown in Ex.P/56. On the contrary, Ex. P/56 shows that nitrate is not available 13 on her clothes. To buttress this argument, Shri Anvesh Jain placed reliance on certain portion of an article i.e. "injuries by mechanical violence" from the book of Modi's Medical Jurisprudence. The relevant portion reads as under :-
"At a distance of one to three feet, small shots make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unburnt grains of powder."
(Emphasis Supplied)
23. As per the expert report of FSL dated 12.5.2009, the pistol used in commission of crime is having barrel diameter 7.65 mm. A bullet of 7.85 mm diameter could not have been fired from the said pistol having lesser diameter of barrel. Thus, the prosecution story is like house of cards and clearly unbelievable. It could not be established with scientific clarity as to when last bullet was fired by the said pistol. The FSL report is relied upon for this purpose.
24. It is argued that bullet was found inside the body of deceased. If bullet could not pass through the body, this shows that velocity of bullet was not very high. This further shows that it was not possible to cause 14 such injury from a distance of 3-4 steps. Shri Jain submits that another important aspect is that if fire is made from a close range of 3-4 steps, the entrance wound would be big whereas a fire made from distant range the wound would be smaller in size. In the present case, as per statement of P.W.11, the entry wound is only 0.8 cm in size which demonstrates that story of firing from a distance of 3-4 steps is an eye-wash.
25. The statement of Shefali Goel (P.W.12) is highlighted relating to identification of appellant. It is urged that this witness has totally turned hostile so far identification of appellant is concerned. The Court below erred in holding that witness was tutored. The critical examination of statement of Shefali Goel (P.W.12) shows that she has not seen and identified the person who has used the gun fire. She further deposed that she has not read the police complaint before putting her signature. It is further deposed by her that the said report was not typed in her presence. Thus, her statement cannot be a reason to hold the appellant as guilty.
26. Furthermore, the statement of Shakuntala Bamania (P.W.13) is relied upon wherein she deposed that she was aware of the name of the person who caused gunshot injury on deceased but she did not mention the name in the relevant portion of the document at (D to D). The said police official having knowledge of the name of accused in all probability 15 will mention the name of accused and non-mentioning of appellant's name creates serious doubt on the prosecution story.
27. Ravindra Jain (P.W.14) did not support the prosecution story. His statement does not help the prosecution at all. He reached the place of incident after incident had taken place. He came to know about the name of accused from the persons present on the spot. He allegedly seen the appellant in police station on the next day. It is argued that he is a tutored witness because appellant was arrested on 04.3.2009 at about 21:00 PM whereas incident had taken place on 02.3.2009. Thus, his statement does not improve the case of the prosecution. He also did not inform the police personnel that incident had taken place wherein appellant caused gunshot injury to the deceased.
28. The statement of Om Prakash (P.W.15) is criticized by learned counsel for the appellant by contending that his statement under Section 161 of Cr.P.C. was recorded on 14.3.2009 i.e. after 12 days of the incident. This witness, father of deceased deposed that the appellant had one sided affair with his deceased daughter and he murdered his daughter. In the Court statement, this witness deposed that murder was outcome of previous enmity which is untrustworthy. Reliance is placed on Ex.P/23 and Ex.P/43, the reports lodged at Basoda by Vijay Kumar Jain and 16 Saurabh Jain respectively. These reports do not throw any light regarding any affair of appellant with the deceased person. Thus, both the incidents have no nexus at all. Further reliance is made on statement of Om Prakash (P.W.15) wherein he deposed that he was informed by Shefali Goel (P.W.12) regarding gunshot injury by Sulabh whereas in cross- examination he took the name of Umang as well with Shefali.
29. Heavy reliance is placed on a letter 'Article-2' which as per statement of Om Prakash (P.W.15) recorded under Section 161 of Cr.P.C. is in the handwriting of his daughter Princy. As pointed out, submits Shri Anvesh Jain that Ex.P14 clearly shows that as per expert opinion, no definite opinion could be formed regarding the authorship of disputed writing. As per Shefali Goel's statement, 'Article-2' is in her handwriting, and therefore, there is clear contradiction in the statements of prosecution witnesses which makes the document 'Article-2' as unreliable. The story of previous enmity is also not believable because Court below has failed to consider that against family members of Om Prakash (P.W.15), a cross-case was registered by the family members of appellant.
30. The last witness of prosecution was Rakesh Sharma, I.O. (P.W.16). The police have not seized the photographs about which the 17 witness Praveen Saxena (P.W.8) has stated nor has recorded any statement of Chanda Madam. No photographs from the college which were allegedly affixed by the appellant were seized. The statement of Rakesh Sharma (P.W.16) is thus immaterial and falls within the ambit of hearsay evidence.
31. It is further urged that there was no motive behind killing of deceased. It is beyond imagination why appellant without there being any provocation, motive or instigation will straightway open fire on deceased. The brother of deceased-Umang Jain (P.W.4) is the only eye- witness to the alleged incident who is an interested witness. His statement is pregnant with material contradictions and is unsupportable.
32. The ballistic expert's evidence, at best, can clarify the ballistic report. The contradiction in the instant case i.e. the distance of fire is material and learned trial Court without considering this vital aspect, convicted the appellant. When two views are possible, the view which favours the accused must be followed.
33. The oral evidence if not consistent with medical evidence, the prosecution must fail on this ground itself. Reliance is placed on (2004) 9 SCC 310 (State of U.P. vs. Ram Bahadur Singh & others), 2016 18 Legal Eagle (M.P.) 1142 and judgment passed in Cr.A. No.17 of 2005 dated 18.11.2016 (Arvind @ Akhendra Singh vs. State of M.P.). Regarding recovery and ballistic report, Shri Jain placed reliance on (1994) 4 SCC 726 (Jagjit Singh vs. State of Punjab), 2017 Legal Eagle (M.P.) 116, 2017 Legal Eagle (M.P.) 435.
Argument of Prosecution :
34. Shri Pramod Thakre, learned Public Prosecutor supported the prosecution story and the impugned judgment. He placed reliance on various statements of witnesses and exhibits. It is urged that Court below has properly appreciated the evidence and reached to a plausible conclusion on which no interference is warranted. It is further argued that seizure of weapon is duly established. There is no contradiction in description of place from where weapon was recovered.
35. Shri Thakre, learned Public Prosecutor urged that Dr. G.R. Gupta (P.W.11) was not an expert for the purpose of determining the nature of bullet, its size etc. She is a doctor who is having expertise in conducting post-mortems. In that event, the ballistic expert's report is rightly relied upon by the Court below. It is in consonance with Section 293 of Cr.P.C.
Reliance is placed on (1975) 1 SCC 797 (Shri Phool Kumar vs. Delhi 19 Administration) and (1997) 10 SCC 675 (State of Rajasthan vs. Bhup Singh). Shri Thakre has taken pains to contend that no efforts were made by the defence to requisition/summon the expert/FSL witnesses for cross- examination. Thus, no fault can be found in the findings recorded by the Court below founded upon FSL/expert report.
36. 'Article-2', the letter/complaint written by Shefali Goel (P.W.12) and signed by deceased was recovered within two hours from the time of incident and cannot be said to be a manufactured document by prosecution. It was proved beyond doubt that the letter was recovered from the bag of deceased and it was indeed signed by the deceased wherein name of present appellant was taken. He placed reliance on statement of Shakuntala Bamania (P.W.13).
37. The presence of Umang Jain (P.W.4), an eye-witness was proved by other prosecution witnesses namely Akhilesh Mishra (P.W.6) and Shailendra Dwivedi (P.W.7). Shailendra Dwivedi (P.W.7) proved that 'Article-2' was recovered from Princy's bag. Rakesh Sharma, I.O. (P.W.16) established that empty cartridge was found from the spot. Thus, the prosecution story is unassailable and Court below has rightly held the appellant as guilty.
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38. In the rejoinder submissions, Shri B.K. Upadhyay, learned counsel for the appellant urged that State counsel's argument cannot be accepted. He reiterated that statement of Om Prakash (P.W.15) recorded under Section 161 of Cr.P.C. shows that handwriting in the entire letter 'Article-2' is of deceased. This runs contrary to the statement of Shefali Goel. It is further urged that as per Section 293(3) of Cr.P.C., Rakesh Sharma (P.W.16) was not a person deputed by the Scientific Investigator. Indeed, D.S. Tomar was the deputed officer. In absence of recording statement of D.S. Tomar, the FSL report cannot be relied upon. 2014(1) JLJ 86 (Kalia vs. State of M.P.), AIR 1971 SC 1865 (Sait Tarajee Khimchand and others vs. Yelamarti Satyam alias Satteyya and others) are relied upon. Lastly, Shri B.K. Upadhyay placed reliance on 2018 Supreme (Gauhati) 43 (Mintu Hasda vs. State of Assam) to contend that Sections 25 and 26 of the Evidence Act must be construed strictly. The confessions made by the appellant in police custody are of no evidentiary value. For the same purpose (2014) 3 SCC 412 (Vijay Kumar vs. State of Rajasthan) is referred to.
39. To sum up, Shri Upadhyay urged that appellant is entitled to get the benefit of doubt in consonance with the judgment reported in (2011) 3 SCC 306 (Wakkar and another vs. State of U.P.) and AIR 1984 SC 1622 (Sharad Birdhichand Sarda vs. State of Maharashtra). 21
40. Learned counsel for the appellant consistent with his oral submissions filed written synopsis and written synopsis in rebuttal to the arguments advanced by State counsel.
41. No other point is pressed by learned counsel for the parties.
42. We have bestowed our anxious consideration on rival contentions and perused the record.
Findings :
Spot map -
43. Learned counsel for appellant raised eyebrows on the spot map and contended that FIR shows that incident had taken place near 'a lane in front of Ace Computer' whereas spot map does not reflect the same. We have carefully perused the spot map and in our opinion, the said contention of learned counsel for appellant runs contrary to the record and is devoid of substance. The spot map (Ex.P/1), on the contrary, shows that the scene of crime is near Ashish Cloth House and is situated in a lane. The spot map contains a finding that an empty cartridge is lying on the spot. Point (6) of spot map clearly reflects the position of Ace Computer and incident had taken place in front of a lane where Ace Computer is situated. Thus, no illegality is found in this regard in the spot map.
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This spot map was proved by the prosecution witnesses and we do not find any illegality on the strength of which spot map can be doubted. The spot map prepared at around 8:00 PM on 02.03.2009, shows that an empty cartridge was found at the scene of crime. Some contradiction about time will not create any dent on the spot map.
44. Shri Akhilesh Mishra (PW-6) clearly deposed that in the place of incident , blood stains were available and an empty cartridge was also found. If factum of blood stains is not specifically mentioned in the spot map, the story of prosecution will not become vulnerable. Recovery of Weapon -
45. The weapon namely, country made pistol was recovered by the prosecution at the instance of the appellant. The recovery memo prepared under Section 27 of Indian Evidence Act shows that the weapon is recovered near a railway track before Habibganj Railway Station, Bhopal. The witness to this recovery and Ex.P/2 is Saurabh Sahu (PW-2) who categorically deposed about such recovery from a 'Pulia' underneath an 'Akauwa' tree. The memorandum prepared under Section 27 of the Evidence Act was duly proved by independent witness namely, Saurabh Sahu (PW-2). There is no glaring contradiction regarding the place from where the said weapon was recovered. Thus, this argument fades into 23 insignificance.
46. Another limb of argument to attack the recovery memo was that it is not mentioned that the ground was digged out to take out the weapon by the appellant. Non-mentioning of such exercise of digging out in the recovery memo is of no significance. Similarly, non-examination of Mayank and Rahul Rohile will not cause any harm to the prosecution story for the simple reason that recovery is proved by leading cogent evidence. The statement of witnesses regarding recovery could not be demolished. It is the quality of evidence which matters and not the quantity of statements/witnesses.
Belated Recording of Statement under Section 161 of Cr.P.C. -
47. The statement of Umang Jain was recorded on 15.04.2009 i.e. after a period of one month and 13 days from the date of incident. Appellant referred the judgments of Supreme Court in Balakrushna Swain, Brahmananda Nanda, Ganesh Bhavan Patel, Harbeer Singh (Supra) and urged that his statement deserves to be discarded solely on the ground of delay. The argument on the first blush appears to be very attractive but lost much of its shine on closer scrutiny. Para-17 of cross-examination of Rakesh Sharma (IO/PW-16) shows that he has assigned reason for belatedly recording of statement of Umang Jain (PW-4). A plain reading 24 of the cross-examination of this witness makes it crystal clear that no amount of cross-examination was made regarding the delay occurred in recording the statement of Umang Jain u/s 161 of Cr.P.C. No doubt, the aforesaid judgments cited by learned counsel for the appellant deals with delay in recording the statement under Section 161 of Cr.P.C., the defence in a case of this nature was obliged to ask a specific question regarding the cause of delay from the relevant prosecution witness. The Apex Court in (1973) 2 SCC 444 (Ranbir and others Vs. State of Punjab) opined that-
"The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor."
(Emphasis Supplied)
48. In (2002) 7 SCC 334 (Mohd. Khalid Vs. State of West Bengal) the Apex Court opined that witness cannot be disbelieved merely because examination has taken place after few days. Similarly, in 2006 CrLJ 316 (Sohan Singh Vs. State of Uttranchal), it is held that delay in examination of prosecution witnesses by police during the course of investigation ipso facto, may not be a ground to create doubt regarding 25 veracity of prosecution case. In this view of the matter, we are of the opinion that Umang Jain's statement will not vanish in thin air merely because it was recorded after few days. Moreso, when Umang Jain's presence at the scene of crime was established by statement of independent witnesses Akhilesh Mishra and Shailendra Dwivedi (PW-6) and (PW-7) respectively. The said statements could not be demolished by the defence.
49. The another criticism regarding statement of Umang Jain is that he being a relative and bystander at the time of incident did not make any effort to save the deceased. We do not see any merit in this contention. The incident had taken place out of blue and in fraction of seconds. The accused person came from behind and caused gun shot injury to the deceased. Everybody must have been shocked and surprised and there was no occasion for anybody to make any effort to prevent gunshot injury. The accused fled away immediately after causing injury. For this reason, this argument also deserves to be rejected.
50. The statement of Umang Jain was called in question on yet another ground i.e. he was related to deceased Princy Jain. On closer scrutiny, we could not find any merit in this contention because as per settled law "Related" is not equivalent to "interested". A witness may be called 26 "interested" only when he/she derives some benefit from the result of a litigation, in the decree of a civil suit or in seeing an accused person punished. A witness who is a natural one and is the possible eyewitness in the circumstances of a case cannot be said to be "interested". This principle laid down in State of Rajasthan v. Kalki, (1981) 2 SCC 752 is consistently followed by the Supreme Court in State of A.P. v. S. Rayappa, (2006) 4 SCC 512, Ashok Kumar Chaudhary v. State of Bihar, (2008) 12 SCC 173, State of U.P. v. Kishanpal, (2008) 16 SCC 73, Maranadu v. State (2008) 16 SCC 529, Sahabuddin v. State of Assam, (2012) 13 SCC 213, ViJendra Singh v. State of U.P., Sudhakar v. State (2018) 5 SCC 435, Laltu Ghosh v. State of W.B. (2019) 15 SCC 344 and Mohd Rojali Ali v. State of Assam (2019) 19 SCC 567.
51. A Division Bench of this Court followed the said ratio decidendi in I.L.R. 2019 M.P. 2098 (Ajay Tiwari vs. State of M.P.). Nothing could be established during the cross-examination of Umang Jain that he was an "interested" witness. Thus, this arguments fade into insignificance. Statements of Akhilesh Mishra (P.W.6) and Shailendra Dwivedi (P.W.7) -
52. The bone of contention is that PW-6 did not mention about presence of Umang Jain at the crime scene. A careful reading of his 27 statement shows that they have mentioned about presence of a third boy on the scene of crime and in the hospital. Thus, this argument is not supported by the material on record. The statement of Shailendra Dwivedi (PW-7) establishes a very important fact of recovery of letter/complaint of deceased from her handbag, the bag which was being carried by her when she was shot dead by the appellant. This letter contains the name of present appellant and shows the background because of which he murdered Princy Jain.
Hostel Owner's Statement -
53. Praveen Saxena (PW-8) was the hostel owner where deceased Princy resided. The hostel owner was although aware about the teasing of deceased by the accused person, did not report this aspect to the police. For this reason, in our opinion, his statement cannot be brushed aside. Since, Princy Jain (deceased) informed him about the incident and he guided her to lodge the police complaint, it is, in our opinion, a normal human behaviour which does not create any doubt about his statement. Letter/complaint (Article -2) -
54. This is an important piece of documentary evidence. The case of prosecution is that this is a complaint/letter written by Shefali Goel and signed 28 by the deceased. This letter written just before the incident reads as under :-
"Jheku ,e-ih- uxj iqfyl Fkkuk Hkksiky] egksn;] mijksDr vkils fouez fuosnu gS fd esa fizUlh tSu fuoklh xat cklkSnk vkils fouez fuosnu djrh gqa fd lqyHk tSu uke dk yM+dk eq>s ijs'kku dj jgk gS ftlds fo"k; es igys Hkh vkils lEidZ gqvk gS vkSj eSau D.I.G. Sir dks Hkh fldk;r dh gSA lqyHk us eq>s 1@03@09 dks vkSj 2@03@09 dks jkLrs esa jksddj ijs'kku djus dh dksf'kl dhA d`i;k vki bl fo"k; es l[r ls l[r dkjokgh djsaA /kU;okn Date- 2@03@09 izs'kd fizalh tSu"
(Emphasis Supplied)
55. This letter became crucial because complainant Shefali Goel, who lodged a named FIR against appellant has taken a "U" turn in the court's statement and deposed that while lodging FIR, she did not take anybody's name. She further deposed that somebody came from behind and fired a gunshot on the deceased and fled away. She although had seen him when he fled away with a pistol, could not identify him. In order to join the dots, the prosecution has taken pains to produce the bag which was being carried by deceased at the time of incident. Apart from other material, this hand written letter (Article -2) was also found in the bag. A plain reading of this letter shows that it was the appellant, who was teasing the 29 deceased and therefore, complaint is pregnant with his name. In later portion of this judgment, we will see whether other dots were also joined, i.e. relating to recovery of weapon at the instance of appellant etc. or not.
56. In any case, this letter is a crucial document which was assailed by contending that the deceased was a literate woman and if she herself has not written a letter, this itself creates a doubt. Shefali Goel categorically deposed in the court statement that the letter was written in her hand writing and it was written as dictated/directed by the deceased. Letter, Article -2 is signed by the deceased. This statement of Shefali Goel could not be demolished. We find no reason to disbelieve the said statement, even if, it is examined as per report of the State Examiner of Questioned Documents.
57. Apart from this, this statement is sought to be demolished by Shri Anvesh Jain by contending that father of the deceased in his statement recorded under Section 161 of Cr.P.C. deposed that the writing of the said letter is by her deceased daughter. It is profitable to remember that statement recorded under Section 161 of Cr.P.C. cannot be treated as substantive evidence. In absence thereof, the said statement, by no stretch of imagination will create any dent on the statement of Shefali Goel mentioned hereinabove. We find support in our conclusion from the 30 judgments of Supreme Court reported in AIR 2007 SC 2786 (Rajendra Singh Vs. State of U.P. and another), (1981) 2 SCC 300 (State of Hariyana Vs. Sher Singh and others), AIR 1991 SC 31 (Baldev Singh Vs. State of Punjab), AIR 1975 SC 1252, (Pedda Narayana and others Vs. State of Andhra Pradesh). The Division Bench of this court in 2005 (4) M.P.H.T. 62 (Diwakar Rao Makode Vs. State of M.P.) has taken the same view and held that this statement is not a substantive piece of evidence and will not improve the case of a party who intends to rely on it. Thus, in our opinion the prosecution could establish beyond reasonable doubt that Article-2 letter/complaint is indeed written by Shefali Goel at the instance of deceased and it was signed by the deceased, which specifically contains the name of the present appellant. Phone Calls and Location -
58. A mobile phone was recovered from the bag carried by the deceased. After the incident, the call details show that mobile phone was used till 20:15 P.M. This, in our view cannot be a ground to disbelieve the recovery of mobile phone. If a young woman is murdered on a busy street, the persons intending to help her and Police will certainly try to inform the family members about the incident by using her mobile phone. 31 Thus, if mobile phone is used after the incident, it will not create any suspicion on the prosecution story regarding recovery of mobile phone. Post mortem report -
59. The post mortem report is relied upon mainly for following purpose :-
(i) The diameter of bullet as per this report is 7.85 mm which is more than the diameter of barrel of the weapon used in the commission of crime.
(ii) The distance shown in the post mortem report,
(iii) Availability of nitrate on the skin around the entrance wound.
60. As to (i) - the court below considered the aspect of diameter of the bullet recovered from the dead body of Princy Jain. The court below opined that Doctor conducting post mortem is not an expert for the purpose of determining the size of weapon or bullet. Ballistic/FSL Experts are having expertise in the field. The Ballistic Expert's description about diameter of weapon matches with the diameter of barrel, the finding of expert of the field was accepted. In our view, it is a plausible finding given by the court below. A microscopic reading of the FSL report shows that the used bullet was marked as Ex.EB-1, whereas empty cartridge was marked as Ex.EC-1. A comparison was made by 32 using comparison microscope and it was opined that the bullet found in the body of deceased is indeed fired from the same weapon which was recovered at the instance of the appellant.
61. As to (ii) - in the postmortem report, it is mentioned that gunshot injury is caused from a distance (description with accuracy is not mentioned) whereas in the report prepared by senior scientific experts of FSL, it is mentioned that the distance must be 3-4 feet from where the gunshot injury was caused.
62. The test regarding close range gun shot wound was considered in catena of judgments. In Noor Khan Vs. State of Rajasthan (1964) 4 SCR 521 it was held as under :-
"10. There is discrepancy between the estimates given by the witnesses about the distance from which the fatal shot was fired by Noor Khan. Witnesses have estimated this distance as varying between 8 and 15 poundas - each pounda being equal to a step, or two feet. It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun could not have been at a distance exceeding 3 or 4 ft."
(Emphasis Supplied)
63. In Janak Singh Vs. State of U.P. (1973) 3 SCC 50 it was opined as under :-
33
"13. The third contention was the one which Mr Dixit elaborated. His proposition was that the medical testimony contradicted the eyewitnesses' version and that contradiction rendered their account unacceptable. According to Dr. Ghosh's evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from a very close range but from some distance at least. No doubt, the three eyewitnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can therefore, turn on such variation."
(Emphasis Supplied)
64. In A.N. Chandra Vs. State of U.P. (1990, Supp SCC 717) the Supreme Court held that :-
8.... If the gun was fired from such a close range, there should have been blackening and tatooing but the doctor has not noted any such sign around the injuries. Further the direction of the injuries was from upside to downward and there was a dispersal of the wounds. If the gun was fired from a close range there could not have been such dispersal of the wounds.
Further, we are unable to understand as to why the gun was kept loaded already.
65. The Delhi High court in Bhim Singh Vs. State, 1992 SCC OnLine Del 320 has opined as under:-
"Shri Sethi expressed his apprehensions, that admitted past enmity of the petitioner with the 34 accused may have been the main cause of his false application in the instant case. The injured in his statement under Section 161 of the Code of Criminal Procedure had admitted that he had litigation and enmity with the petitioner Bhim Singh. He has referred to Legal Medical Toxicology by Gonzales, Wannece and Halpern against the prosecution case and they read as under :
"If the gun is fired from a distance of several feet or more, the bullet perforation will be the only mark on the target caused by the discharge. Occasionally the metal of the bullet fouls the edges of the perforation, especially a lead bullet which has passed through light coloured clothing. The distinguishing action of black powder on a surface, at close range is to produce severe flame marks considerable smoke stains and coarse tattooing from partly burned or unburned powder grains."
66. The Division Bench of this court in Ramsingh vs. State of M.P., (2002) 1 MPLJ 52 has opined as under :-
"13. ..... In the opinion of the doctor, the cause of death was syncope due to heavy amount of blood loss from extensive laceration of heart and lungs caused by bullet and gases of explosion from a gun fired from very close distance.
The doctor also stated that the gun shot was fired from close range. In the postmortem report Dr. H.G. Chinchaidhar found blackening of skin around the wound.
14. The Apex court in the case of Swaran Singh vs. State of Punjab (2000) 5 SCC 668 in para 25 held that :-
"The evidence of PW 1 and the post-mortem reports was to the effect that the single 35 wound on the right side of the chest of Shamsher Singh and several wounds on Amar Singh were blackened. "Blackening is caused by smoke deposit. Smoke particles are light. They do not travel far. Therefore, smoke deposit, i.e., blackening is limited to a small range." [See Forensic Science in Criminal Investigation & Trials (3rd Edn.), p. 280; Fisher, Svensson, and Wendel's Techniques of Crime Scene Investigation (4th Edn., p. 296).] The fact that the firing was at close range supports the evidence of the eyewitnesses and runs contrary to the defence account of the incident. The situs of the wounds found by PW 1 on the deceased also bear out the eyewitnesses' testimony of the incident."
(Emphasis Supplied)
67. In the instant case, the entry wound on the shirt (Kurta) of deceased shows that on chemical analysis, the presence of copper metal around the entry point of bullet, although nitrate was absent. In view of absence of nitrate and blackening, the FSL experts opined that gunshot must have been caused from a distance of 3-4 feet. If we examine this finding on the basis of analysis made by the Apex Court, Delhi High court and this court in aforesaid judgments, we will not be able to hold that the story of prosecution that gunshot injury was caused from a distance of 3-4 feet is untrustworthy. Thus, this argument also deserves to be discarded. Once it is proved that Princy died because of gun shot 36 injury caused by bullet EB/1, variation about distance is immaterial in view of judgment of Supreme Court in Janak Singh (supra).
68. As to (iii) - as analyzed above, although no nitrate was found as per FSL report, the other evidence, a hole pregnant with chemical (copper) on the Kurta of deceased and other scientific evidence shows that the gunshot injury was indeed fired by the weapon recovered at the instance of appellant. In the celebrated book of Modi's Jurisprudence, the author devoted more than one complete page regarding distance of the firearm. He opined as under :-
"At a distance of one to three feet small shot make a single aperture with irregular and lacerated margins corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wound is blackened, scorched and tattooed with unconsumed grains of powder. On the other hand, at a distance of six feet the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in a area of five to eight inches in diameter, but without causing blackening, 37 scorching or tattooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body.
In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a firearm was discharged. According to Taylor no general rule can be laid down.
Experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used.
69. A conjoint reading of aforesaid judgments mentioned in aforesaid paras and opinion of Modi (supra), it is clear that when clear evidence is available regarding use of firearm, recovery of bullet from the body of the deceased coupled with other direct and circumstantial evidence, the use of firearm cannot be doubted merely because there is some discrepancy regarding distance from which firearm was used. Thus, this argument also cannot be accepted.
Statement of Shakuntala Bamania (P.W.13)
70. This statement was called in question by appellant by contending that she was aware of the name of appellant who did not mention it in her report. Thus, the prosecution story is unbelievable. It is seen that this officer has prepared Panchayatnama and 'merg' intimation. If name of 38 appellant is not mentioned in the said intimation, in our opinion, it will not make the said documents and her statement as false or fabricated. F.I.R. Panchayatnama and 'merg' intimation etc. are not encyclopedias. For this reason, this argument cannot cut any ice.
Statement of Ravindra Jain (P.W.14)
71. This witness in his deposition stated that he had seen the appellant in the police station on the next day of incident whereas appellant was arrested after two days. It is not expected from a witness to remember with exactitude as to after how many days the accused was arrested. Moreso, when the difference is of only one day. The hyper-technical argument of appellant deserves to be rejected.
Motive for murder
72. It is argued that there was no occasion for the appellant to suddenly cause murder of the deceased. In absence of any adequate motive for commission of offence, the appellant could not have been held guilty. We do not seen any merit in this contention in view of legal journey on this aspect.
73. In the case of Atley vs. State of U.P. AIR 1955 SC 807 Supreme Court held as under -
39
"9. The other contentions raised on behalf of the appellant need no serious consideration because they relate to mere appreciation of evidence and do not raise any question of principle. For example, it was said that the evidence led on behalf of the prosecution did not clearly establish the motive for the crime. It was said that it was true that the deceased was the discarded wife of the appellant who had taken a second wife but that there was no clear evidence of any serious quarrels between the husband and the wife. That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion."
(Emphasis Supplied)
74. In (1986) 3 SCC 637 (State of Andhra Pradesh vs. Bogam Chandraiah and another), the Apex Court held as under -
"11. .........Another failing in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well settled rule that when there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the court. Lastly, we find that the High Court has, evolved a theory of its own, without there being any material to support it, and premised that the occurrence must have taken place during darkness, and subsequently the respondents must have been implicated on account of suspicion."
(Emphasis Supplied) 40
75. In the case of Mulakh Raj and others vs. Satish Kumar and others (1992) 3 SCC 43 the Supreme Court opined as under -
"17. The question then is, who is the author of the murder? The contention of Sri Lalit is that the respondent had no motive and the High Court found as a fact that the evidence is not sufficient to establish motive. The case is based on circumstantial evidence and motive being absent, the prosecution failed to establish this important link in the chain of circumstances to connect the accused. We find no force in the contention. Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case."
(Emphasis Supplied)
76. The Apex Court also in (1992) 3 SCC 106 (Ganeshlal vs. State of Maharashtra) held as under -
"9. It is next contended that the parents, sister, maternal uncle and uncle's daughter, A-1, A-3 to A-6 having been acquitted the appellant cannot be convicted under Section 302 I.P.C. The question 41 therefore, is whether it is the appellant alone who has committed the offence or parents, sister and two others also are participis criminis. It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. In Atley v. State of U.P. [AIR 1955 SC 807, 810 : 1955 Cri LJ 1653], this Court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances."
(Emphasis Supplied)
77. In 1994 CriLJ 3562 (Raveendran and another vs. State of Kerala) it was opined by the Supreme Court as under -
"16. Motive : (1) Looked at from psychological stand point motive is the particular stimulus that arouses a 42 striving towards some definite end. Motive pervades in all human actions and behaviour but difficult to determine its true character. The inferences are invariably drawn applying the legal tests but they need not be accurate in all given situations. The Supreme Court in Krishna Pillai Sreekumar v. State of Kerala, 1981 Supp SCC 31 : AIR 1981 SC 1237 :
(1981 Cri LJ 743) remarked that the variations in human nature are being so vast murders are actuated by much lesser motives. The absence of motive is of no consequences when cogent and reliable evidence as to the guilt of the accused is available. However, under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Therefore the evidence of motive is always relevant and admissible, although it is not necessary for the prosecution to offer evidence of motive, inasmuch as the motive does not form part of essential ingredients of the offence of murder.
(Emphasis Supplied)
78. In (1998) 9 SCC 238 (Nathuni Yadav and others vs. State of Bihar and another) it was held thus -
"17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck 43 a note of caution in R.v. Palmer [ Shorthand Report at p. 308 CCC May 1856] thus:
"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties."
Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.
In Atley v. State of U.P. [AIR 1955 SC 807 : 1955 Cri LJ 1653] it was held:
"That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion."
In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind 44 of the accused worked in a particular situation.
Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution."
(Emphasis Supplied)
79. (2013) 12 SCC 236 (Birandra Das and another vs. State of Assam) is also relied upon wherein Apex Court held as under -
"21. The last ground of attack on the sustainability of the conviction is that the prosecution has not been able to prove any motive. The learned counsel would submit that when the animosity between some of the witnesses and the deceased has been admitted, there can be a ground for false implication. We have already analysed the evidence brought on record and there is nothing to discard the same. In Balram Singh v. State of Punjab [(2003) 11 SCC 286 : 2004 SCC (Cri) 149 : AIR 2003 SC 2213] , it has been clearly stated that: (SCC p. 291, para 11) "11. ... If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also [would] not make the prosecution case weak."
23. In State of U.P. v. Kishanpal [(2008) 16 SCC 73 :
(2010) 4 SCC (Cri) 182] , while dealing with the presence of motive, a two-Judge Bench had to say thus: (SCC p. 88, para 39) "39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove 45 the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
24. Thus, acceptation of the direct evidence on record on proper scrutiny and analysis of proof of existence of motive or strength of motive does not affect the prosecution case. That apart, it is always to be borne in mind that different motives may come into operation in the minds of different persons, for human nature has the potentiality to hide many things and that is the realistic diversity of human nature and it would be well-nigh impossible for the prosecution to prove the motive behind every criminal act.
Therefore, when the appellants armed with lethal weapons were present and witnessed the occurrence and participated in dragging the deceased to the courtyard of Birendra, establishment of any motive is absolutely inconsequential."
(Emphasis Supplied)
80. Similarly, in (2005) 12 SCC 591 (Sarup Singh vs. State of Punjab) even in absence of establishing motive, the offence under 46 Section 302 of IPC was held to be proved. Pertinently, it was also a case of gunshot injury by the appellant therein.
81. There is no material contradiction between oral evidence and medical evidence. No case in our opinion is made out for giving benefit of doubt to the appellant.
82. The FSL/Ballastic Officer report was rightly considered by the Court below. It is noteworthy that no efforts were made by the defence to requisition/summon the FSL expert. In absence thereto, in the teeth of Section 293 of Cr.P.C., Court below has not committed any error much less error of law in considering the expert report.
83. In our opinion, if D.S. Tomar, the expert who has prepared the FSL report has not entered the witness box, it will not create any dent on the story of prosecution. The judgment of Kalia (supra) on which reliance is placed by Shri B.K. Upadhyay is of no assistance because it does not deal with Section 293 of Cr.P.C. The remaining judgments cited by appellant have no application in the peculiar facts and circumstances of this case.
84. In view of foregoing analysis, in our view, the Court below has appreciated the evidence on permissible legal parameters and reached to a plausible conclusion. The prosecution could establish its case beyond 47 reasonable doubt. Thus, we find no reason to interfere in the impugned judgment. The appeal fails and is hereby dismissed.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
Bks/PK
Signature Not Verified
SAN
Digitally signed by BASANT KUMAR
SHRIVAS
Date: 2022.06.13 15:53:31 IST