Madhya Pradesh High Court
Virendra Dubey And Anr. vs The State Of M.P. on 6 November, 2017
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
CRA No. 1367/2005
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
(DIVISION BENCH)
Criminal Appeal No. 1367/2005
1. Virendra s/o Baijnath Dubey
2. Suresh s/o Baijnath Dubey
.............Appellants
Versus
State of Madhya Pradesh
.............Respondent
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Coram:
DB: Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, J.
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Mr. S.C. Datt, Senior Advocate with Mr. Siddharth Datt and Miss
Kishwar Khan, Advocates for the appellants.
Mrs. Namrata Agrawal, Government Advocate for the
respondent/State.
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Whether Approved for Reporting: No
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Reserved on: 26/10/2017
Delivered on: 06/11/2017
JUDGMENT
{ 06/11/2017 } Per: Hemant Gupta, Chief Justice:
The present appeal is directed against an order passed by the learned Fourth Additional Sessions Judge, Chhatarpur (M.P.) on CRA No. 1367/2005 2 05.07.2005 in Sessions Trial No.129/2001 convicting the appellant No.1 - Virendra for the offence punishable under Section 302 with the aid of Section 34 of IPC and also convicting him for an offence punishable under Sections 25(1B)(a) and 27(3) of the Arms Act,1959 whereas appellant No.2 - Suresh has been convicted for an offence punishable under Section 302 of IPC and further convicted under Sections 25(1B)(a) and 27(3) of the Arms Act, 1959. Vide separate order, both the appellants have been sentenced to undergo life imprisonment and to pay a fine of Rs.100/- each; in default, to further suffer simple imprisonment for three months each for the offence under Section 302 and/or 302/34 of IPC and both the appellants have been further sentenced to undergo rigorous imprisonment for 1-1 year and to pay a fine of Rs.100/- each, in default of payment of fine to further suffer simple imprisonment for three months each for two counts under the offences punishable under the Arms Act; substantive sentences to run concurrently.
2. The prosecution case was set in motion on the statement of Diwari Ram, father of deceased Mainbabu, made to ASI, S.K. Tiwari, In-charge Station House Officer, Police Station Orchha Road on 27.04.2001 at about 8.30 a.m. in respect of an incident, which had occurred at 7.30 a.m. The statement is that he has four sons whereas Mainbabu is his third (Sajla) son. He is owner of land admeasuring CRA No. 1367/2005 3 128 Acres. There is a dispute regarding the said land and one such matter is pending before the High Court at Jabalpur. At about 7.45 a.m. when he was sitting at the door of his house, one Chandra Bhan came running that Suresh has fired upon Mainbabu in front of Dal Mill of Raju Sindhi. He was accompanied by Baijnath and Virendra. Suresh was having a gun and that Mainbabu is lying in front of Dal Mill. After saying so, Chandra Bhan went towards the road and he also followed him. On reaching the spot, he saw that his son was unable to speak and that on account of injury in his hand and back, blood was oozing out. He along with Chandra Bhan Dubey, Hindupat Dubey and Manoj Dixit took the injured to the hospital in a tempo but the doctor told them on reaching hospital that Mainbabu is dead.
3. On the basis of such statement, S.K. Tiwari (PW-6) started investigation. After recording the FIR (Ex.P-27), he sent the information to the Court soon after the same was lodged. Carbon copy of FIR with endorsement of the Court is Ex.P-29. Thereafter, he went to the place of occurrence and prepared a site plan, which is Ex.P-30. The memorandum of statement of accused Suresh was recorded under Section 27 of the Evidence Act, which is Ex.P-25. The articles were recovered from the place of occurrence vide memo Ex.P-28 including the blood-stained earth, empty cartridges of .12 bore and one small steel vessel (Lota). He identified such recovered articles as the one, CRA No. 1367/2005 4 which were seized by him. The Arms licence of a single barrel gun was also taken in possession vide recovery memo Ex.P-24. On 28.04.2001, one country-made .12 bore pistol was taken in possession vide memo Ex.P-24 along with two live cartridges. On the same day i.e. on 28.04.2001, one licensed single barrel gun of accused Virendra Kumar Dubey was recovered from co-accused Suresh vide recovery memo Ex.P-26. Two live cartridges were also taken in possession vide the same recovery memo. On 28.04.2001, he recorded the statement of Diwari Ram, witnesses Chandra Bhan Dubey and Hindupat Dubey. He also recorded the statement of Banarsi Babu, Manoj Dixit, Shakuntala, Pushpa, Chhikaudi as well as statement of Mohanlal Chourasiya at the place of occurrence. The accused along with their father Baijnath were arrested on 28.04.2001. On account of not having arms licence, Virendra was charged for the offence under Section 25 and 27 of the Arms Act whereas offence under Section 30 was lodged against Suresh (sic - Virendra). He further stated that Taparia (hut) of the deceased is about 150 feet from the place of occurrence and that there is no colony behind Dal Mill of Raju Sindhi. The report of the Forensic Science Laboratory is Ex.P-35 in response to the request of the police to examine the firearms, live cartridges, empty shells, and the bloodstained earth vide communication dated 28th May, 2001. The report is dated 12.06.2001.
CRA No. 1367/20055
4. After completion of the investigation a report under Section 173 of Cr.P.C. was filed. The accused pleaded not guilty and were made to stand trial. However, during pendency of the trial, Baijnath - father of the appellants died. After examining the prosecution's oral and documentary evidence, the learned Trial Court convicted and sentenced the appellants for the offences as mentioned above.
5. The prime witness of the prosecution case is Chandra Bhan Dubey (PW-15), who has seen the occurrence and informed the father of the deceased in the morning at about 7.45 a.m. Chhikaudi (PW-1) and Mohanlal Chourasiya (PW-3) are the persons, who were near the place of occurrence and their attention was drawn only after they heard the firing of bullet.
6. Dr. B.M. Chourasia (PW-7) is the doctor who performed postmortem examination on the body of the deceased. The injuries as per the postmortem report (Ex.P-7) are as under:-
(i) a wound 3 cm x 2 cm over lower right arm medially present near elbow region oval in shape with lacerated margin and tattooing around it.
Collar of abrasion present. Singed hair are seen around it. Approximately another wound over same site. Underlying muscles, bone have laceration present in depth;
(ii) a disfigured and fragmented lacerated wound 5 cm x 4 cm over poster-lateral position on the right CRA No. 1367/2005 6 elbow region. Underlying muscles, tissue blood vessels lacerated and related part of lower end of humerus is # in pieces, related muscles propped out, and
(iii) oval wound 3 cm x 2 cm with inverted margins, abdominal cavity deep. On probing, situated over right lower trunk, 3 inch from vertebral column, just below level of 12th rib.
According to Dr. Chourasia (PW-7), all wounds are ante- mortem in nature and have been caused by firearms. On internal examination, he recovered one metallic body embedded over lower aspect in left iliac fossa; a black ring like body from clots; and, one plastic object from the abdominal cavity. The mode of death was shock due to excessive hemorrhage as a result of firearm injuries caused within duration of twelve hours.
7. Chhikaudi (PW-1) has stated that at about 7.30 a.m. when he was cooking his food, he heard the firing of a gunshot and on opening the gate he found that the person who was standing near the gate had been hit by the bullet. He did not see anybody. He went to inform Raju but when he came back he did not see the dead body. In the cross-examination, he stated that the dead body was near the tea stall (kiosk) of Mohanlal Chourasiya and that he could not see any person within a distance of 50 steps. In cross-examination by accused CRA No. 1367/2005 7 Virendra, he stated that the persons selling the milk come around 7 a.m. near the kiosk of tea and on that day the milk-vendors were present. In further cross-examination by Baijnath he stated that he has not seen any person running away with the gun. He stated that Chandra Bhan came after 15 minutes of his coming out of his room.
8. Mohanlal Chourasiya (PW-3) deposed that at the morning time when he was at his tea shop, he heard the firing of a gun. He saw a person running from the place of occurrence. He saw Mainbabu was lying there. A person was seen running towards Saunra. He can identify the person, who was running with the gun but the accused were not one of the person, who ran from the place of occurrence. In cross-examination, he stated that his kiosk is at about distance of 20-25 steps from the place where Mainbabu was lying. When he reached, none from the family of Mainbabu was there.
9. On the basis of evidence of these two witnesses; Chhikaudi (PW-1) and Mohanlal Chourasiya (PW-3), the argument of the learned counsel for the appellants is that none of the persons, who were in the close vicinity of the place of occurrence have seen Chandra Bhan (PW-
15), therefore, the testimony of Chandra Bhan is not of a reliable witness. He is a chance witness; therefore, his statement cannot form the basis for conviction of the appellants. In support of the contention that the testimony of chance witness unless corroborated in material CRA No. 1367/2005 8 particulars cannot be relied upon, learned senior counsel for the appellants has placed reliance upon the judgments reported as AIR 1941 Privy Council 11 (Ismail Ahmed Peepadi vs. Momin Bibi and others) and AIR 1976 SC 2032 (Bahal Singh vs. State of Haryana).
10. Chandra Bhan (PW-15) is the eyewitness examined by the prosecution. Chandra Bhan has deposed in Court that on 27.04.2001 at about 8 a.m., he had gone to meet Mainbabu as Mainbabu had promised him to give money. When he reached near the Taparia (hut) of Mainbabu, his mother-in-law was sweeping the floor. She told him that Mainbabu has gone to Naugaon road for milk. He paddled the bicycle to Naugaon road and on reaching there he saw Mainbabu sitting with Lota (milk container) near Dal Mill of Raju Sindhi. He sat with Mainbabu. Mainbabu told him that he will arrange the money and that he should go back. After such promise, he started going back but soon after he heard firing of gunshot. When he turned around, he saw that all three accused including Baijnath had encircled Mainbabu. He stopped bicycle and kept on looking towards them. He saw Mainbabu was making attempt to get up but Suresh fired upon Mainbabu and thereafter, Mainbabu fell on the ground. As soon as Mainbabu fell on the ground then the accused persons ran towards the pond. He went towards Mainbabu and tried to find out from Mainbabu as to who were the persons who assaulted him but Mainbabu could not speak. In that CRA No. 1367/2005 9 condition, he came running to Diwari Ram, his uncle. He shouted that Mainbabu has been assaulted by Virendra, Suresh and Baijnath and that they have run towards the drain. On hearing the noise, his family members such as Hindupat, Manoj Dixit and others went towards the place of occurrence. Mainbabu was writhing in pain. They stopped a tempo and took Mainbabu to hospital. The doctor at the hospital informed that Mainbabu has died. The police came at the spot and from the place of occurrence lifted a .12 bore cartridge, a steel vessel (Lota) and bloodstained earth. In cross-examination, he stated that he does not remember as to whether the requirement of money for the wedding of his daughter was mentioned in Ex.D-5 or not. He cannot explain the reason as to why such fact was not recorded in his statement. The police station is 1¼ kilometers from the place of occurrence. He admitted that there is lot of rush on Chhatarpur- Naugaon road but he has no knowledge that whether any Chowkidar resides in Dal Mill. There is a thrasher in front of kiosk of tea. He also deposed that he does not remember as to whether he has given statement Ex.D-5 that he asked Mainbabu that who were the assailants. In cross-examination, he deposed that he was accused in a double murder case of Dr. Johns though he was falsely implicated. He was an accused in the murder of Lallu Kurmi. He was also accused in the theft of buffaloes and also in a case of Narcotics. Another case was pending CRA No. 1367/2005 10 against him for an offence under Sections 107, 116 (sic) but he does not remember that Baijnath etc. were opposing party. He had no case pending with father of Virendra. His family and Diwari Ram have cases pending against father of Virendra pertaining to land. He was dismissed from police service on account of criminal case registered against him. He denied the knowledge that Chhikaudi was Chowkidar in Dal Mill as he did not meet any person at the place of occurrence. There was Chourasiya Industry, 60 to 70 feet away from the place of occurrence but he cannot say whether such Industry works 24x7. He cannot say whether Chowkidar stays in a Tendu leave Godown opposite Dal Mill. Mainbabu used to live with his wife, mother-in-law and children in his Taparia (hut). His hut was at a distance of 1.25 furlong downwards the fields of village Saunra. The place of occurrence was about 1.5 furlong from the hut on the road leading towards Saunra village. He went to Chourasiya Industry to seek help but not to Dal Mill or Tendu leave Godown. He deposed that he left his home around 7.15 a.m. and must have taken 10-15 minutes to reach the hut of Mainbabu. He came in front of the pond where ladies were bathing but did not inform anybody and came towards the house of Mainbabu. He stopped at the road for 5-7 minutes. When people asked him, he said that firing has taken place. In the tempo 7-8 people had taken Mainbabu to hospital which, apart from him, included Hindupat, CRA No. 1367/2005 11 Diwari Ram, Brijkishore, Banarsi Babu and other family members. In 10-15 minutes after reaching hospital, Superintendent of Police came to the hospital. Soon after the Superintendent of Police came, the police team also came. He deposed that Mainbabu is his cousin and Pushpa is wife of Mainbabu. He denied that on the date of occurrence Virendra was on duty of his depot. He himself has seen Virendra at the place of occurrence. He denied the suggestion that on 12 th May, 2003, he, Hindupat and Banarsi Babu had attacked Baijnath with knife though he admitted that a case has been registered. He denied the suggestion that on 6th February, 2003 there was a Panchayat where he demanded Rs.3 Lac for giving a statement in favour of the accused.
11. On the basis of the statement of Chandra Bhan (PW-15), learned senior counsel for the appellants argued that such witness has a criminal background and has been involved in many cases including the one against the accused themselves. Still further, he has improved his statement than what was given by him in his statement recorded under Section 161 Cr.P.C. (Ex.D-5) inasmuch as he has not deposed in his statement that he had gone to meet Mainbabu for the purposes of money. He has also not stated that he asked Mainbabu to disclose the name of the assailants but he has not given such name. It is also argued that normal human conduct is to take the injured to the hospital but in the present case, the witness is stated to have left Mainbabu in injured CRA No. 1367/2005 12 condition and gone to call Diwari Ram, the father of the deceased. Such is not a normal human conduct. Therefore, statement of Chandra Bhan is not that of a reliable and trustworthy witness whose statement can be made sole basis of conviction of the appellant.
12. Banarsi Babu (PW-12) is the witness of recovery of dead body taken in possession vide memo Ex.P-3.
13. Hindupat (PW-13) is the witness of recovery of country- made pistol from Virendra and two cartridges. He is also a witness of recovery of gun from Suresh vide memo Ex.P-24 on the basis of his disclosure statement.
14. Diwari Ram has been examined as PW-14. He is the father of the deceased and the informant on whose statement the FIR was lodged.
15. The accused in their defence examined Ramkishore Mishra as DW-1. He is a milk vendor, who is said to have witnessed the occurrence. He deposed that one tall fair complexion person, who has a mark under right eye has fired upon Mainbabu. In cross-examination, he states that Chandra Bhan came to the place of occurrence after the police came. He could not tell as to whether Mainbabu was wearing pant-shirt and of which colour at the time of incident.
16. Sushil Kumar Patel has been examined as DW-2. He is also said to be standing near the kiosk of Mohanlal Chourasiya (PW-3) and CRA No. 1367/2005 13 that thereafter he has gone to the place of occurrence.
17. Subalal Yadav (DW-3) was working as TCT in State Road Transport Corporation, Chhatarpur on 27.04.2001 engaged in management and supervision of tyres. According to this witness, Mahoba Sub-depot is under Chhatarpur depot. Virendra was posted in Chhatarpur depot and was doing the duty at Mahoba Sub-depot under him as Tool Keeper. He deputed Virendra on 26.04.2001 to visit Mahoba on 27.04.2001. On 27.04.2001, Virendra left for Mahoba at about 5 a.m. and came back at 3 O'clock. He admitted that there is overwriting in the document Ex.D-10 at serial No.26 and such cutting has not been initialed. In further cross-examination, when asked that whether he has seen any vehicle going out of the depot at 5 a.m., the Court has recorded the demeanor that the witness is evading the question. He denied the suggestion that he is giving false statement being a co-employee of Virendra.
18. Nand Kishore has been examined as DW-4. He is said to have been posted at Mahoba Sub-depot as Security Guard. He deposed that Virendra came to the Sub-depot at about 7 a.m. and worked in Sub depot till 12 noon. In cross-examination, he admitted that his duty was from 6 a.m. to 2 noon. The witness evaded the question as to whether entry and exit time of the vehicle is recorded in the register. The Court has recorded that no such entry was recorded.
CRA No. 1367/200514
19. Atmaram Yadav (DW-5) was working as Store Keeper at Mahoba Sub-depot on 27.04.2001. Accused Virendra was working as Tool Keeper at Chhatarpur depot. He deposed that Virendra came to Mahoba Sub-depot at 7 a.m. Virendra used to come to Mahoba Sub- depot every month for collecting the record of the tyres. Virendra came to Mahoba Sub-depot at 7 a.m. and left at 12 noon. He deposed that the movement order of Virendra is Ex.D-10. In cross-examination, he admitted that the movement orders are recorded in the register of depot but he has not kept that record. It is also correct that what work is done is mentioned in the register. He also admitted that in memo Ex.D-10 there is no dispatch or serial number. The duty of the Store Keeper is for 24 hours. There is no provision for residence at Mahoba Sub-depot but he resides close to depot. He denied the suggestion that Virendra did not come to Mahoba Sub Division on 27.04.2001 and not performed any work relating to tyres. In response to the Court question as to why Ex.D-10 was written and as to whether entry of document Ex.D-10 is made in the records of the Corporation, he deposed that no such entry is made though such entry is done so that nobody raises false claim.
20. Mahaprasad has been examined as DW-6. He is said to be in relation of accused Baijnath. He deposed that on 28.04.2001, he, Baijnath, Suresh and Ram Bahadur reached bus-stand, Chhatarpur. CRA No. 1367/2005 15 Radhacharan Mishra was waiting for them at the bus-stand. They went to bungalow of Superintendent of Police, who told them that he is calling Station House Officer of Orchha Road. One Tiwari came and took all of them to Orchha. Baijnath and Suresh were arrested.
21. DW-7 is K.K. Tripathi, a Clerk from the Registration Office, Chhatarpur, who had brought the registration register of 26.02.1998 pertaining to record of land of Khasra No. 1240 area 0.85 Hectare, 1247, 1248, 1251, 1254 and 1255 total area 3.16 Hectare situate at village Saunra and other land of the same village bearing Khasra No.1303, 1304, 1343, 1340 and 1345 area 6.19 Acre and Khasra No.1429, 1430, 1431, 1432 and 1435 having area of 2.49 Hectare. He has deposed in respect of the sale deeds by which different parts of the land were purchased on 18.06.1996, 07.08.1991, 23.12.1997 and 22.06.1995. On 5.9.2000, Mathura Prasad alias Mainbabu has entered into an agreement for purchase of land whereas on 8.9.1999, Sona Devi w/o Sohan Prasad Dubey executed an agreement Ex.D-17. Similar documents Ex.D-11, D-14, D-15, D-16 and D-17 were executed.
22. On the basis of the defence evidence, the argument of the learned senior counsel for the appellants is that there were property disputes between the parties, therefore, the victim party has a motive to implicate the appellants falsely. It is also argued that Subalal Yadav CRA No. 1367/2005 16 (DW-3), Nandkishore (DW-4) and Atmaram Yadav (DW-5) have deposed regarding discharging of duty by appellant Virendra at Mahoba Sub-depot, therefore, he could not be present at the time of occurrence.
23. We have heard learned counsel for the parties and find no merit in the present appeal.
24. Chhikaudi (PW-1) and Mohanlal Chourasia (PW-3) have deposed that they have not seen any person soon after the incident at the place of occurrence. Therefore, the statement of Ramkishore Mishra (DW-1) that he was at the place of occurrence with milk and that of Sushil Kumar Patel (DW-2) cannot be relied upon. Such witnesses have not been suggested that Ramkishore Mishra or Sushil Kumar Patel were present at the time of occurrence and that they have been wrongly not associated by the Investigating Officer. Therefore, the presence of Ramkishore Mishra (DW-1) and Sushil Kumar Patel (DW-2) at the time of occurrence is wholly unbelievable. Similarly, the statement of Mahaprasad (DW-6) is a statement of the events after the occurrence and therefore, not relevant. Admittedly, no grievance was made before the higher officials complaining about the manner of investigation. Though Mahaprasad (DW-6) is said to have met with Superintendent of Police on 29.01.2001 but still not raised any grievance of false implication of the accused.
CRA No. 1367/200517
25. The entire defence is based upon Ex.D-10 i.e. the movement of appellant Virendra to Mahoba Sub-depot but there is a clear interpolation in the date of issuance of such movement order. The date appears to have been changed to 26.04.2001 from 21.04.2001. Still further, there is no dispatch number for which there is provision in the document. In absence of any dispatch number, such piece of paper could be created and introduced at any point of time. The dispatch register of the Chattarpur or Mahoba Sub-depot has not been produced. Thus, such document Ex.D-10 cannot be relied upon in support of a plea of alibi that Virendra was not at the place of occurrence on 27.04.2001. The witnesses who have been examined, are working in the same office, therefore, some interpolation in the documents can be made by them to help their co-employee. Thus, such document does not inspire confidence as that of impeccable integrity.
26. Coming to the prosecution evidence, witnesses Chhikaudi (PW-1) and Mohanlal Chourasia (PW-3) have been relied upon to contend that Chandra Bhan Dubey (PW-15) was not present at the time of occurrence but such inference is not clearly possible on the basis of their testimony. Chhikaudi (PW-1) has deposed that he opened the door of his house after he heard firing of a bullet but soon thereafter he has not seen the dead body at the place of occurrence. Therefore, before he could reach the place of occurrence, the police has arrived and CRA No. 1367/2005 18 removed the dead body. His testimony is not helpful to the appellants as he could not notice when the dead body was taken away. His statement is of an indifferent person to the events happening around him. The argument raised is that he is not a hostile witness, therefore, the prosecution is bound by his statement. The statements of the witnesses are to be appreciated in their entirety. Admittedly, he is not the witness of occurrence but in respect of the events subsequent to the occurrence. The statement of the witness is not that of a trustworthy witness who has even failed to notice, as to when the dead body was removed from the place of occurrence, therefore, he cannot be relied upon either by the prosecution or by the defence.
27. Similarly, Mohanlal Chourasia (PW-3) has deposed that he has seen the person running with the gun but none of the accused persons are the person who was running from the place of occurrence. His testimony is again not relevant for determining as to whether the accused were not the persons who assaulted the deceased. The witness deposed that he has seen the person running away with the gun and he can identify him but since he has seen the person running away, it is just possible that it may not be possible for him to identify the assailant as he was running.
28. On the other hand, the statement of Chandra Bhan (PW-15) is assailed on the ground that he is a chance witness and that he has CRA No. 1367/2005 19 improved upon his statement (Ex.D-5) made to the police. Further contention is raised that the witness is involved in many criminal cases and that he is the near relative of the deceased and therefore, his testimony cannot be made basis of conviction of the appellants.
29. Though the argument raised by learned senior counsel seems to be attractive but on a close analysis, we find that none of the arguments to discard the statement of Chandra Bhan (PW-15) can come to the rescue of the appellants. Different people react differently in the same set of circumstances. In the given circumstances, a person may tend to help the injured to take him to hospital but if the witness has not taken the injured to hospital but has run to call the family of the injured, cannot be said to be wholly improbable conduct. The fact remains that the police station is located more than one kilometer away from the place of occurrence and the FIR is recorded within one hour of the occurrence with the clear description that Chandra Bhan has seen the occurrence and informed the father of the deceased. There was not much of time with the prosecution to introduce Chandra Bhan as a witness unless the sequence of the events has not happened as deposed by the witness.
30. Their Lordships of Privy Council in Ismail Ahmed Peepadi (supra) have held that though the 'chance witness' is not necessarily a false witness, it is proverbially rash to rely upon such evidence. CRA No. 1367/2005 20 Similarly, the Supreme Court in Bahal Singh (supra) has held that evidence of chance witness is not necessarily incredible or unbelievable but it requires cautious and close scrutiny. Same view has been reiterated recently in another judgment reported as (2016) 10 SCC 220 (Mahavir Singh vs. State of Madhya Pradesh).
31. Thus, the above analysis of the statement of Chandra Bhan (PW-15) shows that firstly, he cannot be called as a chance witness because he had a purpose to contact the deceased for arrangement of money for the wedding of his daughter and secondly, even if he is construed to be a chance witness, the testimony of such witness is proved to be a reliable and trustworthy witness, though his past conduct may not be above-board.
32. In respect of improvements in the statement (Ex.D-5) than the statement given in the Court, the said argument is also not tenable. Mrs. Agarwal, learned counsel for the State has pointed out that the witness has stated even in the initial statement that he had gone to the deceased in respect of arrangement of money. Although the said statement finds mention, not in the opening line but in the later part of the statement, but the fact remains that he had gone to meet the deceased for the arrangement of money. This fact has been mentioned in the statement Ex.D-5.
CRA No. 1367/200521
33. In the statement Ex.D-5, Chandra Bhan (PW-15) has deposed that after the assailants ran away from the place of occurrence, he went upto Mainbabu but he did not speak. The argument of the learned counsel for the appellants that such part of the statement that he has not stated in the statement that he lifted his head and asked from him the name of the assailants is a contradiction. Reliance was placed by the learned senior counsel for the appellants on the explanation to Section 162 of Cr.P.C. We find that in the statement Ex.D-5 the witness has deposed that he has seen the appellants and Baijnath as the assailants but in the statement in the Court he has stated that he lifted his head and tried to find out the assailants. It is not a contradiction to the statement made to the police under Section 161 Cr.P.C. but an additional explanation. It is not a statement which contradicts in any way the statement made to the police. In terms of explanation to Section 162 Cr.P.C., an omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context is a question of fact. The statement that Chandra Bhan (PW-15) asked the deceased to disclose the name of the assailants was in a way to take a dying declaration but if the dying declaration could not be given, that CRA No. 1367/2005 22 cannot make a contradiction in the statement when such statement is neither significant nor contradicting any part of the earlier statement.
34. May be, the witness has many criminal cases against him and including locked-up with the appellants in a criminal case but the said involvement will not be sufficient to discard the testimony of the witness. When his entire statement is read in entirety, it inspires confidence. Still further, the licensed .12 bore gun of Virendra was recovered on the basis of disclosure statement of Suresh. As per the report (Ex.P-35) of Forensic Science Laboratory, such gun is marked as Ex.A-2 and that the empty cartridge Ex.EC-1 has been fired from such gun. The fired cartridges marked as Ex.W-1 to W-3 have been fired from .12 bore gun and .12 bore pistol. The clothes of the deceased have the corresponding cuts from the projectiles which were fired. Keeping in view the absence of blackening, the firearm must have been fired from a distance of more than three feet. Such report Ex.P-35 supports the prosecution version that the two separate weapons were used by Virendra and Suresh at the time of occurrence.
35. The empty cartridges recovered from the place of occurrence have been found to be fired from .12 bore gun and .12 bore pistol recovered from appellants Suresh and Virendra respectively.
36. The argument that statement of the witness that he has seen Suresh firing, therefore, there is no evidence as to who fired first shot CRA No. 1367/2005 23 out of Virendra or Baijnath. The said argument is again not tenable. The witness looked back after firing of the first shot. The second shot was fired by Suresh as deposed by him. The argument is again not tenable for the reason that there is no recovery of any weapon from Baijnath. There is a recovery of country-made pistol in pursuance of disclosure statement suffered by Virendra. The licensed weapon of Virendra was with Suresh. Therefore, since the firearm was recovered from appellant Virendra, he is the one who is bound to fire from his country-made pistol in his possession.
37. Considering the entire facts and circumstances, we do not find any illegality in the judgment passed by the learned Trial Court convicting the appellants for the offence as mentioned above. Resultantly, the appeal fails and is dismissed.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
Chief Justice Judge
S/
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=e0af17b0c265631809b6ba87607ad2292faaa62df0540096e4c72619bb af6a0f, 2.5.4.45=0321009B62B02412F4FE2FD500C9CFB93A127AAD25E5DCCD2036A50 070FB7C12D30DF4, cn=SACHIN CHAUDHARY Date: 2017.11.06 16:50:30 +05'30'