Allahabad High Court
Sompal vs State Of U.P. on 8 November, 2012
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO. 35 RESERVED CRIMINAL APPEAL NO. 4990 OF 2005 Sompal Vs. State of Uttar Pradesh CONNECTED WITH CRIMINAL APPEAL NO. 5833 OF 2005 1.Tej Veer Singh 2.Satveer Singh Vs. State of Uttar Pradesh Counsel for the appellants- Sri P.N.Misra, Senior Advocate assisted by Sri V.K.Jaiswal Counsel for the Respondent- Ms. Usha Kiran, AGA Counsel for the complainant- Sri Virendra Singh Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Hon'ble Anil Kumar Sharma, J.) In these two connected appeals, the appellants have challenged the judgment and order dated 08.11.2005 passed by Sri Jaisheel Pathak, the then Additional Sessions Judge, (Court no.5), Ghaziabad in S.T. No.127 of 1999 State Vs. Tejveer Singh and others (Crime No.251 of 1998), under sections 302 and 307 IPC, P.S. Masoori, district Ghaziabad, S.T. No.139 of 1999 State Vs. Tejveer Singh (Crime No.560 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaizabad, S.T. No.140 of 1999 State Vs. Satveer Singh (Crime No.561 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaziabad and S.T. No.141 of 1999 State Vs. Sompal (Crime No.562 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaziabad, whereby each of the appellants have been convicted for the offence punishable under section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs.10,000/- each with default stipulation. Each appellant had also been convicted and sentenced to rigorous imprisonment for one year and fine of Rs.1000/- each with default stipulation under Section 25 of the Arms Act.
2. The prosecution story in nutshell is that on 7.10.1998 at 9.30 a.m. complainant Sudesh Kumar son of Sri Baleshwar Yadav, resident of Village Raghunathpur, Police Station Masoori, district Ghaziabad submitted a written report scribed by Mahavir Singh Yadav, resident of Village Raghunathpur in P.S. Masoori, district Ghazibad wherein he stated that his elder brother Rajendra Singh is serving the Delhi Police. On 7.10.1998, Rajendra Singh was going to Delhi on his scooter along with complainant. Co-villager Aman Singh and Ram Saran, were also coming on their motorcycle and when they reached in front of Azad Memorial Inter College, Qasba Dasna at about 9.30 a.m. Tejveer Singh and Satveer Singh, sons of Rohtas and Sompal son of Sukhpal of their village having illicit weapons came from behind on black colour Bullet motorcycle No.DL-45-9303 and intercepting the complainant and his brother, all the three accused persons with intention to kill opened indiscriminate firing on them. In order to save himself Rajendra Singh ran towards the field, but the accused persons killed him by firing gun shots and he instantaneously died on the spot. The report further stated that the complainant saved himself by entering into the shop of Babu Mistri and closed the door. The accused persons also attempted to kill him, as they were having old enmity with them. On account of broad day indiscriminate firing terror was created in Qasba Dasna and the passersby leaving their shoes, chappals and bicycle at the scene of occurrence ran hither and thither. The people closed their houses and shops. The accused persons firing in the air made their escape good on their motorcycle towards Ghaizabad. Leaving the dead body of his brother at the spot. the complainant submitted his written report in Police Station Masoori.
3. On the basis of this report a case under sections 302 and 307 IPC at Crime No.251 of 1998 was registered against the accused persons and the investigation of the case was taken over by Sher Bahadur Singh, Station Officer PW-7. He reached at the spot after interrogating the complainant at the police station and collected samples of plain and blood stained earth. He also seized one empty cartridge of 315 bore, a pair of shoes and two pairs of chappals as also scooter No. DL-35P-1055 from the spot in presence of witnesses and prepared separate memos. Site plan was also prepared at the instance of the complainant. In the meantime, the Investigating Officer received information through R. T. Set that all the three accused persons have been apprehended by Kavi Nagar police, so he reached there and obtained the copy of recovery memo and copy of G.D. report No.25 of 12.15 p.m. dated 7.10.1998 and also interrogated the accused persons. From the memo regarding arrest of the accused and the recovery of illicit fire arms and ammunitions it was revealed that after getting information at 10.00 a.m. from City Control Room that three miscreants have fled away by firing shots and killing a constable of Delhi Police on motorcycle No.DL-45-9303, the police party of police station Kavi Nagar were checking in the area and when they reached near Rajapur phatak at about 10.30 a.m. they saw three persons coming on a bullet motorcycle from the side of Atma Steel. The police party in a jeep chased them. After challenge the accused persons were apprehended by the police at about 10.30 a.m. On interrogation they introduced themselves as Tejveer Singh son of Baleshwar Singh and from his possession a country made pistol of 315 bore having an empty cartridge in the barrel and a live cartridge from his pant was recovered. The second one told his name as Satveer Singh son of Rohtas, resident of Village Raghunathpur and on personal search a country made pistol and two cartridges were recovered. The third one told his name as Sompal son of Sukhpal, resident of Village Raghunathpur and on his personal search a country made pistol of 315 bore and from the pocket of pant two cartridges of 315 bore were recovered. All the three accused allegedly confessed to have killed Rajendra Singh, son of Baleshwar Singh, resident of Village Raghunathpur, P.S. Masoori, district Ghaziabad at about 9.30 a.m. near Azad Memorial Inter College, Qasba Dasna. The recovery memo was prepared and its copy was given to the accused persons and their signatures were obtained on it. On the basis of the alleged recovery the Kavi Nagar police registered separate cases against three accused persons at Crime No. 560 of 1998 to 562 of 1998 u/s 25 Arms Act.
4. The inquest on the cadaver of the deceased was performed at the spot on 7.10.1998 from 10:40 a.m. and the same was sent in a sealed cover for postmortem examination along with usual papers. Dr. L.M. Upadhyay, PW 3 conducted autopsy upon the cadaver of the deceased on 7.10.1998 at 4.00 p.m. He found that 30-years old deceased was having average built body. Rigor mortis was present and decomposition has not started. He found the following ante-mortem injuries on the person of the deceased.
i)Gun shot wound of entry 2 cm. x 2 cm. on left side of temple region 2 cm. in front of upper part of left ear. There is blackening, tatooing, charring present around the wound, whole of left side, front of face. On exploration, the wound is directed towards right posteriorly lacerating the underneath scalp and fracturing the underneath skull bone and lacerating the brain matter. Haematoma present. The wound is communicating with the wound of exit measuring 2.5 cm. x 2 cm. on the rightside back of skull, 3 cm. behind the upper part of right ear.
ii)Gun shot wound of entry 2 cm. x 2 cm. on the back of right shoulder, 2 cm. above the poster or axillary fold. There is charring of the wound. On exploration, the wound is directed towrds left lacerating the underneath muscles, tissues, blood vessels and apex of the right lung pleaura. One mettalic bullet recovered near the cervical vertebra which is sealed. Altered blood present in right chest cavity.
In internal examination the doctor found that the right side heart of deceased was full, while the left was empty, stomach was empty, gases and faecal was matter present in small and large intestines. In the opinion of the doctor the deceased suffered death about half day before due to coma as a result of ante mortem gun shot injury over the skull. The injuries of the complainant were examined by Dr. R. R. Tyagi PW- 10 in District Hospital, Ghaziabad on 8.10.1998 at about 2.40 p.m. and he found the following injuries on his person :
(i) Abrasion scabbed ¾ x ½ cm. In front of left knee.
(ii) Abrasion scabbed 2 x 2 cm. placed 1.5 cm. below and outer to Injury No.1.
(iii)Scabbed abrasion 1.5 x ¾ cm. placed 7.5 cm. below and medial to Injury No.2. The patient complained for pain in chest. Sound opinion of the doctor was- injury was simple and was caused by hard blunt object.
Duration- About one and one fourth day.
The Investigating Officer interrogated the witnesses and after completing the same submitted the chargesheet against the accused persons. Kavi Nagar police through SI Anurag Prakash Dixit PW-11, investigated the aforesaid three cases under section 25 of Arms Act and submitted charge-sheets against all the accused separately. Sanction for the prosecution of accused persons was obtained from District Magistrate, Ghaziabad on 22.11.1998.
5. After committal of the cases to the Court of Session, the learned Addl. Sessions Judge framed charges for the offences punishable under sections 302 and 307 IPC against all the three accused persons and each of them was separately charged for the offence punishable under section 3/25 of the Arms Act. The accused in unison pleaded not guilty and claimed trial.
6. In order to prove the charges the prosecution has examined complainant Sudesh Kumar PW-1, Aman Singh PW-2 (wrongly mentioned as Kawal Singh by the trial court in his deposition), Dr. L. M. Upadhyay PW-3, Constable Jaipal Singh PW-4, Constable Bittoo Singh PW-5, Ram Das Yadav PW-6, SI Sher Bahadur Singh PW-7, Head Constable Hotam Singh PW-8, Constable Rajendra Singh PW-9, Dr. R.R.Tyagi, PW-10 and SI Anurag Prakash Dixit, PW-11 as formal witness.
7. All the accused persons in their separate statements under section 313 CrPC again denied the entire prosecution story and the incriminating circumstances alleged against them. They have stated that the police has arrested them from their house and false arrest and recovery had been shown. They have pleaded false implication on account of animosity.
8. The learned trial court after hearing the parties counsel and analysing the evidence on record has convicted and sentenced the accused appellants as indicated in para-1 of the judgment. Aggrieved, the appellants have filed the present two appeals before this Court.
9. We have heard the learned counsel for the appellants and the learned A.G.A. for the State as also the learned counsel for the complainant at length and perused the original record themselves carefully.
10. Learned counsel for the appellants challenging the impugned judgment has argued on following points:
i.that the FIR is ante-timed;
ii.that there was no motive for the accused persons to eliminate the deceased;
iii.that the witnesses of fact examined in the case are highly interested and partisan;
iv.that the presence of alleged eye-witnesses at the spot is highly doubtful, as the accused would not have spared them;
v.that there is variance in ocular account of the incident and the medical evidence; and vi.that the investigation was not fair.
Per contra learned AGA and the learned counsel for the complainant have argued that the FIR of the incident was promptly lodged by the complainant; that although motive has been mentioned in prompt written report of the complainant but since eye witness account of the incident is available so motive is not significant; that complainant was also injured in the incident and the testimony of PW-1 and PW-2 cannot be rejected merely on the ground of their relationship with the deceased rather they would be the last person to screen the real offender; that their testimony is consistent and reliable which is also corroborated by medical evidence adduced in the case.
11. The alleged incident took place at about 9.30 A.M. on 7.10.1998 in front of Azadpur Memorial Inter College, Dasna at a distance of about 4 Kilometers from P.S. Dasna and its written report was lodged by Sudesh Kumar PW-1 at 10.30 A.M. Learned counsel for the appellants has argued that the report was not lodged at the given time, but it has been ante-timed by the police. PW-1 proving his written report Ex.Ka-1 has stated that after the incident he dictated the report to Mahavir Singh and after signing the same he handed over to Diwanji at the police station. In cross-examination this witness has stated that 5-7 minutes after the incident 3-4 police personnel of police out-post arrived at the scene of occurrence and they had sent him to police station. He reached police station on the motor cycle of Aman Singh and Pradhan Pritam and Mahavir Singh met him at the police station. They were directed to get the written report prepared from out side and thereafter the report was prepared in 10-15 minutes. Nothing could be elicited from his cross-examination which may support the contention of the learned counsel for the appellants about ante-timing of the FIR.
12. HC Hotam Singh PW-8 has proved the check report Ex.Ka-18 which was prepared on the basis of written report of PW-1 as also the copy of GD regarding registration of the case at crime no. 251/98 in report no. 20 at 10.30 A.M. He has proved these documents by bringing the original GD in Court. In cross-examination the witness has stated that special report of the case was sent through Constable Mahesh at 11.15 A.M. on 7.10.1998. A bare suggestion without any support material had been given to this witness that he has ante-timed the report, which has been emphatically denied by him. After registration of the case the inquest on the cadaver of the deceased was prepared at the spot by IO Sher Bahadur Singh PW-7 from 10.45 A.M. to 1.00 P.M. and the same day autopsy was conducted by Dr. L. M. Upadhyay PW-3 at 4.00 P.M. Thus, the events that had taken place in quick succession after the incident leave no room to doubt the authenticity of time of registration of the FIR. The case was registered in presence of IO and he immediately proceeded for the spot. In cross-examination he has stated that prior to him officials of Dasna police out-post had arrived at the place of incident. No doubt at one place this witness has stated that he reached on the spot at 10-10.15 a.m., but this time seems to have been given only out of imagination because it has nowhere been noted by him in his diary. The statement of this witness was recorded in the Court about 4½ years after the incident. Thus, there is nothing on record to suggest that the FIR was not registered at the time given in the check report Ex.Ka-18. In the facts and circumstances of the case it cannot be said that it is ante-timed or delayed.
13. It is trite law that FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Thus, we find that the instant report is neither delayed nor it is ante-timed, so it can very well be considered for corroboration of the prosecution story.
14. In the prompt report itself the complainant PW-1 has stated that on account of old enmity his brother has been done to death by accused persons in broad-day light by indiscriminate firing on him. He has also reiterated this fact in his examination-in-chief but he has not been cross-examined on this point by the defence. The accused persons have also stated in unison in their separate statements u/s 313 Cr.P.C. that they have been falsely indicted in the case on account of enmity. However, Aman Singh PW-2 has admitted in the beginning of his cross-examination that a case u/s 307 IPC, which pertains to an incident prior to this case, on the report of accused Tejvir is pending against him and Sudesh Kumar PW-1. Thus, animosity between the parties before the instant case is not disputed. It is well known that enmity is a double edged weapon. On one hand it impels a person to commit crime and on the other it can be like a catalyst for his false implication. The deceased was an official of Delhi Police for about 6-7 years before his murder, so it was quite possible that he was the main target for the accused persons.
15. Experience show that murders are being committed on very trivial issues. Motive can only be perceived by the family members of the deceased, while it is primarily known to the accused and sometimes the deceased also know why he is being killed. It is locked in the mind of the accused and often the prosecution finds it difficult to unlock their mind in this regard. However, since there is eye witness the account of the incident, so motive has no such importance like the cases based on circumstantial evidence. Motive is not an ingredient of the offence, which should always be proved by the prosecution, although no crime is committed without any motive. It is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. [Vide - State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka, (2003) 6 SCC 392 and Thaman Kumar vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380. In these circumstances, the alleged motive against the accused persons stands fully proved.
16. Learned counsel for the appellants has vehemently argued that as per the prosecution story itself several persons have gathered at the time of alleged incident, but the prosecution has chosen to examine only interested, inimical and partisan witness in support of its case and no independent witness has been produced. He has further submitted that there were shops near the place of incident and were open, but none of the shopkeeper had come forward to support the incident. It has come in evidence of PW-1 that the place of incident is about 4 Kms. from village Raghunathpur, where the parties reside. In such a situation it was quite possible that the people who had seen the incident may not be knowing either the accused persons or the deceased and if the prosecution has not examined any of them, it would not create any doubt on the prosecution story.
17. It was a broad-day light incident and accused persons were known to complainant and his family members from before being the residents of the same village, so there is no question of mis-identity of the accused. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make false allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. vs. State of Punjab, AIR 1953 SC 364; Masalti vs. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC 76; and Rizan & Anr. vs. State of Chhattisgarh Through The Chief Secretary, Government of Chhatisgarh, Raipur, Chhatisgarh, (2003) 2 SCC 661). Our experience show that so-called independent witnesses do not come forward to depose against the accused persons as they often face grave consequences. They do not want to be inimical with the culprit particularly in a case which does not affect them directly or indirectly. In such a situation the prosecution is compelled to fall back on the testimonies of witnesses who are friends or family members of the deceased or the injured. It is further a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinized and appreciated before resting conclusion to convict or acquit the accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Vide: Himanshu Vs. State (NCT of Delhi) (2011) 2 SCC 36; and Ranjit Singh & Ors. v. State of Madhya Pradesh, (2011) 4 SCC 336). Thus only on account of close relationship of PWs with the deceased, the testimony PW-1 and PW-2 cannot be brushed aside without considering and ascertaining its intrinsic value. However, their deposition would require close scrutiny with care and caution.
18. Learned counsel for the appellants has next urged that presence of PW-1 and PW-2 on the spot at the alleged time of incident is highly doubtful. PW-1 has no business to travel with the deceased, who was allegedly going to Delhi on scooter to join his duties. It has come in cross-examination of PW-1 that at the time of incident the deceased was posted in P.S. Hauz Khas (Delhi) and was living in the campus of the police station while his family was residing in the village and he had come to village on 6.10.1998 at about 1-1.30 p.m. He was on rest and was to resume his duties on 7th. He was going with him to Delhi in search of employment in police. He had applied for service in police two months prior to the incident. This witness was young man of 25 years (at the time of his deposition before the trial Court on 28.4.2000), so it was not unusual if he was accompanying his brother for Delhi, which was not far off from his village. He has stated that Aman Singh and Ram Saran Singh of his village were coming behind them on motor cycle. Aman Singh PW-2 has stated that on the day of incident he was going to Ghaziabad on motor cycle along with his co-villager Ram Saran Singh and ahead of them were Rajendra and Sudesh (PW-1) on a scooter and as they reached in front of Azad Memorial Inter College, Dasna at about 9.30 A.M. the incident took place. This witness has accompanied PW-1 to police station for lodging the report. Although his name does not find place in the copy of GD regarding registration of the case, but it is immaterial because the names of scribe Mahavir and Pradhan Pitam Singh have been noted therein who had come to police station along with the complainant. If several persons come along with the complainant to police station than the police official (Head Moharrir) is not obliged to mention the names of all the persons. It would be sufficient if he notes down the particulars of some of them. He has stated that at the time of incident he was employed in D.C.M., Dasna and on that day his duty was from 3.00 P.M. to 11.00 P.M. He was going to Ghaziabad for his work with Ram Saran who was serving as Gardner there. PW-1 has also corroborated PW-2 on this point stating that from the spot only he and Aman Singh have gone to police station on motor-cycle. The investigating officer has interrogated the complainant at the police station, while PW-2 was interrogated later on the same day, this fact also lends assurance about the presence of both these witnesses on the spot at the time of incident. Further PW-1 was also injured in the incident and he was medically examined on 8.10.1998 by Dr. R. R. Tyagi PW-10, who has proved the medico-legal report Ex.Ka-23, but the State counsel conducting the case in the trial Court did not ask any question about the injuries of complainant or his medical examination. The examination-in-chief of a witness in criminal trial is controlled by the State counsel and it is his duty to ask questions from the witness each and every aspect of the case concerning him. The witness is not expected to depose himself as he is not aware about the procedure of the Court.
19. Both the witnesses of fact namely Sudesh Kumar PW-1 and Aman Singh PW-2 have given eye witness account of the incident. They are consistent about the time and place of incident as also the number of accused, weapons used by each of them, their role in the incident and manner of assault as also the place where PW-1 hid himself at that time. Complainant has been extensively cross-examined by the defence about the manner of assault. He has stated that the accused persons came from behind and they hit their motor cycle with their scooter speed whereof was about 20-25 Kms. per hour. After accident the scooter fell down. Rajendra ran in western side fields while PW-1 ran towards the shop of Babu Ram Mistri. He has further stated that first fire was made by Satvir who was sitting in the middle on motor-cycle while Som Pal was behind him on motor-cycle. The accused persons making fires followed Rajendra in fields where he sustained two fire-arm shots. The accused persons fired 6-7 rounds and entire incident took place in 5-6 minutes. This witness in order to save himself hid in the shop of Babu mistri by the side of the road, so he was not expected to note the minute details of the incident such as the distance of particular shots which caused injuries to the deceased and who had fired those shots. In the facts and circumstances of the case, the broad spectrum of the incident can be expected from the witness, which he has successfully deposed before the Court.
20. PW-2 has also been subjected to grilling cross-examination about manner of assault. He has stated that the accused persons over taking them hit the scooter of the deceased, both Rajendra and Sudesh fell down and accused persons chased Rajendra into the fields. All the three accused surrounded him and fired shots. He has further stated that the accused persons have fired 5-7 shots on Rajendra. They were loading and unloading the country made pistols. According to him there was distance of 4-5 yards between the deceased and accused when they were chasing him. All the accused were between age group of 19 to 25 years on the date of incident, as per age given by each of them in their statements u/s 313 Cr.P.C. The investigating officer has also vividly shown the spot position at the time of incident. The shop of Babu Ram Mistri is on eastern side of the road which is the north-south on the spot and takes curve on western side ahead of place of incident. He has also shown the distances between the points shown by him in the site plan. The site-plan finds full corroboration from the testimony of both PW-1 and PW-2 and there is no material inconsistency therein. Taking the statements of PW-1 and PW-2 in totality about the incident, there is no manner of doubt that they have witnessed the incident. They have not exaggerated the incident nor any embellishment had been made by them. There is no material contradiction in the statement of these witnesses given before the Court vis-a-vis their police statements recorded by the investigating officer of the case. Thus we find that the testimonies of both the witnesses of fact is cogent, clear and reliable.
21. Learned counsel has valiantly tried to show that the alleged eye witness account of incident does not find support from the medical evidence. His contention is that in both the gun shot injuries found by the doctor as ante-mortem injuries on the person of the deceased he has noted blackening on the entry wound, showing that the firing was close range, while from the statements of PW-1 and PW-2 it transpires that the shots were fired from considerable distance ruling out any possibility of blackening, tatooing and charring having been found on the entry wounds of the deceased. No doubt Dr. Upadhyay PW-3 has found blackening, tatooing and charring on injury no. 1 and only charring on injury no. 2 of the deceased, but it does not mean that the eye witnesses have not seen the occurrence. It is a case where 5-7 shots were fired by all the three accused persons on PW-1 and deceased. Naturally in such a situation the persons present on the spot would first run, take shelter to save themselves and then see the incident. In this process they would not be in a position to memorise and tell with precision the distance of firing. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. The incident takes place in minutes and further it is not like shooting a film scene where the actors are guided by the director to undergo several retakes according to script. The reaction of every person on witnessing a crime is not the same each one reacts in his own way depending upon several factors. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. In Karnail Singh and others Vs. The State of Punjab AIR 1971 SC 2119 the Apex Court has held that 'where direct evidence of the eyewitness is that the accused committed the murder by firing a gun some inconsistency relating to distance based on medical opinion offered would be of no significance whatsoever.' The view in Karnail Singh's case (supra) was also reiterated in State of U.P. Vs. Sugahar Singh and others AIR 1974 SC 423 and Janak Singh and another vs State Of Uttar Pradesh AIR 2004 SC 2495. The manner of assault as depicted in the FIR and in the statements of both the eye witnesses leave no room for doubt that the accused have fired shots on the deceased from close range and they have chased him from the road up to the field where his dead body was found.
22. Another criticism about time of incident and medical evidence is the contents of stomach found by the doctor in the post-mortem examination of the deceased. Dr. Upadhyay PW-3 has stated in cross-examination as under:
" e`rd us e`R;q ls iwoZ dqN [kk;k ugha FkkA mldk isV [kkyh FkkA ;g Hkh laHko gS fd e`rd e`R;q ls iwoZ 'kkSp u x;k gksA ijUrq eSa dksbZ Li"V jk; ugha ns ldrkA 4 ?kaVs esa vkek'k; [kkyh gks tk;sxkA blfy, e`rd us pkj ?kaVs ls iwoZ dqN [kk;k gksxkA ;g lgh gS fd e`rd us e`R;q ls nks ?kaVs iwoZ rd dqN ugha [kk;k gksxkA "
The above statement of the doctor itself shows that he was not himself sure about the intake of food by the deceased. It has come in cross-examination of PW-1 that 5-6 minutes before leaving the village, he and his brother have taken milk and bread. As noticed earlier, the distance between the village of the deceased and the place of incident is only four kilometers and they were travelling on scooter. The amount of milk and bread taken by the deceased could not be elicited from PW-1 during his cross-examination. The autopsy was conducted at about 4 P.M. on the day of incident and the doctor has found rigor mortis on the cadaver of the deceased. In these circumstances, the stomach contents as noted by the doctor do not belie the homicidal death of the deceased on 7.10.1997 at about 9.30 A.M. It is pertinent to note that Dr. Upadhyaya, perhaps inadvertently has stated in his examination-in-chief that the deceased could have suffered the ante-mortem injuries on 14.7.1998 at about 9.30 A.M. by fire-arms. This date is apparently incorrect because in his earlier statement he has stated that autopsy was conducted by him on the corpse of deceased Rajendra on 7.10.1998 and has noted the expected time of death as about half day in his autopsy notes with 4 to 6 hours variation on either side, as stated by him in cross-examination. Moreover from the stomach contents the autopsy doctor cannot say with certainty about the time when the food was consumed by the deceased because it depends upon several factors like the nature and amount of food and the digestive system of deceased etc. Thus, we find that there is no variation in ocular and medical evidence adduced in the case.
23. The most significant feature of the case is that all the accused-appellants were apprehended by Kavi Nagar police at about 10.40 A.M. the same day i.e. about an hour after the incident along with the vehicle used in the crime. Illicit arms and ammunition were also recovered from each of them. Their arrest and recovery had been proved through the statement of Constable Bittoo Singh PW-5, who was engaged on duty with his colleagues - Constable Khurshid Ahmad and Driver Naresh Pal Singh on mobile van has proved the manner of arrest of accused persons and recovery of arms and ammunition from each of them. He has stated that when they were going towards Rajapur phatak on bye-pass road, he had received message from City Control Room through wireless that three miscreants have made their escape good after killing a constable of Delhi police, on bullet motor cycle no. DL 4SA-9303. At about 10.30 A.M. they saw three persons coming on motor cycle and confirming the registration no. of the motor cycle they challenged them, but they did not stop and then overtaking by jeep apprehended them. He has proved the recovery of arms and ammunition as also the memo prepared therefor. In cross-examination he has admitted that the investigating officer of the murder case met him on the day of arrest itself and he took him to the place where the accused persons were arrested. As per PW-5, all the accused persons allegedly confessed to have killed Rajendra with the weapons which were recovered from them. However, the investigating officer of the murder case did not send them to Forensic Science Laboratory along with the empties recovered from the spot from examination. The positive report of the Laboratory would have further strengthened the prosecution story about participation of the accused-appellants in the instant crime. The investigating officer PW-7 gave an irresponsible reply, when he was called upon to assign reason for not sending the above articles to Ballistic Expert, saying that he did not do so because the accused were arrested the same day and they had confessed their guilt. The Kavi Nagar police did a remarkable work in apprehending the culprits about an hour after the incident along with the vehicle and weapons, but PW-7 did not respond well to connect the accused with murder case. Such lapses in investigation are not inadvertent rather they are intentional. In this connection we may usefully refer to the illuminating observations of the Full Bench of this Court in the case of Gopal and others vs. State of U.P. 1999 (39) ACC 92 (FB), wherein it has been held that weakness of investigation is no ground to reject the direct testimony of the prosecution witnesses. It was observed:
"At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only this, human mind cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officers, who investigate the case, also know that they should take prompt action and should immediately record the statement of the witnesses. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. But if the police officers deliberately sleep over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are also ignorant of the fact that what shall be the effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In our view, investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. If the FIR is recorded soon or is recorded after four or five hours, why should the prosecution or the persons who have died 'suffer'. Each and every case has to be decided on its intrinsic evidence. If the eye-witnesses are believable the mere weakness of the investigation should not be a ground to reject their testimonies."
Not only this Court, but the Apex Court time and again has cautioned that lapses or negligence on the part of investigating officer are not fatal, if the prosecution case stands proved from other reliable and cogent evidence. In the case of Ambika Prasad and another vs. State (Delhi Administration) 2000 (40) ACC 462 (SC), Hon'ble Apex Court has held that negligence of investigating officer should not result in acquittal of the accused, when prosecution case is otherwise established. In Ram Bali vs State of U.P. AIR 2004 SC 2329, the Hon'ble Apex Court has observed as under:
"14. As was observed in Ram Bihari Yadav v. State of Bihar and others (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses or perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. This view was reiterated in Amar Singh v. Balwinder Singh and others (2003 (2) SCC 518). As noted in Amar Singh's case (supra) it would have been certainly better if fire-arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of eye-witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect credibility of the prosecution version."
24. The result of foregoing exercise and reassessment of evidence available on record is that the prosecution has successfully brought home the guilt to all the accused-appellants and we do not find any factual or legal error in the impugned judgment of the trial Court. They were rightly found guilty for committing broad-day light murder of deceased Rajendra and further each appellant was liable to be convicted and sentenced for the offence punishable u/s 25 Arms Act. The appeals lack merits and are accordingly dismissed. The findings of conviction against all the accused-appellants and sentence awarded to each of them are affirmed. They are in jail and would serve out the remaining part of their sentence.
25. Let the certified copy of the judgment be sent to Court concerned and the Chief Judicial Magistrate, Ghaziabad for ensuring compliance which should be reported within 6-weeks.
...................Rakesh Tiwari, J ..........Anil Kumar Sharma, J.
November 8, 2012 Imroz/-