Madhya Pradesh High Court
Pradeep Singh vs State Of M.P. on 22 August, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 22nd OF AUGUST, 2022
CRIMINAL APPEAL No. 465 of 2012
Between:-
PRADEEP SINGH SON OF SHRI HARI
SINGH GURJAR, AGED - 24 YEARS,
OCCUPATION - AGRICULTURIST,
RESIDENT OF - VILLAGE- BONA,
POLICE STATION- ANTRI, DISTRICT
GWALIOR.
........APPELLANT
(BY SHRI RUKVENDRA SINGH GHURAIYA WITH SHRI
PRAKHAR DHENGULA - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
BILLOWA, DISTRICT - GWALIOR.
......RESPONDENT
(BY SHRI NAVAL KISHOR GUPTA - PUBLIC
PROSECUTOR)
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Reserved on : 4th August, 2022
Delivered on : 22nd August, 2022
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This criminal appeal coming on for hearing this day, Hon'ble Shri
Justice G.S. Ahluwalia, passed the following:
2
JUDGEMENT
1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 1-6-2012 passed by 1 st Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.326/2008 by which the Appellant has been convicted and sentenced for following offences :
Under Section Sentence 302 of IPC Life Imprisonment and a fine of Rs.5,000/- in default 1 year R.I. 27 of Arms Act 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. Both the sentences shall run concurrently.
2. According to the prosecution case, the complainant Omprakash lodged a Dehati Nalishi in J.A. Hospital, Gwalior, that he is running a hotel in the name and style Laziz Tiffin Center. Anand Rai who is the brother-in-law of his brother works in his hotel. At about 4 P.M., the appellant had come to his hotel and demanded for water. As there was some delay in serving water, therefore, the appellant slapped Anand Rai. At that time, the complainant had gone to Gwalior. When he came back at about 7 P.M., the entire incident was narrated by Anand Rai. When appellant came there, then the complainant enquired from him as to why he had slapped Anand Rai. On this query, the complainant was also slapped by the Appellant. The neighborers also came there and pacified the situation. Thereafter, at about 8 P.M., the Appellant along with 3-4 persons came to the hotel. The complainant was standing outside the hotel. Anand Rai was preparing chapatis. The Appellant and his companion went inside the hotel and Appellant shot Anand Rai causing 3 gunshot injury in the abdominal region. The Appellant ran away from the spot along with his companions. The injured Anand Rai was brought by him to hospital along with Ranjeet and Sonu Sharma, where he has been declared dead by the Doctors.
3. On the basis of Dehati Nalishi, F.I.R. was lodged. Safina Form was issued and Lash Panchnama was prepared. Requisition for post-mortem was prepared and dead body was sent for post-mortem. The spot map was prepared. Blood stained and plain earth were seized. The Appellant was arrested and on his memorandum, one Katta was seized. The seized articles were sent to F.S.L. Sagar. The F.S.L. report was obtained. Sanction for prosecution under Section 27 of Arms Act was obtained. After completing the investigation, police filed charge sheet against the Appellant for offence under Section 302, 34 of IPC and under Sections 25 and 27 of Arms Act. Investigation was kept pending against companions of the Appellant.
4. The Trial Court by order dated 5-12-2008 framed charges under Section 302 of IPC and under Section 25(1-B) A read with Sections 3 and 27 of Arms Act.
5. The Appellant abjured his guilt and pleaded not guilty.
6. The prosecution examined Sonu Sharma (P.W.1), Arvind Singh (P.W.2), Rambabu (P.W.3), Kaptan Singh (P.W.4), Omprakash Shivhare (P.W.5), Sundarlal Shivhare (P.W.6), Raghuvir Singh (P.W.7), Pyarelal (P.W.8), Ravi Rai (P.W.9), Dr. J.N. Soni (P.W. 10), Basudev Sharma (P.W.11), Ramvaran Sharma (P.W.12), J.B.S. Chauhan (P.W.13), and R.K. Jain (P.W.14).
7. The Appellant examined Neeraj Yadav (D.W.1) and Harnam Singh 4 (D.W.2).
8. The Trial Court by the impugned order has convicted and sentenced the appellant for the above mentioned offences.
9. Challenging the judgment of conviction passed by the Trial Court, it is submitted by the Counsel for the Appellant that Omprakash Shivhare (P.W.5) is not a reliable witness. He has not been corroborated by other eye-witnesses. .12 bore katta was not seized from the possession of the Appellant. No independent witness was examined. The prosecution could not prove any motive on the part of the Appellant. The medical evidence does not corroborate the medical evidence. No gunshot hole was found on the shirt of the Appellant. Furthermore, the Appellant is in jail for the last more than 14 years.
10. Per contra, it is submitted by the Counsel for the State that it is incorrect to say that the Appellant is in jail for more than 14 years. He has completed only 11 years of incarceration. Omprakash Shivhare (P.W.5) is a reliable witness. Other eye-witnesses have turned hostile, and their evidence cannot be read for disbelieving the eye-witness. When direct evidence is available on record, then absence of motive would not give any dent to the prosecution case. Furthermore, it has come on record that in the earlier part of the day, the Appellant had slapped the deceased as he did not serve water immediately.
11. Heard the learned Counsel for the parties.
12. Before adverting to the merits of the case, this Court would like to consider as to whether the death of Appellant was homicidal in nature or not?
13. Dr. J.N. Joshi (P.W.10) had conducted the Post-mortem and found 5 following injuries on the dead body of Anand Rai :
Underwear and full pant torn on left side abdominal region corresponding to body injury and stained with blood. Dressing over right 5th toe present.
Eyes-open, cornea hazy,mouth closed, fist semi open, feet plaster flexed, rigor mortis present all over the body in appearing phase, hypostasis present over the back and front. Ante-mortem injuries present over the body
(i) Gun shot wound present on left lower abdomen 12 cm from mid line 5 x 2.5 cm vertically oval. Surrounded by blackening all around from 2 cm on upper aspect and for 1 cm on the inferior aspect. Surrounded by bluish red contused are upto 4 cm on upper and upto upper third of thigh (left) anteriorly and medically. Margins of the wound in inverted.
Wound extends downwards, anterior to the pubic bone in thigh, one wad and multiple pallets recovered inside from the contused upper third of thigh. Number of pallets recovered is 29 (twenty nine).
Muscles, blood vessels (big) and other tissue damaged in the course of the pallets.
Wad and pallets sealed and handed over to P.C. Concerned.
Clothings sealed and handed over to P.C. Concerned.
14. The post-mortem report is Ex. P. 13. This witness was cross- examined. In cross-examination, he admitted that copy of first information report was not sent along with requisition for post-mortem.
6On the second page of the requisition, the name of assailant has not been mentioned. The shirt and Baniyan had no gunshot marks. He admitted that no .315 bullet was recovered from the dead body of the deceased. The gunshot was fired from a close range of 1- 1½ ft.
15. From the evidence of Dr. J.N. Joshi (P.W.10), it is clear that the deceased died a homicidal death.
16. Now the next question for consideration is that whether the Appellant is the author of the offence or not?
17. Sonu Sharma (P.W.1), Raghuvir Singh (P.W. 7) are the eye- witnesses, but they have turned hostile on the question of identity.
18. Arvind Singh (P.W.2) and Rambabu (PW-3) are the witness of arrest, memorandum of Appellant and recovery of Katta, but they have turned hostile, although they admitted their signatures on arrest memo, Ex. P.2, Memorandum, Ex. P.3 and Seizure Memo of Katta, Ex. P.4.
19. Pyarelal (P.W.8) is also a witness of seizure of blood stained earth, but he too turned hostile and did not support the prosecution case.
20. Ravi Rai (P.W.9) is a witness to whom Omprakash Shivhare (P.W.5) had disclosed the name of assailant and the incident, but this witness has turned hostile and did not support the prosecution case.
21. The case is solely based on the evidence of Omprakash Shivhare (P.W.5).
Whether Omprakash Shivhare (P.W.5) is a reliable witness?
22. Omprakash Shivhare (P.W.5) has stated that the Appellant is known to him. Deceased Anand Rai was the brother-in-law of Raghuvir (P.W.7) [Raghuvir and Omprakash are real brothers]. Deceased Anand Rai was working in the hotel of this witness i.e., Laziz Tiffin Center. On 7 22-6-2008, at about 8 P.M., he was standing outside his hotel. The appellant came to his hotel along with his 2-3 companions, who are not known to this witness. Anand Rai was preparing food inside the hotel. The Appellant shot Anand Rai and at that time, this witness was standing near his hotel. Prior to this incident of shooting, one more incident had taken place at 4 P.M. between the Appellant and deceased on the question of serving water. At that time, this witness was not in his hotel and had gone to Gwalior. After he came back from Gwalior, the incident was narrated by the deceased to this witness. The incident was narrated at about 7 P.M. Immediately thereafter, the Appellant also came there. When this witness enquired as to why he had slapped the deceased, then this witness was also slapped by the Appellant. The neighborers intervened in the matter. The Appellant was very aggressive and also extended a threat that he would come back and would tell them a lesson. Accordingly, the Appellant came back at 8 A.M. and committed the offence.
23. The deceased Anand Rai had sustained the injury on his abdominal region. He and his brother Raghuvir were on the spot. The injured was taken to J.A. Hospital in a jeep. Sonu Sharma was also along with them. The deceased was declared dead in the hospital. This witness lodged Dehati Nalishi in the hospital itself. He had telephoned the police, while they were on their way to hospital. The police had also followed them to the hospital. The dead body was sent to dead house, and they were asked to come in the morning. Safina Form, Ex. P.7 was issued. Lash Panchnama, Ex. P.8 was prepared. Spot map, Ex. P.9 was prepared on 23- 6-2008. The blood stained and plain earth was seized from the spot, vide 8 seizure memo Ex. P.10. This witness was cross-examined.
24. In cross-examination, he admitted that he is also a lawyer, but claimed that he is not in active practice. He had got his license in the year 2006. However, he claimed that he has not filed his Vakalatnama in any case. He has not worked under any Senior Advocate. His business is of running a hotel. Hotel was started in the year 2004. The appellant had no enmity with the deceased. The Appellant has no enmity with his family. He denied that the Appellant had not shot Anand Rai. At the time of Lash Panchnama, Ex. P.8, he had not disclosed that the appellant had shot the deceased. He denied that Dehati Nalishi Ex. P.6 was not lodged on 22-6- 2008. It was further stated that after causing gunshot injury, the Appellant ran away. Thereafter, lot of persons gathered there, but he did not inform anybody that the Appellant has shot Anand Rai. He clarified that he did not have any time to do so. He picked up the injured and took him to J.A. Hospital in a jeep. He could not disclose the name of the Driver. He specifically denied that jeep was being driven by Neeraj Yadav. He explained that Neeraj Yadav does not have jeep, but he has Indica. He did not inform Tekanpur police outpost, but informed Billowa Police Station by mobile. His mobile call was attended by A.S.I., D.P. Sharma. He had informed that the Appellant has shot Anand Rai. The Doctors immediately after attending the injured had declared him dead. It was around 8:45 - 9:00 P.M. Police also reached hospital within 5-7 minutes. He had given his statement by 9:00 P.M. He denied that he had not lodged any Dehati Nalishi. The deceased was brought by this witness, his brother Raghuvir and Sonu Sharma. He admitted that the incident took place during night, but denied that it was dark. He admitted that at the 9 time of incident, he was standing outside. Four persons had gone inside the hotel. He denied that he could not see that who shot the deceased. He denied that he was not in his hotel at the time of incident. He denied that at the time of incident, he was in his village Kalyani. He admitted that he did not inform any of his family members about the incident. He claimed that on the contrary, his family members had called him about the incident. He admitted that his clothes as well as the clothes of Raghuvir had got stained with blood, but they were not seized by the police. The deceased was picked up by this witness and Raghuvir. Anand Rai had informed that at the time of first incident, which took place at 4 P.M., Raghuvir was also present. Anand Rai was wearing Pant, Shirt and Baniyan and had not seen any gunshot marks on Shirt and Baniyan. He was unable to say that whether it was .315 bore Katta or .12 bore katta. He further stated that after Anand Rai fell down, he rushed to pick him up. He did not raise any alarm, but had rushed to help him out. He denied that he and his brother Raghuvir were not present at the time of incident. His house is about 110-150 ft.s away from the place of incident. The Hotel of Raghuvir is also situated at a nearby place. He denied that Raghuvir has no hotel. He had not pointed out the hotel of Raghuvir at the time of preparation of spot map. The hotel of Raghuvir is about 30-40 ft.s away from the place of incident. His hotel is in a shop of 8 ft. He denied that the place at which the deceased had suffered gunshot injury is not visible from outside. He does not recognize the companions of the Appellant. He had not pointed out the description of his companions as it was not asked by the police. This witness did not suffer any pallet injury. He admitted that he had come to the Court premises earlier also, 10 but denied that he was pressurizing the family members of the Appellant to enter into a compromise. The evidence of this witness was recorded on 26-2-2009.
25. Thereafter, on 8-11-2010, an application under Section 311 of Cr.P.C. was filed for further cross-examination of the witness. The said application was dismissed by Trial Court by order dated 22-12-2010. thereafter, it appears that the Appellant filed M.Cr.C. No.700/2011 which was dismissed as withdrawn by order dated 7-2-2011, with liberty to move a fresh application. Accordingly, fresh application under Section 311 of Cr.P.C. was filed which was once again dismissed by order dated 20-5-2011. Thereafter, the appellant again filed M.Cr.C. No.No.5860/2011 which was allowed by order dated 23-9-2011, accordingly, this witness was recalled for further cross-examination. His further cross-examination was recorded on 27-4-2012 and in reply to the solitary question, this witness stated that the gunshot was fired from a distance of 30 ft.s. and he had witnessed the incident from the road, which is about 70-75 fts. away from the incident.
26. Raghuvir (P.W.7) has also stated that on 22-6-2008 at about 7:30 P.M., four to five persons came to the hotel. Anand Rai was preparing food. One of the assailants shot the deceased. It was dark and there was no light in the hotel. He also gave a clean chit to the Appellant by claiming that he had not fired at the deceased. The incident was witnessed by Sonu Sharma, Neeraj Yadav, Rajvir Ghuraiya and Ballu Bhadoriya. Thereafter, he informed Billowa Police Station. He, Ravi, Sonu and Neeraj Yadav took the injured to Gwalior hospital, where he was declared dead. The police also reached hospital and issued Safina 11 form, Ex. P.7 and Lash Panchnama, Ex. P.8 was also prepared. He was declared hostile. He was cross-examined and in cross-examination, he stated that he had never informed the police in his police statement, Ex. P.11 that it was the Appellant, who had shot the deceased. In cross- examination by the appellant, he stated that Omprakash Shivhare (P.W.5) was not present at the time of incident. He admitted that he did not lodge any report in the hospital. He further claimed that Omprakash Shivhare (P.W.5) had also not lodged any report. He further claimed that he had informed his brother Omprakash Shivhare (P.W.5) that four to five persons have killed Anand Rai. He further stated that at the time of preparation of Lash Panchnama, Ex. P.8, he had informed the police that some unknown persons have killed Anand Rai. He further admitted that four-five persons had entered inside the hotel to kill Anand Rai. He further claimed that the Appellant was not amongst the assailants.
27. Although this witness has turned hostile, but he has supported the prosecution story, that four -five persons had come and they shot the deceased Anand Rai,while he was preparing food. He also admitted that the incident, took place inside the hotel. He also admitted that police had reached Gwalior Hospital. Thus, in all, this witness did not support the prosecution case on the identity of the accused as well as tried to claim that it was dark and there was no light and Omprakash Shivhare (P.W.5) was not present on the spot.
28. Sonu Sharma (P.W.1) has also supported the prosecution case by stating that 2-3 persons came to the hotel and shot Anand Rai and thereafter, he took the injured to J.A. Hospital where he was declared dead. Thus, he turned hostile on the question of identity and in cross-
12examination by public prosecutor, he denied that Raghuvir (P.W.7) and Omprakash (P.W.5) were also present on the spot.
29. The Counsel for the Appellant was trying to submit that in the light of the evidence of Raghuvir (P.W.7) and Sonu Sharma (P.W.1), it is clear that Omprakash Shivhare (P.W.5) was not present. Accordingly, he was directed to argue on the issue as to whether an eye-witness can be discarded only on the ground that hostile witnesses have denied his presence on the spot or not?
30. It is fairly submitted that the entire evidence of a hostile witness would not stand wipe out and the part of evidence, which supports the prosecution case, can be looked into. He fairly conceded that the evidence of a hostile witness cannot be used for comparing with the evidence of an eye-witness and on the basis of evidence of hostile witness, the presence of an eye-witness cannot be discarded.
31. The Supreme Court in the case of Rameshbhai Mohanbhai Koli v. State of Gujarat, reported in (2011) 11 SCC 111 has held as under :
Hostile witness
16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.)
17. In State of U.P. v. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of 13 the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia v. State of Punjab, Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State.
18. In C. Muniappan v. State of T.N. this Court, after considering all the earlier decisions on this point, summarised the law applicable to the case of hostile witnesses as under:
(SCC pp. 596-97, paras 83-85) "83. ... the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v. State of M.P., State of U.P. v. M.K. Anthony, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, State of Rajasthan v. Om 14 Prakash, Prithu v. State of H.P., State of U.P. v. Santosh Kumar and State v. Saravanan.)"
32. The Supreme Court in the case of Radha Mohan Singh v. State of U.P., reported in (2006) 2 SCC 450 has held as under :
7.......It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (See Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.)
33. The Supreme Court in the case of Arjun Vs. State of Chhatisgarh reported in (2017) 3 SCC 247 has held as under :
15. Though the eyewitnesses PWs 1, 2, 7 and 8 were treated as hostile by the prosecution, their testimony insofar as the place of occurrence and presence of accused in the place of the incident and their questioning as to the cutting of the trees and two accused surrounding the deceased with weapons is not disputed. The trial court as well as the High Court rightly relied upon the evidence of PWs 1, 2, 7 and 8 to the abovesaid extent of corroborating the evidence of PW 6 Shivprasad. Merely because the witnesses have turned hostile in part their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be dependable and the Court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution.
16. In Paramjeet Singh v. State of Uttarakhand, it was held as under: (SCC pp. 448-49, paras 16-20) "16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, 15 the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani.)
17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. observed as under: (SCC p. 457, para 7) '7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.'
18. In Mahesh v. State of Maharashtra this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) '49. ... If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution.'
19. In Rajendra v. State of U.P. this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be 16 totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.
20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
The same view is reiterated in Mrinal Das v. State of Tripura in para 67 and also in Khachar Dipu v. State of Gujarat in para 17.
34. Thus, the entire evidence of a hostile witness would not stand effaced off the record, and that part of incident can be looked into which corroborates the prosecution or defence of the accused.
35. However, the evidence of an eye-witness cannot be discarded merely on the ground that the hostile witness has denied his presence on the spot.
36. If the evidence of Raghuvir (P.W.7) and Sonu Sharma (P.W.1) is considered, then it is clear that they have supported the prosecution case to the effect that four to five persons came inside the hotel. At the relevant time, Anand Rai was preparing meals. One of the assailants fired a gunshot causing injury to the deceased Anand Rai. Thereafter, all the assailants ran away. The injured Anand Rai was immediately taken to J.A. Hospital on a jeep, where he was declared dead and in the meanwhile, police also reached Hospital.
37. It is the case of the prosecution that Omprakash Shivhare (P.W.5) lodged a Dehati Nalishi, Ex. P.6 in J.A. Hospital. If the evidence of Raghuvir (P.W.7) which is to the effect that Omprakash Shivhare (P.W.5) 17 had not seen the incident is considered, then why Raghuvir (P.W.7) did not lodge the FIR. He has admitted in his evidence that he did not lodge any FIR. Further, as per post-mortem report, Ex. P.13, the dead body was identified by Omprakash Shivhare (P.W.5). The spot map, Ex. P.9 was prepared on the instructions of Omprakash Shivhare (P.W.5). Blood stained and plain earth were seized from the spot and Omprakash Shivhare (P.W.5) is one of the seizure witness. The clothes of the deceased were seized vide seizure memo Ex. P.5 and Omprakash Shivhare (P.W.5) was one of the seizure witness. Dehati Nalishi, Ex. P.6 was lodged by Omprakash Shivhare (P.W.5) at 21:00, whereas the incident had taken place at 20:00. Thus, it is clear that presence of Omprakash Shivhare (P.W.5) on the spot cannot be doubted and he cannot be disbelieved, only because the hostile witness has denied his presence on the spot. Further, the evidence of Omprakash Shivhare (P.W.5) that three to four more persons had come and the incident took place inside the hotel and at the relevant time, the deceased Anand Rai was preparing meals, and after the incident, the injured Anand Rai was immediately taken to J.A. Hospital where he was declared dead and by that time, Police had also reached the hospital finds full corroboration from the evidence of Raghuvir (P.W.7). Sonu Sharma (P.W.1) also corroborates the evidence of Omprakash Shivhare (P.W.5) so far the number of assailants are concerned. Sonu Sharma (P.W.1) also corroborates the prosecution story that 2-3 persons had come and the deceased Anand Rai was shot and thereafter, the injured was taken to J.A. Hospital, where he was declared dead.
38. J.B.S. Chauhan (P.W.13) is the investigating officer. He has also 18 stated that Dehati Nalishi, Ex. P.6 was written by him in the hospital, on the information given by Omprakash Shivhare (P.W.5).
39. Further, undisputedly, the incident took place inside the hotel of Omprakash Shivhare (P.W.5), therefore, his presence on the spot is also natural. The immediate conduct of Omprakash Shivhare (P.W.5) in informing the police on mobile also establishes that he was present on the spot.
40. Furthermore, the Appellant himself has examined Neeraj Yadav (D.W.1). Neeraj Yadav had claimed that although at the time of incident, Omprakash Shivhare (P.W.5) was not present on the spot, but he came on the spot on the information given by Raghuvir (P.W.7) and also went to hospital along with injured/deceased. Thus, it is clear that Omprakash Shivhare (P.W.5) had gone to the hospital along with injured/deceased, which corroborates the evidence of Omprakash Shivhare (P.W.5).
41. Thus, Omprakash Shivhare (P.W.5) is a reliable witness. Light at the place of incident
42. It is submitted by the Counsel for the Appellant that since, Raghuvir (P.W.7) has claimed that there was no light in the hotel, therefore, it is clear that it was dark and it was not possible to identify any assailant.
43. Considered the submissions made by the Counsel for the Appellant.
44. Even the hostile witness Raghuvir (P.W.7) has stated that at the time of incident, Anand Rai was preparing meals and the incident took place inside the hotel. The Appellant has not come up with any evidence to show that there was load shedding at the time of incident. If there was 19 no light in the hotel, then the question of preparing meals by Anand Rai also does not arise. The fact that Anand Rai was preparing food, clearly establishes that there was light in the hotel. Further, it is clear from the spot map, Ex. P.9, the investigating officer had found lot of blood inside the shop. Thus, it is held that there was light inside the hotel, and Omprakash Shivhare (P.W.5) had ample opportunity to see and identify the Appellant who was already known to him.
45. Neeraj Yadav (D.W.1) had also stated that the incident took place inside the hotel and did not claim that there was no light.
46. Further, Omprakash Shivhare (P.W.5) appears to be an honest witness. He did not try to over implicate any other person. Sonu Sharma (P.W.1), Omprakash Shivhare (P.W.5) and Raghuvir (P.W.7) have specifically stated that 3-4 persons had come.
Non-Recovery of Blood stained clothes of the witnesses
47. It is submitted by the Counsel for the Appellant that since, the blood stained clothes of Omprakash Shivhare (P.W.5) were not seized by the Police, therefore, it is clear that he was not present on the spot.
48. Considered the submissions made by the Counsel for the Appellant.
49. Omprakash Shivhare (P.W.5) has specifically stated that he, Raghuvir (P.W.7) and Sonu Sharma (P.W.1) took the injured to Hospital. Raghuvir (P.W.7) has also admitted that he took the injured to Hospital. Sonu Sharma (P.W.1) has also admitted that he too went to J.A. Hospital. But the police did not seize the clothes of any of the witness. Thus, it is a case of defective investigation.
50. It is well established principle of law that defective investigation 20 on the part of the investigating officer, would not give any dent to the prosecution case.
51. The Supreme Court in the case of Visveswaran v. State Rep. By S.D.M. reported in (2003) 6 SCC 73 has held as under :
12........It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
52. The Supreme Court in the case of Ganga Singh v. State of M.P. reported in (2013) 7 SCC 278 has held as under :
17. We are also unable to accept the submission of Mr Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt should be given to the appellant and he should be acquitted of the charge of rape. The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence.
Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW 5 as corroborated by the evidence of PW 2 and the FIR establish beyond reasonable doubt that the appellant has committed rape on PW 5 and thus the appellant is not entitled to acquittal. .
53. The Supreme Court in the case of Abu Thakir v. State of T.N., reported in (2010) 5 SCC 91 has held as under :
2136. We may have to deal with yet another submission made by the learned Senior Counsel for the appellants that the investigation was not fair as there were many missing links in the process of investigation. This submission was made by the learned counsel contending that the investigation does not reveal as to how the investigating officer came to know about the presence of PWs 2 to 4 at the scene of occurrence and for recording their statements in that regard.
37. This Court in State of Karnataka v. K. Yarappa Reddy held that: (SCC p. 720, para 19) "19. ... even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. ... Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
The ratio of the judgment in that case is the complete answer to the submission made by the learned Senior Counsel for the appellants.
54. Thus, where the evidence led by prosecution is reliable, then the same cannot be thrown merely on the ground that the blood stained clothes of the witnesses were not seized by the police. Variance in Ocular and Medical Evidence.
55. It is submitted by the Counsel for the Appellant that according to Dr. J.N. Joshi (P.W.10) blackening was found around the wound and gunshot was fired from a close range of 1-1 ½ ft., whereas Omprakash Shivhare (P.W.5) has stated that gunshot was fired from a distance of 30 ft.s. Thus, it is clear that there is a material difference between ocular evidence and medical evidence.
2256. Considered the submissions made by the Counsel for the Appellant.
57. It has already been pointed out that the evidence of Omprakash Shivhare (P.W.5) was recorded on 26-2-2009. Thereafter, he was recalled and he was further cross-examined on 27-4-2012 i.e., after more than 3 years of his evidence.
58. The Supreme Court in the case of Vinod Kumar Vs. State of Punjab reported in (2015) 3 SCC 220 has held as under :
51. It is necessary, though painful, to note that PW 7 was examined-in-chief on 30-9-1999 and was cross-examined on 25-5-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined.
52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the court on 13-9-
1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in the court. It has also been accepted by him that he had given the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his 23 statement dated 13-9-1999 after going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-9-1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
53. Reading the evidence in entirety, PW 7's evidence cannot be brushed aside. The delay in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination-in-chief and the re- examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination.
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57. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts:
57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. 57.2. As has been noticed earlier, in the instant case the cross-
examination has taken place after a year and 8 months allowing ample time to pressurise the witness and to gain over him by adopting all kinds of tactics.
2457.3. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons.
57.4. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross- examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.
57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.
2559. The Supreme Court in the case of Khujji v. State of M.P., reported in (1991) 3 SCC 627 has held as under :
3........The High Court while ignoring the evidence of PW 3 Kishan Lal and PW 4 Ramesh relied on the evidence of PW 1 Komal Chand and came to the conclusion that his evidence clearly established the presence of the appellant as one of the assailants notwithstanding his effort in cross-examination to wriggle out of his statement in examination-in-chief in regard to the identity of the appellant. The High Court noticed that the examination-in-chief of this witness was recorded on November 16, 1976 whereas his cross-examination commenced on December 15, 1976 i.e. after a month and in between he seemed to have been won over or had succumbed to threat. This inference was drawn on the basis of PW 3's statement that he was severely beaten on the night previous to his appearance in court as a witness. The High Court, therefore, took the view that the subsequent attempt of PW 1 Komal Chand to create a doubt regarding the identity of the appellant was of no consequence since there was intrinsic material in his evidence to establish the presence of the appellant amongst the assailants of deceased Gulab.......
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7......We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief.
Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed with the trial court for rejecting his evidence. We agree with the High Court that his evidence is acceptable 26 regarding the time, place and manner of the incident as well as the identity of the assailants.
60. Thus, in the light of his examination-in-chief as well as cross- examination which was done more than 3 years prior to his further cross- examination, this Court is of the considered opinion, that whatever was stated by Omprakash Shivhare (P.W.5) on 27-4-2012 was a clear attempt to wriggle out of what was stated by him in his examination-in-chief and cross-examination recorded on 26-2-2009. Furthermore, Omprakash Shivhare (P.W.5) had specifically stated that his shop is of 8 ft. only. It is the case of Omprakash Shivhare (P.W.5) as well as Raghuvir (P.W.7) that Anand Rai was shot inside the shop. Even it is clear from the spot map, Ex. P.9, that blood was found inside the shop. Therefore, the further cross-examination of this witness on 27-4-2012 is ignored. Seizure of .315 bore Katta, whereas pallet injuries were found which cannot be caused by .315 bore katta
61. It was further submitted by the Counsel for the Appellant that according to seizure memo Ex. P.4, one .12 bore Katta was seized from the possession of Appellant, whereas according to F.S.L. Report, Ex. P.13, one .315 bore Katta was sent, which clearly indicates, that .12 bore Katta was not seized. Since, no bullet injury was found, therefore, it is clear that .315 bore Katta was not used.
62. Heard the learned Counsel for the Appellant.
63. J.B.S. Chauhan (P.W.13) has stated that he had seized .12 bore Katta. However, he specifically stated that the seized Katta was not sent by him for examination. He categorically stated that he had seized .12 bore Katta.
64. Ramvaran Sharma (P.W.12) is the Armorer who had examined the 27 seized Katta. According to him, .315 bore Katta was sent to him for examination. Similarly, as per F.S.L. report, .315 bore Katta was sent for examination. Similarly sanction for prosecution under Arms Act, Ex. P.16 was also granted after inspecting .315 bore Katta. Thus, in the light of the evidence of J.B.S. Chauhan (P.W.13), it is clear that somebody else must have manipulated the seized Katta and .12 bore Katta, which was seized by the investigating officer, was replaced by .315 bore Katta. This manipulation on the part of the prosecution agency clearly shows that some black sheeps are also working in the prosecution agency. Therefore, it is a matter which is to be looked into by the police department, but, in view of the evidence of J.B.S. Chauhan (P.W.13), seizure memo Ex. P.4 as well as the Post-mortem report, Ex. P.13, it is clear that .12 bore Katta was seized from the possession of the Appellant, but since, the sanction for prosecution under Sections 25 and 27 of the Arms Act was granted after inspecting the .315 bore Katta, therefore, the sanction for prosecution, Ex. P.16 cannot be held to be a valid sanction, accordingly, the Appellant cannot be convicted under Sections 25 and 27 of Arms Act.
65. Under these circumstances, it can be said that the prosecution has failed to prove the seizure of weapon of offence.
66. The Supreme Court in the case of Rakesh v. State of U.P., reported in (2021) 7 SCC 188 has held as under :
12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for 28 killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non..........
67. The Supreme Court in the case of Gulab Vs. State of U.P. by judgment dated 9-12-2021 passed in Cr.A. No. 81 of 2021 has held as under :
C.2 Failure to recover the weapon and examine a ballistic expert
17. The deceased had sustained a gun-shot injury with a point of entry and exit. The non-recovery of the weapon of offences would therefore not discredit the case of the prosecution which has relied on the eyewitness accounts of PWs 1, 2 and 3. In Sukhwant Singh v. State of Punjab , Dr A S Anand (as the learned Chief Justice then was) speaking for a two-judge Bench held:
"21. There is yet another infirmity in this case. We find that whereas an empty [sic] had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty [sic] and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent."29
(emphasis supplied) The above extract which has been relied upon by the learned Counsel for the appellant emphasises that in a case where injury has been caused by a firearm, the opinion of the ballistic expert is of considerable importance where both the firearm and the crime cartridge had been recovered during the investigation. Failure to produce the expert opinion in such a case affects the creditworthiness of the prosecution case. 18 However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab5 , has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held:
"41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of 30 these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. PART C 19 Therefore, we do not think that Mr Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
(emphasis supplied)
19. Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh6 had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted:
"18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that 31 no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non- examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses."
20 The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eye- witnesses.
Absence of gunshot marks on shirt and Baniyan of deceased
68. It is submitted by the Counsel for the Appellant that since, no gunshot marks were found on the shirt and baniyan of the deceased, therefore, it is clear that circumstances do not corroborate the evidence of Omprakash Shivhare (P.W.5), Raghuvir (P.W.7) and Sonu Sharma (P.W.1).
69. Considered the submissions made by the Counsel for the Appellant.
70. As per the post-mortem report, Ex. P.13, gunshot injury was found on left side lower abdomen 12 cm from midline 5 X 2.5 cm vertically oval. Wound was extending downwards anterior to the pubic bone in thigh, one wad and multiple pallets were recovered from the wound. Thus, it is clear that no injury was found on the upper part of the body of deceased. As per F.S.L. report, gunshot marks were found on the pant of the deceased and led was found around the gunshot marks. Similarly, 32 gunshot mark was found on the underwear with led and nitrate around the gunshot mark.
71. Thus, the contention of the Counsel for the Appellant that no gunshot was found on the shirt and baniyan of the deceased is misconceived and misleading, thus rejected.
Non-examination of Independent witnesses
72. It is submitted by the Counsel for the Appellant, that the incident took place in a busy market, but no independent witness was examined.
73. Considered the submissions made by the Counsel for the Appellant.
74. J.B.S. Chauhan (P.W.13), in para 8 of his cross-examination has stated that no independent witness was ready to give statement.
75. The Supreme Court in the case of Mahesh v. State of Maharashtra, reported in (2008) 13 SCC 271 has held as under :
54. This Court in Salim Sahab v. State of M.P. held that: (SCC pp. 701 & 703, paras 11 & 14-15) "11. ... [mere relationship] is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
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14. ... in Masalti v. State of U.P. this Court observed:
(AIR pp. 209-10, para 14) 'But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan 33 would invariably lead to failure of justice. No hard-and- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'
15. To the same effect are the decisions in State of Punjab v. Jagir Singh, Lehna v. State of Haryana and Gangadhar Behera v. State of Orissa."
55. As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.
76. The Supreme Court in the case of Nagarjit Ahir Vs. State of Bihar reported in (2005) 10 SCC 369 has held as under :
12. It was then submitted that in spite of the fact that a large 34 number of persons had assembled at the bank of the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony.
The fact that they are related to the deceased is the reason why they were attacked by the appellants. Moreover, in such situations though many people may have seen the occurrence, it may not be possible for the prosecution to examine each one of them. In fact, there is evidence on record to suggest that when the occurrence took place, people started running helter-skelter. In such a situation it would be indeed difficult to find out the other persons who had witnessed the occuence. In any event, we have the evidence of as many as 7 witnesses, 4 of them injured, whose evidence has been found to be reliable by the courts below, and we find no reason to take a different view.
77. The Supreme Court in the case of Sadhu Saran Singh v. State of U.P., reported in (2016) 4 SCC 357 has held as under :
29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
78. Nowadays, the independent witnesses hesitate in coming forward to depose in the matter. There may be various reasons for same, like the independent witnesses under apprehension that the accused party may 35 develop grudge against them may not be interested in becoming a part of investigation, or may not be interested in coming to Court for deposing in the matter etc. Thus, where the investigating officer becomes handicap due to non-cooperation by the independent witnesses, then the prosecution cannot be thrown overboard for the reason that the independent witnesses had refused to come forward to help out the investigating agency.
Motive
79. It is submitted by the Counsel for the Appellant that the prosecution has failed to prove any motive on the part of the Appellant.
80. Considered the submissions made by the Counsel for the Appellant.
81. Omprakash Shivhare (P.W.5) has specifically stated that at about 7 P.M. he came back to his hotel, then he was informed by Anand Rai, that at about 4 P.M., the Appellant had come to Hotel and demanded for water. Since, there was some delay in serving water, therefore, he was slapped by the Appellant. He has further stated that at that time, the Appellant also came to his Hotel. This witness also enquired from Appellant as to why he slapped Anand Rai, then not only, this witness was also slapped by the Appellant, but the Appellant went back after extending a threat that he would see them. Thereafter, at 8 P.M., the Appellant came back along with his companions and shot the deceased.
82. Thus, the motive has been specifically attributed by the prosecution. Even otherwise, it is well established principle of law that in a case of direct evidence, absence of motive will not have any adverse effect on the prosecution case.
3683. The Supreme Court in the case of Bikau Pandey v. State of Bihar, reported in (2003) 12 SCC 616 has held as under :
12.........Even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime.......
84. The Supreme Court in the case of Hari Shanker v. State of U.P., reported in (1996) 9 SCC 40 has held as under :
6......However, even if we accept that there was no motive for the crime, yet the direct evidence was not liable to be rejected.
It is settled law that if the genesis of the motive of the occurrence was not proved the ocular testimony of the witnesses as to the occurrence could not be discarded only by reason of the absence of motive, if otherwise the evidence was worthy of reliance......
85. The Supreme Court in the case of State of U.P. v. Babu Ram, reported in (2000) 4 SCC 515 has held as under :
11. We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the investigating officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them 37 due to the ban imposed by law.
12. In this context we would reiterate what this Court has said about the value of motive evidence and the consequences of the prosecution failing to prove it, in Nathuni Yadav v. State of Bihar and State of H.P. v. Jeet Singh. The following passage can be quoted from the latter decision: (SCC p. 380, para 33) "33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
13. The present is not a case of complete dearth of motive. The respondent himself said about the motive and PW 6 confirmed it. Such a motive may appear to some persons as inadequate for liquidating one's own parents. But any rancour burgeoning in the mind of an offender can foment wicked thoughts which may even flame up to a flashpoint. So we are unable to concur with the High Court's view that the motive factor has weakened the prosecution case.
86. The Supreme Court in the case of Molu v. State of Haryana, reported in (1976) 4 SCC 362 has held as under :
11. Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes 38 more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eyewitnesses is creditworthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with the High Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt.
87. If the evidence which has come on record is considered then it is clear that it is not a case where no motive was alleged at all. What was going on in the mind of the Appellant, cannot be judged. Furthermore, this Court has already found that the direct evidence led by the prosecution is trustworthy and reliable. Therefore, the contention of the Counsel for the Appellant that the prosecution has failed to prove motive is misconceived and is hereby rejected.
Non-mention of name of appellant in Lash Panchnama
88. It is submitted by the Counsel for the Appellant that though Omprakash Shivhare (P.W.5) claims himself to be an eye-witness, and was also signatory to Lash Panchnama, but did not disclose the incident in Lash Panchnama, therefore, it is clear that he had not seen the incident.
89. Heard the learned Counsel for the Appellant.
90. The Inquest report is not a substantive piece of evidence. The purpose of inquest report is ascertain the apparent cause of death. The inquest report is not supposed to contain the names of the accused persons. The Supreme Court in the case of Yogesh Singh v. Mahabeer Singh, reported in (2017) 11 SCC 195 has held as under :
41. Further, the evidentiary value of the inquest report prepared under Section 174 CrPC has also been long settled through a series of judicial pronouncements of this Court. It is well 39 established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery, etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted. (See Pedda Narayana v. State of A.P., Khujji v. State of M.P., Kuldip Singh v. State of Punjab, George v. State of Kerala, Suresh Rai v. State of Bihar, Amar Singh v.
Balwinder Singh, Radha Mohan Singh v. State of U.P. and Sambhu Das v. State of Assam.)
91. The Supreme Court in the case of Sk. Ayub v. State of Maharashtra, reported in (1998) 9 SCC 521 has held as under :
5.......There is no requirement of law or any rule that an inquest panchnama should contain name of the accused. An inquest panchnama is a report required to be made by the Investigating Officer with respect to the apparent cause of death. It is to be prepared in the presence of two or more respectable inhabitants of the neighbourhood and has to describe the wounds, fractures, bruises and other marks of injuries as are found on the dead body and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. Therefore, from the absence of the name of accused in the panchnamas it cannot be inferred that his name was not disclosed as the murderer till they were completed.
92. The Supreme Court in the case of Brahm Swaroop v. State of U.P. reported in, (2011) 6 SCC 288 has held as under :
Inquest: Section 174 CrPC
8. Undoubtedly, there are five blanks in the inquest report. The crime number and names of the accused have not been filled up. The column for filling up the penal provisions under which offences have been committed is blank. The time of incident and time of dispatch of the special report have not been mentioned. Therefore, Shri Tulsi has submitted that the FIR is ante-timed and there is manipulation in the case of the 40 prosecution.
9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause.
The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.
10. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See Pedda Narayana v. State of A.P., Khujji v. State of M.P., George v. State of Kerala, Sk. Ayub v. State of Maharashtra, Suresh Rai v. State of Bihar, Amar Singh v. Balwinder Singh, Radha Mohan Singh v. State of U.P. and Aqeel Ahmad v. State of U.P.)
11. In Radha Mohan Singh, a three-Judge Bench of this Court held: (SCC p. 460, para 11) "11. ... No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in 41 the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in court."
93. Since, the purpose of inquest proceedings is not to find out the names of the assailants, therefore, non-mention of their names in the inquest report would not lead to a conclusion that FIR was ante-dated or ante-timed.
94. It is next contended by the Counsel for the Appellant that the Appellant is in jail for the last more than 14 years.
95. This submission made by the Counsel for the Appellant is contrary to record. As per certificate issued under Section 428 of Cr.P.C., it is clear that the Appellant was arrested on 8-7-2008 and was released on bail on 29-5-2009. Thus, he had remained in jail as an undertrial for a period of 323 days. Thereafter, he is in jail from 1-6-2012. Thus, in all he has completed 11 years of incarceration. Furthermore, for offence under Section 302 of IPC, the minimum sentence is Life Imprisonment. Therefore, the period of incarceration is of no importance.
96. No other argument was advanced by the Counsel for the Appellant.
97. Considering the above mentioned discussions, this Court is of the considered opinion, that conviction of the Appellant by the Trial Court, for offence under Section 302 of IPC is well founded. Therefore, his conviction under Section 302 of IPC is hereby upheld.
98. However, the conviction of Appellant for offence under Section 27 of Arms Act is hereby set aside for the reasons mentioned in para 63 and 64 of this Judgment.
99. So far as the question of sentence is concerned, since, the 42 minimum sentence is Life Imprisonment, therefore, sentence awarded by Trial Court for offence under Section 302 of IPC does not call for any interference.
100. Ex-consequenti, the judgment and sentence dated 1-6-2012 passed by 1st Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.326/2008 is upheld with aforesaid modifications.
101. The Appellant is in jail. He shall undergo the remaining jail sentence.
102. Let a copy of this judgment be provided to the Appellant immediately, free of cost.
103. The record of the Trial Court be sent back along with copy of this judgment for necessary information and compliance.
104. The Appeal partially succeeds and is partially allowed to the extent mentioned above. However, the conviction and sentence of the Appellant for offence under Section 302 of IPC is upheld.
(G.S. AHLUWALIA) (RAJEEV KUMAR SHRIVASTAVA)
JUDGE JUDGE
ARUN KUMAR MISHRA
2022.08.22 18:17:18 +05'30'