Allahabad High Court
Amar Pal vs State Of U.P. on 21 November, 2022
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. -39 Case :- CRIMINAL APPEAL No. - 255 of 2005 Appellant :- Amar Pal Respondent :- State of U.P. Counsel for Appellant :- I.M. Khan,Bal Krishna Pandey,M.B. Mathur,Rakesh Kuamr Yadav Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 211 of 2005 Appellant :- Arjun Respondent :- State of U.P. Counsel for Appellant :- I.M. Khan,Awadhesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
(Delivered by Justice Sunita Agarwal,J)
1. Heard Sri Bal Krishna Pandey learned Advocate for the appellant Amar Pal and Sri Awadhesh Kumar Srivastava learned Advocate for the appellant Arjun also Ms. Meena learned A.G.A on behalf of the State respondent.
2. These appeals are directed against the judgment and order dated 30.11.2004 passed by the Additional Sessions Judge, Fast Track Court no.2 Rampur, in Sessions Trial no.286 of 2003 whereby two appellants herein namely Arjun and Amarpal have been convicted for the offence under Section 302 read with Section 34 IPC and sentenced for life imprisonment with Rs.1,000/- fine for each; default punishment is six months rigorous imprisonment for each of the appellant. Each of the appellants herein have also been convicted for the offence under Section 25/27 Arms Act and sentenced for one year rigorous imprisonment.
All punishments are to run concurrently.
3. The First Information Report of the incident was lodged by Krishna Pal, son of the deceased on 21.3.2003 at about 6.45 p.m who had appeared in the witness box as P.W-1. The report was initially lodged as Case Crime no.102 of 2003 under Section 307/504 IPC but with the death of the injured Madan Pal, father of the informant, the case was converted under Section 302 IPC on 22.3.2003, after receipt of the information of the death from the hospital.
4. In the written report given by P.W-1, Krishna Pal, it was stated that the incident had occurred on 21.3.2003 at about 6.00 p.m. As per the narration therein the while the informant and his father (Madan lal) were coming back from the house of their relative via village Kamalpur, where they went to meet Holi, when they reached near the market of Doharia, suddenly both the accused persons Arjun, Amarpal came before them abusing Madan lal. Arjun was carrying Tamancha (country made pistol) and Amarpal was having knife and while they confronted with his father yelling that they were being unnecessarily harassed for the bail of the son of the deceased namely Khempal and today the deceased was rightly met. On this threatening by the accused, his father (deceased) replied not to make any efforts for bail and that he would arrange someone else for the purpose. During this oral confrontation, Arjun had opened fires at the back of the deceased and Amarpal gave repeated blows of knife on the face and head of the deceased. The informant cried to save his father and on his cries Damodar came there. Other people also reached on the spot and witnessed the entire incident. The assailants ran away and the informant did not chase them because of the fear. The informant went to the police station alongwith his injured father to lodge the report.
5. P.W-5 the Investigating Officer Sub Inspector- Saheb Singh who was posted at the police station on 21.3.2003, had proved the check FIR and the G.D entry of the same being in the handwriting of Head Moharrir 104 Suresh Chand, exhibited as Exhibit Ka-'12' and Ka-'13'. It was stated by P.W-5 that after registration of the FIR, the investigation of the case was handed over to him and he commenced the investigation. The informant and the injured (deceased) both were present in the police station and their statements were recorded after making entries of the Check report and G.D prepared by Head Moharrir Suresh Chand. The injured (deceased) was attacked on his face which was blood stained and he was saying that he had firearm injuries on his back. The injured narrated as to how the incident had occurred and requested to be sent to the hospital. The statement of informant was also recorded and the injured (deceased) was sent to the hospital. The site plan of the incident was prepared in the presence of the informant and the recoveries of one pair of slippers (plastic), bloodstained and plain earth and one used cartridge 12 bore, recovered from the spot were recorded in the recovery memo which were proved as Exhibit Ka-8, 9 and 10. It is stated by P.W-5 that he had completed the above procedure on the spot in the light of the Petromax. A sealed bundle was opened in the Court and recovered articles were shown to this witness who had proved them being the same as recovered by him, they were marked as Material Exhibit-3 to 9. From another bundle, country made pistol and one cartridge shell, were identified by P.W5 having been recovered from the spot of the incident, which were marked as Material Exhibit Ka-10.
6. It is categorically stated by P.W-5 that the statement of the injured (deceased) under Section 161 Cr.P.C was recorded by him and the said statement was proved to be in his handwriting and signature as Exhibit Ka-'11'. He further stated that on 22.3.2003, he had received information of the death of the injured and the G.D entry no.23 at 17.45 was made on 22.3.2003 for the offence under Section 302 IPC which was also proved in the handwriting and signature of Head Moharir Suresh Chand as Exhibit Ka-'14'.
7. In cross, P.W-5 was confronted about the entries in the case diary and as to whether the informant was accompanied with the witness Damodar. P.W-5 had replied that the informant was not accompanied with Damodar and the suggestion about the missing fact in the C.D about the blood, found on the clothes of the informant was replied by P.W-5. The suggestion of the FIR being ante time and having been lodged as a result of deliberation by the informant was denied by P.W-5. He was confronted about the special report of the FIR having been sent with delay and whether the injured was sent with Chitthi Majrubi to the hospital.
8. P.W-5 was also confronted about the site plan and the recoveries made by him from the spot of the incident. He stated that the entire proceeding of recovery was made by him at around 8.00 p.m. in Petromax light. From the cross-examination of P.W.5 nothing contrary to the prosecution case could be placed before us. Lastly, on the suggestion, P.W-5 admitted that deceased Madan Pal, informant Kishan Pal and another son of the deceased namely Khempal were history sheeters. The suggestion that the accused persons were falsely implicated was denied by P.W-5.
9. P.W-7 is the second Investigating Officer who was the Station House Officer of the police station concerned, he had received investigation on 22.3.2003 and commenced the same after receipt of the post mortem report. P.W-7 stated that he made efforts for arrest of the accused persons on 27.3.2003 and the recovery of country made pistol and knife from the possession of the accused persons was proved by P.W-7. The recovery memo of country made pistol 12 bore, three cartridges and knife was proved as Ka-18. The recovered articles, country made pistol and three live cartridges were identified by P.W-7 having been recovered from the possession of appellant Arjun, marked as Material Exhibit-Ka-11 to 14. Two catridges found in the same bundle from an envelop were proved as Material Exhibit-'15' and '16'. P.W-7 had narrated as to how the arrest was made by him. The registration of the case under Section 25 Arms Act against the accused persons was proved by P.W-7. The report of FSL about country made pistol and cartridge was proved Exhibit Ka-'21' and the pellets recovered from inside the dead body of deceased Madan lal at the time of the post mortem were identified and proved by P.W-7.
10. On confrontation, P.W-7 stated that he did not record the statement of witness Damodar and further that the investigation was with him only till 28.3.2003. Nothing contrary could be culled out from the deposition of P.W-7. The suggestion that he completed the entire investigation done by him while sitting in the office was refuted by P.W-7.
11. P.W-8 is the witness of recovery of country made pistol and live cartridges from the possession of accused appellant Arjun and knife from the possession of Amarpal, in his presence. He stated that, on 27.3.2003, while he was going on the motorcycle from Milak to Patwai, he was intercepted by the police and they requested him to accompany them for the recovery. He readily agreed and narrated as to how the arrest was made on the information of a secret informer. The recovery memo Exhibit Ka-'18' was shown to this witness and he stated that the recovery memo was scribed on the spot and was read over to him before he signed the same. P.W-8 proved his signature on the recovery memo. He further stated that the recovered articles were sealed on the spot. Two sealed bundles were opened and shown to him and P.W-8 had identified the recovered country made pistol, three live cartridges, having been recovered from the possession of the appellant Arjun and one knife from the possession of Amarpal. P.W-8 was confronted about his criminal antecedents and his independence as a witness. The suggestion that informant Kishan Pal was his accomplice in the criminal case was refuted by P.W-8. He also denied the suggestion that the accused persons were not arrested before him and no recovery was made and that he was making false statement on the asking of the police.
12. The investigation was later on concluded by P.W-6, who entered in the witness box to state that the investigation was commenced by him on 10.4.2003 when he was posted as Station house Officer of the police station. He made entries of the panchayatnama in the G.D, recorded statements of the witnesses and on conclusion of the investigation submitted the chargesheet against the appellant Arjun and Amarpal on 13.4.2003, proved being in his hand writing and signature as Exhibit Ka-'15'. The FSL reports of the recovered articles were also proved by P.W-6 as Exhibit Ka-16 and Ka-17. On confrontation, P.W-6 stated that he was posted in the Police Station-Patwai on 27.3.2003 but started investigation only on 10.4.2003.
13. P.W-6 stated that by the time he received investigation, the accused persons were already arrested. P.W-6 was confronted about the entries in the case diary and stated that he had recorded statement of witness Damodar on 12.4.2003. He was further confronted about the statement of witnesses of recovery namely Dharmendra and Jagdish and stated that none of other Investigating Officers prior to him had recorded statement of witnesses of recovery. He further clarified that as the cases under Arms Act were separately registered, the investigation was handed over to another officer, and as such there was no occasion for them to record the statement of witnesses of recovery. The suggestion that he made entire investigation in a forged manner was denied by P.W-6.
14. P.W-3 is the police personnel posted at the Police Station on 22.3.2003. He stated that he went to the district hospital for inquest of deceased Madan Lal on receipt of the memo from the hospital. He proved the inquest and all other related papers, being in his handwriting and signature as Exhibit Ka-'2' to Ka-'5'. This witness was recalled to prove the memo received from the hospital about the death of deceased Madan Lal, as Exhibit Ka-'22'. He also proved the entry of the said memo in G.D Rapat no.60 is at 20.40 hours on 21.3.2003, the G.D having been prepared in the same process in the handwriting and signature of another police personnel filed and marked as Ka-'23'. The report of the death of deceased Madan lal having been sent to the police line Rampur in his handwriting and signature was proved by P.W-3 as Exhibit Ka-25. P.W-3 was confronted about the entries in the memo of death received from the hospital and stated that the time of death mentioned therein was 21.7.2003 at about 7.55 p.m. P.W-9 is the doctor posted in the district hospital Rampur on 21.3.2003. He stated that Constable C.P.205 Surendra Singh brought the injured Madan lal in the hospital at around 7.30 pm. The injured was in serious condition, his blood pressure and pulse were not recordable, he was gasping, his injuries were not noticed as he was serious. All medical aids were given immediately and a surgeon had examined the injured at about 7.40 p.m. Around 7.50 p.m, when injured was examined by P.W-9, his blood pressure was not recordable, heart beat was very slow, eyelids were in semi dilated condition. Oxygen and external cardiac massage was given to the injured. But despite all best efforts, he had died at around 7.55 p.m. The body was sent to the mortuary and police was intimated.
15. P.W-9 had proved the records of admission of the injured in the hospital and the memo dated 21.3.2003 which was sent to the police station intimating the death of deceased Madanlal. P.W-9 was confronted about the condition of the deceased and stated that when the deceased was admitted in the hospital his condition was very serious but he could not say as to whether the injured was in a position to speak.
16. P.W-4 is the doctor who had conducted the post mortem. He stated that the body was brought in sealed state by two constables Sohan Singh and Jeevan Singh of the police station Rampur who had identified the same. The deceased had died in the district hospital Rampur on 21.3.2003 at about 19.30 hours. At the time of the post mortem, the deceased was found to be of average built body. Rigour mortis was present in both the upper and lower limbs, eye lids were half open. The Ante mortem injuries found on the person of the deceased are to be noted as under:-
Ante mortem injuries-
1. Incised wounds 7 in number on anterior part of head in an area of 15.0 cm x 12.0 cm, size 10.0 cm x 2.0 cm x upto the brain membrane, 8.0 cm x 1.5 cm x bone deep, 8.0 cm x 1.0 cm x bone deep, 6.0 cm x 1.0 cm x bone deep, 6.0 cm x 1.0 cm x bone deep 7.0 cm x 1.0 cm x bone deep, 4.0 cm x 1.0 cm x bone deep skull bones cut underneath the injuries.
2. Incised wound 8.0 cm x 2.0 cm x muscle deep on right side face, just lateral to lower border of nose.
3. Incised wound 10.0 cm x 1.0 cm x muscle deep on right side face, 2.0 cm below injury no.2.
4. Incised wound 8.0cm x 1.0 cm x skin deep on lower border of right lower jaw.
5. Incised wound 3.0 cm x 1.0 cm x skin deep on upper lip just below nose.
6. Incised wound 2.0 cm x 0.5 cm x skin deep on right lower part of nose.
7. Gun shot wound of entry one in number size 1.5 cm x 1.5 cm x chest cavity deep on rib right chest, 20.0 cm below the right shoulder, 2.0 cm lateral to mid line blackening and tattooing present.
8. Gun shot wound of exit one in number size 2.5 cm x 2.5 cm x deep chest cavity to injury no.7. 28.0 cm below the left shoulder and left side back 6.0 cm lateral to mid line.
9. Lacerated wound 1.0 cm x 1.0 cm bone deep, 11.0 cm above elbow joint.
10. Incised wound size 8.0 cm x 5.0 cm x skin deep, 2.0 cm x 0.5 cm skin deep on left chest 8 cm below nipple.
11. Gun shot wound of exit 1.0 cm x 1.0 cm x deep cavity on left side chest 8.0 cm below nipple."
On internal examination, it was found that :-
1. The bones of the skull below injury no.1 was found to be broken.
2. The brain was yellowish.
3. The membrane of both lungs were lacerated chest cavity was filled with one litre blood, 100 ml undigested food was present in the stomach.
4. Semi digested food and gases were present in the small intestine. Faecal matter and gases were present in large intestine. 20 pellets were found inside the liver which was lacerated, urinary bladder was empty. The case of death was stated to be shock and hemorrhage on account of ante mortem injury. The post mortem report was proved to be in the hand writing and signature of P.W-4 as Exhibit Ka-6. It is stated by P.W-4 that the injuries sustained by the deceased were sufficient to cause death. He was confronted about the fire arm injuries, entry and exit wounds and about the nature of injury no.9.
The post mortem report was proved as Exhibit Ka-6 by P.W-4 being in his handwriting and signature.
The estimated time of death and the nature of injuries recorded by P.W-4 in the post mortem report were reaffirmed in his testimony.
17. P.W-10 is the Investigating Officer of the case lodged under the Arms Act. He stated that after registration of the case, investigation was commenced by him on 30.3.2003. He had prepared the site plan of the place of recovery which was proved as Exhibit Ka-'28'. The statements of the witnesses of arrest and recovery were recorded by him and the chargesheet was submitted against two accused/appellants proved as Exhibit Ka-'29' and '30'. On confrontation, nothing contrary could be noticed in the statement of P.W-10.
18. The formal witnesses, thus, had proved the reports prepared by them during the course of investigation and established in the Court the manner in which the investigation was completed.
19. Amongst two witnesses of fact, Damodar Singh s/o Har Prasad who was examined as P.W-2, was an independent witness who was declared hostile as he did not support the prosecution case. However, in his examination in chief, P.W-2 proved that he knew deceased Madan Pal who was killed on 21.3.2003 in the market of Doharia village. He also knew the accused persons Amarpal and Arjun. P.W-2 stated that he was the resident of Doharia village and went to the market to buy vegetables. Madan Pal was killed in the evening at around 5-6 p.m. He did not witness the accused persons Amarpal and Arjun in the market at the time of the murder as he was buying vegetables at that time though he heard the sounds of fire. P.W-2 stated that when he reached at the spot after hearing sounds of fire, he saw Madan Pal lying in injured condition. In his examination in chief, P.W-2 categorically stated that he had not seen anyone killing the deceased nor had seen two accused persons attacking the deceased Madan Pal by knife or opening fire. In cross by the prosecution, P.W-2 stated that he knew two accused persons prior to the incident and the deceased and his two sons. He further stated that he left the injured in the market and police had never interrogated him. This witness had denied his 161 Cr.P.C statement recorded by the police as also the suggestion that he was making a false statement at the behest of the accused persons.
20. In cross, for the defence, however, P.W-2 had denied the suggestion that he was not the resident of village Doharia and also that he did not go to the market at the time of the incident. P.W-2 categorically stated that there were stalls of vegetables, chat etc at the market at the time of the incident.
21. P.W-1, Krishna Pal is the informant and son of the deceased who had reiterated his statement in the written report and the oral-confrontation occurred between accused persons and the deceased. P.W-1 further stated that he brought his injured father to the police station in a private jeep and report was scribed by one Mistry Mohd Zafar. The case was registered on the written report given by him, which was proved as Exhibit 'Ka-1' having his thumb impression. P.W-1 further stated that a police personnel went to the district hospital Rampur along with them and his father was treated at the hospital, who had died on the next day, i.e on 22.3.2003 in the morning.
22. P.W-1 admitted that there were criminal cases against him and his father and both were convicted in a case under Section 302 IPC. There were cases under the Gangster Act lodged against him, his brother Khem Pal and his deceased father namely Madan Pal, and that he and his father both were released on bail. He further clarified that no case was lodged against him, or his father by the accused persons nor the accused were witnesses in any of the case against them or his brother. P.W-1 admitted that apart from this case, no other report was lodged by him against the accused persons.
23. P.W-1 further stated that there was market in Doharia at the time of the incident and people were buying things. Everyone who was present in the market had seen the incident. The sun was not set at that time. Accused Amar pal was in the same barrack in jail where he was lodged. Amarpal was released from jail prior to him i.e about ten days prior to the incident they had talked about the bail of his brother Khempal. Amarpal and Arjun refused to help them. No confrontation or any fight had occurred between them prior to the incident.
24. P.W-1 further stated that Damodar (P.W-2) went with him to the police station to lodge the report. On confrontation, P.W-1 further stated that they remained at the place of the incident for about ten minutes and then they reached at the police station in a private jeep. He stated that he had shown to the Investigating Officer the bloodstains on his clothes but he had washed his hands which were also bloodstained in the police station and then put his thumb impression on the written report. The suggestion that the police got the report prepared on the next day by getting his thumb impression was denied by P.W-1. He was further confronted about the place of the inquest and stated that he reached at the hospital after the said proceedings were completed. P.W-1 was confronted about the manner in which the injuries were caused to the deceased.
25. Placing the evidence noted above, it is argued by the learned counsel for the appellant that it is a case of false implication of the accused persons due to party bandi. The witnesses are interested and partisan witnesses. The motive assigned by the P.W-1 in the written report for the commission of murder was very weak. From the criminal antecedent of P.W-1, it is evident that he being a man of criminal antecedent wanted to see the deceased behind the bar. In fact, presence of P.W-1, at the spot of the incident was not natural. The doctor (examined as P.W-9) who had admitted the deceased in the hospital, had categorically stated that the deceased was not in a position to speak and his condition was very serious. The deceased was admitted in the hospital at about 7.30 pm and had died at 7.55 p.m, which fact further shows that the deceased was not in a position to make any statement. The testimony of P.W-5 that he had recorded statement of the deceased under Section 161 Cr.P.C., therefore, is not reliable.
26. The statement of the doctor, (P.W-9) further shows that a Constable had admitted the injured in the hospital. Further, P.W-2, the informant, was not even aware of the time of the death of his father and stated in his cross examination that the injured had succumbed to his injuries in the morning on 22.3.2003, whereas the information of death was received in the police station on 21.7.2003 at about 20.40 hours. This fact further makes it evident that the informant was not present with the deceased and he was lying about the whole incident to project himself as an eyewitnesses.
27. It was further argued that the trial Court has erred in considering the statement of the injured as dying declaration within the meaning of Section 32 of the Evidence Act when the said statement was not put to the accused persons during their examination under Section 313 Cr.P.C. Questions put to the accused persons, specifically question no.'25' under Section 313 Cr.P.C have been placed before us to assert that all incriminating circumstances were not put to the accused persons and in absence of the statement of the injured Exhibit Ka-'11', specifically put to the accused persons, the Court has to eschew this document. The question no.'25' put to the accused person was perfunctory and cannot be said to be in fulfillment of the spirit of Section 313 Cr.P.C. The only witnesses of the incident P.W-1 being interested and partisan witness, his testimony cannot be made basis to convict the accused persons. The conviction of appellants, therefore, is liable to be set aside.
28. Learned A.G.A, on the other hand, vehemently argued that the first information report was a prompt report. The presence of P.W-1 on the spot is corroborated from the circumstances brought on record. There is no inconsistency in the medical and ocular evidence. The injured was examined on the same day and was admitted in the hospital by the police. The statement of the injured recorded by the Investigating Officer proved as Exhibit Ka-'11', cannot be discarded because of the testimony of P.W-9, the doctor, that the injured was not in a position to speak when he was admitted in the hospital at about 7.30 p.m.
29. On the point of motive, it is argued that in a case of eyewitness account where the statement of the deceased recorded under Section 161 Cr.P.C is on record and proved by the Investigating Officer, there was no reason to discard the evidence on the plea of the motive being weak. In view of the evidence on record, even absence of motive would be of no consequence. Reliance is placed upon the decision of the Apex Court to assert that the statement of deceased under Section 161 Cr.P.C proved in the facts and circumstances of the case cannot be eschewed. It was argued that the prosecution has proved the guilt of the accused persons by bringing cogent evidence on record.
30. Having heard learned counsels for the parties and perused the record, we may note at the cost of repetition that no inconsistency could be found in the statement of formal witnesses and the reports prepared by them after lodging of the first information report by P.W-1, have been proved. About the presence of P.W-1 on the spot along with the injured deceased, relevant is to note that the first information report of the incident is a prompt report lodged within 45 minutes of the occurrence, where the distance of the police station was about 4 kms. It is proved by P.W-1 and the Investigating Officer namely P.W-5, Saheb Singh that the informant along with the injured went to the police station to lodge the FIR and the report was lodged on the written report given by P.W-1. It is categorically stated by P.W-5, the Investigating Officer that he had recorded statement of the injured whose face was blood stained and also the statement of the informant and sent the injured to the hospital along with the police constable, whereas he himself went to the spot of the incident along with the informant and completed the investigation with the recovery of blood stained, plain earth, 12 bore empty cartridge from the spot at around 8.00 p.m. No contrary suggestion could be given to the Investigating Officer (P.W-5) who was present in the police station and had received investigation soon after lodging of the report, about the presence of the informant alongwith the injured/deceased in the police station.
31. From the statement of P.W-9, the doctor of the district hospital Rampur, it is proved that the injured was brought to the police station alongwith the police personnel. Coupled with the above circumstances, from the statement of P.W-2, a hostile witness, at least the place of the incident being Doharia bazaar has been proved. From the testimony of P.W-2, the time of the incident as narrated in the written report is also proved. The prosecution though produced this witness namely P.W-2 as an eyewitness of the incident but he had been declared hostile on his statement that he had not seen the accused persons causing injuries to the deceased. But from the testimony of this witness in the examination in chief, the version in the written report about the place and time of the incident has been substantiated.
In light of the above evidence, the suggestion of the FIR being ante time is bound to be turned down.
32. The nature of the injuries sustained by the deceased i.e fire arm injuries and blows of knife were proved from the post mortem report, in the testimony of the doctor P.W-4. The statement of the informant in the written report lodged on 21.3.2003 at about 6.45 p.m is corroborated from his own testimony in the Court and the medical report proved by P.W-4. There is, thus, no inconsistency in the medical and ocular evidence as suggested by the counsel for the appellants.
33. The arrest and recovery of weapons from two accused/appellants had been proved with the statement of P.W-6, the Investigating Officer and an independent witness of recovery namely P.W-8. The death of the deceased in the hospital because of the injuries sustained by him is also established from the record.
34. In light of the above evidence, when we go through the statement of the injured recorded under Section 161 Cr.P.C, Exhibit Ka-'11', the said statement would come within the meaning of the Section 32 of the Indian Evidence Act, 1872.
35. The contention of the learned counsel for the appellants is that the said statement is liable to be discarded or the Court should eschew the document proved as Exhibit Ka-'11' as it was not put to the accused persons during their examination under Section 313 Cr.P.C. The submission is that since this incriminating circumstances of recording statement of the deceased was not put to the accused persons, the trial court had erred in relying on the said document.
36. In dealing with this argument, we may note that P.W-5, the first Investigating Officer had categorically proved the presence of the injured in the police station at the time of lodging of the report and that the statement of injured (the deceased) was recorded by him. This witness had not been confronted by the defence about the condition of the injured at the time when his statement was recorded under Section 161 Cr.P.C at the police station. The fact that the doctor examined as P.W-'9' stated that the deceased was in serious condition when he was admitted in the hospital at about 7.30 p.m. would not be material so as to create doubt about the testimony of P.W-5 when he (P.W-9) says that the deceased was complaining of pain at that time and was asking to sent him to the hospital. In absence of any such suggestion the fact that the injured/deceased was not in serious condition and was not in a position to speak at the time of his admission in the hospital would not be material.
37. The issue as to whether the statement under Section 161 Cr.P.C is covered under Section 32(1) and is relevant and admissible under Indian Evidence Act was considered by the Apex Court in Pradeep Bisoi alias Ranjit Bishoi vs State of Orissa reported in (2019) 11 SCC 500 wherein taking note of various decisions of the Apex Court, it was held that the statement under Section 161 Cr.P.C which is covered under Section 32(1) is relevant and admissible.
38. It may further be noted that Question no.'25' in the examination of the accused persons under Section 313 Cr.P.C was perfunctory. No specific question has been framed about the statement of the injured having been recorded by the police and proved as Exhibit Ka-'11' but it could not be shown to us as to what prejudice has been caused to the accused persons for not putting the contents of Exhibit Ka-'11', the statement of the deceased recorded by the Investigating Officer before his death. It could not be placed before us as to what explanation could have been offered by the accused persons had the said circumstance was brought before them during their examination under Section 313 Cr.P.C.
39. It may be noted that the statement of the injured recorded under 161 Cr.P.C was not the lone circumstance to convict the appellants. Apart from the statement of the deceased recorded before his death by the Investigating Officer, there is an eyewitness whose presence was found to be natural on the spot. The eyewitness account is also corroborated from the statement of P.W2, an independent hostile witness as to the place and time of the occurrence. The testimony of the eyewitness P.W-1 the informant is also corroborated from the medical evidence. The FIR is proved to be a prompt report of the incident. Thus, the version of the injured recorded under Section 161 Cr.P.C supported with the oral and documentary evidence on record neither can be eschewed as it was not specifically put to the deceased persons nor can it be discarded by us. The said statement having been recorded during the course of the investigation by the Investigating Officer under Section 161 Cr.P.C relates to the cause of the death of the deceased, and, as such, would come within the meaning of the statement under Section 32(1) of the Indian Evidence Act and, thus, is a relevant fact in the facts and circumstances of the present case.
40. In Wasim Khan vs State of U.P reported in AIR 1956 SC 400, it is held that there is no justification for supposing that there had been any prejudice caused to the accused on account of improper and insufficient recording of his statement.
41. The Supreme Court in Shivaji Sahebrao Bobade and another vs State of Maharashtra reported in (1973) 2 SCC 793 has considered the omission under Section 313 Cr.P.C and held that such an omission does not ipso facto vitiate the proceeding unless prejudice was established by the accused. If the accused succeeds in showing any prejudice, it is open to the appellate court to call upon the counsel for the accused to show what explanation the accused has got regarding the circumstances not put to him. Every omission or error in compliance of the provision of Section 313 Cr.P.C thus does not necessarily vitiate trial.
42. As regards the motive, in a case like this where there are consistent evidence about the manner in which the incident had occurred, the motive being weak would not be relevant, in as much as, no enmity of the informant or the deceased with the accused persons has been suggested by the defence. In a case where oral, documentary and medical evidence are in sync, motive looses its importance, as the motive operates in the minds of the accused persons and it is not possible for the prosecution to prove motive, the cause for committing the crime in each case by positive evidence.
43. From the above discussion, in view of the consistent evidence brought on record by the prosecution in the nature of oral testimony and documentary material, it is established that the prosecution has proved its case beyond all reasonable doubts. No interference, as such, is required in the judgment of the trial Court. The judgment and order passed by the trial court is hereby affirmed. The appeals deserve to be dismissed being devoid of merits. The appeals are dismissed, accordingly. The sentence is minimum.
44. The appellant Amar pal is in jail and appellant Arjun is on bail vide order dated 24.1.2022.The appellant Arjun shall be arrested and immediately sent to jail.
45. Certify this judgment to the court below immediately for necessary action. The compliance report be submitted through the Registrar General, High Court, Allahabad. The trial court record be sent back immediately.
Order Date :- 21.11.2022 Harshita