Allahabad High Court
Sunil And Others vs State Of U.P. on 13 January, 2020
Bench: Bachchoo Lal, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 25.09.2019 Delivered On: 13.01.2020 Court No. - 68 Case :- CRIMINAL APPEAL No. - 96 of 1996 Appellant :- Sunil And Others Respondent :- State of U.P. Counsel for Appellant :- Apul Misra,A.P.Mathur,P.N.Misra,R.M. Pandey,Raj Kumar Mishra,Rajneesh Pratap Singh,S.P.S.Raghav Counsel for Respondent :- Ravindra Rai,Amit Daga,Arun Kumar Sharma,Ashok Kumar Rai,D.G.A. Hon'ble Bachchoo Lal,J.
Hon'ble Narendra Kumar Johari,J.
Delivered by Narendra Kumar Johari, J.
1. The instant appeal has been filed against the judgement and conviction order of appellants passed by Special Judge/Additional Sessions Judge, Aligarh in Sessions Trial No. 699 of 1994, Crime No. 105 of 1994, under Sections 148, 302, 395, 506 I.P.C., P.S.- Sikandrarau, District- Aligarh.
2. By the impugned order learned Sessions Judge has convicted accused appellants Sunil Ballu, Dhannu, Avadesh, Ram Das, Ram Datt and Kanhai Lal under Sections 148, 302, 395 I.P.C. The Court has sentenced appellants for two years rigorous imprisonment under Section 148 I.P.C., life imprisonment under Section 302 I.P.C. and 10 years rigorous imprisonment and Rs. 5,000/- as fine to each appellants under Section 395 I.P.C. It has also been ordered that in case of default in payment of fine they will undergo rigorous imprisonment of two years. The court has acquitted all the appellants under Section 506 I.P.C.
3. During the pendency of appeal appellant no. 6- Ram Das and appellant no. 7- Ram Datt have died, consequently the appeal has been abated for them.
4. The fact of the case, as per prosecution, in brief is as under- complainant Ram Gopal has given a written application (tahrir) to S.H.O., P.S.- Sikandrarau, District- Aligarh dated 12.04.1994 that today at about 7.15 a.m. after defecation he was returning from forest to his home as he reached near goddess temple he saw that his neighbours Sunil, Ballu, Dhannu, Avadhesh, Kanhai Lal, Ram Das and Ram Datt opened fire on his son Satish with intention to kill him. His son was worshipping in the temple at that time. Due to fire-arm injury his son died on spot. Many persons including Rameshwer and Ghanshyam heard the sound of fire and his shouting. When complainant raised his voice and started running towards his house to save his life the aforesaid accused persons pursued him. They entered in his house and robbed his licencee gun, jewellery and cash by threatening his wife and servant. After committing robbery they fled away by giving threats of life.
5. On the basis of above tahrir, the F.I.R. was lodged against above persons under Section 396 I.P.C. at P.S.- Sikandrarau, District- Aligarh on 12.04.1994 at 9.30 a.m. as Crime No. 105 of 1994, under Sections 148, 302, 395 and 506 I.P.C, accordingly G.D. entry was made.
6. The investigation of offence was started by Sub-inspector Narendra Pal Singh with S.I. S.N. Rakesh. They reached on spot along with police force. The inquest report was prepared by Sub-inspector S.N. Rakesh and sealed dead body of deceased Satish was sent for post-mortem with constables S.P. Dube and Kailash Singh. The investigating officer collected blood-stained and plain soil from the spot. He prepared recovery memo of Hawan Kund and Lota. He enquired about the occurrence from persons present on spot. He further took the statement of witnesses and prepared spot map.
7. During the investigation he recovered the weapons 2 kattas (countrymade pistols) and cartridges on the pointing out of accused Sunil and Ballu. After completion of investigation the charge-sheet against accused persons has been filed by investigating officer under Sections 302, 395, 397 I.P.C. After appearance of accused persons, charges were framed against them under Sections 148, 302, 395, 506 I.P.C. They denied the charges, accordingly trial proceeded.
8. As documentary evidence prosecution has filed original tahrir (Ex. Ka- 1), chick F.I.R. (Ex. Ka- 2), chick report Crime No. 204, of 1994 (Ex. Ka- 3), inquest report (Ex. Ka- 4), Chalan Nas (Ex. Ka- 5), Sample Seal (Ex. Ka- 6), letter to C.M.O. (Ex. Ka- 7), photo dead body (Ex. Ka- 8), spot map (Ex. Ka- 9), recovery memo blood-stain and plain soil (Ex. Ka- 10), recovery memo of lota and hawan kund (Ex. Ka- 11), search memo of accused persons (Ex. Ka- 12), charge-sheet (Ex. Ka- 13), recovery of weapon (Ex. Ka- 14), P.M.R. (Ex. Ka- 15). Apart from that the prosecution has produced to Ram Gopal Sharma (first informant and eye witness) as PW- 1, Ghanshyam as PW- 2 (eye witness), Smt. Raj Rani (mother of deceased who was present at the time of robbery in house) as PW- 3. Constable Kailash Singh (who carried the dead body of deceased from place of occurrence to mortuary) as PW- 4. Constable Surendra Singh (Chick and G.D. writer) as PW- 5. Ex-sub-inspector N.P. Singh (investigating officer) as PW- 6. Doctor S.M. Gupta (who carried post-mortem) as PW- 7. Sub-inspector Vinod Shukla (investigating officer) as PW- 8.
9. The statement of accused persons was recorded under Section 313 Cr.P.C. and all the incriminating materials/circumstances were put to them one by one in shape of incidence. The accused persons denied each allegations levelled against them by stating either incorrect or they don't know, however, they admitted that they belong to village of complainant and they are his neighbours. The accused persons further stated that in the village quarrel took place amongst children that is why they have been falsely implicated by complainant. The accused Kanhai replied that at the time of occurrence he was on his duty at School Kuthila.
10. Learned Sessions Judge after appreciating all the evidences and submissions made by the public prosecutor and defence counsel convicted and sentenced appellants as has been referred hereinabove. Aggrieved by the judgement and sentenced accused/appellants preferred the present appeal.
11. Learned counsel for the appellants has submitted that the appellants have wrongly been convicted. The F.I.R. lodged by complainant is anti-timed, place of occurrence has been changed. Witnesses of prosecution who adduced their oral statement as witnesses of fact are not trustworthy. There are contradictions in their statement, investigating officer has recorded the statement of witnesses with inordinate delay. The position of accused person and places from where witnesses have seen the occurrence, has not been shown in site plan. The witness who was named in F.I.R., has not been produced. There is no F.S.L. report regarding the blood-stained soil. Police has not recovered all the weapons as mentioned in F.I.R. Motive for offence has not been proved. Prosecution has failed to prove his case against appellants beyond reasonable doubt. The judgement of trial court is against the principles of law. Appellants are entitled to be acquitted.
12. Per contra, learned counsel for the complainant and learned A.G.A. has replied that accused persons have committed the offence of murder with pre-planning. It was day light murder. The occurrence has been witnessed by eye-witnesses. The statement of eye-witnesses is well supported by medical evidence. Witnesses of prosecution are reliable and trustworthy. Weapons used in occurrence have been recovered on the pointing out of accused appellants. Motive of offence is proved. F.I.R. is prompt. There is no proof of anti-time F.I.R. If there is any defect in investigation, it does not affect the prosecution case adversely, particularly in the light of cogent and trustworthy evidence. There is no substantial contradiction in testimony of eye witnesses. Common object of accused persons/appellants is proved. The appellants have rightly been convicted by the learned sessions judge. Prosecution has proved his case against appellants beyond reasonable doubt. Order of sessions judge does not suffer from any illegality or infirmity. The appeal is liable to be dismissed.
We have considered the rival submissions advanced by learned counsel for the parties and perused the record.
13. F.I.R.
In first information report, date and time of occurrence has been shown as 12.04.1994 at 7.15 a.m., whereas the F.I.R. has been lodged on same day at 9.30 a.m. The distance of police station from the place of occurrence has been shown as 19 kms. The complainant is Ram Gopal Sharma (PW-1) and scriber of tahrir is Ashok Kumar Sharma. Deceased was son of complainant. In his oral statement, complainant mentioned at Page- 7 that after the occurrence he stayed their for 45 minutes. Further at Page- 6 he has mentioned that for lodging the F.I.R. he had gone by his own tractor. The way by which went for police station, takes one hour to reach police station. Witness Pw- 1 has further stated in his evidence at Page- 5 that he got written the application for F.I.R. at Sikandrarau by Ashok Kumar. He met him at bus-stand- Sikandrarau. The paper was given by Ashok Kumar as he was ever in law practice and due to the reason he preferred to get tahrir written by him. At present, Ashok Kumar is not doing practice. Accordingly, conclusion arrives that after occurrence which took place at 7.15 a.m., complainant moved from the place of occurrence by 8.00 a.m. for lodging F.I.R. It took one hour reach at police station- Sikandrarau and in the meantime, few 12 to 20 minutes would have been consumed in draftig of application (tahrir). As it has been stated by witness Pw- 1 in his evidence. Hence, if the F.I.R. of the occurrence has been lodged at 9.30 a.m. then in that case, it cannot be said that F.I.R. has been lodged with any inordinate delay.
Whether F.I.R. was Anti-timed
14. It has been argued by learned counsel for the appellants that the aforesaid F.I.R. has been lodged anti-time. In the meantime complainant planned to implicate appellants falsely as accused, due to enmity of children quarrel which had taken place in village. In fact, the deceased had gone in forest for defecation where he was killed by some unknown persons and complainant carried his dead body in the goddess temple and falsely implicated appellants. Learned counsel has pointed out that the inquest report does not contain Crime Number, Sections of I.P.C., weapons used in occurrence and name of accused persons, whereas the above entries are necessary to be mentioned in inquest report to check any manipulation like registration of F.I.R. anti-timed and to avoid any false implication of accused persons. In support of his argument learned counsel for appellants has quoted Para- 11 of case law Meharaj Singh Vs. State of U.P. 1994 SCC (Cri.) 1391, which is reproduced as under:-
"11. According to PW 3 Kamlesh, the deceased had left the house at 7.00 a.m. He would, therefore, have taken his food before leaving the house because it is not the prosecution case. that food was served to him while he was in the fields. Death, according to the medical witness, could have occurred within about 2 or 2 1/2 hours from the time the deceased had taken food on account of the presence of 150 gms of semi-digested food in the stomach of the deceased. According to PW 3, however the occurrence took place at about 11.30 a.m. which would imply that the deceased took his food later and did not leave his house at 7.00 a.m. but at about 9.30 a.m. That is nobody's case. The effort on the part of Kamlesh PW 3 to show that the occurrence took place at 11.30 a.m. appears to have been made because she wanted to back up the prosecution story by stating that the FIR had been lodged promptly at 12.45 p.m. by Makhar Singh and that she had seen the occurrence. According to the prosecution case PW 8, the investigating officer, left for the place of occurrence after the case had been registered at the police station but we find that in the inquest report which was prepared by PW 8 Sultan Singh, the investigating officer at the spot, the number of the FIR or the crime No. has not been given. Even the heading of the case, does not find mention in the inquest report. No explanation has been furnished for the omission of these vital matters from the inquest report. Was it because no FIR had actually been registered at the time as alleged by the prosecution and PW 8 had reached the spot and, after, some consultations and deliberations it came into existence? In this connection it is also relevant to note that copy of the FIR was not even sent to the medical officer along with the inquest report and the dead body for postmortem. The explanation of PW 8 for not sending the copy of the FIR or mentioning the name of the case or the crime No. in the inquest report is wholly unacceptable and the High Court erred in accepting the ipse dixit of Sultan Singh PW 8. It deserves to be noticed that in the inquest report even the name of the accused has not been mentioned. It also does not contain the names of the eyewitnesses or the gist of the statement of the eyewitnesses. It does not reveal as to how many shots had been fired or how many weapons had been used. The inquest report is not signed by any of the eyewitnesses, although the investigating officer has categorically asserted that Kamlesh and Shiv Charan were present at the place of occurrence when he visited and he recorded their statements. If he had actually recorded their statements, there is no reason why the details which we have found missing from the Inquest report should not have been there. There is yet another factor which is very relevant. The prosecution led no evidence to show as to when did the copy of the FIR, special report, which was required to be despatched under the statutory provisions of Section 154 CrPC read with Section 157 CrPC promptly, to the Magistrate was actually despatched. There is no evidence either to show as to when the copy of the FIR was received by the Magistrate. PW 8 has remained singularly silent on this aspect of the case. According to PW 3, the Police Inspector had taken her thumb impression at the site, but the prosecution has withheld that document from scrutiny of the courts, for reasons best known to it. The argument of Mr Tewatia, the learned Senior Counsel that since no FIR had been registered till the investigating officer arrived at the spot and conducted the inquest proceedings, the thumb impression of PW 3 was taken by the police on a document which was required to be used as an FIR, cannot be said to be without any merit. It was the duty of PW 8 to explain as to on which document he had obtained the thumb impression of the widow of the deceased at the spot and produce that document for scrutiny of the courts. He did not do so."
15. According to law it is not necessary to mention Crime No., Sections, name of accused persons and weapons used in offence in the inquest report. The language used by legislation in Section 174 of Cr.P.C. clearly indicates the scope of inquest report. There is printed proforma for preparation of inquest report which contains no column for the said entries. The provisions of 174 Cr.P.C., is reproduced as under:-
"174 (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more, respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3) When--
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate."
16. On the above point of argument Hon'ble Apex Court has held in the case of Radha Mohan Singh alias Lal Saheb and others Vs. State of U.P. 2006 CRI. L. J. 1121 that there is no requirement in law of mentioning the details of the F.I.R., names of accused or names of eye-witness, the relevant Para of dictum is reproduced as under:-
"13.In Podda Narayana v. State of A.P. AIR 1975 SC 1252, it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S.174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausher Gama, AIR 1975 SC 1324, the contention raised that non-mention of a person's name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest under Section 174, Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh, AIR 1987 SC 923, that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853, and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174, Cr.P.C. was also explained in Amar Singh v. Balwinder Singh, 2003 (2) SCC 518. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174, Cr.P.C. and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in lawof mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness. In Meharaj Singh v. State of U.P. (supra) the language used by the legislature in Section 174, Cr.P.C. was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby over-ruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted."
17. On the same point the Hon'ble Apex Court in case of Jai Shree Yadav Vs. State of U.P. 2004 SAR (Criminal) 748 has held in Para- 17 which is reproduced as under:-
"17. The next contention in this regard is that the requisition sent by PW-8 to PW-4, the doctor, to conduct post mortem did not accompany all the particulars found in the inquest report and the complaint like the particulars of the case, the weapon used and the names of the accused persons etc. which according to the learned counsel for the accused indicates that when the dead body was sent for post mortem the investigating agency did not know the full particulars of the case. We do not think that these omissions, if any, would lead to the conclusion that the FIR is anti-timed. It is a settled principle in law that though it is necessary to give the gist of the information collected during the course of inquest proceedings and from the material available in the FIR to the doctor conducting the post mortem, it is not necessary to give all the particulars as contained in either of the above said documents. This is clear from the judgment of this Court in the case of Mahendra Rai vs. Mithilesh Rai & Ors. (1997 10 SCC 605)."
18. In the case of Amar Singh Vs. Balwinder Singh and others 2003 (46) ACC 619 (SC) Hon'ble Apex Court has held in Para- 11 that "11. The High Court has also held that the details about the occurrence were not mentioned in the inquest report which showed that the investigating officer was not sure of the facts when the inquest report was prepared and this feature of the case carried weight in favour of the accused. We are unable to accept this reasoning of the High Court. The provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The heading of the Section is "Police to enquire and report on suicide, etc." Sub-section (1) of this Section provides that when the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give information to the nearest Executive Magistrate and shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds, fractures, bruises, and other marks of injury as may be found on the body and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The Section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery, etc. The scope and purpose of Section 174 Cr.P.C. was explained by this Court in Podda Narayana & Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252 and it will be useful to reproduce the same.
"The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.
It is therefore not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court."
19. The co-ordinate Bench of this Court has held in the case of Narendra and others Vs. State of U.P. 2006 (3) JIC 681 (All) that:-
"28. It is also contended by the learned counsel for the appellant that the crime number and sections in the inquest report was mentioned in different ink and the title of the case was not mentioned in other police papers which were dispatched along with the inquest report. We do not find any substance in this submission because on this ground it cannot be said that the First Information Report was not in existence at the time of preparation of inquest report. The First Information Report was one of the enclosures mentioned in the inquest report, name of complainant was mentioned in the inquest report and it was also that death was due to fire-arm injury. There is no provision for mentioning the title of the case in all police papers. The crime numbers and sections are already mentioned in all relevant papers."
20. Learned counsel for the appellants has further placed reliance on case Meharaj Singh Vs. State of U.P. (Supra) and argued that the copy of F.I.R. was not sent to medical officer along with dead body for post-mortem. Therefore, the case of prosecution becomes doubtful. It appears that learned counsel for appellants could not inspect the inquest report Ex. Ka- 4, properly, as Page No.- 3 of inquest report contains the entry that copy of F.I.R. has also been sent to mortuary along with dead body of deceased. Police Form No.- 13 (Ex. Ka- 5) also shows the entry of Doctor, wherein it has been mentioned that post-mortem papers has been received at 8.00 a.m. Witness PW- 4 has deposed that the concerning papers have been delivered in police line by constable- S.P. Dubey and he had carried the papers from police line to mortuary, further he has denied the suggestion that all the papers were not available at the time of post-mortem, hence, the argument has no substance that the copy of F.I.R. was not annexed with inquest report. The recovery memo of blood-stained soil was prepared when I.O. reached on place of occurrence for the first time on 12.04.1994 i.e. at the time of investigation. The said recovery memo (Ex. Ka- 10) contains the Crime No. 105 of 1994 and Section 396 I.P.C. It has not been disputed by the appellant that the said recovery memo (Ex. Ka- 10) was prepared by I.O. at that time.
21. Learned counsel for the appellant has further submitted that there is overwriting in timing as mentioned in inquest report for starting and concluding the inquest report. Learned counsel for the complainant has replied that there is no overwriting in timing for lodging F.I.R. as mentioned in inquest report. There may be difference of timing in wrist watch or slip of pen. The overwriting in figure (of timing) regarding starting and concluding the inquest report does not co-relates with any doubtful fact. Although, S.I. S.N. Rakesh has not been produced in evidence by prosecution and the inquest report has been proved by witness PW- 6 S.I. Narendra Pal Singh as he was present at the time of preparation of inquest report and the entries in the report has been made by S.I. S.N. Rakesh on dictation of PW-6. The witness Pw- 6 (I.O.) in his evidence, in cross-examination by counsel for accused Sunil, has denied the suggestion in clear words that "it is wrong to say that inquest report has not prepared at the time shown in the report." He further stated that it is wrong to say that "at the time of preparation of inquest report, the copy of F.I.R. was not available with him." In reply of the question the witness Pw- 6 stated in his cross-examination that nowhere in inquest report (Ex. Ka- 4) Crime No. and Sections has been written. He has also accepted that he has not mentioned name of accused persons and weapon used in offence. According to Section 145 of Evidence Act it has not been asked by the aforesaid witness that why the above entries have not been made in the aforesaid report. He has not been asked to explain the reason about such non-enty. Witness PW- 6 also denied that the timing mentioned in Ex. Ka- 4 for concluding the inquest report there is no overwriting. He has also denied that at the time of preparing inquest report he was not having the copy of F.I.R. It has been held by Hon'ble Supreme Court in the case of Kuria & Another Vs. State of Rajasthan AIR 2013 SC 1085 that-
"21. For instance PW15, in his cross-examination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the police the same thing, but he does not know why the police did not take note of the same. Similarly, he also said that he had informed the police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer. Strangely, when the Investigating Officer, PW16, was being cross-examined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such afore-mentioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another v. State of Gujarat [(2012) 5 SCC 724], Narayan Chetanram Chaudhary and Another v. State of Maharashtra [(2000) 8 SCC 457], D.P. Chadha v. Triyugi Narain Mishra and Others [(2001) 2 SCC 205], Sukhchain Singh v. State of Haryana and Others [(2002) 5 SCC 100]."
Therefore, the argument advanced by learned counsel for appellants has no force.
22. Learned counsel for appellants further pointed out that witness PW- 4 constable 1459 Kailash Singh, who had gone with the I.O. at the time of investigation, has mentioned in his evidence that he had gone at the place of occurrence at about quarter to 00.09 with S.I. S.N. Rakesh and N.P. Singh, whereas F.I.R. has been shown to be lodged at 9.30 a.m. Therefore, it can be said that F.I.R. has not been lodged at the time which has been shown in chick report. Learned counsel for the complainant has submitted that there might have been differences of watches and timing. The said part of statement of witness Pw- 4 is not supported with any evidence or circumstances. The evidence of witnesses should be scrutinized as a whole. Neither witness PW- 4 has been asked to explain the discrepancy in timing nor witness PW- 5 (who had written chick F.I.R. and made G.D. entry on 12.04.1994 at 9.30 a.m.) has been confronted with the above part of statement of witness PW- 4. Apart from that neither any question was asked to Ram Gopal (Pw-1) in his cross-examination regarding anti-timed F.I.R. nor any doubtful circumstance come into light which may indicate towards any such doubt. Therefore, it cannot be inferred that F.I.R. of occurrence has been lodged anti-timed. The argument advanced by learned counsel for the appellants on above point finds no place.
Place of occurrence-
23. Learned counsel for the appellants has submitted that the temple where it has been said that occurrence took place is false. Accused persons were 7 in number whereas the gate of temple, as mentioned by witness PW- 1 is only 3 or 4 feet wide. Its inner surface area has been shown only 5x5 square feet. Therefore, it is not possible for 7 accused persons to enter in temple and fire on deceased simultaneously. It might would be possible that deceased- Satish was killed by some unknown persons early in the morning while he had gone forest for defecation and complainant carried his dead body from forest to temple and implicated appellants falsely due to trifle enmity. This is also possible that in night some unknown dacoits came to the house of complainant and during the said occurrence, when deceased tried to fire on dacoits, they killed him and robbed the money, gun, jewellery etc., as alleged by complainant in F.I.R, and only due to local enmity appellants have been implicated by complainant by planting dead body of his son in temple.
24. Witness PW- 1 has stated at Page No. 1 and at Page No. 2 in his cross-examination that accused started firing from the chabutra of temple. Accordingly, witness PW- 2 has deposed at Page No.- 1 of his evidence that all the accused fired on deceased from chabutra of temple nowhere the aforesaid witnesses PW- 1 and PW- 2 have admitted that accused had fired on deceased by entering inside the temple room. Post-mortem report of deceased is on record as (Ex. Ka- 15), which has been proved by witness PW- 7 Doctor S.M. Gupta. The fact has been mentioned in evidence of witness PW- 1 that infront of the gate, the Idol of Goddess is situated and at the time of occurrence his son Satish was engaged in worship of the Goddess Durga. Naturally, his back would have been infront of the gate. Injuries Nos. 3, 4 and 5 have been shown as fire-arm injury on back (scapula) of deceased which indicates that as accused persons reached infront of the gate, immediately they started firing on deceased Satish who received aforesaid injuries on his back. Satish would have been worshipping by folding his leg in sitting position. As he received the injury of fire-arm on his back. He fell down on floor from his back side. The situation also indicates that as he received fire-arm injury on his back. Immediately, he might have turned towards back to see offenders but due to damage of internal organs by projectiles of fire-arm, he immediately fell down. His head was found towards east side. As he fell down the assailants fired on his abdomen by close range. Consequently, he received injuries nos. 1 and 2, therefore, the nature of injury also supports the statements of witnesses PW- 1 and PW- 2 and the conclusion finds place that deceased was attacked by fire-arms from outside the temple's gate i.e., from chabutra of temple.
25. So far as the point of argument of learned counsel for appellants, regarding death of deceased during his defecation in forest, is concerned, the temple of Goddess has been shown in the abadi area of village. Appellants could not produce a single witness which may indicate that deceased- Satish was murdered in forest and his body was carried by complainant in temple. Blood-stained soil has also been recovered from place of occurrence i.e. from temple only. Naturally the above five fire-arm injuries on the body of Satish, will produce profuse bleeding but nowhere in surrounding area, any blood-stain was found by I.O., except from the floor of temple. The point of argument that in night dacoity might have been taken place in the house of complainant wherein Satish was murdered by some unknown dacoits is not forcerull as the witness PW- 7 has stated in his statement that at the time of post-mortem there were some fecal matters in large intestine of deceased. If deceased would have been murdered in night his large intestine would have been filled with fecal matters. Witness Pw- 7 has also opined that the death of Satish is probable at 7.00 a.m. on 12.04.1994. Although the witness has stated in his cross-examination that difference of three hours in time of death is probable but as per medical jurisprudence the said probability is general that depends on so many factors which requires specific proof. Normally in village life people wake up early in the morning particularly, in the season of summer but no one has seen to complainant carrying body of deceased from his residence to temple. Therefore, the aforesaid argument advanced by learned counsel for the appellants finds no place.
Credibility of witness-
26. Learned counsel for the appellants further argued that witness PW- 1 Ram Gopal is father of deceased, in his statement witness PW- 1 has mentioned the fact that after witnessing the occurrence of firing by accused persons on his son, he ran towards his house. He did not try to save his son rather he ran towards his house to save his own life. Normally said behaviour of witness Pw-1 is contrary to behaviour of a father. A father will always try to save life of his son even at the cost of his own life. Apart form that Witness PW- 2 is close relative of first wife of deceased. He also resides in another village named Mau. He has not seen the occurrence and due to close relation with deceased he has given false evidence in collusion with witness PW- 1.
27. Undoubtedly witness PW- 1 is father of deceased. Considering evidence of witness Pw- 1 as a whole, the facts and circumstances indicates that when he was returning from defecation he saw that 7 persons with Kattas (country-made pistol) in their hands reached at temple and started firing on his son immediately. In his cross-examination at Page- 5 the witness PW- 1 has stated that all the accused opened fire on his son within 2-3 seconds. Witness Pw- 1 was not carrying any weapon at that time. On the other hand, there were 7 persons with deadly weapons in their hands. Therefore, the apprehension might had been developed in his mind that accused persons may kill him also as he was father of deceased. Therefore, he ran towards his house by shouting voice for help, just to save his own life. It was natural behaviour of witness PW- 1. The occurrence of firing took place within few seconds, he had seen accused persons from the distance 10 to 12 steps away from chabutra of temple, immediately accused persons opened the firing on his son as they reached on chabutra. Therefore, there was no occasion for witness PW- 1 to save his son. Having regard to manner in which an occurrence took place, the reaction of witnesses differs from person to person. It has been held by Hon'ble Apex Court in Para- 17 of case Shivappa and others Vs. State of Karnataka 2008 CRI. L. J. 2992, that:-
"17. We may notice the salient features of the prosecution case. The learned Sessions Judge did not arrive at any specific finding as to why the conduct of the witnesses was such which would lead to a total distrust to the prosecution witnesses. All the members of the family were at one place. Two married daughters, namely, PW-11 Nimbevva, and PW-12, Shantavva came to the village, as there was a Jatra festival of the village Diety, Lakkavva.
Accused persons who were 11 in number came variously armed. They not only killed the deceased but also threatened the two family members with death as a result whereof they fled to the jungle.
PW-9, Shivappa fled to his firm land. They did not dare come back in the night. If having regard to the manner in which the occurrence took place, the witnesses became dumbfounded and could not shout, the same by itself, in our opinion, would not lead to the conclusion that they were wholly untrustworthy. In fact, their conduct, having regard to the nature of the offence, appears to be more probable."
28. Further argument of learned counsel for appellants is that, PW-1 Ram Gopal is interested and relative witness. The testimony of witness Pw- 1 cannot be discarded solely on this ground, what is required is that, statement of such witness should be scrutinised more cautiously and carefully with totality of his evidence. It has been held by the Hon'ble Apex Court in the case Munshi Prasad and others Vs. State of Bihar 2002 SCC (Cri) 175 in Para- 10 (ii), which is reproduced as under:-
"10 (ii). A complaint focussed that except the interested witnesses none else from the nearby residential areas has been examined - this is so : it is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence available on record - if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in number of witnesses cannot be termed to be a requirement for the case. The two independent witnesses have also been grouped in the group of interested witnesses, which is neither acceptable nor worthy of acceptance and in any event the same does not have the support from the available records. Apart there from PWs. 1, 2 and 3, they may be related to each other but that does not mean and imply total rejection of the evidence : interested they may be but in the event they are so - it is the predominant duty of Court to be more careful in the matter of scrutiny of the evidence of these interested witnesses and it on such a scrutiny it is found that the evidence on record is otherwise trustworthy, question of rejection of the same on the ground of being interested witnesses would not arise. As noticed above, it is the totality of the evidence, which matters and if the same creates a confidence of acceptably of such an evidence, question of rejection on being ascribed as 'interested witness' would not be justifiable. In the wake of the aforesaid, thus the second plea of rejection of evidence of prosecution witnesses cannot be sustained."
29. Considering the entire evidence of witness PW- 1, there seems consistency regarding the occurrence and circumstances. Witness Pw- 1 has been cross-examined in length but no fact came in the light otherwise.
30. Learned counsel for appellants has also put the argument that as per prosecution case, all the accused persons were carrying weapons in their hands and they pursued and chased complainant upto his house even they entered in his house with weapons but neither they fired on witness Pw- 1 nor they fired on any other member of his family. Learned counsel for the informant replied that there may be two reasons, firstly, all the accused were carrying Kattas (country-made pistols) in their hand which could fire only single shot. There was no occasion for accused persons to reload their Kattas (country-made pistols), as they were in running position and they immediately just after firing on deceased started pursuing to witness PW- 1, secondly, accused persons were having enmity with deceased Satish only, as he was one of the witness in the case of prior occurrence of murder of one Ram Singh, in which they were named as accused. Accused persons were residing in neighbourhood of complainant with his family. Therefore, they have not fired either on PW-1 or on any other family members of witness PW- 1. In fact, they pursued PW- 1 just to keep away the other village persons just to save their own lives from any attack in retaliation and to manage their escape. Argument advanced by learned counsel for the complainant on above point seems forceful.
31. So far as evidence witness PW- 2 Ghanshyam is concerned, counsel for appellants has submitted that first wife of deceased was cousin sister of daughter-in-law of witness PW- 2. In his cross-examination witness PW- 2 has denied about above relationship as suggested by counsel for defence. There is nothing on record which could show that witness PW- 2 was in any relation with deceased. His evidence reveals that he was a resident of adjacent village Mau. At the time of occurrence he was going Manikpur by his tractor for ploughing the field of Rohan Singh. The witness has stated in his evidence that his village Mau is on western side of village- Akhtiarpur and village- Manikpur situates at the distance of 2 k.m. towards north from his village. In between Mau and Manikpur village Akhtiarpur is situated. He has further stated in his evidence that he was going Manikpur through village Akhtiarpur. There was only one bridge earlier but at present there are two bridges. One smaller and one larger. At present the tractors cannot go by smaller bridge. He has specifically mentioned in his evidence at Page- 5 that "at present" the tractors cannot pass from small bridge. He has denied the suggestion that the present ways were existed at the time of occurrence also. There is nothing on record which could indicate that at the time of occurrence, a tractor was unable to pass on smaller bridge. No evidence is on record regarding the fact or circumstances that the movement of witness PW- 2 with his tractor was not possible from Mau to Manikpur via Akhtiarpur at that time. Witness PW- 2 was going from south to north through the passage shown adjacent to place of occurrence that is Goddess temple. Witness Pw- 2 has stated in his evidence that he had seen accused person when they were firing on deceased Satish, at the distance of 25 steps from south. As he seen the occurrence of firing, his tractor which was driven by his son Amit was stopped. He has further stated that all the accused persons opened fire simultaneously.
32. Learned counsel for the appellants further argued that the witness PW- 2 has been planted by complainant. He was never eye-witness of occurrence. It reveals from perusal of F.I.R. that the informant has mentioned his name as eye-witness. He has mentioned the name of another eye-witnesses Rameshwer with his parentage and Ghanshyam Sharma but he has not mentioned the parentage of Ghanshyam Sharma. If witness PW- 2 would have been the witness of complainant's pocket his father's name would have also been mentioned in F.I.R. There is nothing on record which could show that witness PW- 2 was having any enmity with accused persons. He was also not a resident of village Akhtiarpur. Therefore, no reason comes in the light for witness Pw- 2 to give false evidence against accused persons.
33. Learned counsel for the appellants has submitted that statement of witness Pw- 2 has been recorded by investigating officer under Section 161 Cr.P.C. with inordinate delay i.e. after 13 days of occurrence. Therefore, it can be said that he was planted by complainant as eye-witness, and only on the sole ground his evidence is liable to be discarded. In support of his argument learned counsel has submitted the case law Bijoy Singh and another Vs. State of Bihar 2002 CRI. L. J. 2623, which is reproduced as under:-
"9 (ii) Statement of Sanuj Singh (PW5) was not recorded till 4th September, 1991. No reasonable explanation has been assigned for not recording the vital and important statement of PW5 who was concededly injured in the occurrence. The delay has been tried to be explained on the ground of his being unconscious when brought to the Hospital at Sarmera. Assuming that PW5 was unconscious or under shock at the time when brought in the Hospital, there is nothing on the record to show that he continued to be unconscious thereafter or the investigating officer tried to find out about his health or his mental condition to make the statement. Dr.Anjani Kumar (PW9) who examined PW5 at Primary Health Centre, Sarmera has stated that he examined the patient and sent the DO slip to the police station. He noted the injuries on the person of PW5 but states that "I have also not mentioned in the report regarding the condition of the patient". In his cross examination he has stated that in the injury report it is not mentioned as to whether the injured was conscious or not. Dr.Shanker Kumar Jha, (PW11), who was Medical Officer in Sadar Hospital, Biharsharif where Sanuj Singh (PW5) was taken from Primary Health Centre, Sarmera for treatment has stated that in the bed-head ticket of Sanuj Singh it is stated that he was conscious. In reply to a question as to whether doctor at Primary Health Centre, Sarmera had sent him a report as to whether the patient was unconscious, the witness had replied, "such reports are not sent normally. No report of such type was received by me". The nature of the injuries on the person of Sanuj Singh (PW5), as noticed by Dr.Anjani Kumar (PW9) would also indicate that the injured could not have remained unconscious for such a long period. The injuries found are lacerated injury on the forehead, left side of the scalp, bruise on the forehead, bruise on the left hand above wrist joint etc., and also multiple small irregular wounds on lateral aspect of left side of buttock and also small irregular wounds on left side of back and left forearm. The delay in recording the statement of Sanuj Singh (PW5), the most material witness has cast a cloud of suspicion on its credibility in so far as involvement of persons other than Jawahar Singh (A-2) and Upender Singh (A-3) are concerned. In cases of party factions and group rivalries there is a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with the guilty ones. Generally in such cases the witnesses of the prosecution cases are prone to exaggerating the culpability of the actual assailants and to extend the participation in the occurrence of some possible innocent members of the opposite party as well. In such cases, as noticed earlier, a duty is cast upon the court to sift the evidence and after a close scrutiny with proper care and caution to come to a judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence. This Court in Deep Chand v. State of Haryana [1996 (3) SCC 890 pointed out that the maxim "falsus in uno falsus in omnibus" is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to that extent. To the same effect is the judgment of this Court in Ranbir & Ors. v. State of Punjab [AIR 1973 SC 1409]. We are, therefore, of the opinion that non recording of the statement of Sanuj Singh (PW5) for about 9 days left the said witness with no option but to make statement according to the already tailored FIR. Though his testimony is trustworthy and cannot be totally brushed aside, yet after sifting the grain out of the chaff we find the exaggerated version regarding the involvement of accused persons except A-2 and A-3."
33. He has further cited case laws on the same point Jagjit Singh Alias Jagga Vs. State of Punjab (2005) 3 SCC 689 in Para- 30 which is reproduced as under:-
"30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr. P.C. is significant No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of her's had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, thereafter, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tune well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex.PW-6/A was being recorded."
He also cited the case law Harbeer Singh Vs. Sheespal and others (2016) 16 SCC 418, Para- 15, 16 & 17 which is reproduced as under:-
"15. We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Court that PW3 and PW9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW9 and the distance of Sheeshpal's Dhani from Sikar road. Besides, it appears that there have been improvements in the statements of PW3. The Explanation to Section 162 Cr.P.C. provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 Cr.P.C., 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 shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. [ See Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9 SCC 431; Radha Kumar Vs. State of Bihar (now Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions covered by the Explanation to Section 162 Cr.P.C. Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW3 and PW9 and the same was sought to be unconvincingly explained by reference to the fact that the family had to sit for shock meetings for 12 to 13 days. Needless to say, we are not impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
witness PW- 2 is named witness in F.I.R. He also has put his signature in Panchnama (inquest report) as Punch. F.I.R. has been lodged promptly and his signature on Punchnama indicated that he was very well present at the spot when the I.O. visited for the first time at place of occurrence for investigation. There is no any other persons of his name in the village. Witness PW- 2 has stated in his evidence that he has seen the occurrence of firing while he was going towards Manikpur. Witness Pw- 6 N.P. Singh (the I.O.) has stated in his cross-examination at Page- 13 that the fact had come in his knowledge on 12.04.1994 that Ghanshyam was eye-witness of occurrence. He has further stated that he has recorded his statement on 25.04.1994. He has explained the reason for such delay that at that time i.e. on 12.04.1994 other work regarding investigation was more important, therefore, neither he asked nor recorded the statement of witness Ghanshyam. He further stated that at that time preparation of inquest report, and arrange to send dead body of deceased for mortuary, spot inspections, search of accused person etc. were more important. On the other hand, witness PW- 2 has also explained the reason of delay in recording his statement under Section 161 Cr.P.C. (at Page- 9 of his evidence) that in morning after witnessing the occurrence he had gone back to his village and again, after 15 minutes, with pradhan and up-pradhan of his village he came back to Akhtiyarpur. After some time when he reached again, Ram Gopal went police station to lodge F.I.R. At Page- 14 of his evidence witness PW- 6 has stated that the reason for recording statement of Ghanshyam (PW- 2) on 25.04.1994 is that witness (Ghanshyam) could not be found, as he has mentioned in case diary also. Admittedly, witness PW- 2 was not a resident of village rather he was a resident of village- Mau. Perusal of case diary indicates that in meantime I.O. was engaged in other works of investigation like recording the statements of Malti w/o Satish, eye-witness Rameshwer (named in F.I.R.), search of accused person, recording statement of accused persons Kanhai and Ram Das (who had surrendered in court), applying for order under Section 82-83 of Cr.P.C. against accused persons, proceeding of attachment, search of accused persons thereafter on 25.04.1994 he recorded the statement of Raj Rani, Pawan Kumar and Ghanshyam (Pw-2). There is no evidence on record which may indicate the reason that witness Pw- 2 was falsely planted by complainant as eye-witness, particularly when he has been named in F.I.R. and as his presence has been shown at the time of preparation of inquest report. Therefore, it appears that witness PW- 6 has explained properly the reason for non-recording the statement of PW- 2 on the date of occurrence. The reason so given by I.O. is supported by the evidence of witness PW- 2 itself.
34. On the point of recording statement of witness under Section 161 Cr.P.C. at later stages it has been held by Hon'ble Apex Court in the case of Sidhartha Vashisht Alias Manu Sharma Vs. State (N.C.T. of Delhi) 2010 (69) ACC 833, Para- 61, which is reproduced as under:-
"61. The defence seeks to discredit the statement of PW-1 Deepak Bhojwani on two counts, firstly that statement is recorded after 14 days and secondly, there are various improvements, in his statement. It is next contended by the defence to believe this man is to disbelieve Beena Ramani. According to him, the prosecution did not know even on 14.05.1999 the details of their story and thus resulting in various improvements in the testimony of this witness, in the witness box. This contention of the defence looses sight of the fact that much prior to 14.05.1999 Manu Sharma had surrendered on 06.05.1999 and had made his disclosures and thus there could be no question of not knowing the facts on 14.05.1999. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30.04.1999 he had told the police at the Apollo Hospital all that he knew. This being the case, it cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the Police. Clearly, PW-1 was not an eye witness, this fact must have been realized by PWs-100 and 101, therefore, they felt no urgency in addressing this aspect of the investigation i.e., recording of the statement of PW-1. It is stated by the State that as there were number of witnesses to be examined the said examination continued for days. Witnesses Parikshit Sagar and Andleep Sehgal were also examined on 14.05.1999. Further the presence of Deepak Bhojwani can also not be belied in view of the testimony of Sahana Mukherjee PW- 29 and Sabrina Lal PW-73. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162, Cr.P.C. is very clear that it is not mandatory for the police to record every statement. In other words, law contemplates a situation where there might be witnesses who depose in Court but whose previous statements have not been recorded."
35. Learned counsel for the appellants has further argued that witness PW- 2 was a chance witness and evidence of chance in such heinous offence like murder should be discarded. In support of his argument learned counsel for appellants has relied on case law Harbeer Singh Vs. Sheespal and others (Supra). Record indicates that learned counsel for defence has not disputed that the way from where Ghanshyam was going towards Manikpur with his tractor was a shorter way as it has been shown in spot map. Counsel for defence has not disputed the fact also that witness PW- 2 was not doing the work of ploughing on rent by his tractor. To negate the fact, as stated by witness Pw- 2 the defence has not produced Rohan Singh, the resident of Village- Manikpur where witness PW- 2 was going to plough his field by his tractor. Therefore, in absence of any evidence contrary, the presence of witness Pw- 2 at the time of occurrence seems probable. His statement should not be thrown out merely on the ground that he was a chance witness, particularly when his statement is supported by evidence of witnesses Pw-1, Pw- 6, and medical evidence.
36. It has also been argued by the learned counsel for the appellants that there was another witness, named Rameshwer who has been shown in F.I.R., he was a public witness but prosecution withheld him to produce him in evidence, therefore, an adverse inference must be drawn against the prosecution version. In support of his contention learned counsel has submitted case law Mehraj Singh Vs. State of U.P. (Supra), which is reproduced as under:-
"14. It is interesting in this connection also to note that Satkari PW 5 named Resham also as an eyewitness. The High Court rightly held Satkari to be a chance witness also but the prosecution has not explained as to why Resham who was alleged to be an eyewitness has not been examined. According to Balbir PW 2, Jog Raj was also an eyewitness. He too has not been examined. Shiv Charan PW 4, also named Resham and Jog Raj as eyewitnesses. Thus, it appears to us that a concerted effort was made by the prosecution witnesses to introduce Resham and Jog Raj as false eyewitnesses in the case but since they have not been examined, it would be fair to draw a presumption, that they perhaps were not prepared to support the false case. The High Court while setting aside the order of acquittal did not deal with these various infirmities."
37. It has to be noticed that witness Rameshwer whose name has been mentioned in F.I.R. as one of the eye-witness, is the resident of same village. Accused persons also belong to same village. They have committed the offence of murder in day light in present case. They had also caused murder of one Ram Singh earlier in which, deceased was named as witness. Therefore, by any threat or fear of accused persons, if aforesaid named witness Rameshwer did not prefer to give his evidence then in that case, it cannot be said that prosecution has wilfully withhold such witness to be examined. According to law, number of witness is not material rather quality of evidence matters. Even a single witness is sufficient to establish the case if he is trustworthy and according to legal norms, proves the case. It has been held by Hon'ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and others 2003 (46) ACC 619, in Para- 15, which is reproduced as under:-
"15. Another reason given by the High Court for acquitting the accused- respondents is that two other injured witnesses, namely, Kashmira Singh and Pritam Singh and one Ramesh, whose name was mentioned in the FIR, were not examined. Shri Ashwani Kumar, learned senior counsel appearing for the accused-respondents has vehemently urged that the purpose of a criminal trial is not to support the prosecution theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the public prosecutor is to represent the administration of justice and therefore the testimony of all the available eye witnesses should be before the Court and in support of this contention he has placed reliance on State of U.P. & Anr. v. Jaggo alias Jagdish & Ors. AIR 1971 SC 1586. It is true that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether effect of their testimony is for or against the case of the prosecution. However, that does not mean that everyone who has witnessed the occurrence, whatever their number be, must be examined as a witness. The prosecution in the present case had examined three eye-witnesses who were all injured witnesses. The mere fact that Kashmira Singh and Pritam Singh were not examined cannot lead to an inference that the prosecution case was not correct. The aforesaid two witnesses had been given up by the prosecution on the ground that they had been won over by the accused. These two persons are not family members of the first informant Amar Singh and it is quite likely that they did not want to get involved in any dispute between the first informant and his sons on the one hand and the accused on the other hand as they had no interest in the land belonging to Jangir Dass Sadh which was being earlier cultivated by Gurdial Singh, father of A-1 and A-2 but had been taken an year earlier by the first informant Amar Singh. The contention raised by learned counsel fails to take notice of Section 134 of the Evidence Act which provides that no particular number of witnesses shall in any case be required for the proof of any fact. A similar contention has been repelled by this Court in a very illustrating judgment in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 and it will be useful to take note of para 11 of the report, which reads as under :
".The contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in S.134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. ."
38. In the case law Ashok Kumar Chaudhary and others Vs. State of Bihar (2008) 12 SCC 173, it has been held by Hon'ble Apex Court that-
"7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses."
39. Learned counsel for the appellants has further stated that there are discrepancies in the statement of witnesses of fact, hence their testimonies are not reliable. Considering the evidence of PW- 1 and PW- 2 in totality, no substantial variation or discrepancy is found regarding happening of occurrence or place of occurrence. Both the witnesses have named accused persons in their evidence for firing on deceased. Witness Pw- 2 has stated in his cross-examination that the distance of his village from Akhtiyarpur is 1 km. and as village relation he recognizes to complainant and his son as well as accused persons. The statements of witnesses Pw- 1 & Pw- 2 are supported and corroborated by post-mortem report and other prosecution papers. Their statements are also corroborated by the evidence of PW- 7 Doctor S.M. Gupta. There is no contradiction in their testimonies on the core of prosecution case. If some inconsistency is found, that do not affects the prosecution case substantially. Those contradictions are natural and probable. In the case of Munshi Prasad and others Vs. State of Bihar (Supra) it has been held in Para- 10 (I), that:-
"10. (i)...................... Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the Appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being the State of U.P. v. M.K. Anthony, [1985] 1 SCC 505 as also a later one in the case of Leela Ram v. State of Haryana, (1999) 9 SCC 525. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the Court to reject the evidence on minor variations and discrepancies. In Leela Ram (supra), this Court observed in paragraph 10 of the report."
40. In case law Shivappa and others Vs. State of Karnataka (Supra), Hon'ble Apex Court has held in Para- 26, that:-
"26. No villager even informed the Police. At least some of them could have done so. PW-11, Nimbewwa, in her evidence categorically stated that immediately after the occurrence, the electricity went off. The telephones were also not working. She also stated that no transport was available. It would, therefore, be too much to expect that those young ladies would walk 11 kilometers on foot in the dead of night to lodge the First Information Report. PW-21, Gurubai, made a statement that the Police came at about 8 am in the morning on the next day. Evidently, it was an inadvertent statement as in her examination in chief, she categorically stated that PW-11, Nimbewwa and PW-12, Shantavva left the village for lodging a First Information Report at 8.00 am in the morning. This cannot be a ground for disbelieving them. Minor discrepancies or some improvements also, in our opinion, would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court."
41. The witnesses of fact, have undergone a lengthy cross-examination by counsel for defence, who were the legal experts. Therefore, some contradictions are bound to occur. It has been held by Hon'ble Supreme Court in the case of Jai Shree Yadav Vs. State of U.P. (Supra), in Para- 21, that:-
"21. It is also true that PW1 was not available to the Police for nearly 10 days after the incident but the explanation given by this witness is quite plausible that his family was afraid for his safety hence he went to his in-laws' place and remained there and it is only when things settled down he decided to come out and give a statement to the Police. The possibility of his fear of retaliation is supported by the evidence of PW-8 I.O. who stated that there was tension in the village and at the time of funeral of the deceased he had to make Police bandobust which indicates the possibility of PW-1's apprehension and his consequent non-availability to the investigating agency. There is one other aspect of this case which will have to be borne in mind while considering the evidence of PW-1. His name has been mentioned in the FIR as a person who was present at the time the incident took place. It is also stated in the FIR that in the said incident PW-1 was injured. We have already noticed that the prosecution has established that this complaint was filed in the Salempur Police Station at 5.30 p.m. If really this witness was not present at the time of incident in question we do not think PW-3 would have included his name without even knowing the whereabouts of this witness on that day and by attributing an imaginary injury to him. In his examination in chief this witness has clearly narrated the incident involving the named accused persons as also the overt acts attributed to them. Of course in the cross examination the defence has brought out that this person is closely connected with deceased Abid Ali therefore a suggestion was made that he was deposing falsely. This suggestion has been denied by the appellant. In the cross examination defence has brought about certain omissions, contradictions and improvements in the evidence of this witness. These shortcomings in the evidence of this witness will have to be considered in the background of the fact that this witness was subjected to nearly 217 questions over a period of 14 months i.e. his cross examination starting on 14.8.1994 and ending on 28.11.1995. Both the courts below have taken judicial notice of this fact, not only in regard to this witness but in regard to other witnesses also and have come to the concurrent conclusion that when a witness is subjected to such lengthy arduous cross examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the cross examining Counsel."
42. It is to be noted that evidence of PW- 1 was recorded on 10.01.1995 and his cross-examination was completed on 01.02.1995. Accordingly, witness PW- 2 has been examined on 01.02.1995/02.02.1995 i.e. almost 9 months after the occurrence. Therefore, some contradictions, variations and improvement are not improbable, if they are not tuitored witnesses. Hence, it can be concluded after close scrutiny that the evidence of witnesses PW- 1 and PW- 2 are reliable and trustworthy.
43. It has been contended by learned counsel for appellants that witness Pw- 1 is father of deceased, he is an interested person therefore, the sessions judge has erred to place his reliance on his testimony. Witnesses PW- 1 was eye-witnesses and his evidence regarding commission of offence is supported with medical evidence and other evidences of prosecution. In this regard, it has been held by Hon'ble Apex Court in the case of Kuria and another Vs. State of Rajasthan (2012) 10 SCC 433, that:-
"25. The testimony of an eye-witness, if found truthful, cannot be discarded merely because the eye-witness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to the case of Sunil Kumar (supra), Brathi alias Sukhdev Singh Vs. State of Punjab [(1991) 1 SCC 519] and Alagupandi @ Alagupandian v. State of Tamil Nadu 2012 (5) SCALE 595]."
44. The co-ordinate Bench of this Court has also held in the case of Uma Shankar Vs. State of U.P. 2015 (89) ACC 421, in Para- 47, which is reproduced as under:-
"47. We have also noticed that the Investigating Officer has not sent the said Gupti to the Forensic Laboratory for chemical examination to ascertain that the blood found on the weapon was the same blood of the deceased. Investigating Officer has also not demonstrated the way of arrival of the witnesses at the place of occurrence in the site plan, but only on this point in our opinion the testimony of the ocular witnesses whose presence on the spot at the time of occurrence is found established, and is supported by medical evidence, cannot be disbelieved until and unless appellant accused is able to establish that due to this fact his right of defence has been prejudiced. The appellant had opportunity to cross examine the witnesses. The said Gupti had been recovered from the possession of the accused on the spot, Doctor has clearly opined that the injury found on the body of the deceased was the result of the blow caused by the said Gupti, no cross examination has been made by the defence on this point, and thus a clerical mistake in the statement of PW-5 S.I. Phool Singh on the part of taking over the investigation on 27.3.1986, which is not materially affecting the prosecution case, we are of the view that no prejudice has been caused to the accused on this score and the prosecution case cannot be doubted."
45. Learned counsel for the appellants further submitted that the motive of offence is not proved, in fact, there was a quarrel in between children in village and due to said enmity accused persons have been named in the case falesly. On the above point, witness PW- 1 has mentioned in his evidence that his son deceased Satish was doing Pairvi of the murder case of Ram Singh in which present accused persons were accused. It has been submitted by learned counsel for the complainant that said Ram Singh was not the resident of same village, whereas deceased was resident of same village and were just neighbour of accused persons that is why they were having the enmity with deceased, particularly for the reason that their co-villager is not supporting them. He further submitted that the accused persons Ram Das, Ram Datt, Avdhesh, Sunil, Kanhai Lal and Nagendra have been convicted in the said case by the court of First Additional Sessions Judge, Aligarh on 14.10.1996 (Sessions Trial No. 859 of 1993), under Sections 147, 148, 302 and 149 I.P.C. Learned counsel for complainant has also pointed that, copy of aforesaid judgement is available on record. The motive suggested by learned counsel for complainant seems probable for committing the offence of murder of Satish. In present case there is direct evidence of eye-witnesses which are found reliable. Hon'ble Apex Court Hon'ble Apex Court has held in the cases of Gulam Sarbar Vs. State of Bihar ( Now Jharkhand ) ( 2014 ) 3 SCC 401, of Rohtash Kumar Vs. State of Haryana, Criminal Appeal No. 896 of 2011, Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91, Balram Singh Vs. State of Punjab 2003 AIR (SC) 2213 and in Baboolal Vs. State of U.P. 2001 SCC (Cri) 1484 that where there is direct evidence, prosecution is not needed to prove motive of offence. How the mind of an assailant reacts is not to be fathomed from a detached reflection. Criminal conspiracy, in general, hatched in secrecy, thus direct evidence is difficult to obtain or access.
46. Learned counsel for the appellants further submitted that police has shown false recovery of two weapons (tamanche) of 315 and 12 bore on the pointing out of accused appellants Ballu and Sunil. Police has failed to recover other tamanche as witnesses PW- 1 and PW- 2 have stated in their evidence that all the accused persons were carrying fire-arms in their hand. Investigating officer has failed to send the aforesaid recovered tamanche to F.S.L also. Therefore, the case of prosecution is not reliable. On the point of above argument it will not be out of context to mention that, if I.O. was failed to recover all the fire arms from all the accused persons prosecution case does not collapse, as it was in the special knowledge of accused persons that where they have kept hidden the used fire arms they have not disclosed. The Hon'ble Apex Court in the case of State of Punjab Vs. Hakam Singh Appeal (Crl.) No. 130 of 2000 has held that:-
"It was also pointed out by learned counsel for the respondent that no fire arms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the fire arms and recovering the empties and sending them for examination by the Ballistic expert would have only corroborated the prosecution case but by not sending them to the Ballistic expert in the present case is not fatal in view of the categorical testimony of PW- 3 about the whole incident."
47. In the case of Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545 it has been held by Hon'ble Supreme Court that:-
"12. In this context, we may refer with profit to the decision in Anwarul Haq v. State of U.P. wherein it was held that solely because the knife that was used in committing the offence had not been recovered during the investigation could not be a factor to disregard the evidence of the prosecution witnesses who had deposed absolutely convincingly about the use of the weapon. That apart, the Court also referred to the evidence of the doctor which mentioned about the use of weapon. It is worth noting that this Court observed that though the doctor's opinion about the weapon was theoretical, yet it cannot be totally wiped out. Regard being had to the aforesaid, this Court maintained the sentence of one year rigorous imprisonment under Section 324 of IPC as imposed by the trial Court and concurred with by the High Court."
48. In the case of Ram Bali Vs. State of U.P. 2004 (2) JIC 168 (SC) it has been held by Hon'ble Supreme Court that:-
"12. The investigation was also stated to be defective since the gun was not sent for forensic test. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518)."
49. On the same point it has been held by Hon'ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and others (Supra), that:-
"14. Coming to the last point regarding certain omissions in the DDR, it has come in evidence that on the basis of the statement of PW4 Amar Singh, which was recorded by PW14 Sardara Singh, S.I. in the hospital a formal FIR was recorded at the Police Station at 9.20 p.m. In accordance with Section 155Cr.P.C. the contents of the FIR were also entered in the DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in the DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. In Karnel Singh v. State of M.P. (1995) 5 SCC 518 it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav & Ors. v. State of Bihar (1999) 2 SCC 126while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."
50. The same view has been taken by the Hon'ble Apex Court in the case of Baleshwar Mandal and another Vs. State of Bihar 1997 JIC 1030 (SC) in Para- 5, which is reproduced as under:-
"5. Under Section 172 Cr. P.C. read with Rule 164 of Bihar Police Manual dealing with the investigation, an Investigating Officer investigating a crime is under obligation to record all the day to day proceedings and information in his case diary, and also record the time at which the information was received and the place visited by him, besides the preparation of site plan and other documents. The investigating Officer is also required to send blood stained clothes and earth seized from the place of occurrence for chemical examination. Failure on the part of the investigating Officer to comply with the provisions of Section 172 Cr.P.C. is a serious lapse on his part resulting in diminishing the value and credibility of his investigation. In this case the Investigating Officer neither entered the time of recording of the statements of the witnesses in the Diary nor did he send the blood stained clothes and earth seized from the place of occurrence for examination by a serologist. The High Court also adversely commented upon the lapses on the part of the Investigating Officer in not complying with the provisions of Code of Criminal Procedure. We, therefore, take it that, in fact, there was serious lapse on the part of the Investigation Officer in not observing the mandate of Section 172 Cr.P.C. while investigating the case which has given rise to this appeal. But the question that arises for consideration is, has any prejudice been caused to the accused in the trial by non-observance of rule by the Investigating Officer? The evidence on record before the Sessions Court and the appellate Court does not show that due to the lapses on the part of the Investigating Officer in not sending the blood stained clothes and earth seized from the place of occurrence for chemical examination and further not noting down the time of recording the statement of the witnesses in he Diary has resulted in any prejudice to the defence of the accused. In the present case, the place of occurrence and the identity of the deceased are not disputed. Further, the testimony of the eye witnesses which is consistent and does not suffer from infirmity, was believed by both the courts below. Once the eye witnesses are believed and the courts come to the conclusion that the testimony of the eye witnesses is trustworthy, the lapse on the part of the Investigating Officer in not observing the provisions of Section 172 Cr.P.C. unless some prejudice is shown to have been caused to the accused, will not affect the finding of guilt recorded by the Court. Neither before the High Court nor before this Court, it was pointed out in what manner the accused was prejudiced by non-observance of the provision of Section 172 Cr.P.C. and the rules framed in this regard. We are, therefore, of opinion that judgments of Court below do not suffer on account of omission on the part of Investigating Officer in not sending the earth seized from the place of occurrence for Chemical examination or in not entering the time of recording the statements of witnesses in the Diary."
Therefore, considering the evidence and circumstances of present case, and in the light of above dictums of Hon'ble Apex Court, it can be inferred that, if I.O. has committed some laches during investigation and in collecting evidence against accused appellants, then in that case the evidences of witnesses of prosecution cannot be brushed aside, particularly when their testimonies are reliable and trustworthy.
51. Learned counsel for the appellants further submitted that in spot map, location of accused persons from where they have opened fire on Satish and place of witnesses from where they have seen the occurrence, has not been shown by I.O. On the above point, learned counsel for the complainant has argued that the spot map which has been prepared by I.O., is inadmissible under Section 162 of Cr.P.C. as that map was not prepared by measurement rather witness Pw- 7 (I.O.) had prepared it roughly. Learned cousnel has placed reliance on case of Tori Singh and another Vs. State of U.P. AIR 1962 Supreme Court 399.
"7. We are of opinion that neither of these arguments has any force. Let us first take the contention that it was most unlikely that the deceased would be hit on that part of the body where the injury was actually received by him, if he was at the spot marked in Ex. Ka-9. The validity of this argument depends mainly on the spot which has been marked on the sketch-map Ex. Ka-9 as the place where the deceased received his injuries. In the first place, the map itself is not to scale but is merely a rough sketch and therefore one cannot postulate that the spot marked on the map is in exact relation to the platform. In the second place, the mark on the sketch-map was put by the Sub-inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of s. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-inspector would be inadmissible in view of the clear provisions of s. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. We may in this connection refer to Bhagirathi Chowdhury v. King Emperor,AIR 1926 Cal 550, where it was ob-served that placing of maps before the jury containing statements of witnesses or of information received by the investigating officer preparing the map from other persons was improper, and that the investigating officer who made a map in a criminal case ought not to pat anything more than what he had seen himself. The same view was expressed by the Calcutta High Court again in Ibra A kanda v. Emperor AIR 1944 Cal 339, where if was held that any information derived from witnesses during police investigation, and recorded in the index to a map, must be proved by the witnesses concerned and not by the investigating officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against s. 162 of the Code of Criminal Procedure."
52. It is to be considered that spot map was prepared by I.O. on the pointing of complainant, as witness Pw- 1 has mentioned in cross examination. This fact has also been mentioned by I.O. in case diary which is available on record (back page of Paper No. 33 Kha/3 dated 12.04.1994) and the witness Pw- 1 has not been cross examined by counsels of accused persons on the above shortcomings of spot map. In the light of above dictum of Hon'ble Apex Court, I.O. cannot be asked about not showing the place of accused persons and eye witnesses.
53. If I.O. has not prepared spot map on scale or there was any fault of investigation in sketching the spot map it can be treated as latches of I.O., which does not affects the case of prosecution adversely, where direct, ocular and reliable evidence is available on record. On the above point Hon'ble Apex Court has held in the case of Allarakha K. Mansuri Vs. State of Gujarat 2002 Supreme Court Cases (Cri) 519 that defective investigation by itself cannot be made a ground for acquitting the accused.
It has been held by co-ordinate Bench of this Court in the case of Ved Ram & Ors. Vs. State of U.P. 2004 (2) JIC 17 that Para- 25.
"25. Another argument of the learned counsel for the appellants is that Bhikam. P.W 2 -- the witness of murder of Raghunath was also an interested witness being Bataidar of Jhamman Lal. In our view, this factum alone does not justify jumping to the conclusion that he deposed falsely in favour of the prosecution. It has to be placed on record that he had no animus with the accused appellants. Yet another submission of the learned counsel for the appellants is that he did not show to the investigating officer the place wherefrom he saw the incident of murderous assault on Raghunath. True, the investigating officer did not show in the site plan the place from where this witness witnessed the incident but because of this lapse or mischief on the part of the investigating officer, his presence there cannot be doubted. His emphatic statement is that at the relevant time he was ploughing the field of Jhamman which he had taken on Batai. It was adjacent to the field which was being dug by Raghunath. Jhamman Lal P.W 1 also spoke about his field being adjacent to that of Raghunath. Existence of the plot of Jhamman Lal adjacent to that of Raghunath was not even challenged either in the cross-examination of Jhamman Lal P.W 1 or Bhikam P.W 2."
54. If eye-witnesses of occurrence are reliable and trustworthy then in that case no corroborative evidence is needed and conviction can be based on the evidence of even sole reliable eye-witness, as it has been held by Hon'ble Apex Court in the case of Namdeo Vs. State of Maharashtra Criminal Appeal No. 914 of 2006, Seeman Alias Veeranam Vs. State by Inspector of Police 2005 CRI. L. J. 2618, Kuria and another Vs. State of Rajasthan (Supra).
55. Learned counsel for the appellants further argued that there is no cogent evidence that every appellant was involved in the occurrence. Police has not recovered the number of weapons in proportionate to number of accused persons. On the above point, it reveals from record that witnesses PW- 1 and PW- 2 have stated in their evidences that all the accused persons opened fire on Satish by their fire-arms (tamanche) (country-made pistols). Normally, country-made pistol (tamanche) can fire single shot. As according to post-mortem report and evidence of PW-7, deceased sustained 5 injuries of gunshot entry wounds on the different part of his body, which shows the complicity of more than one assailants. There is nothing on record which may bifurcate the role of particular accused person. The number of injuries indicate the common object of assailants Hon'ble Apex Court in the case of Shivappa and others Vs. State of Karnataka (Supra) has held in Para- 30, that:-
"30. The submission of Mr. Javali that overt acts have been attributed only to five of the accused and all of them could not have been convicted invoking the provisions of Sections 148 and 149 of the Indian Penal Code may now be considered. The First Information Report, as also the evidences of as many as six eye-witnesses, clearly reveals that all the eleven accused came in a group. All of them were armed with deadly weapons although actual overt acts had been attributed to Accused No.1, Ningondeppa, Accused No.2, Shivashankar, Accused No.3, Shivappa, Accused No.5, Shekappa and Accused No.11 Malakji only. In their depositions, the prosecution witnesses have categorically stated that all of them took part therein. Even if we do not put entire reliance on the said statements, the very fact that the deceased received as many as 20 injuries is itself sufficient to show that all the accused persons not only came to the place of occurrence upon forming an unlawful assembly but also had the requisite common object to kill the deceased. Formation of common object must be inferred upon taking into consideration the entire situation."
In the case of Jai Shree Yadav Vs. State of U.P. 2004 SAR (Cri.) 748, the Hon'ble Apex Court has held that:-
"29. In view of the above principle in law, since the trial court has found these respondent-accused guilty of being members of an unlawful assembly with the common object of causing the murder of the deceased, and the High Court having not differed from the said finding, it erred in acquitting these respondent- accused solely on the ground that there is no evidence to show that they had taken part in the actual assault. In our opinion, assuming that the High Court was correct in coming to the conclusion that these respondent-accused have not taken part in the attack even then they having come together with the other accused armed, and having been members of the unlawful assembly and having shared the common object, they will be guilty of an offence punishable under section 302 read withsection 149 IPC."
In the case of Krishna Mochi and Others Vs. State of Bihar etc. 2002 (2) J.Cr.C 123, regarding liability of accused persons in the case of common object Hon'ble Apex Court held that:-
"83. Learned counsel further pointed out that according to the prosecution case and evidence, none of the appellants are alleged to have assaulted either any of the 35 deceased or the injured persons and that from mere presence at the place of occurrence their participation in the crime cannot be inferred inasmuch as they may be even sight seers. In my view, there is absolutely no foundation for the submissions that the accused persons may be sight seers as no suggestion was given to any of the witnesses on this score. According to the prosecution case and the evidence, the accused persons arrived at the village of occurrence, pursuant to a conspiracy hatched up by them, they divided themselves into several groups, different groups went to the houses of different persons in the village, entered the houses by breaking open the door, forcibly took away inmates of the house after tying their hands, taken them first to the temple and thereafter near the canal where their legs were also tied and there some of them were done to death at the point of firearm, but a vast majority of them were massacred by slitting their throats with pasuli. One thing is clear that all these acts were done by the accused persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed unlawful assembly and different members of that unlawful assembly had played different role. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs, etc., but did not use the same. Reference in this connection may be made to a decision of this Court in the case of Masalti (supra) where it was laid down that where a crowd of assailants, who were members of an unlawful assembly, proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for witnesses to describe actual part played by each one of them and a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault as in that case several weapons were carried by different members of unlawful assembly and an accused who was member of such an unlawful assembly and was carrying firearm cannot take any advantage from the fact that he did not use the firearms, though other members of the unlawful assembly used their respective arms.
Therefore, only on the ground that I.O. could not recover the fire-arms of each accused persons, case of prosecution does not collapse particularly where the eye-witnesses PW-1 and PW-2 have been found reliable witnesses.
56. Learned counsel for the appellants further argued that it has also been mentioned in F.I.R. that after committing murder of Satish accused persons entered in the house of complainant by pursuing and chasing him, where they robbed the licencee double barrel gun of complainant, cash and jewellery. The occurrence of robbery has not been proved by the evidence available on record. Considering the aforesaid argument, record shows that witness PW- 3 who is mother of deceased, was present in her residential home, where it has been alleged that robbery of gun, cash and jewellery took place. Witness PW- 3 has mentioned in her evidence that when her husband was running towards his home with shouting the voice for help, all the accused persons were chasing him with fire-arms, and all the persons entered in her house, they robbed Rs. 1,30,000/-, cash, licencee gun and belt of cartridges, pandel and chain. During the course, Ram Das and Kanhai stood before her and asked her to keep silent. She has further stated in her evidence that cash and jewellery which were kept in open box were robbed. As according to evidence of witness Pw- 1, his servant was also residing with his family members in his house, therefore, it is not probable that the box, wherein case and jewellery were lying would not be in locked condition. Witness PW- 3 has further stated in her evidence that all the articles were robbed from the room of Satish. She has further stated that aforesaid cash amount was consideration money of sale of laha (mustered), but no receipt of sale has been submitted by prosecution. Witness PW- 1 has stated in his evidence that her wife told about the robbed articles. Admittedly the F.I.R. was lodged by complainant after that conversation with his wife but there is no detail of robbed articles in F.I.R. He has also mentioned in his evidence that accused persons had given threat to his wife and servant, on the other hand, witness PW- 3 has stated that accused Kanhai and Ram Das stopped her from shouting the voice for help. She has not taken the name of any servant. Witness PW- 3 further stated that immediately, after robbery, she told her husband about the robbery but witness PW- 1 has stated in his evidence that he don't know that from where the jewellery was robbed, it is well known to the ladies of home. This statement of Pw- 1, in the light of statement of Pw- 3 is not reliable. Witness PW- 1 has also stated that the licencee gun was in his name and the gun was lying in the room of deceased Satish. Inquest report indicates that, right hand of deceased was already amputated therefore, in such a physical condition it is not possible for Satish to use gun, by a single hand. On the other hand, complainant was a fit person, therefore, the statement of PW- 1 that gun was lying in the room of Satish is not reliable. Normally guns are kept in house, in such a places where it can be used easily in eminent danger conditions. The complainant has not produced his gun's licence also which could prove that he was possessing a gun.
57. It has further argued by learned counsel for appellants that evidence of witness Pw- 2 on the point of robbery is not reliable, as in general, a stranger person who watches the occurrence of violence and running of accused persons with weapons, takes shelter behind some structure as shield, witness PW- 2 and his son Amit at that time would have been in shed of his tractor, therefore, it was not possible for him to recognize the robbed gun of complainant in the hand of Ram Datt witness Pw- 3 has not stated the name of Ram Datt who was well known by her as neighbour. The argument advanced by counsel for appellants at this point seems forceful, and above part of the statement of PW-2 appears as exaggeration, which can be ignored.
58. Considering the evidence on record, surrounding circumstances and keeping in mind that no looted articles were recovered from the pointing out of accused persons or from their residence at the time of proceeding of attachment which took place under the Provisions of Section 83 of Cr.P.C, the occurrence of robbery is not established. Prosecution has failed to prove the occurrence of robbery beyond reasonable doubt against accused persons. Therefore, accused persons are liable to be acquitted from the charge of Section 395 I.P.C.
59. In view of the above facts, circumstances and discussions, we are of the confirmed view that prosecution has proved the charges of Section 302 I.P.C. and 148 I.P.C. beyond reasonable doubt against accused persons. So far as the charges of offence under Section 302/148 I.P.C. is concerned, no error of law as well as in appreciation of fact and evidence is found in impugned judgement. Therefore, conviction and sentence of appellants under Section 302/148 I.P.C. is affirmed. It is further concluded that since the prosecution could not prove the charge of Section 395 I.P.C. against appellants, hence appellants are acquitted from the charge of Section 395 I.P.C.
60. Accordingly, conviction and sentencing order of sessions judge, so far as Section 395 of I.P.C. in concern is set aside. Appeal is allowed partly.
61. Let the copy of this order be sent to court concern for compliance. All the accused persons, namely, Sunil, Ballu, Dhannu, Avadesh and Kanhai are on bail they will surrender immediately before C.J.M. concerned, failing which the C.J.M. concerned shall issue NBW against all the accused appellants. If accused appellants appears or brought before C.J.M. they shall be sent to jail for execution of their sentences.
Order Date :- 13.01.2020 Israr