Rajasthan High Court - Jaipur
Amba Lal vs State Of Rajasthan on 26 September, 2002
Equivalent citations: 2003CRILJ115
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT Khem Chand Sharma, J.
1. This appeal under Section 374(2) of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 16th January, 1998 passed by the learned Judge, Special Court (Communal Riots) and Additional Sessions Judge, Tonk by which he has convicted appellant Amba Lal for offence under Section 302, I. P. C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo one month's imprisonment. Under Section 3/25 of the Arms Act, the appellant has been sentenced to suffer three years' imprisonment and to pay fine of Rs. 200/-, in default of payment of fine to further undergo one month's imprisonment.
2. The relevant facts giving rise to this appeal are that on 17-4-1996 at 11.30 a.m. Dev Lal P. W. 1 submitted a written report. Ex. P. 1 on the spot to SHO Police Station Dooni, District Tonk alleging therein that in the morning, he left the house for Raj Mahal for some work where his mother Smt. Nandu PW 2 informed him that in the morning at about 7.00 a.m. some altercation was going on in between Amba Lal and Nanda in connection with the way for going to fields. She went there to comprehend them. She further informed that Amba Lal fired gun shot at Nanda and thereafter ran away from there. Nanda fell down on the ground and died. It was mentioned that Nanda smeared with blood was lying at the place of occurrence. It was further mentioned that he informed the police telephonically on the same day, It was mentioned that his mother and wife Kailashi had seen firing of gun shot at his brother. The police on the basis of this written report registered a case for offence under Section 302, I. P. C. and 3/27 of the Arms Act vide FIR No. 73/96 Ex. P. 12 and proceeded with investigation.
3. During investigation, the police inspected the site and prepared the site-plan. Ex. P/3, inquest report Ex. P. 2, and seized the blood smeared soil vide memo Ex. P. 6, blood stained shirt of deceased vide Ex. P. 7 and Controlled soil vide Ex. P. 8. The police got conducted post mortem on the dead body and collected the post mortem report Ex. P. 4.
4. PW 4 Dr. Ghanshyam Agrawal who conducted post mortem, noticed in all three gun shot injuries viz., (1) at left nipple (2) 1" below left nipple and (3) at lateral side of left knee. In the opinion of the Doctor, the cause of death of Nanda was shock and cardio respiratory failure due to injury to vital organs, heart and left lung sustained with a firearm.
5. SHO Ranglal, P. W. 11 arrested the accused Amba Lal vide memo Ex. P. 13. Amba Lal furnished information under Section 27 of the Evidence Act for recovery of gun vide Ex. P. 14 and in pursuance thereof gun was recovered vide Ex. P. 15. The site plan of place of recovery is Ex. P. 16. Recovered gun, shirt of deceased and three pellets found embedded in the body of deceased were sent to the FSL for examination, the report of which is Ex. P. 17.
6. Having completed entire formalities as to the investigation, the police submitted a charge sheet in the Court of concerned judicial Magistrate. The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case to the learned Judge, Special Court, Communal Riots, Tonk for trial and decision.
7. The learned trial Court on the basis of material available before it and after hearing counsel for the accused and the Public Prosecutor, framed charges against the appellant under Section 302, I. P. C. and Section 3/25 of the Arms Act. The appellant denied the charges and claimed trial.
8. In the course of trial, the prosecution examined as many as 12 witnesses and got exhibited some documents. Thereafter, the accused appellant was examined under Section 313, Cr. P. C. In defence, two witnesses were examined.
9. At the conclusion of trial, the learned trial Judge found the prosecution case as alleged proved and having held the appellant guilty of the offences charged with, convicted and sentenced him in the manner stated hereinabove. Hence the present appeal.
10. We have heard learned counsel for the accused appellant and the learned Public Prosecutor and gone through the judgment under appeal, the evidence and the material available on record.
11. Mrs. Sumiti Bisnoi, learned counsel appearing for the accused appellant has challenged findings of guilt against the appellant recorded by the learned trial Judge,
12. The first argument advanced by Mrs. Sumiti Bisnoi, learned counsel for the accused appellant is that there are major contradictions in the ocular testimony and the medical evidence. Relying upon the statements of prosecution witnesses and the inquest report, she argued that the witnesses have noticed gun shot injury on the head of deceased. She has also referred to the inquest report and pointed out that it also mentions injury on the head of deceased. She argued that the post mortem report Ex. P. 4 prepared by Dr. Ghanshyam Agrawal PW 4 has not stated anything about there being head injury on the person of deceased. Learned counsel contended with vehemence that the prosecution witnesses not only in their court statements have made categorical deposition about pellet injury on the forehead of deceased. In this back ground, this major contradiction between the testimony of prosecution witnesses and the medical evidence in itself is sufficient to suggest false implication of the appellant and the trial Court has seriously erred in relying upon both ocular evidence as well as medical evidence.
13. Second argument advanced by Mrs. Sumiti Bishnoi is that the prosecution witnesses are closely related to each other and to the deceased. She argued that placing reliance on the testimony of such highly interested witnesses would be highly unsafe and that conviction of the appellant cannot be sustained on the basis of evidence of interested witnesses. Learned counsel has made it clear that PW 2 Mst. Nandu is the mother in law of PW 3 Mst. Bhuri and PW 9 Mst. Kailashi. PW 2 Nandu is the mother of deceased and Bhuri and Kailashi are Bhabhis of deceased.
14. Lastly, learned counsel for the appellant has argued that there are serious lapses on the part of investigating agency. She argued that investigating agency has failed to seize the pellets from the place of incident and has also not sent the gun for finger print examination. In the absence of which, the accused appellant cannot be connected with the commission of crime. She argued that the learned trial Court committed serious error in ignoring this important and material point as to the lapses on the part of investigating agency. The trial Court ought to have taken serious note of such lapses.
15. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court and contended that it is based on proper appraisal of evidence and the conviction of the appellant deserves to be maintained.
16. Before proceeding to deal with the arguments, it is felt necessary to have scrutiny of the prosecution evidence so as to ease the controversy and to appreciate the arguments advanced on behalf of the appellant.
17. PW 1 Dev Lal is the brother of deceased. He is not an eye witness of the incident. He was informed of the incident by his mother PW 2 Mst. Nandu. According to him, his mother informed that Nanda was shot dead by Amba Lal. Having received the information, he rushed to the place of incident and saw the dead body of Nanda. He noticed pellet wound on the chest and forehead of Nanda. He then informed the police telephonically and thereafter lodged the written report. Evidently thus, deceased was not shot dead in his presence. However he was informed soon after the incident. In cross examination, the witness has admitted that Kailashi was the then wife of accused Amba Lal and that he had brought her about 1 and 1/2 year prior to the incident, after paying 'jhagada money'. He stated that it is wrong to say that he had abducted Kailashi and then brought her with him. He stated that it is also wrong to say that he did not pay 'jhagada money', but in the contrary, he has the writing to this effect (proof).
18. PW 2 Mst. Nandu in her examination in chief has deposed that Ambalal left the house with a gun in his hand. Her son Nanda asked Ambalal not to pass through his field. But Amba Lal replied that he will go from this way only. She further stated that when Nanda went to restrain Ambalal, Ambalal fired gun shot at Nanda, as a result thereof Nanda fell on the ground. Three pellets hit at the chest of Nanda, one pellet struck on the head and another on the leg. Thereafter Amba Lal ran away. The witness further deposed that Mst. Kailashi and Bhuri were also present at the place of occurrence. The incident happened opposite to her house and at that time, her son Dev Lal had left for Raj Mahal. In cross examination, the witness has stated that her house is situated at a distance of 300 steps from the house of Amba Lal. Ambalal having gun in his hand, was coming from his house. The only dispute was with respect to passing through the field.
19. PW 3 Mst. Bhuri has stated that in the morning at about 7.00 a.m. when she was cooking food, Amba Lal shot dead Nanda. She then stated that some scuffle took place between Nanda deceased and Amba Lal appellant and Amba Lal shot dead Nanda. She came out on hearing pop (sound of gun fire) and found pellet wounds on the head and chest of Nanda. Her mother-in-law and jethani were present at the scene. She further stated that she had seen Amba Lal escaping from the scene after firing gun shot. In cross examination, the witness stated that she is grand daughter of Kishna, brother-in-law of Dev Lal, P. W. 1.
20. P. W. 4 Dr. Ghanshyam Agrawal was, at the relevant time, posted as Medical Officer in Government Hospital Devli and had conducted autopsy on the dead body and prepared post mortem report Ex. P. 4. He has stated that on post mortem, he noticed three external injuries on the person of deceased, the first was at the left nipple, second was 1" below left nipple and the third was at lateral side of left knee joint. He stated that cause of death of deceased was shock and cardio respiratory failure due to injury to vital organs.
21. P. W. 5 Hem Raj and P. W. 6 Sheonath are the witnesses to the site plan/seizure memos. However, P. W. 5 Hem Raj has admitted his signatures on Ex. P. 3, P. 5 and P. 6 and denied his signatures on Exs. P. 7 and P. 8. P. W. 6 Sheonath has admitted his signatures on Ex. P. 2 but denied his signatures on Ex. P. 3. P. W. 5 Hemraj and P. W. 6 Sheonath have been declared hostile. P. W. 7 is also a formal witness. He had submitted charge sheet No. 63/96 in the Court. Likewise, P. W. 8 Daulat Mal, Constable is also a formal witness. He had deposited 5 sealed packets in the Forensic Science Laboratory, Jaipur and obtained receipt, Ex. P. 10.
22. P. W. 9 Mst. Kailashi wife of Dev Lal (brother of deceased) has stated that on the day of incident, she was present at her house and was busy in feeding her child. Amba Lal came there with a gun. Deceased Nanda, her 'Jeth' restrained him from passing through that place. But Amba Lal was adamant to go from that place only. Thereafter, Ambalal fired gun shot at her Jeth Nanda, as a result thereof, Nanda died. In cross examination, the witness stated that it is wrong to say that she was earlier married to Amba Lal. She stated that she was married to Dev Lal in her childhood. According to her, she had no child at the time of incident. She then stated that she was at the house of her sister-in-law (Nanad-Lada) and was feeding the child. The witness stated that on hearing hue and cry, she came out and rushed to the field. At the time when she reached the field, Nanda had already fallen on the ground and had passed away. Her mother-in-law and Devrani were already present at the place of incident. She further clarified that Nanda was lying dead when she reached the place of incident.
23. P. W. 10 Durgalal, Head Constable has deposed that he had deposited the sealed items in the Malkhana at item No. 163/96 and under the orders of Superintendent of Police, Tonk, he had sent 5 sealed packets to FSL, Jaipur along with Constable Nauratan Mal.
24. P. W. 11 Rang Lal, the Investigation Officer has stated that on 17-4-96 he was posted as SHO, Police Station Duni. Having received telephonic information, he rushed to Lakholai, where Devlal submitted a written report Ex. P. 1. He prepared the inquest report, site plan, seized the blood stained and controlled soil and got conducted autopsy on the dead body. He arrested the accused and effected recovery and has also proved the same.
25. PW 12 Bhoja Rarn is also a formal witness. He is a witness to Ex. P. 2.
26. Having scanned the evidence, it appears that PW 2 Mst. Nandu, mother of the deceased is the only witness who has witnessed the incident. True it is that PW 3 Mst. Bhuri and PW 9 Mst. Kailashi have been introduced as eye witnesses of the incident. But on scrutiny of their evidence it is evident that both these witnesses reached at the place of incident after the incident of firing gun shot at deceased Nanda had taken place and after the deceased had died and his body was lying on the ground. It may be reiterated that PW9 Kailashi was, at the time of incident, busy in feeding the child at her house. In cross examination, she has stated her presence at the house of her sister-in-law and was busy in feeding the child. She came out of the house on hearing hue and cry and found deceased lying dead on the ground. Thus in any case, assuming her presence either at her own house or at the house of her sister-in-law, it cannot be said that this witness had witnessed the incident, particularly in view of her own admission in the cross-examination that when she reached the place of incident, she found the deceased lying dead on the ground. Similarly PW 3 Mst. Bhuri was at her house and was busy in cooking. She came out of her house on hearing pop (sound of gun fire) and then noticed pellets hitting on the head and chest of deceased Nanda. Thus in view of her own admission, she also cannot be held to be an eye witness of the incident. Mst. Bhuri in her statement under Section 161 Cr. P.C. Ex. D. 3 portion A to B also stated that she reached at the spot on hearing the sound of gun fire, though she has denied the above part of her statement. P. W. 11 Rang Lal prepared Ex. P. 3 site-plan at the instance of Dev Lal and only indicated the place from where eye witness Nandu P.W.2 witnessed the incident. In our considered view, the trial Court was not justified in relying upon the testimony of PW 3 Mst. Bhuri and PW 9 Mst. Kailashi treating them to be the eye witnesses of the incident.
27. In this view of the matter, the only witness who witnessed the incident is PW 2 Mst. Nandu and thus she is the solitary eye witness. Now the question that emerges for consideration is as to whether the testimony of this solitary eye-witness is trustworthy, reliable and acceptable as being sufficient to bring home guilt against the appellant beyond reasonable doubt. We would decide this question while considering the arguments of the learned counsel for the accused appellant.
28. The learned counsel for the appellant has challenged the findings of the trial Court on the ground that since post mortem report of the deceased Nanda does not show any pellet injury on the forehead of the deceased, it belies, the prosecution case and statement of eye witness Smt. Nandu, who has stated therein that forehead of his son Nanda also got injured by pellet.
29. Before adverting to the factual matrix of the case, we would like to refer the broad proposition of law laid down by the Apex Court to test the veracity of prosecution story where medical evidence vis-a-vis direct evidence is at variance.
30. In the case of Mohan Singh v. State of M. P., (1999) 2 SCC 428 : (1999 Cri LJ 1334), it was held by the Apex Court :--
"The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all case, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which Courts are created. To search it out, the Courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is solemn duty of the Courts, not to merely conclude and leave the case of moment suspicions are created. It is the onerous duty of the Court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye-witnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
31. In the case of Dasan v. State of Kerala, 1987 Cri LJ 180, a Division Bench of Kerala High Court has held that :--
"If the apparent difference between the ocular evidence and medical evidence is attributable to any acceptable reason which is capable of compromising the two apparently different versions, otherwise acceptable ocular evidence should not normally be rejected."
32. In the above legal back ground we have to examine the statement of the eyewitness Nandu and Medical evidence to arrive at a conclusion whether medical evidence completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eye-witness Nandu. Mst. Nandu P.W. 2 has categorically stated that accused appellant Amba Lal opened gun fire on Nanda which resulted in injuries on chest at three places, on head and leg. P.W. 4 Dr. Ghan Shyam Agarwal, who conducted autopsy found gunshot entry wound only at (1) left nipple, (2) 1" below left nipple and (3) lateral side of left knee joint. Dev Lal P.W. 1, who reached at the spot on the information of his mother Nandu and also noticed pellet wounds in chest and forehead of deceased Nanda. Investigating Officer P.W. 11 Rang Lal also noticed pellet injuries on chest at two places at and near left nipple, forehead, thigh and calf of deceased and noted the above injuries in inquest report Ex. P. 2 with the remark of profuse bleeding from the injuries. In Ex. P. 5 memo of taking possession of the dead body it is also mentioned that dead body of Nanda having pellet injuries on forehead, at left nipple and at thigh and calf of left leg was lying smeared with blood. On careful scrutiny of the evidence referred to above it is evident that accused Ambalal fired his gun only once and deceased Nanda sustained injuries on his body and pellets, three in number were found embedded in left lung myocardium and knee joint. Therefore, practically it was impossible to visualize by the witness Mst. Nandu the specific part of the body of the deceased to which pellets pierced and it seems that she narrated the injuries sustained by pellets due to presence of blood on that part of the body.
33. The Apex Court dealing with the similar situation in Surendra Narain alias Munna Pandey v. State of U. P., AIR 1998 SC 192 : (1998 Cri LJ 359) has held that :--
"The third contention is based on the statement of P.W. 3 in his deposition that Shri Prakash sustained injury in the back whereas the medical report showed that two gunshot wounds were in the left side chest upper part and inner to nipple. Another gunshot wound was found in the spine medial part in thoracic region. The fact that P.W. 3 was travelling in the same rickshaw as his master, the deceased is established beyond doubt. His clothes which got stained by the blood which oozed out of the wounds of the deceased were taken by the Investigating Officer. The High Court has discussed this aspect of the matter at some length and we agree with the reasoning of the High Court. As pointed out by the High Court the witness having seen the exit wound on the back of the deceased bleeding, thought that he had been hit in the back. Hence we reject this contention."
34. Likewise in State of Bihar v. Ram Padarath Singh, AIR 1998 SC 2606 : (1998 Cri LJ 4007), the eye-witnesses had deposed that a 'katta' blow was given above the back side of neck of Boudhu. But according to medical evidence there was no injury on the neck of Boudhu. On the above factual matrix the Apex Court had held that :
"If the evidence of the eye-witnesses is read carefully, it clearly appears that what they stated was that the shot fired by Ram Padarath had caused an entry wound on the forehead, the 'katta' blow had caused an injury on the neck and the wound on the vertex was the exit wound. No doubt, to that extent their evidence can be said to be inconsistent with the medical evidence. But it is not an inconsistency of that type where one can say that the ocular evidence and the medical evidence cannot stand together and which would justify raising of a doubt regarding the truthfulness of the evidence of the eye-witnesses. The inconsistency clearly appears to be the result of confusion and does not indicate an attempt to describe the incident by a person who had not really seen it."
35. Similar was the situation in G.S. Walia v. State of Punjab, (1998) 5 SCC 150 : (1998 Cri LJ 2524) wherein deceased had stated that two blows were given on his leg by right side of the axe, yet not a single incised injury was found on his leg. The Apex Court observed that :--
"Though factually correct, this contention does not deserve to be accepted. Apart from other injuries found on his legs two abrasions were also noticed by the doctor. Moreover, a blow given by an axe with its sharp side pointing towards the victim may not always result in causing an incised wound, What type of injury it will cause would depend upon various factors like the position of the assailant and the victim, angle at which it hits the body, the part of the body where it lands, the force with which it hits the body etc. To reject the evidence as untrue in such circumstances, considering it as inconsistent with medical evidence, without, considering the relevant factors would mean mechanical appreciation of such evidence."
36. In Leela Ram (dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 : (AIR 1999 SC 3717), Leela Ram son of deceased had deposed that accused fired a gun shot at his father which struck him on the upper part of the chest to the left side. The second gunshot fired by the accused struck his father on his chest. Doctor who conducted Autopsy opined in cross-examination that "it can be said that the injuries on the person of the deceased were the result of one shot." Considering the above situation, the Apex Court has held that :
"the discrepancy does not seem to be of such a nature so as to effect the credit worthiness or the trustworthiness of the witness. As a matter of fact, it does not do so by reason of the fact that Maman fell a victim of gunshot injuries and died : it is immaterial as to whether one or two gunshots were fired -- the contradiction at its highest cannot but be stated to be in regard to a minor incident and does not travel to the root of the nature of the offence."
37. In the instant case, the doctor who held the post mortem examination had occasion to see the injuries of the deceased quiet closely. Mst. Nandu saw the accused firing his gun and pellets pierced into the body of deceased and his body smeared with blood oozing out from the injuries. Therefore, it seems that Nandu stated the pellet injuries on forehead due to presence of blood on forehead of deceased. The difference between ocular and medical evidence is attributable to acceptable reason referred to above. Thus, testimony of Nandu cannot be discarded on the ground of socalled inconsistency between ocular and medical evidence.
38. Presence of Mst. Nandu at the time and place of incident is natural as she happened to be mother of deceased and residing nearby to the place of incident. Deceased Nanda was born out of the wedlock of Mst. Nandu and Kalya. However, after the death of Kalya, Mst. Nandu got herself married with Bhuwana brother of Kalya, her previous husband. Accused Amba Lal is also the son of Narayan brother of Kalya and Bhuwana. All of them were residing in the vicinity of each other. Mst. Nandu just after witnessing the incident informed her son P.W. 1 Dev Lal and she accompanied by her son again reached at the place of incident. Dev Lal has corroborated her version. Her version is further corroborated by the statement of P.W. 4 Dr. Ghan Shyam Agarwal, who noticed gunshot injuries on chest and left knee. Her statement is further corroborated by the recovery of gun at the instance, and information Ex. P. 14 of accused vide memo Ex. P. 15. Recovered S.B.M.L. country made gun, three lead pellets and shirt of the deceased were sent for examination to FSL, Jaipur and the Examiner after examination vide report Ex. P. 17 opined that :--
1. One S.B.M.L. country made gun (W/ 1) from packet 'D' is a serviceable fire arm.
2. The examination of the barrel residue indicates that submitted S.B.M.L. + Gun (W/ 1) had been fired.
3. Three lead pellets from unmarked packet could have been fired from submitted S.B.M.L. Gun (W/1).
4. Multiple holes (Marked P) present on shirt (S/1) from packet 'C' appear to have been causedby lead shots as lead metal was detected on the periphery of these holes."
39. Therefore, the testimony of Mst. Nandu finds corroboration from the statement of Devaram, medical evidence and the FSL report. Her testimony cannot be discarded merely of her being the mother of deceased. From her statement, supported by the evidence referred to above, it is proved that Amba Lal opened fire on the deceased which resulted in gunshot injuries on chest and knee joint and deceased succumbed to his injuries, on the spot.
40. Learned counsel for the appellant has also argued that there are serious lapses on the part of the investigating agency in not seizing the wads etc. from the place of incident and in not sending the gun for finger print examination. Suffice it to say that: it is well settled by the catena of decisions of the Apex Court that any irregularity or even an illegality during investigation ought not to be considered as ground to reject the prosecution case. It was so held in State of Rajasthan v. Kishore, AIR 1996 SC 3035 : (1996 Cri LJ 2003) :--
"It is equally true that the investigating officer P.W. 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account."
41. No doubt, eye witness P.W. 2 Nandu happens to be the mother of deceased. However, her presence at the scene of occurrence is not doubtful. She has described the incident in a clear and graphic manner. She has emphatically asserted that Amba Lal opened fire on Nanda and Nanda sustained pellet injuries on chest and leg. She was subjected to searching cross-examination, but nothing material could be elicited from her, which may cast doubt on her credibility. No reason whatsoever has been assigned for falsely implicating the accused Amba Lal in such a henious crime of murder of his cousin by the mother of deceased Nanda.
42. In view of what has been discussed above, we hold that the appellant Amba Lal has been rightly connected for offence under Section 302 IPC and under Section 3/ 25 of the Arms Act.
43. In the result, the appeal fails and is hereby dismissed. The conviction of appellant Amba Lal and the sentence awarded to him by the learned trial Court is maintained.