Allahabad High Court
Charan And Others vs State Of U.P. on 21 June, 2022
Bench: Sunita Agarwal, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 32 Reserved on:31.03.2022 Delivered on: 21.06.2022 Case :- CRIMINAL APPEAL No. - 3101 of 2008 Appellant :- Charan And Others Respondent :- State of U.P. Counsel for Appellant :- Anil Raghav,A.B. Singh,Amit Mishra,Ashok Kumar Pandey,Dilip Kumar,Mohammad Jamil Akhtar,Mustaqeem Ahmad,Ram Babu Sharma,S.P. Singh Raghav,Sanjai Kumar Jaiswal,Saurabh Gaur,Shiv Krishna Bahadur,Sunil Kumar,Vinod Kumar Ojha,Vivek Srivastava Counsel for Respondent :- Govt.Advocate,Devendra Singh,V.S.Chaudhary And Case :- CRIMINAL APPEAL No. - 3146 of 2008 Appellant :- Suresh Respondent :- State of U.P. Counsel for Appellant :- Anil Raghav,Kamal Krishna,Mohammad Jamil Akhtar,P.K.Rai,S.P. Singh Raghav,Vivek Srivastava Counsel for Respondent :- Govt Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Kunvar Srivastav,J.
(Delivered by Justice Sunita Agarwal.)
1. Heard Sri V.M. Zaidi, learned Senior Advocate assisted by Sri Vivek Srivastava as also Sri M.J. Akhtar, learned Advocates for the appellants and Sri Rupak Chaubey, learned AGA for the State-respondent.
2. These appeals are directed against the judgment and order dated 05.05.2008 passed by the Additional Sessions Judge, Fast Track Court no.21, Bulandshahr in Sessions Trial no.1280 of 2001 arising out of Case Crime no.65 of 2001, whereby seven appellants have been convicted for the offence under Section 302 read with Section 149 and Section 307 read with Section 149 IPC. All the appellants had been acquitted under Sections 147, 148, IPC whereas four appellants namely Suresh, Moola @ Mool Chand, Chandrahas and Jeeta had been acquitted under Section 25 of the Arms Act. The appellants have been sentenced for life imprisonment with Rs.3,000/- fine each, for the offence under Section 302 read with 149 IPC, the default punishment for which is one year additional imprisonment for each of the appellants; for five years rigorous imprisonment with fine of Rs.1000/- under Section 307 read with 149 IPC, the default punishment is six months additional imprisonment for each appellant. All the sentences are to run concurrently.
Introduction:
3. The law was set into motion with the lodging of the first information report on 10.03.2001 at 16.15 hours of the incident which occurred on the said day at about 3.40 p.m. The first informant is Siya Singh s/o Manik Singh, father of deceased Gajesh Kumar @ Kallua and of two injured namely Brahmpal and Ajay Kumar. In the written report submitted by the first informant (P.W-1), at the beginning narrating the motive of the occurrence, it was stated by the first informant that an incident of murder of Pt. Shiv Dutt had occurred in the village about 6-7 months prior to the present occurrence. The deceased Shiv Dutt was his acquaintance and Manoj s/o Shishram, Suresh s/o Chandan Singh went to jail in his murder case. The accused appellants herein had suspicion that the first informant was behind sending them to jail. It was stated therein that the present incident had occurred due to the said enmity as also on account of the enmity related to the election of the Pradhan.
4. Further, on 10.03.2001, the first informant, his sons Gajesh Kumar, Ajay Kumar and Brahampal as also his brother Kanti, were sitting in front of his house to have their food. At that time, around 3.40 p.m., Manoj s/o Shish Ram Sharma, (carrying gun) Suresh s/o Chandan (having rifle), Charan s/o Chandan Singh (having gun), Jeeta s/o Chhota (having gun), Chandrahas s/o Meghraj, Moola s/o Gajju, Prempal s/o Harchandi, Dharam s/o Babu Singh (carrying Tamanchas in their hands), came inside and started abusing them and opened fires with the intention to kill all of them. All on the complainant side ran inside the house and towards the field. Gajesh Kumar and Ajay Kumar fell down on sustaining grievous injuries, Brahmpal also sustained injuries in the occurrence. The other family members and the villagers were collected on the spot hearing the sounds of fires and their cries. The assailants went away giving threat of life to the survivors. It was stated in the report that three injured sons of the informant were brought to the police station in a 'Buggy' tied with a tractor and amongst the injured, one namely Gajesh Kumar @ Kallua had died, on the way.
Prosecution Case:
5. P.W-4, Head Moharrir, P.S-Jahangirabad stated on oath that the check report of the incident was prepared on the written report given by the informant, which was in his hand writing, exhibited as Exhibit Ka-3. The GD no.15 at 16.15 hours dated 10.03.2001 pertains to the registration of the FIR and was proved with the original GD brought in the Court, being in the hand writing and signature of P.W-4. The carbon copy of the GD is exhibited as Exhibit Ka-4.
6. In cross, P.W-4 stated that he took around 15 minutes in preparation of the Check report and, thereafter, 10-15 minutes in preparation of the GD. Chitthi Majrubi of the injured Ajay Kumar and Brahmpal were prepared and they were sent with Constables 1377 Shekhar Chand and 4056 Yash pal Singh to the Government hospital Jahangirabad. All the papers prepared by him alongwith jild panchayatnama were handed over to SSI Puran Singh Chauhan (P.W-6). The suggestion that no written report was handed over to PW-4 by the informant around 16.15 hours was denied by him. The suggestion that he (PW-4) had registered the case Ante-time on the instructions of the senior officer was denied as wrong.
7. The inquest of the body was commenced on 10.03.2001 at about 18.00 hours and completed at about 19.50 hours, the place of the inquest as indicated in the inquest report is the police station. The injured were examined by P.W-5, the doctor posted at the Community Health Centre (CHC), Jahangirabad on 10.03.2001. It was stated by P.W-5 that the above noted two constables brought the injured to the hospital and he had examined injured Ajay on 10.03.2001 at about 4.30 p.m.
8. The injuries on the person of injured Ajay described in the injury report are as under:-
"1. Fire arm injury- 2.0 cm x 1.5 cm at lower part of left side of chest. Margin- Irregular. Blood oozing from injury. Advised X-ray, chest.
2. Fire arm injury- 0.5 cm in diameter back of left side of chest, Margin-Irregular."
9. It was stated by P.W-5 that the injuries sustained by Ajay Kumar s/o Siya Ram were fresh, caused by fire arm and he was referred for X-ray to the District hospital-Bulandshahr. The thumb impression taken on the Medico-legal report and the identification marks of the injured were also noted. The thumb impression of the injured on the injury report was attested by PW-5 and the injury report was proved being in his handwriting and signature as Exhibit Ka-5. It was stated by P.W-5 that the said injuries could occur at the time of the incident stated in the first information report.
10. The injury report of injured Brahmpal (P.W-2) was also proved by P.W-5 as Exhibit Ka-6. It was deposed that injured Brahmpal was brought by above mentioned two constables at about 4.00-4.45 p.m and the following injuries were found on his person:-
"Injury no.1- Lacerated wound of 2.0 cm x 1.0 cm on left side of face, 3.0 cm below right eye. Advised X-ray, face.
Injury no.2- Lacerated wound of 0.2 cm diameter on lateral side and left side of mouth. Blood oozing from injury. Advised X-ray face.
Injury no.3- Multiple lacerated wound size 0.2 diameter, Blackening present on left upper arm. Blood oozing from injury. Advised X-ray left arm.
Injury no.4- Two lacerated wound of 0.2 cm diameter on Right side of chest chest. Blackening present. Blood oozing from injury."
11. The doctor opined that all the injuries were caused by some firearm weapons. Injuries were fresh. Patient was referred to the district hospital Bulandshahar for the X-ray of chest, face and left upper arm.
12. In cross, it was stated by P.W-5 that the case crime number was not noted in the letter received by him and both the injured were in their senses and their condition was normal. Describing the injuries, in cross, P.W-5 denied the suggestion that the injury reports were prepared ante-time and both the injured came to the hospital at about 6.00 p.m. for investigation. It was stated by P.W-5 that it took him about one hour to examine the injured and to give them medical aid.
13. The Investigating Officer examined as P.W-6 stated that soon after the case was registered, the investigation was received by him. After copying the reports, the statement of the informant and others were recorded; the inquest of the body of deceased Gajesh which was kept outside the police station was conducted. After preparation of the related papers, body was sealed and sent for the post-mortem. The statement of the inquest witnesses were recorded and it was proved by P.W-6 that the inquest report was prepared in his handwriting and signature as Exhibit Ka-7; the related papers were also proved as Exhibit Ka-8 to Ka-13. P.W-6 then stated that after completion of the above proceedings, he went to the CHC, Jahangirabad and recorded statements of injured Ajay Kumar, Brahmpal, and their injury reports were copied in the CD. He, thereafter, went to the place of the incident where Incharge Inspector with the police force was already present. Taking them together he went to nab the accused but did not succeed and the proceedings of the said day, i.e. 10.03.2001 were closed due to onset of night hours.
14. On the next day, i.e. 11.03.2001, the statement of other eyewitnesses were recorded, site plan was prepared at the pointing out of the informant which was proved being in the handwriting and signature of P.W-6 as Exhibit Ka-14. The bloodstained and plain earth were collected, memo was prepared in the handwriting and signature of P.W-6 as Exhibit Ka-15. Two empty cartridges 12 bore without base, one cartridge 12 bore and one empty bullet of brass and one tikli plastic were recovered from the spot and sealed and the recovery memo was proved as Exhibit Ka-16 being in the handwriting of P.W-6. It was stated that, thereafter, the arrests were made and on 29.03.2001 at the instance of appellants Suresh, Manoj, Moola @ Moolchand and Chandrahas, 315 bore countrymade pistol, 12 bore country made pistol, 12 bore tamanchas; respectively, were recovered. No recovery had been made from the appellants Charan Singh and Dharam Singh. The recovery memo prepared on the spot was proved in the handwriting and signature of P.W-6 as Exhibit Ka-17. It was stated by P.W-6 that all the recovered weapons were in the working condition and the site plan of the place of recovery was prepared.
15. P.W-6, in cross, was confronted about the time taken by him in the proceedings conducted on 10.03.2001, beginning from the inquest till the recovery of the murder weapon. A suggestion was given to P.W-6 that the first information report, inquest and the entire proceeding were conducted ante-time while sitting at the police station which was denied by him. The cross examination of P.W-6 was completed on 05.04.2004 and he was recalled on 13.12.2004 on the request of the prosecution. He stated on oath that he took the accused persons on remand and after arranging two persons to be witnesses, he alongwith his team and the accused persons went to the field of Suresh and the country-made rifle was recovered after digging his field of wheat. The sealed bundle of rifle was opened in the Court and it was identified by P.W-6 and marked as 'Material Exhibit 1'. Other weapons recovered from the accused persons as noted above were shown to PW-6, identified by him, marked as material Exhibit-2, 3 and 4.
16. P.W-7 is the second Investigating Officer who stated on oath that he was posted as the Incharge police station, Jahangirabad on the date of the incident and this case was registered in his presence. Upon transfer of P.W-6 S.S.I. Puran Singh, the investigation was received by him on 04.04.2001. He proved the recovery made by him on 10.04.2001 at the instance of appellant Jeeta s/o Chhote and that the recovered firearm seized was sent to the Malkhana and a case under Section 25 Arms Act was registered against appellant Jeeta. P.W-7 stated that on completion of the investigation, the chargesheet was submitted by him which was exhibitted as Exhibit Ka-35.
17. P.W-3 is the doctor who conducted the post-mortem of the body of deceased Gajesh s/o Siya ram on 11.03.2001 at about 3.30 p.m in the district hospital. It was stated by him that the body was brought in the sealed state by the police constables who had identified the body. The deceased appeared to be aged about 25 years and was of average built. Rigour mortis was present all over the body. The antemortem injuries found on the person of the deceased were described as:-
"1. Multiple fire arm wound of entry in an area of left side face, neck and front of the chest size 0.4 cm x 0.4 cm skin to chest cavity deep.
One litre of clotted blood found in chest cavity.
Both lungs lacerated. Heart lacerated. Both Pleura lacerated.
300 gm semi digested food was present in stomach.
The death was caused due to shock and hemorrhage as a result of ante mortem injuries."
18. P.W-3, in his examination-in-chief, stated that it was possible that the deceased had suffered injuries from one fire only and all pellets found in the body of the deceased could be of 12 bore gun or 12 bore tamancha. The injuries were sufficient to cause death in the ordinary course of nature and the proximate time of death could be 10.03.2021 at about 3.40 a.m. The cause of death was shock and hemorrhage due to antemortem injuries. 11 pellets found from the body of the deceased as also the clothes of the deceased were sealed in two separate bundles and handed over to the police constables. The post mortem report was proved as Exhibit Ka-2 being in his handwriting and signature by P.W-3.
19. In cross, P.W-3 stated that it was possible that the deceased might have taken food about two hours prior to his death. Because of the firearm injuries, lungs and heart of the deceased was lacerated and looking to the nature of the injuries, it was not possible that the deceased could have run for about 30-35 paces. It was further stated that there was no blackening on the wounds and the firearm injury could occur from a distance of about six feet. There could be margin of six hours on both sides in the estimated time of death. On recall on the prayer of prosecution, in cross, P.W-3 stated that looking to the nature of injuries, the death might have been caused within 10-15 minutes of sustaining injuries and it was possible that the death had been caused on 10.3.2001 at about 4.00 p.m. On further cross by the defence, P.W-3 clarified that when he spoke of death he meant clinical death and looking to the nature of injuries, the death could have been caused within 2-3 minutes.
20. P-W-8 and P.W-9 are not relevant for the purpose of this case as they were produced to prove the proceedings under Section 25 Arms Act wherein all four accused-appellants have been acquitted.
21. The formal witnesses, thus, proved the reports prepared by them on conducting the requisite proceedings.
22. To prove the occurrence, two witnesses of fact had been produced by the prosecution. P.W-1 is the first informant Siya Singh, father of the deceased as also the two injured. One of the two injured, Brahmpal is P.W-2. Another injured Ajay Kumar did not enter into the witness box. In the examination-in-chief, P.W-1, at the beginning, had described his relation with the deceased and two injured and then stated that the fateful day was around holi festival. The incident had occurred at around 3.15-3.30 p.m. when he and his younger brother Kanti were sitting in his house and explained that his house and 'Gher' were same. All the accused persons came together to his house from the side of Kharanja. They were carrying the weapons described in the first information report and as soon as his three sons Brahmpal, Gajesh and Ajay Kumar sat down to have their food at a distance from them, the accused started firing. His three sons ran outside and he and his brother ran inside the house. Gajesh and Ajay fell down on being hit by the fires and Brahmpal also sustained firearm injuries. Gajesh died instantly on the spot. Deceased Gajesh and two injured were then put in a 'Buggy' and then they reached the village- Basri where 'Buggy' was tied with a tractor and from there they reached the police station. From the police station, they were brought to the government hospital-Jahangirabad where Gajesh was declared dead and two injured Ajay and Brahmpal were sent to the Bulandshahar hospital.
23. P.W-1 stated that the written report was scribed by his nephew Naresh @ Chhote on his dictation. It was read over to this witness in the Court and he proved that it was the same report which was dictated by him to Naresh. P.W-1 further stated that Ajay and Brahmpal were admitted and treated in the Bulandshahar Government Hospital whereas the body of Gajesh was brought back to the police station by the Police Personnel.
24. Narrating the motive, in his examination-in-chief, P.W-1 reiterated his version in the written report about the incident of murder of Shiv Dutt Sharma.
25. In cross, about motive, P.W-1 stated that he did not know as to who was informant and witness in the case of murder of Shiv Dutt Sharma. On another motive narrated in relation to the election of Pradhan, it was admitted by P.W-1 that neither he nor any of his family member had contested the election to the post of member of Gaon Sabha nor any of the accused persons had contested the said election. Two persons who fought the election of Pradhan were of backward class.
26. Giving orientation of the place of the incident, it was stated by P.W-1 that at the time of the incident they were sitting in the open place, in the 'Gher' of his house, which was at a distance about 6-7 feet from kharanja and the area of the open place (Gher) was about 30x35 feet. His three sons Gajesh Kumar, Ajay Kumar and Brahmpal were in the 'Aangan' of the house which was an open place in front of the varandah. The kitchen (the place of cooking) was outside the varandah and his three sons were sitting on the floor at a distance of 6-7-8 feet from the wall, to eat their food. The accused appellants came from the village though the kharanja and then from the rasta adjacent to the Baithak in the house. The informant saw accused appellants Suresh, Manoj, Jeeta and Charan firstly and then the other accused persons behind them. On confrontation, P.W-1 stated that the Investigating Officer did not ask the details about the place where he, his brother and his sons were sitting. On further confrontation, he stated that all the places were shown to the Investigating Officer who came on the spot but he did not remember as to when were those places shown to him. It was further stated by P.W-1 that all the accused persons entered in the house abusing them and threatening that they would not be spared. PW-1 stated that the accused persons opened fires only towards his three sons and did not fire at him (PW-1)or his brother Kanti. It was stated by P.W-1 that each accused persons had fired two shots from his weapon.
27. On further confrontation, PW-1 stated that he did not remember as to whether they threw away empty cartridge or filled cartridges while firing as he was looking to his kids. He then stated that he saw 4-6 cartridges on the spot after the accused person had left and the fires were made at his sons from the distance of 4-6 paces. His three sons fell down after running about 4-6 paces being hit by the fires in the open place in front of the Varandah. The entire incident had occurred within 10-15 minutes.
28. After the occurrence, the villagers came and put three injured in the 'buggy' which was the 'Bhaisa buggy'. It took them around 15 to 20 minutes while settling the buggy and they went to Village-Basri which was at a distance of 1 km from his village. They took around 15-20 minutes in reaching the Village-Basri where they took the tractor of Ram Chandra (their acquaintance), 'Buggy' was tied in the tractor and it took around 20 minutes to settle the same. The distance of P.S.- Jahangirabad from the Village Basri was about 9 km but due to the road being kachcha rasta, it took them around two hours to reach the police-station.
29. P.W-1 stated that as soon as the information was received by the Investigating Officer, he had reached at the place of the incident with police force and when the Investigating Officer reached, he, (P.W-1) was present in the village. P.W-1 then stated that he sent the injured first and went with the Investigating Officer in his vehicle thereafter. His injured sons were sent with Naresh and one more relative and when he reached at the police station along with the Investigating Officer, there was dark though he could not tell the exact time. He stated that when he reached at the police-station his two injured sons Ajay and Brahmpal were not there and the body of the deceased Gajesh was lying outside the police-station. P.W-1 stated that he did not go to the hospital to see his two injured sons and when he reached at the police-station, he met Naresh. He did not meet his other relative as they all went to the Bulandshahar hospital along with the injured. The body of deceased Gajesh was sent to Bulandshahar through the tractor in the next morning. P.W-1 stated, in cross, that all papers related to the dead body of the Gajesh were prepared and the body was sealed in his presence and the said proceeding was conducted on the next morning.
30. In cross, P.W-1 further stated that he dictated the report to Naresh and by the time the report was scribed, there was already dark which occurred about 2-3 hours before that. The suggestion that P.W-1 was not present in the house at the time of the incident and reached the village on the next day was categorically denied by him.
31. P.W-2 is the injured witness Brahmpal, who stated that deceased Gajesh and injured Ajay Kumar were his younger brothers and the informant, P.W-1, Siya Singh is his father. He stated that on 10.03.2001 at about 3.30 p.m, they were sitting in an open place in front of the room of their house and the 'Gher'. The accused persons came with the fire-arms, started abusing them and opened fires. The place of the incident was described by PW-2 in the same way as by P.W-1. P.W-2 then stated that he and his two brothers got injured and he, his father and uncle Kanti Ram ran inside the house whereas his brothers Gajesh and Ajay ran towards the field. They, however, fell in the 'Gher' on being hit by the fires. The accused persons fled away wielding their weapons giving threat to life. He then stated that his cousin Naresh and other family members brought them to the police-station-Jahangirabad in a Tractor-Buggy via Village-Basri and deceased Gajesh had succumbed to his injuries on the way. The police took all three to the CHC Jahangirabad where Gajesh was declared dead and he (P.W-2) and his injured brother Ajay were sent to the Government Hospital, Bulandshahar. The motive as stated by P.W-1 about the murder of Shiv Dutt Sharma was also narrated by P.W-2 in his examination-in-chief.
32. In cross, P.W-2 was confronted about the place of his presence and that of his two brothers, father and uncle which he described in the way that his father and uncle were sitting at a different place from them. He then stated that the accused did not fire towards his father and uncle and they came inside suddenly. When the accused persons started abusing, they (the injured and the deceased) moved towards them but by that time fires were opened. They were hit in the open place and he, his father and uncle Kanti ran towards the house. P.W-2 further stated that while he was running inside the house, no accused fired at his back and he took cover of the pole in the 'Varandah'. When his two brothers Ajay and Gajesh fell down, the accused persons ran away. It was further stated by P.W-2 that when the deceased and injured fell down, the accused persons did not fire at them.
33. On confrontation, P.W-2 stated that he knew the difference between the factorymade and countrymade gun and stated that the guns carried by the accused persons were single barrel and country-made. The rifle was also countrymade and not factorymade. P.W-2 then stated that even after sustaining injuries he was conscious. P.W-2 was confronted about the time taken by them in reaching the police-station after the accused persons had left the place of the incident. Narrating the same, P.W-2 stated that it took them about 30 minutes to prepare the 'Buggy', another 30 minutes to reach the Village-Basri, 30 minute further in preparation, i.e. of tying the 'Buggy' with the tractor in Village Basri and further about 1½ to 2 hours to reach P.S-Jahangirabad from the Vilage Basri. He further stated that he did not become unconscious during this entire period of journey.
34. P.W-2 further stated that when he reached at the police-station, his father was not present with them. The Police Personnels took them to the CHC Jahangirabad and by that time the report was not written by them. They reached at the Jahangirabad hospital at about 6.00 p.m where Gajesh was declared dead. He and Ajay Kumar (his brother) were referred to the Bulandshahar hospital. P.W-2 further stated that they remained at the Jahangirabad hospital for about 2-4 minutes and they went to Bulandshahar immediately in an Ambassador car. He then stated that his statement was recorded by the Investigating Officer on the next day in Bulandshahar. On further confrontation with his statement under Section 161 Cr.P.C, P.W-2 stated that he told the Investigating Officer that they were sitting in the 'Angan' to eat their food which was being laid at that time. He, however, did not tell the Investigating Officer that the accused persons opened fires as soon as they came from the side of the baithak rather it was told by him that they fired as soon as they reached the 'Angan'.
35. It was further stated that it was the second day of Holi (दुलहड़ी) when the incident took place and they did not go to play Holi in the Village and were at home. It was further stated that they did not have lunch on the date of the incident and had breakfast at about 7.00-7.30 a.m. A further suggestion was given to P.W-2 that because of being painted with colours, it was not possible for them to identify the accused which he categorically denied. The suggestion that some fight had occurred in the village during holi celebrations and he and other injured sustained injuries was categorically denied by P.W-2. The suggestions that the injuries did not cause inside their house and the accused persons were falsely implicated were also denied by P.W-2.
36. In the statement under Section 313 Cr.P.C, all the accused persons had denied the incriminating circumstances put to them and stated that they were innocent and were falsely implicated due to enmity.
Argument of the counsel for the appellants
37. Placing the above evidence (oral and documentary) before us, it was vehemently argued by Sri V.M. Zaidi, learned senior Advocate that the incident did not take place in the manner as narrated in the first information report. From the testimony of the witnesses of fact and other surrounding circumstances on record, it is evident that the first informant was not present at the time of the incident. The first information report is proved to be an ante-time document from the version of P.W-1 and P.W-2 who narrated the time taken in carrying the injured and the deceased to the police-station. It is the case of the prosecution that after the accused persons left the place of the incident, injured and the deceased were first taken to the police-station and from there they were sent to the hospital. As per the testimony of P.W-1 and P.W-2, they took around 2-3 hours in reaching the police-station Jahangirabad. As per the statement of P.W-2, when he and another injured along with the deceased reached at the police-station and sent to the hospital, the FIR was not lodged and his father P.W-1 (informant) was not present in the police-station.
38. In the cross examination of P.W-1, it has come that by the time the report was scribed by Naresh, it was dark and that he (first informant) did not go with the injured to the police-station rather he remained at the place of the occurrence and reached the police station along with the Investigating Officer who reached at the spot on his own.
39. The time gap between the incident and registration of the FIR as per the documentary evidence is barely 35 minutes which could not be corroborated from the testimony of the prosecution witnesses, both the informant (PW-1) and the injured (PW-2). The doctor who had examined the injured at the CHC Jahangirabad stated, in cross, that the letter of request (Chitthi Majrubi) was received by him but the case crime number was not mentioned therein. The time of the examination of the injured narrated by the doctor as indicated in the injury report of Ajay (not examined) and Brahmpal (P.W-2) was 4.30 p.m and 4.45 p.m; respectively. The time of examination of the injured as noted in the injury report could also not be corroborated from the testimony of P.W-1 and P.W-2 when they narrate the time taken in carrying the injured (including P.W-2) to the Police-station and the hospital.
40. It was absolutely not possible, in light of the testimony of the prosecution witnesses, that the first information report was lodged at 4.15 p.m and the injured were examined at about 4.30 and 4.45 p.m at CHC, Jahangirabad. Too much promptness had been shown by the first informant, and the above facts proved the FIR being ante-time. From the statement of P.W-1, it is further evident that the inquest was also ante-time as he (PW-1) stated that all the paper work was done in the next morning in his presence and the body was then sealed and sent for the post-mortem. His statement further proved that the entire paper work was done by P.W-6, the Investigating Officer, on the next day, ie 11.03.2001 in the morning and the body was kept at the police station for the whole night. From the statement of P.W-1, who lodged the first report of the incident, it is further proved that by the time he reached the police station after getting the report scribed by Naresh it was dark. In any case, from the above facts reflected from the record, it is evident that the prosecution had changed (shifted) the time of the incident. According to the defence, it is highly probable that the incident had occurred in the morning during the Holi celebrations (as suggested to the witnesses) and they (the injured and the deceased) reached at the police-station in the evening by 4.00 p.m and lodged the report. At least it is evident that the incident did not occur at the time as narrated by P.W-1 and P.W-2 inside their house and 'Gher'. It is also evident that P.W-1 was not present in the village on the date of the incident and he did not witness anything and when came to the village in the morning he went to the police-station and then inquest and other proceedings were conducted. Both the prosecution witnesses of fact (PW-1 & PW-2) are proved to be liars on account of the above noted facts and their testimony are liable to be rejected as untrustworthy.
41. It was further argued by the learned Senior Counsel that the ocular evidence is in complete contradiction with the medical evidence as to the number of gun-shots and the internal condition of the dead body. It is urged that as per the statement of P.W-1, all the accused persons entered in his house abusing and threatening that all of them should be killed and no one would be spared on that day, but to the contrary as per own testimony of P.W-1 and P.W-2, none of the accused persons fired at the informant (P.W-1) and his younger brother Kanti. Further, P.W-1 stated that each accused persons had fired two shots from the fire arms carried by them but only two empty cartridge of 12 bore and one empty cartridge of brass were found from the spot of the incident. The post-mortem report also indicates that only one gunshot injury was received by P.W-3 and the multiple wounds on the body of the deceased were pellet injuries which (pellets) were recovered from the heart, lungs and face of the deceased. Even the post-mortem doctor, in his examination-in-chief, had opined that the injuries caused to the deceased could occur from one gunshot, if made from 12 bore gun or 12 bore tamancha. The injury report of injured Ajay shows that only one fire arm wound was sustained by him whereas injuries sustained by injured Brahmpal (P.W-2) though were fire arm injuries but only superficial in nature.
42. As per the doctor posted in the CHC Jahangirabad (examined as P.W-5), both the injured were referred to the Bulandshahar hospital and they were advised X-ray, but neither there is any x-ray report nor any proof of the injured having been examined at the Bulandshahar hospital. Further, there are material contradictions in the statement of P.W-2 and the Investigating Officer (P.W-6) as to the place where the statements of the injured were recorded. P.W-2 categorically stated that injured (including him) though were taken to the Jahangirabad hospital by the police but they reached there at around 6.00 p.m and they remained in the said hospital only for about 2-4 minutes and were immediately referred to the Bulandshahar hospital. The Investigating Officer, however, stated that he recorded the statements of injured persons in the Jahangirabad hospital on the date of the incident itself after the preparation of the inquest and also copied the injuries report in the CD.
43. It is, thus, argued by the learned counsel for the appellants that from the testimony of P.W-2, it is evident that the injured had reached the CHC, Jahangirabad hospital at about 6.00 p.m and they were not examined there. The injury reports prepared by P.W-5, doctor posted at the CHC Jahangirabad thus, become forged documents. Further, the prosecution witnesses of fact P.W-1 and P.W-2 had assigned rifle in the hands of one of the accused but there is no injury of rifle on any of the three persons (one deceased and two injured). The above discrepancies in the statement of alleged eyewitness (PW-1) and injured (PW-2) as also the medical report create a deep dent in the prosecution story.
44. It is further argued that P.W-2 stated that they had breakfast at around 7-7.30 a.m and did not have lunch by the time the incident had occurred, whereas P.W-3, the doctor who conducted the post-mortem as per the condition of the stomach of the deceased, stated that it seemed that the deceased had food about two hours prior to the incident. The submission is that 300 gms semi digested food was found inside the stomach which contradict the statement of P.W-2 about the time of the incident.
45. The submission is that the above facts rather support the defence theory that the incident had occurred in the village in the morning, much prior to the time indicated by the prosecution witnesses and the deceased and injured sustained injuries in the fight occurred during holi celebrations. Having sustained the injuries, they took sufficient time to delebrate as to whom to implicate. The accused persons were then brought into picture due to enmity.
46. Lastly, it was argued that both the witnesses being related-interested witnesses, their testimony cannot be relied looking to the inconsistencies and the supporting evidence on record. The motive stated by the witnesses of fact (P.W-1 and P.W-2) is remote and could not be established by the prosecution. The entire investigation is unfair and tainted. It is settled that even the accused has a constitutional right to fair investigation. The unfairness in the investigation conducted by the Investigating Officer is evident from the promptness and hastiness shown by him in conducting the entire proceeding and in helping the witnesses of fact in getting the forged injury reports and lodging of the FIR ante-time. The prosecution, in any case, has to be fair. In the instant case, for the act of the Investigating Officer serious prejudice has been caused to the appellants. The entire case of the prosecution has to be thrown for two reasons, i.e the witnesses of fact being interested and related and the failure of the prosecution to make the fair investigation. It is argued that from the above circumstances it was proved that the accused persons had been falsely implicated and the suggestion of enmity of the accused with the deceased or the informant or the injured was based on mere suspicion, stated just to add colour to the prosecution story.
47. Learned Advocate for the appellants has placed reliance on the decisions in Babubhai vs State of Gujarat and others reported in (2011) 1 SCC Crl 336 and Marudanal Augusti vs State of Kerela reported in 1980 AIR SC 638 in support of the above submissions.
Arguments of the State
48. In rebuttal, learned AGA had argued that there was no evidence of false implication of the accused persons. The father of the deceased and one injured brother of the deceased had entered in the witness box. There was no suggestion to any of these two witnesses (P.W-1 and P.W-2) of any false implication. The suspicion in the minds of the accused persons on account of the murder of Shiv Dutt Sharma, the neighbour of the informant occured about 6-7 months prior to the incident makes the motive of the murder more than probable. The occurrence of the incident on the date when the FIR was lodged was not disputed. The injured were taken to the hospital and the injury reports of two injured were proved by the doctor (P.W-5). The arguments about the FIR being ante-time are not tenable, in as much as, the time stated by both the witnesses of fact, i.e P.W-2 in reaching the police station after the occurrence was only an estimated time. Both the witnesses, (P.W-1 and P.W-2) were illiterate villagers and they could not be expected to give exact time taken to bring the injured to the police station. The time stated by them cannot be computed literally to hold that the first information report was ante-time or the time of the incident was postponed to be shown at about 3.40 p.m.
49. In any case, no benefit could be derived by the prosecution by postponing the time of the incident as even according to the suggestion of the defence, the incident allegedly had occurred during the day time on the date when the FIR was lodged. The suggestion that the incident did occur at a public place in the village was without any basis. No proof had been brought by the defence to support the said theory. In any case, lodging of the FIR on the date of the incident was not disputed by the defence and it was proved by the prosecution witnesses that the injured and the deceased were taken to the police station straight from the village. They were then brought to the hospital along with the police constables which fact is also evident from the record. The suggestion that the injury reports were forged or ante-time was also without any basis. In any case, the consistent testimony of the eye-witness and injured witness to prove the occurrence and the manner in which the incident had occurred cannot be thrashed away for the minor contradictions pointed out in their version.
50. Learned AGA has relied on the decisions in Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi vs State of Mysore reported in AIR 1979 SC 1831, Meharaj Singh (L/Nk) vs State of U.P reported in (1994) 5 SCC 188, Hori Lal and another vs State of U.P reported in (2006) 13 SCCs 79, in support of his submissions.
51. In rejoinder, it was vehemently argued by the learned senior counsel that the entire fabric of the prosecution case would collapse once it was proved that the prosecution had prepared documentary evidence to support the oral testimony in the forged and fabricated manner. The special report of the incident had been seen by the CJM on 14.03.2001 which further supported the defence plea that everything was done in a hush-hush manner. The documentary as well as oral evidence are in sync to the effect that the first information report and other related documents were prepared ante-time. It was vehemently argued that it was absolutely not possible to examine the injured in the CHC Jahangirabad at about 4.30 p.m as according to the eye-witnesses, they took around three hours to reach the police station after the incident.
52. It was argued that in the totality of the facts and circumstances of the case the prosecution case suffers from serious lacuna and the entire evidence is liable to be discarded. There is serious infirmity in the decision of the trial court which deserves to be set aside. The appellants are entitled to acquittal, accordingly.
Conclusion
53. Dealing with the first argument of the learned counsel for the appellants, with regard to the first information report being ante-time, it is to be noted that the father of both the deceased and injured is the informant who had entered in the witness box as P.W-1. He proved that the written report was dictated by him to his nephew Naresh @ Chhote and it was read over to him. The contents of the written report were read over to him in the Court and he proved its contents being the same as was dictated by him to Naresh, the scribe of the report. The statement of P.W-1, in the examination-in-chief, is reiteration of the contents of the written report and there is no contradiction in it.
54. P.W-4, the Head Moharrir proved that the Check FIR was prepared by him on the basis of the written report (Exhibit Ka-1) handed over by the informant Siya Singh (P.W-1). The GD entry of the Check report was proved by bringing the original GD in the Court and filing the certified copy of the same as Exhibit Ka-4.
55. P.W-4 stated that after writing the Check report and making entry in the GD, he got prepared Chitthi Majrubi through Clerk Satyaveer Singh and sent the injured namely Ajay Kumar and Brahmpal to the Government hospital Jahangirabad for medical examination alongwith constables 1337 Shekhar Chand and SG 4056 Yash Pal Singh. The doctor, P.W-5 proved that the injured were brought to the CHC Jahangirabad by two constables named above and were identified by them. It seems that the doctor, P.W-5 was cross examined on the entry of the Case Crime number on the Chitthi Majrubi and he stated that those letters did not carry the case crime number. However, noticeable is the fact that P.W-4, Head Moharrir who got prepared the Chitthi Majrubi for sending the injured to the hospital was not confronted on this issue. No query was made to the P.W-6, the Investigating Officer also about the lodging of the FIR after sending the injured to the hospital. We may further note that P.W-4, Head Moharrir stated that after, preparation of the GD and Chitti Majrubi, he gave the Chitthi Majrubi to the Constables who took injured to the hospital and Check report and copy of the GD as also jild panchayatnama to the Investigating Officer Puran Singh Chauhan. This categorical statement of P.W-4, in his cross, could not be confronted by the defence. It has come in the prosecution evidence that both the injured were brought to the police station straight from the place of the incident and were taken to the hospital by the police constables deputed for the purpose.
56. The act of Head Moharrir in hurriedly sending the injured to the hospital for medical examination cannot be doubted for the mere reason that Constable Satyaveer Singh who had prepared Chitthi Majrubi on the instructions of PW-4 (the Head Moharrir) did not mention crime number on the same. Further, from the version of P.W-4, it seems that the paper work was done simultaneously. The Head Moharir, P.W-4 himself prepared the Check FIR, copied the written tehrir given by the informant (P.W-1) and made GD entries and instructed Constable Clerk Satyaveer Singh to prepare Chitthi Majrubi to send injured to the hospital. No exception can be taken to this act of P.W-4, the Head Moharrir, who was the one to receive the written report and injured in the police station. As the police witnesses (P.W-4 and P.W-6) were not confronted on the issue of non-mentioning of the case crime number on Chitthi Majrubi, nothing could turn on the said fact as highlighted from the statement of the doctor and is evident from the record.
57. It is however, pertinent to note that the inquest and other related papers which were sent along with the body for the post-mortem, did carry the number of the criminal case registered on the written report of P.W-1 as also the offences (which were noted therein based on the report) and no dispute could be raised about the said fact.
58. The second contention of the learned counsel for the appellants to press his submissions of the FIR being ante-time is the statement of P.W-1 and P.W-2 about the time taken by them to bring the injured to the police station. Much emphasis has been laid to the description given by P.W-1 (the informant) and P.W-2 (the injured witnesses) about the manner in which the injured were brought to the police station. It was agitated with vehemence that as per own statements of the P.W-1 and P.W-2, they took more than two hours to bring the injured to the police station. The impossibility of the first information report being lodged within 35 minutes of the occurrence, therefore, is evident.
59. To deal with the said submission, suffice it to note that both the informant (P.W-1) and the injured (P.W-2) gave the estimated time taken in making arrangements to bring the injured to the police station but their statement cannot be read literally to compute the time taken by them in reaching the police-station. They being rusting villagers and none of them having stated that they confirmed the time stated by them by looking to the watch, the time stated by P.W-1 and P.W-2 in bringing the deceased and the injured to the police station can only be their own rough estimation. Moreover, P.W-1 did not go to the police station alongwith the injured and as such he could not have the details of the time taken in carrying the injured to the Police Station. The crux is that the injured and deceased were brought to the police-station along with the villagers and the scribe of the report namely Naresh in a 'Buggy' from the place of the incident via village Basri where the 'Buggy' was tied with a tractor to speed up the transportation. The fact that the injured were brought to the police station first and were then taken to the hospital by the police constables was not disputed by the defence. By the mere time narrated by P.W-2 that too estimated time taken in reaching the police-station, it can not be concluded that the first information report could not be lodged at the time stated in the Check FIR, i.e. at about 4.15 p.m.
60. The next contention to support the plea of the FIR being ante-time is the statement of P.W-1 (the first informant) that he did not go to the police-station along with the injured and was present at the place of the incident when the Investigating Officer (daroga ji) had reached the spot and that he went to the police-station along with the daroga ji in his vehicle and by the time he reached the police-station it was dark. While dealing with this submission, we may note that there was a suggestion to P.W-4, the Head Moharir that the FIR was prepared ante-time but there was no suggestion to P.W-6, the Investigating Officer, that he first reached the spot of the incident and then the injured were brought to the police-station and the FIR was lodged. When this part of the testimony of P.W-1 was sought to be relied by the defence in their favour, it was necessary that they should have confronted the Investigating Officer on the issue. We may also note that the Investigating Officer was only confronted about the time taken by him in preparation of the inquest, related papers and other proceedings conducted by him on the date of the incident, i.e 10.03.2001.
61. The Investigating Officer (PW-6) categorically stated in his examination-in-chief that after registration of the FIR, he recorded the statements of the first informant at the police-station as also other persons present there. The body of deceased Gajesh was kept in front of the police-station and the inquest was conducted there. After preparation of the inquest and related papers, body of the deceased was sent for the postmortem. After sending the body for the post-mortem, he proceeded to the CHC Jahangirabad, recorded statements of injured and copied the injury report in CD. He then went to the place of the incident where the Incharge Inspector was already present with police force, effort was then made by them to nab the accused before completing the proceedings of the said day, i.e 10.03.2001. With this part of the categorical testimony, P.W-6 was confronted by the defence and he gave complete narration, with the sequence of the proceedings conducted by him and recording statement of the informant as also all other witnesses present in the police station. Neither the informant (P.W-1) nor the Investigating Officer (P.W-6) were confronted about the place or the sequence of the recording of the statement of the first informant, (P.W-1). The statement of P.W-1 about the police (daroga ji) having reached at the spot before he left the village has to be read with the statement of P.W-6 when he stated that the Incharge Inspector along with the police force was already present on the spot when he reached. It seems that there was some confusion in the mind of P.W-1 while making statement about the time of reaching at the police-station, as he himself had stated that when he reached the police-station the body of deceased Gajesh was lying outside the police station and injured were already in the hospital.
62. P.W-1 had also not been confronted with anything being contrary in his previous statement recorded under Section 161 Cr.P.C on the above issue. The statement of P.W-1 recorded in the Court after about 1½ years of the incident though is at variance but these variations cannot be given undue importance, rather due allowance has to be given to the informant who was the witness of the murder of his young son aged about 25 years and fatal injuries caused to his two other sons. The variation in the testimony of P.W-1 about the time of reaching at the police-station cannot be taken to mean that the first information report was not in existence when the inquest was made and related papers were prepared for sending the body for the post-mortem. We may also take note of the statement of P.W-2 (the injured witness) when he stated that at the time when injured were taken to the hospital he did not give the report and his father was not present at the police station with them. From the above, it could only be inferred that as soon as the injured were brought to the police station they were sent to the hospital alongwith two constables with the Chitthi Majrubi prepared under the instruction of the constable clerk and the first information report was lodged soon thereafter.
63. Be that as it may, from the above noted infirmities pointed out in the testimony of P.W-1 and P.W-2, it cannot be concluded that the first information report was not in existence or it was not lodged on 10.03.2001 at the time noted in the Check report as suggested by the defence.
64. Lastly, about the statement of P.W-1 that the inquest was conducted and body was sealed on the next day and the said proceedings were conducted in his presence, nothing turns on this statement as the Investigating Officer (P.W-6) who had conducted the inquest and prepared the report when confronted was firm and could not be shaken on this issue. The statement of P.W-6, the Investigating Officer, in his examination-in-chief and his cross-examination about the manner in which the proceedings were conducted by him on the date of the incident, i.e 10.03.2001 is consistent and not at variance.
65. Thus, it is proved from the record as also from the testimony of the prosecution witnesses that:-
(1) soon after the injured and the deceased were brought to the police-station they were sent to the hospital and after one of the injured Gajesh was declared dead, his body was brought to the police-station. The injured were examined at the CHC Jahangirabad and their injury reports were prepared by PW-5.
(2) The first information report was registered on the written report given by P.W-1, contents of which had been proved by him in his deposition in the Court.
(3) The time of lodging of the FIR, the inquest and other related papers prepared for sending the dead body for the post-mortem had been proved by Police witnesses (PW-4 & PW-6) whose deposition are consistent and categorical.
(4) The doctor (PW-5) who had examined the injured proved that the injured were brought to the CHC Jahangirabad by two police constables alongwith Chitthi Majroobi though the said letter did not contain the case crime number. But the said fact itself would not be a reason to discard the eye-witness account and their testimony would be examined independent to that.
(5) The injury reports (of the injured) prepared at 4.30 p.m and 4.45 p.m were proved by the doctor, P.W-5 and the plea that the injury reports were forged and fabricated is without any substance. The doctor (PW-5) was confronted about the time of preparation of the injury report to which he categorically replied that it was wrong to suggest that the injured were brought to the CHC Jahangirabad at about 6.00 p.m. (6) The statement of P.W-2 about the time of reaching at the CHC Jahangirabad again is to be taken as only an estimated time as it was not stated by looking to the watch nor there is any such suggestion to this witness (P.W-2).
66. All the arguments of the learned Senior counsel for the appellants in support of his submission about the FIR being ante-time are liable to be turned down, accordingly.
67. The next submission of the learned senior counsel for the appellants is that the special report of the incident was sent to the senior officials with unexplained delay and it was seen by the Chief Judicial Magistrate on 14.03.2001. Testing this submission, suffice it to note that none of the police witnesses namely P.W-4 and P.W-6 had been confronted on the issue of delay in sending the special report. Had it been so they could have offered some explanation. In absence of the cross-examination of these witnesses who were responsible for sending the special report to the Magistrate through proper channel (for compliance of Section 157 Cr.P.C.), the defence cannot be permitted to agitate the issue for the first time in the appeal. Even otherwise, mere fact of some delay, which could have been explained by the police witnesses had they been confronted with the same, would not be of any benefit to the defence.
68. Further, the contention of the investigation being unfair is without any basis as there is no suggestion of any enmity of the accused persons with the Investigating Officer or he being acquainted with the complianant so well that he would lean in favour of them. Even otherwise, the Investigating Officer was not confronted on the issue and only suggestion to him was that the entire proceeding was conducted in a forged manner while sitting at the police-station, which is not sufficient to conclude otherwise. The plea of the investigation being a forged and fabricated accordingly, is liable to be turned down.
69. Now, we are left with the issue of presence of the eye-witnesses on the spot, mode and manner of the occurrence and the independence of eye-witnesses. We would require to note, at the outset, that as per eye-witness account the incident which occurred inside their house, was a day time incident, occurred at about 3.00 p.m. The first informant, the father of the deceased and one injured, the brother of the deceased had entered in the witness box as P.W-1 and P.W-2; respectively. The deposition of both the witnesses about the place of their presence, the entry of the accused persons and the mode and manner in which the fire-arms were opened by the accused persons is consistent. P.W-1 and P.W-2 are consistent in their deposition that the accused persons only shot at the three sons of the informant who were sitting at a different place from that of the informant and his brother, where they sat to have their food. The injuries sustained by the deceased and two injured were caused by fire arms which were carried by the accused appellants. Medico-legal report of the injured and the postmortem of the deceased are consistent with the testimony of the eye-witnesses. Injured Ajay Kumar sustained one fire arm injury which seems to have been caused from distance as no blackening and tattooing was found therein, whereas some of the injuries sustained by Brahmpal, (P.W-2) were caused from distance and some from close range, as blackening was found in two injuries on the hand and chest of the said injured. The doctor had opined that all injuries were fresh and the injured were brought to the hospital by the police witnesses and were examined within one hour of the occurrence. The post-mortem report indicates that the deceased was shot by 12 bore gun or country made pistol as he sustained various pellet injuries on his face, neck and chest.
70. Both the eye-witness stated that as soon as fires were opened by the accused persons when they reached in the visible range, all on the complainant side ran for their life. According to P.W-1, his three sons (deceased and injured) ran outside the house and he (P.W-1) and his brother Kanti ran inside the house. The injured and the deceased, according to the witnesses, fell in the 'Gher' which was adjacent to the house. The nature of injuries found on the persons of the deceased as also the injured corroborate with this part of the testimony of the eyewitnesses. As noted above, injuries sustained by two injured and one deceased were caused from different range (distance). The fact that the deceased got injured by only one gun shot is not going to benefit the appellants, inasmuch as, three persons (including deceased) who were running for their life sustained fire arm injuries. The fact that they could escape some gun shots and they did not hit them may be because of the reason that all of them were running away from the accused persons in different directions. The statement of P.W-1 that each accused person shot two fires from the weapon carried by them seems to be an exaggeration as P.W-1 while saying so also stated that he was so shaken by the incident as it was a sudden attack that he could not notice initially that the accused persons were making fires. Moreover, from the testimony of both the witnesses (P.W-1 and P.W-2), it is evident that they ran away from the place where they were present as soon as the accused persons opened fires and it was a sudden attack made at the time when they were sitting peacefully in their house. It is, thus, possible and more probable that the witnesses were not able to comprehend the scene of the crime so as to give description of the attack with mathematical precision. The statement of P.W-1 that each accused person had fired two shots, therefore, would not cause any dent in the prosecution story.
71. Relevant is that the incident had occurred inside the house where the informant lived with his three sons. It was a day after Holi and everyone must be in a joyous mood and the occurrence of such a ghastly incident in a sudden event had shaken the witnesses. The site plan prepared by the Investigating Officer is supporting the version of the eye-witnesses and none of them, i.e. P.W-1 at whose instance the site plan was prepared or P.W-6 the Investigating Officer, had been contradicted on any issue related to the preparation of the site plan. This was a day time incident occurred during the Holi festival and the presence of the informant, the injured and the deceased in their house was natural. They were the only witnesses, who could have described the occurrence. The independence of the witnesses, therefore, cannot be disputed for the mere fact that they are related to the deceased. Above all, one of the witnesses is an injured witness who had sustained fire arm injuries in the occurrence which is proved from the record. Due value/weightage is to be given to the testimony of the injured witness as his presence at the place of occurrence cannot be doubted.
72. The testimony of an injured witness has its own efficacy and relevancy, as the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence himself. Convincing evidence would be required to discredit an injured witness. Few inconsistencies in the testimony of eyewitnesses that too about the manner and nature of the occurrence, which do not go to the root of the matter are not sufficient to discard the testimony of the witnesses who is stamped witness to be placed at a higher pedestal by being an injured witness. The reason being that it is unlikely that an injured witness would spare the actual assailant in order to falsely implicate someone else. It is settled that the testimony of an injured witness is accorded a special status in law. [Reference: Mohar and another vs State of U.P. reported in (2002) 7 SCC 606; Bhajan Singh Alias Harbhajan Singh and others vs State of Haryana reported in (2011) 7 SCC 421]
73. As to the assessment of evidence/oral testimony of rural witnesses, we may note the decisions of the Apex Court in Shivaji Sahabrao Bobade and another vs State of Maharashtra reported in (1973) 2 SCC 793, Bharwada Bhoginbhai Hirjibhai vs State of Gujarat reported in (1983) 3 SCC 217, wherein it was observed that where the scene of murder is rural, the witnesses to the case are rustics, while scanning the evidence of such witnesses their behavioural pattern and perceptive habits have to be judged. Too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to such, who belong to the village. While evaluating their testimony, the Court has to inform itself that variance on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.
74. The general rule of appreciation of evidence of eye-witness is that minor discrepancies in the testimony of witnesses should not be given undue importance. The discrepancies which do not shake the prosecution version which occurred due to normal errors of perception should not be given importance. The errors due to lapse of memory may be given due allowance. The Court has observed in Appa Bhai and another vs State of Gujarat reported in 1998 (Supp) SCC 241, that the Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes to the root of the matter so as to demolish the entire prosecution story. It was noted therein that the witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. The observations of the Apex Court in paragraph-'8' of its previous decision in Sohrab s/ Beli Nayata and another vs The State of Madhya Pradesh reported in (1972) 3 SCC 751 is noted as follows:
"8. We have at some length pointed out that the Sessions Judge and the High Court were in agreement on certain aspects of the case in respect of which witnesses tried to embellish and exaggerate. But that, by itself, in our view, does not assist the accused, nor can the broad features of the evidence of the prosecution case be doubted in respect of the version that on the day of the occurrence both the appellants and the deceased were in the field where the dead body was found, that Sohrab was riding a mare that he chased the deceased, that Nadar came with a gun and handed it over to Sohrab and that Sohrab fired at the deceased, which also caused injury to Nadar. The position of the eye witnesses in relation to the occurrence may have been such that all the details could not have been noticed, but that the salient features of the prosecution story was- true is established by the evidence of the eye witnesses. It appears to us: that merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean, that, the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the Court comes. to the conclusion that what can be accepted implicates the appellants it will convict them.
This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which the have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not 'be permissible for the Court to reconstruct a story of its own out of the rest. It is also urged that in an appeal against acquittal, the Appellate Court must consider the reasons which impelled the Trial Court to acquit the accused but whereas in this case the High Court having agreed with most of the conclusion-% arrived at by the Sessions Judge it could not reverse the order of acquittal. The Privy Council case in Sheo Swarup and Ors. v. King Emperor(1) and the judgment of this Court adopting the view enunciated therein have been referred to us. It is now well established that under Sections 417, 418 and 423 of the Code of Criminal Procedure, the High Court has full power to review at large the evidence unon which the order of acquittal was founded and to reach the, conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been' acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. This principle was adopted in Sanwant Singh v. State of Rajasthan(2); in Agarwal v. State of Maharashtra(3) and it was pointed out that the different phraseology used (1) A.I.R. 1934 P.C. 227. (3) [1963]2 S.C.R. 405. (2) [1961] 3 S.C.R. 120.
in the earlier judgment of this Court such as "substantial and compelling reasons", "good and sufficiently cogent reasons" and strong reasons" are not intended to curtail the powers of the .Appellate Court in an appeal against the acquittal to review the entire evidence and to come to its own conclusion but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in arriving at a conclusion on those facts but should express the reasons in its judgment, which led it to hold that the acquittal was not justified. In those cases it was pointed out by this Court that the principles laid down by the Judicial Committee in Sheo Swarup case afford a correct guide of the court's approach to a case disposing of such appeal. We have in this case shown earlier the ]High Court did consider all aspects considered by the Sessions Court with most of which it also concurred. It, however, dealt with some of the aspects in which Sessions Court had not given a clear cut finding and in fact that Court had lost itself in a maize of contradictions and omitted to consider the overwhelming evidence that Sohrab had fired the fatal shot at Sobalsingh with the gun given by Nadar. Both Sessions Court as well as the High Court rejected the story of Nadar that he was urinating when he received the injuries and ,both of them further rejected the story that the gun went off in the struggle. Once the Sessions Judge had rejected the defence story, he should have considered the evidence of the prosecution that Sohrab had fired the gun given by Nadar and fired it at Sobalsingh but if it did not accept that story, it could have given a reason for not doing so. But as we said earlier it was overwhelmed by the various contradictions and failed to consider what effect it had on unanimous version of the prosecution witnesses that Nadar had given the gun to Sohrab and Sohrab had fired with it at Sobalsingh. Within an hour of the incident, an F.I.R. was lodged in which the main story as spoken to by the witness was given. In it the informant, Mahadeo had stated is follows:
"I saw that Sohrab caught Sobal on the, boundary line of the field of Chensingh and Nadar came with a gun from. the side, of the cart. I.Bashir and Sardar came there running from the side of the cart road' and reached there. Nadar gave the 'gun to Sohrab and caught Sobal and Sohrab fired at the back of Sobal. As a result of which Sobal fell down and he made another fire at him while fallen. Sardar and Bashir struck blows with knives having knelt on Sobal to kill him while fallen. After this Soharab got on his mare and went with Nadar, Bashir and Sardar to the place Where the cart of the wife of Kudarat was parked and from there they went towards Panod."
75. The observations in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat reported in (1983) 3 SCC 217 (supra) noted therein are also relevant to be reproduced herein:-
"A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
76. For the above discussion, the arguments of the learned senior Advocate about the mode and manner in which the incident was stated to have occurred by the eye-witnesses and the plea that they had changed the place of the occurrence are found to be without any substance. The submission that the prosecution had suppressed the genesis of the incident and is not truthful in its narration does not have any merit.
77. Lastly, on the plea that the motive assigned to cause the murder is too remote, suffice it to note that the courts have concurrently held that where there is sufficient direct evidence regarding the commission of the offence, question of motive will not loom large in the mind of the Court [Reference:State of U.P vs Moti Ram and others reported in (1990) 4 SCC 389]
78. For the above discussion, none of the arguments of the learned counsel for the appellants to demolish the prosecution case do impress the Court. No infirmity could be found in the judgment of conviction and the sentence passed by the trial court.
79. The judgment and order dated 05.05.2008 passed by the Additional Sessions Judge, Fast Track Court no.21 Bulandshahr in Sessions Trial no.1280 of 2001 arising out of Case Crime no.65 of 2001 is hereby affirmed.
80. The appeals are dismissed.
81. The appellants namely Charan, Jeeta, Chandrahasa, Mula @ Mool Chand, Prempal and Dharam are in jail.
82. The appellant Suresh is on bail vide order dated 19.08.2014. He shall be arrested and send to jail to serve out the remaining sentence.
83. Certify this judgment to the court below immediately for necessary action.
84. The trial court record be sent back immediately.
Order Date :- 21.06.2022
Harshita
(Vikas Kunvar Srivastav,J) (Mrs. Sunita Agarwal,J)