Jawahar Alias Babu Ram vs State Of U.P. on 17 January, 2020

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Allahabad High Court

Jawahar Alias Babu Ram vs State Of U.P. on 17 January, 2020

Equivalent citations: AIRONLINE 2020 ALL 161

( Delivered by Hon'ble Naheed Ara Moonis, J ) This Criminal Appeal has been filed against the judgement and order dated 17.07.2009 passed by the learned Additional Sessions Judge (Fast Track ) Court No. 3, Maharajganj in Session Trial No. 158 of 2004 arising out of Case Crime No. 115 of 2004, under Section 302 IPC and Session Trial No. 159 of 2004 arising out of Case Crime No. 121 of 2004, under Sections 25/27 of Arms Act, police station Ghughli, district Maharajganj whereby the learned Judge convicted and sentenced the appellant to life imprisonment and a fine of Rs. 5,000/- under Section 302 IPC and five years rigorous imprisonment and a fine of Rs. 1000/- under Sections 25/27 of the Arms Act. In case of default, the appellant was further directed to undergo rigorous imprisonment for six months in both the session trials. However, both the sentences were directed to run concurrently.

The emanation of facts giving rise to the case of the prosecution are that a written report was handed over by the first informant Hari Narayan, son of Maniraj Chaudhary, village Harkhi Tola police station Ghughli, district Maharajganj to the effect that the complainant is the permanent resident of village Harkhi Tola Nipaniya, police station Ghughli, district Maharajganj. On the fateful day, i.e. (01.9.2004) at about 6.00 AM, when his Samdhi Lalman Chaudhary, son of Ram Kishun (daughter's father-in-law), who resided in the same village, was coming back to his village from Harkhi Miner situated in south-east after attending the call of nature, Jawahar alias Baburam (appellant) who is the son of the first wife of Lalman Chaudhary shot at him at the canal as he was inimical with his father due to litigation in respect of family property. After Lalman Chaudhary fell down, his son (the appellant) hacked him to death with a sharp edged weapon. On hearing the sound of firing Mahendra Gaud, Rakesh, Pauhari and several other persons who were present at the spot rushed towards and tried to chase the accused to nab Jawahar alias Baburam, but he managed to escape towards southern side by taking shelter of paddy and sugar-cane crops. It was further mentioned in the report that dead body is lying at the spot.

On the basis of the aforesaid report, which was scribed by Ram Suresh, son of Ugai, village Sonevarsa, the FIR was registered at 8.15 AM on the same day as Case Crime No. 115 of 2004, under Section 302 IPC, police station Ghughli, district Maharajganj.

After the registration of the case, the criminal law set into motion and investigation of the case was entrusted to PW-17, SI Kushal Pal Singh, who copied the FIR in the case diary and thereafter left for the place of occurrence along with PW-12, SI B.L. Chaudhary, Constable Sushil Singh, Constable Brij Bhushan Tiwari and Constable Kishun Dev Prasad where Constable Adha Singh, Constable Jagat Pati Mishra, Constable Uma Shanker Yadav and Constable Vishwanath Chaurasia were already present. Complainant and other villagers also reached at the spot where the cadaver of deceased Lalman Chaudhary was lying. The investigating officer after nominating Kapil Dev Shukla, Pauhari, Kanhai, Harakhman and Hari Shanker as witnesses of inquest, conducted the inquest on the cadaver of the deceased Lalman Chaudhary between 9.30 AM to 11.15 AM on 01.9.2004 in accordance with the procedure prescribed and also prepared papers in respect of inquest, photonash, police paper, report of RI, letter to the Chief Medical Officer and sample. He got the dead body of the deceased sealed and handed over to Constable Jagpat Mishra and Constable Brij Bhushan Tiwari for the post mortem examination. The investigating officer recorded the statement of the first informant Hari Narayan and witnesses Mahendra Gaud and Rakesh Gaud and inspected the spot and prepared site plan on the pointing out of the witnesses (Ext. Ka-14 ). He also collected bloodstained and simple earth, one pair sleeper and one steel pot (Lota) and prepared memos thereof. The investigating officer kept the bloodstained and simple earth in two separate containers and got it sealed. On 01.9.2004, the investigating officer recovered the sleeper of left foot of the accused from the paddy field of Mahesh Chaudhary, which was left while he was running away and prepared its memo (Ext. Ka-15). Thereafter, the investigating officer left for village Harkhi Tola Nipania where he recorded the statement of Ram Suresh, scribe of the FIR. Thereafter, the investigating officer ensued the investigation and raided the house of the accused, but he could not be arrested. On 03.9.2004, he again left for the arrest of the accused, but his whereabouts could not be known. On 04.9.2004, 06.9.2004, 07.9.2004 and 10.9.2004 he raided several places, but accused could not be apprehended. On 11.9.2004, on the information of the informer, accused was arrested from Kaptanganj. On interrogation he confessed that due to property dispute, he has committed the murder of his father and narrated the manner in which he committed the murder. The accused got one country made pistol 315 bore, one empty cartridge 315 bore, one live cartridge 315 bore and one household knife with sharp edge, which contained bloodstained, recovered, in the presence of police personnel, which were kept in white polythene and concealed under the ground after removing shrubs and soil near an old well. The accused also got his own sleeper of right foot recovered. The recovered items were sealed vide Exhibit Ka-17. A copy of the memo was also handed over to the accused duly signed by the witnesses. The aforesaid items were sent to the Forensic Science Laboratory, Lucknow on the order of the Chief Judicial Magistrate, Maharanganj.

After the recovery of country made pistol, cartridges and knife, a case was also registered against the accused-appellant as Case Crime No. 121 of 2004, under Section 25/27 of the Arms Act, police station Ghughli, district Maharajganj.

The investigating officer prepared the site plan of the place from where weapons of assault and other incriminating articles were recovered on the pointing out of the accused-appellant (Ext. Ka-18.) He also recorded the statement of the accused under Section 161 Cr.P.C. and also got the statement of the accused under Section 164 Cr.P.C. recorded.

In the interregnum period, the post-mortem of the deceased Lalman Chaudhary was conducted on 02.9.2004 at 3.00 PM in the District Hospital by Dr. H.S. Lal Sonkar, PW-14. The investigating officer collected clinching and credible evidence and after completion of investigation, the investigating officer submitted charge sheet against the accused-appellant on 18.10.2004 under Section 302 IPC (Ext. Ka-20).

The investigation of Case Crime No. 121 of 2004, under Sections 25/27 of the Arms Act was carried out by PW-16, SI Jai Prakash Singh. On 17.9.2004, he recorded the statement of SO Shri Kushal Pal Singh Yadav, PW-17 and on his pointing out he prepared site plan, which he proved as Ext. Ka-7. Thereafter, he recorded the statement of Nar Singh, Deena, Harendra Shukla and Ram Adhar Pandey. On 20.9.2004, he sought permission from the District Magistrate for prosecution of the accused-appellant and thereafter submitted charge sheet, which he proved as Ext. Ka-8.

As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions, where case was registered as ST Nos. 158 of 2004 and 159 of 2004 and the learned Sessions Judge, Maharajganj vide order dated 22.11.2005 framed the charges against the accused under Section 302 IPC in ST No. 158 of 2004 and under Sections 25/27 of the Arms Act in ST No. 159 of 2004, which were read over and explained to the accused. The accused-appellant abjured the charges by pleading not guilty and claimed to be tried, hence the prosecution was called upon to lead the evidence.

To bring home the guilt of the accused-appellant beyond the hilt, the prosecution has examined as many as 18 witnesses, out of whom PW-1, Hari Narayan is the first informant of the case, PW-2, Rakesh, PW-3, Pauhari and PW 6 Mahendra are the witnesses of facts, PW-4, Ram Raksha Singh and PW-7 Kapil Dev Shukla are the witnesses of inquest and recovery of bloodstained earth, PW-5, Ram Suresh is the scribe of the FIR, PW-8, Kanhaiya Singh and PW-10, Hari Shanker are the witnesses of inquest, PW-9, Ram Adhar Pandey, PW- 12, SSI B.L. Chaudhary and PW-13, Surendra Shukla and PW-18, Adya Singh are the witnesses of recovery of weapon of assault, PW-11, Constable-Muharrir R.S. Prasad prepared chik FIR at case crime No. 115 of 2004, under Section 302 IPC, PW-14, Dr. H.S. Lal Sonkar conducted the post-mortem examination on the cadaver of the deceased, PW-15, Constable Chandra Bhushan prepared chik FIR of case crime No. 121 of 2004, under Sections 25/27 of the Arms Act, PW-16, SI Jai Prakash is the investigating officer of case crime No. 121 of 2004, under Section 25/27 of the Arms Act, PW-17, SI Kushal Pal Singh, the investigating officer of case crime No. 115 of 2004, under Section 302 IPC, PS Ghughli, district Maharajganj.

PW-1, Hari Narayan is the first informant of the case. He has deposed that his daughter was married to another son of the deceased. Accused Jawahar alias Babu Ram is also the son of the deceased and resides in his village. Deceased was killed at 6.00 AM while he had gone to attend the call of nature at Harkhi Miner. When he was coming back, accused Jawahar alias Babu Ram Chaudhary fired at him and as soon as he fell down, accused Jawahar Slashed his throat with the knife. On hearing the fire of country made pistol, several persons hailing to the same village rushed to the spot. He (P.W-1) also rushed to the spot while he was going to attend nature's call and saw that accused slit the neck of the deceased and ran away. He tried to chase the accused, but in vain. He further deposed that he Knew Jawahar alias Baburam, who is standing in the court. The report of the incident scribed by PW-5, Ram Suresh, resident of Sonvarsa and signed by him was handed over at the police station, which he proved as Ext. Ka-1. Ram Suresh had come to the village on the date of incident. Deceased-Lalman had purchased 3 acres and 70 decimal of land in the name of his son Babu Ram alias Jawahar and Janardan. Lalman had two wives. Accused Jawahar and Janardan were the son of Israrwati, the first wife of the deceased. The name of his second wife was Vimla, with whom were three children namely Mahavir, Durgawati and Kumari Sati. Deceased Lalman had given one acre and 87 decimal of land in favour of Mahavir whereas the rest of land was sole in favour of Medhai alias Arjun. He had also given some land to his daughter Durgawati and Kumari Sati but accused-Jawahar was demanding his share from the ancestral land also, due to which accused-appellant Jawahar was angry with the deceased-Lalman. He also deposed that three years ago, Janardan, his wife Rambha, Jawahar alias Babu Ram and his wife, all the four persons had assaulted Lalman and his second wife Vimla. Later on, Vimla succumbed to the injury on the way to hospital. In the murder case of Vimla, deceased-Lalman was doing Pairvi, due to which Jawahar was nurturing animus and grudge, hence eliminated him.

In the lengthy cross-examination, nothing has been come out contrary to the examination-in-chief.

PW-2, Rakesh has deposed in his examination-in-chief on oath that accused-Jawahar and deceased-Lalman were son and father. Lalman was murdered less than 2 years ago at about 6.00 AM in the morning. Both of them resided in his village. Deceased-Lalman was murdered at the canal of Harkhi Tola. On hearing the sound of fire, when he rushed to the spot, several persons of the village were already gathered at the spot. He saw that the deceased fell down on receiving firearm injuries. He did not see that Jawahar fired at the deceased or hacked the deceased to death. He further deposed that he did not see the occurrence nor he chased the accused Jawahar along with other person. When he reached at the spot, he had seen the dead body of the deceased Lalman. He was already dead. At this stage, PW-2, Rakesh was declared hostile and the prosecution was permitted to cross-examine him. He denied that his statement under Section 161 Cr.P.C. was never recorded. He has not seen Jawahar murdered Lalman with firearm weapon. He reached at the spot firstly. Later on, Hari Narayan (PW-1) reached at the spot after half an hour. It was dark when Lalman was decimated .

PW-3, Pauhari, in his evidence has deposed that he knew the deceased. Accused-Jawahar was the son of the deceased. Lalman has been killed. On the date of incident at about 6.00 AM, Lalman was coming towards the village after attending the call of nature from west to east, whereas accused Jawahar was going to west towards the canal Harkhi Miner. When they crossed each other, at that juncture accused Jawahar fired at the deceased-Lalman. He saw the accused firing at the deceased. He also heard the sound of fire. On receiving the shot, deceased fell down at the northern side track of the canal. Thereafter accused Jawahar had slit his throat. He rushed to the spot and asked the accused as to what is he doing. Thereupon accused Jawahar ran away through paddy and sugar cane field towards south of the canal. Effort was made to apprehend the accused, but due to fear and trepidation, they did not enter in the field of sugar cane. Deceased succumbed to the injuries at the spot and blood was found scattered. He further deposed that two years prior to the incident, there was dispute between accused-Jawahar and deceased-Lalman in respect of farming and litigation was going on in the Court. In the fued, Lalman and wife of deceased Vimla had sustained injuries. Vimla had lost her life for which a case is pending against the accused-Jawahar. He also deposed that police arrived at 9.00 AM at the place of incident. He had divulged to the police that the deceased died as Jawahar had fired at him and slit his throat with sharp edged weapon. Inquest of the deceased was conducted in the presence of witnesses and he also put his thumb impression on the inquest and signed by other witnesses. Thereafter the dead body of the accused Lalman was sealed in his presence and was sent to the mortuary for the autopsy. He was interrogated by the police. PW-3 was put to lengthy cross-examination by the defence to create doubt about his presence at the time of incident.

PW-4, Ram Raksha Singh, in his evidence, had deposed that on 01.9.2004 in his presence, the investigating officer has collected bloodstained earth, simple earth and recovered sleeper and one steel water pot (Lota) from the place of occurrence where deceased was killed, memos whereof duly signed by him, which he proved as Ext. Ka-2. In the cross-examination, he showed his acquaintance with the complainant and the family of the deceased.

PW-5, Ram Suresh has deposed that he is the Gram Pradhan of village Sonvarsa, district Maharajganj. A day before the occurrence, he had come to his in-laws house at village Harkhi tola Nipaniya. He reached at the place where the cadaver of Lalman was lying. On the request of Hari Narayan, he has written the report in respect of the incident on the dictation of Hari Narayan, which was signed by him. He had identified and proved paper No. 4-Ka-2 as Ext. Ka.1. In this cross-examination, he denied that report was written after he was called upon by the police and after inquest of the dead body.

PW-6, Mahendra has deposed that both accused Jawahar and deceased-Lalman are known to him. Deceased was killed prior to two years ago. On the date of occurrence, at about 6.00 AM, while he was going to attend the call of nature at canal Harkhi Miner, he saw that accused Jawahar was standing at the roadside beside the machine of Ramagya and deceased-Lalman was coming back after attending the call of nature. Several persons of the village were attending the call of nature at the canal and some persons were commuting. This witness has further deposed that on hearing the sound of fire, when he turned back and had seen that deceased Lalman after being struck by the bullet, fell down on the pavement of canal and his son accused-Jawahar was hacking his throat with a sharp edged weapon. When this witness along with Rakesh, Pauhari and several other persons rushed to the spot, accused ran away. He has also deposed that when he reached near deceased-Lalman, he was dead. Deceased has been killed due to the enmity between the deceased and the accused over the partition of 1/3rd of the land. Prior to the present occurrence, the accused-Jawahar along with his brother has killed Vimla, wife of deceased-Lalman.

PW-7, Kapil Dev Shukla is the witness of inquest of the deceased Lalman and recovery of bloodstained earth. He has deposed that after the occurrence, police reached at the spot. He has further deposed that he along with Ram Raksha Singh and several persons of the village have also reached at the spot. Inquest was conducted by the police in his presence. Ram Raksha Singh and other persons were also present there. During the inquest proceeding, on being questioned by the investigating officer as to how deceased died, he divulged that he was killed by fire made by country made pistol and thereafter by hacking his neck. He proved his signature at paper Nos. 6-Ka/1, 6-Ka/2 and 6-Ka/3.

He has further deposed that the investigating officer collected bloodstained and simple earth from the place of occurrence and kept in separate containers. The investigating officer also recovered one pair sleeper and one steel pot and sealed them after keeping in separate clothes and got his signature thereon. The investigating officer also recovered sleeper of left foot of the accused and sealed it and got the same signed by this witness. He proved his signature at paper No. 13-Ka/1 and 13-Ka/2.

PW-8- Kanhaiya Singh is the witness of inquest. He has deposed that on hearing about the killing of the deceased, Lalman when he reached the place of occurrence, police and several persons were present there. Inquest on the body of the deceased was conducted in his presence. First informant Har Narayan and Pauhari were also present at the time of inquest. He has further deposed that he put his signature on the inquest report.

PW-9 is the witness of recovery of weapon of assault. He has deposed that country made pistol and knife were recovered by the police in his presence. Accused-Jawahar got one country made pistol, two cartridges, and a knife recovered by digging the ground and confessed his crime. The investigating officer sealed country made pistol and cartridges separately and prepared their memos, on which his signature was obtained. This witness proved Paper Nos. 4-Ka/3 and 4-Ka/4 of Case Crime No. 121 of 2004.

PW-10, Hari Shanker is the witness of inquest. He has deposed that on the date of incident, he had gone to see the dead body of deceased, Lalman where police and villagers were present. On being questioned by the investigating officer about the death, he told him that deceased was killed and has not died a natural death. The investigating officer got the inquest report prepared and obtained the signature of this witness.

PW-11, Constable-Muharrir Ram Suranjan Prasad has deposed that on 01.9.2004, he was posted as Constable-Muharrir at the police station Ghughli, district Maharajganj. On that date, on the basis of the written report of Har Narayan, he prepared chik FIR at case crime No. 115 of 2004, under Section 302 IPC, police Station Ghughli, district Maharajganj, which he proved at Ext. Ka-3.

PW-12, S.S.I. Bachchu Lal Chaudhary was the witness of arrest of the appellant and recovery of weapon of assault. He has deposed that on 11.9.2004, on the information of the informer that accused will go via Khuta Maidan, he along with Station House Officer Shri Kushal Pal Singh and his companion rushed to the spot and after keeping the official jeep behind the bushes, they made a siege and waited for the accused to come. At about 12.30 noon, a person was seen coming from the village Kudana and was going towards Kaptanganj. On the indication of the informer that he is the accused Jawahar, he was apprehended. On being interrogated, he disclosed his name as Jawahar alias Babu Ram. The investigating officer SO Kushal Pal Singh arrested him and told him the reasons for his arrest and recorded the statement of the accused. The accused confessed his crime and agreed to get the weapon of the assault recovered, which he has concealed in his village Siwan. Thereafter the accused got recovered one country made pistol 315 bore, one empty cartridge and one live cartridge, one household sharp edged knife, which contained bloodstains. He further deposed that the investigating officer got the aforesaid articles sealed and prepared their memos which was duly signed by him.

PW-13, Surendra Shukla is the witness of recovery of weapon of assault. In his evidence, he has deposed that on the date of occurrence, at about 2.30 PM, police of police station Ghughli brought the accused-Lalman to the village. This witness was told by the investigating officer that accused Jawahar wants to get the weapon with which he killed his father, recovered and asked him to accompany him. This witness has further deposed that he along with police personnel, accused and several persons of the village reached at old well situated across the canal Harkhi Miner. Near the well there were bushes and trees. Near the well, some portion of the land was dig from before on which some grasses were lying. Accused took out one plastic bag from there. The bag contained one country made pistol, one empty cartridge, one live cartridge, one household knife having bloodstains on it. The accused admitted that he had fired at his father from the recovered country made pistol and thereafter hacked his father to death by the knife. The investigating officer kept country made pistol and cartridge in one cloth and knife in another and sealed them and prepared memos thereof, which was signed by this witness.

PW-14, Dr. H.S. Lal has conducted post-mortem on the body of the deceased-Lalman. He has deposed that on 02.9.2004, he was posted as Senior Dermatologist at District Hospital, Gorakhpur. On 02.9.2004 at about 3.00 PM, he conducted the post-mortem examination on the body of the deceased, who was brought by Constable CP 568 Jagat Pal and Constable 062 Brij Bhushan of police station Ghughli in a sealed condition. Doctor H.S. Lal, found the following ante-mortem injuries on the body of the deceased:

"1. Incised wound 10 cm x 3 cm bone deep on right side neck underline muscle, vessels, trachea, oesophagus cut.

2. Gun shot wound of entry 1 cm x 1 cm bone deep on the left side back upper part. Metallic shaped shot recovered from surface of lower end of scapula left side . Direction- back to forward, margins inverted, blackening around the wound."

In the opinion of the doctor, the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.

Doctor further opined that death was caused about one and a half day ago. The death might have been caused at about 6.00 AM on 01.9.2004. He proved the post-mortem report as Ext. Ka 4.

In his cross-examination, PW-14, Dr. H.S. Lal, has further deposed that the large intestine contained faecal matter and gases and stomach contained 3 oz. of fluids. Bladder was empty. It was possible that he had urinated before his death. Looking to the large intestine, it transpired that he did not attend the call of nature. In September generally lower limb rigor mortis passes off between 36 and 48 hours. Doctor further opined that rigor mortis had passed off. Looking to the condition of the body, doctor further stated that the death might have been caused between 12.00 night of 31.8.2004 and 3.00 AM of 01.9.2004.

In respect of gun shot wound, Dr. Lal has deposed that he found gun shot wound on the back side of upper part, which had only entry wound and no exit was there. He also recovered one metallic shaped bullet. He further deposed that only expert can ascertain whether it was bullet or not. It was of 'D' shaped. Blackening was present near the wound, which suggested that injury was caused from 1-½ to 6 feet. Charring and Tattooing were not present around the wound.

PW-15, Constable Chandra Bhushan has deposed that on 11.9.2004, he was posted as Constable at the police station Ghughli, district Maharajgnj. On that date on the basis of recovery of weapon of assault, he prepared chik FIR against accused Jawahar alias Baburam at case crime No. 121 of 2004, under Sections 25/27 of the Arms Act, which he proved as Ext. Ka-5. Three sealed bundle of country made pistol, cartridge and knife were kept in Malkhana and accused-Jawahar was kept in lock up. The papers were prepared by him exhibited as Ka-6.

PW-16, SI Jai Prakash Singh was the investigating officer of Case Crime No. 121 of 2004, under Sections 25/27 of the Arms Act, PS Ghughli, district Maharajganj and PW-17 SI Kushal Pal Singh Yadav was the investigating officer of Case Crime No. 115 of 2004, under Section 302 IPC, police station Ghughli, district Maharajganj, and their evidences have already been discussed above.

PW-18, Constable C.P. 78 Ram Adya Singh was the witness of recovery of weapon of assault. He has deposed that on 11.9.2004 he was posted as Constable at Police Station Ghughli and was the companion (Hamrah) of the Station House Officer. When accused was arrested, he confessed his guilt and agreed to get the weapon of assault recovered. This witness further deposed that he along with the SHO and other police personnel reached at village Harkhi, from where through the pavement, he reached to an old well situated at Harkhi Tota Nipaniya. At about 2.30 PM, accused took out one plastic bag, which was hid under the earth. The bag contained one country made pistol 315 bore, cartridges and one knife having bloodstains on it. Accused also got recovered his one sleeper of right hand. The investigating officer after keeping country made pistol and cartridges in one cloth and knife and the sleeper in separate cloth, got them sealed and prepared memos thereof, which this witness has proved as Ext. Ka-17.

After the closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the charges levelled against him. He further stated that investigating officer has not conducted the investigation in right perspective and false charge sheet has been submitted against him. He also stated that he has been roped in the present case due to enmity and that nothing has been recovered at his instance. To a specific question by the Court that country made pistol, one live cartridge and a knife were recovered on his pointing out, which were used by him in the commission of crime, the accused has only stated that nothing has been recovered at his instance.

Learned Additional Sessions Judge, Court No. 3, Maharajganj after hearing the learned counsel for the parties and assessing, evaluating and scrutinizing the evidence on record, convicted and sentenced the accused-appellant as indicated herein above.

Hence, this appeal.

Heard Shri Tarkeshwar Prasad Tripahi and Shri B.K. Tripathi, learned counsel for the appellant and Shri Ajit Ray, learned Additional Government Advocate for the State and perused the record of the case.

Learned counsel for the appellant has made the following submissions:

1. The first information report has been lodged ante timed.

2. The incident took place in the night as suggested by Dr. H.S. Lal Sonker in his cross-examination and no one has seen the incident and the appellant has been falsely implicated in this case due to enmity.

3. The statement of the first informant under Section 161 Cr.P.C. was recorded belatedly.

4. All the witnesses are interested and partisan and no independent witness has been examined.

5. Conduct of Mahavir, who is also the son of the deceased in not coming to the place of occurrence and fleeing away, who returned after 16 days of the occurrence, which belies the prosecution story.

6. The weapons of assault were not placed before the doctor to derive his opinion as to whether the injuries were caused by the said weapons.

7. The recovery memo of weapons does not contain the signature/thump impression of the appellant.

8. At the time of obtaining sanction of the District Magistrate, weapons were not produced before him.

9. There was no mention in the GD as to when first information report was sent to the Court concerned.

10. In the FIR sharp edged weapon has been mentioned, whereas only domestic knife was allegedly recovered at the instance of the appellant.

11. The witnesses of recovery of weapons, i.e. country made pistol, live cartridge and knife are not reliable as they are police official.

12. While recording the statement of the accused, all the incriminating circumstances were not put to the accused.

On the other hand, learned Additional Government Advocate contended that prosecution was successful in bringing home the guilt of the appellant to the hilt. The statements of PWs 1, 3 and 6 are consistent throughout the trial. Learned Additional Government Advocate further submits that presence of faecal matter in the intestines was only a probability stated by the doctor and its quantity cannot be measured, which cannot negate the ocular testimony. Learned Additional Government Advocate also contended that the appellant was depressed with the act of his father and had earlier committed the murder of his step mother about which a case was also pending before the court below and after being released on bail, he committed the murder of his father.

The first contention of learned counsel for the appellant is that the first information report is ante-timed. In support of his contention, learned counsel for the appellant has relied upon the decision of this Court in Jai Ram and others Vs. State of U.P., 2015(1) JIC 589 (All). To buttress his submission, learned counsel for the appellant has contended that the first information report has been lodged after the inquest proceedings and with due deliberation.

As per prosecution case, the occurrence in question took place at 6.00 AM and the first information report has been promptly lodged at 8.15 AM. The distance of the police station is 16 kms. PW-1, Hari Narayan, the first informant of the case has stated that after the incident, he got the report scribed by PW-5, Ram Suresh and handed over the same at the police station. In his cross-examination, PW-1, Ram Narayan has deposed that he reached the police station at about 7.15 AM and handed over the written report at the police station and left for the place of occurrence. When he reached the place of occurrence at about 8.15 AM, the investigating officer was present. The inquest on the cadaver was completed at about 9.15 AM. PW-11, who prepared the chik FIR, in his cross examination has stated that he wrote the FIR at 8.15 AM on 01.9.2004 on the basis of written report submitted by the first informant Hari Narayan.

In Jai Ram and others Vs. State of U.P (Supra) relied upon by the learned counsel for the appellant, the incident in question took place at about 1.00 AM (in the night intervening 29/30.10.1979 and the FIR of the incident was lodged at 2.55 AM on 30.10.1979. The contents of the FIR was that aaj beeti raat mein, which goes to suggest that this word was usually used if the FIR was lodged in the morning rather than if it was lodged in the night of the incident itself. Moreover, the post-mortem on the body of the deceased was conducted after 48 hours on 31.10.1979 at 1.00 PM. In the aforesaid fact, the Court held that the FIR was ante-timed. In the present case the incident in question took place at 6.00 AM and the FIR was promptly lodged at 8.15 AM, the distance of police station was 16 kms. Therefore, contention of the learned counsel for the appellant that the FIR was ante-timed or doctored one is contrary to the documents on record. We are of the view that it was lodged at the time and date as disclosed by the prosecution.

Hon'ble Supreme Court in Mehraj Singh Vs. State of U.P., 1994 SCC (5) 188 held thus:

"FIR in a 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 circumstance 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. With a view to determine whether the FlR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference inquest report. Even though the one with in the, inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante- timed to give it the colour of a promptly lodged FIR."

The second contention of the learned counsel for the appellant is that the incident took place in the night and no one has seen the incident and the appellant has been falsely implicated in this case due to enmity. In support of this contention, learned counsel for the appellant has placed reliance upon the opinion of the doctor that large intestine contained faecal matter and gases. In his cross-examination, doctor further opined that in the month of September generally rigor mortis from the lower limb passes off between 36 to 48 hours. Looking to the condition of the body, doctor further opined that death might have been caused between 12.00 in the night of 31.8.2004 and 3.00 AM of 01.9.2004. In support of his contention, learned counsel for the appellant has placed reliance upon the decision of this Court in State of U.P. Vs. Naim Uddin and others, 2015(3) JIC 929 (All).

The medical evidence is only an advisory in character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert, may form its opinion on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer, but of the Court.

So far as presence of faecal matter in the intestines is concerned, it is to be noted that digestive process differs from man to man. It depends upon several factors. Process of digestion being not uniform and varies from individual to individual. Merely because faecal matter was found in the intestines, it cannot be held that murder was committed in the night.

So far rigor mortis is concerned, doctor opined that rigor mortis of the deceased has completely passed off. Doctor further opined that in September process of passing of rigor mortis begins after 18 hours and completely passed off in 36 hours.

Passing off rigor mortis depends upon several factor and it cannot be said that in the month of September rigor mortis completely passed off in 36 hours. So far as the opinion of the doctor that death might have been caused between 12.00 in the night of 31.8.2004 and 3.00 AM of 01.9.2004, that does not mean that doctor has fixed the time of death.

it is to be noted that this case is based on ocular evidence. It is settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. Further, the ocular testimony of a witness has a greater evidentiary value than medical evidence.

A similar issue has cropped up before Hon'ble Supreme Court in Mangu Khan and others Vs. State of Rajasthan, AIR 2005 SC 1912 wherein the post-mortem report indicated that the death had occurred within 24 hours prior to the post-mortem. In that case, the opinion of the doctor did not match with the prosecution case. Hon'ble Apex Court examined the issue elaborately and held that physical condition of the body after death would depend on a large number of circumstances/factors and nothing can be said with certainty. In determining the issue, various factors such as age and health condition of the deceased, climatic and atmospheric conditions of the place of occurrence and the conditions under which the body is preserved, are required to be considered. There has been no cross-examination of the doctor on the issue as to elicit any of the material fact on which a possible argument could be based in this regard. The acceptable ocular evidence cannot be dislodged on such hypothetical basis for which no proper grounds were made.

In Baso Prasad and others Vs. State of Bihar, AIR 2007 SC 1019, Hon'ble Supreme Court while considering a similar issue held that exact time of death cannot be established scientifically and precisely.

In Patti Pati Venkatah Vs. State of Andhra Pradesh, 1985(4) SCC 80, Hon'ble Apex Court held that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to accurate to the last second.

In State of U.P. Vs. Hari Chand (2009) 13 SCC 542, Hon'ble Supreme Court held as under:

"14. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the `credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

The enmity between the accused-appellant and the deceased is admitted as is evident from the FIR as well as from the statement of the accused-appellant recorded under Section 313 Cr.P.C, in which the accused has stated that he has been roped in the present case due to enmity. No specific enmity of the accused with the informant has been alleged. However, to a suggestion put to the informant in the cross-examination, he denied that he used to put pressure upon the deceased not to give any property to accused-Jawahar and his brother Janardan, which cannot be a ground for false implication of the accused-appellant leaving the real culprit to go scot free. On the other hand, enmity may be a motive for the appellant to commit the murder of deceased who was doing Pairvi in the murder case of Vimla, wife of the deceased, who was also done to death by the accused-appellant There is eyewitness account coupled with injury report. Evidence of PW-1, Hari Narayan, the informant of the case, PW-3, Pauhari and PW-6, Mahendra is consistent that accused-appellant assaulted the deceased. Although PW-2, Rakesh did not support the prosecution case in toto, but in his evidence he admitted the place of occurrence, time and assault, but he stated that did not see the accused firing a shot from country made pistol and slitting the neck of the deceased.

We are not convinced with the contention of learned counsel for the appellant that either on account of enmity or relationship, the witnesses are not deposing the correct facts and framed a false case against the appellant leaving the real culprits to go scot free. Moreover, the witnesses were put to lengthy cross-examination, but nothing adverse could be elicited from their evidence to discard the prosecution case.

In Arjun and others Vs. State of Rajasthan, 1994 Suppl (1) SCR 616, it was argued before the Hon'ble Supreme Court that as the parties were on inimical terms and some criminal proceedings were pending between them even at that time when the occurrence took place. Further PW-1 in that case was the brother of the deceased and informant in that case was son of the deceased.

The Hon'ble Supreme Court brushed aside the argument of the learned counsel for the appellants therein and has held as under:

"We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to say that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased."

In Hari Obula Reddy and others Vs. State of Andhra Pradesh, (1981) 3 SCC 675, a three Judge Bench of the Supreme court has observed thus:

" It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony, nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence."

The Supreme Court in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.

The next contention of learned counsel for the appellant is in respect of delayed recording of the statement of the first informant and the witnesses under Section 161 Cr.P.C. Learned counsel for the appellant has relied upon the decision of Hon'ble Supreme Court in Shahid Khan Vs. State of Rajasthan, 2016(2) JIC 1(SC).

The object and purpose of Section 161 Cr.P.C. is to collect evidence regarding commission of an offence by examining and recording the statements of the witnesses in respect of commission of the offence. In the case in hand, PW-17, SI K.P. Singh Yadav, the investigating officer of the case has deposed that after receipt of the information, he immediately rushed to the spot and after completing necessary formalities, he recorded the statement of the first informant Hari Narayan and witnesses Mahendra Gaud and Rakesh Gaud on the same day and on their pointing out, he sketched the site plan.

Shahid Khan Vs. State of Rajasthan (Supra), relied upon by the learned counsel for the appellant was a case in which the witnesses PW-25 Mirza Majid Beg and PW-24 his driver Mohammad Shakir, who came from Kota to Jhalawar to meet the deceased, allegedly saw the occurrence in which accused inflicted injuries with weapons on the deceased. However, due to fear they hid themselves in the factory and did not inform about the incident to the family or relatives of the deceased. Their statements were recorded after three days of the occurrence for which no explanation was tendered by the prosecution. In the aforesaid background, Hon'ble Supreme Court held that delay in recording the statements of PW-25, Mirza Majid Beg and PW-24, Mohammad Shakir and their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses.

In the present case the statements of the first informant and other witnesses present at the spot were recorded on the same day. Therefore, the contention of the learned counsel for the appellant that there was inordinate delay in recording the statement has no leg to stand.

The next limb of argument of learned counsel for the appellant is that the prosecution had examined only highly interested witnesses and it has not produced any independent witness in support of its case. In support of his contention learned counsel for the appellant has placed reliance upon the decision of Hon'ble Supreme Court in Mahavir Singh Vs. State of Madhya Pradesh (2017) 1 SCC (Cri) 45.

Interested witnesses are those who want to derive certain benefit out of the result of the case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discard a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is proved.

In Brahm Swaroop and another Vs. State of U.P. (2011) 6 SCC 288, Hon'ble Apex Court has observed as under:

" Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make 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."

In State of Punjab Vs. Hardam Singh, 2005 SCC (Cr) 834, it has been held by the Hon'ble Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit.

Mahavir Singh (Supra) relied upon by the learned counsel for the appellant was a case in which the trial court acquitted the accused. However, on appeal by the State, the High Court partly allowed the appeal and while setting aside the conviction of the appellant under Section 148 IPC, convicted the appellant therein for the offence under Section 302 IPC and sentenced him to life imprisonment on the ground that the trial court did not appreciate the prosecution evidence in the right perspective and ignored the evidence of the eyewitnesses. Hon'ble Supreme Court set aside the order of the High Court on the ground that the High Court has attached a lot of weight to the evidence of PW-9 as he was an independent witness. However, records depicts that PW-9 had already deposed for the victim family on a number of previous occasions, that too against the same accused for the deceased and, therefore, he was termed as a pocket witness by the Hon'ble Supreme Court.

In the present case, the incident took place in village at 6.00 AM. PW-1, Hari Narayan, who is the first informant of the case is the resident of Harkhi Tola Nipaniya. The deceased was also resident of the same village. At the time of occurrence, his presence at the scene of offence appears natural. The first information has been lodged by PW-1 without any delay. No such fact could emerge in his cross examination so as to create any doubt about his presence at the spot. The evidence of PW-1, Hari Narayan is consistent with the FIR as well as with his statement recorded during investigation. In view of these facts and circumstances, merely because PW-1, Hari Narayan is related to the deceased, it cannot be a ground to discard his testimony. As indicated above, it is well settled that evidence of interested witnesses cannot be discarded on the sole ground that they are interested, but their evidence should be subjected to a close scrutiny. Interested witness are not necessarily false witnesses. Evidence of interested witness cannot be equated with that of a tainted witness. There is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. In view of the evidence on record, the evidence of PW-1, Hari Narayan cannot be disbelieved on the ground that he is Samdhi of the deceased.

PW-3, Pauhari and PW-6, Mahendra are also resident of Harkhi Tola Nipaniya. Their presence at the spot was also natural. Both the witnesses have consistently deposed against the appellant. The witnesses were subjected to lengthy cross examination, but no major contradiction or infirmity could be elicited from their evidence.

Therefore, contention of the learned counsel that the prosecution has only produced interested witnesses has no leg to stand.

Learned counsel for the appellant has also attacked the conduct of Mahavir, who is the son of deceased, who went away after the incident and returned after 16 days of the occurrence, which makes the entire prosecution story doubtful that a son after hearing the demise of his father did not come to the place of occurrence and left the home and returned after the 16 days of the occurrence. Learned Trial Court has specifically mentioned that from the evidence of witnesses it is clear that deceased had two wives. Jawahar and Janardan were born out of the wedlock of first wife, whereas from the other, one son namely Mahavir and two daughters were born. In connection with property dispute, the accused-appellant, his wife and brother Jarandan and his wife had beaten to death second wife of the deceased namely Vimla, for which a case of murder was pending against them in the lower court. At the time of incident, Mahavir was aged about 15 years and hence, he was very much apprehensive and therefore, he did not come to the place of occurrence. Therefore, the contention of the learned counsel that the Mahavir being the son of the deceased should have lodged the FIR, has no leg to stand.

Next submissions raised by the learned counsel for the appellant is that Doctor who conducted the post-mortem examination on the cadaver was not shown the weapon of assault to elicit his opinion as to whether injuries on the deceased could have been caused with such weapon or not. Learned counsel for the appellant has relied upon the judgements of Hon'ble Supreme Court in Ishwar Singh Vs. State of U.P., 1976 CAR 381 (SC), Pritam Nath and other Vs. State of Punjab, 2002 AAR 147 (SC) and Machindra Vs. Sajjan Galfa Rankhamb and others, (2018)1 SCC (Cri) 381.

The ratio laid down in the aforesaid cases is that it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, should be shown to the doctor, who has conducted autopsy on the cadaver and his opinion be invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.

In the instant case PW-14, Dr. H.S. Lal, Senior Dermatologist, who conducted the autopsy on the cadaver of the deceased appeared before the trial court as medical witness. He has stated that while conducting the autopsy, he found the following injuries:

"1. Incised wound 10 cm x 3 cm bone deep on right side neck underline muscle, vessels, trachea, oesophagus cut.

2. Gun shot wound of entry 1 cm x 1 cm bone deep on the left side back upper part. Metallic shaped shot recovered from surface of lower and of scapula left side . Direction- back to forward, margins inverted, blackening around the wound."

Injury No. 1 noted in the post-mortem examination of the deceased was caused by sharp cutting weapon, such as knife, whereas injury No. 2 was caused by country made pistol. Eyewitnesses in their deposition stated that first of all the accused-appellant fired at the deceased and when the latter fell down, he was hacked with knife. Thus, there was no inconsistency with the medical evidence and the ocular evidence. The death of the deceased was homicidal in nature. The fact that weapon was not shown to the doctor nor in the cross-examination attention of the doctor was invited towards the weapon is not of much consequence in the fact of the present case where there was clear medical evidence that injury Nos. 1 and 2 could be caused by knife and country made pistol respectively. Moreover, both knife and country made pistol were recovered at the instance of the accused-appellant. As per the report of the Forensic Science Laboratory knife contained disintegrated blood whereas the fire was made by the country made pistol as per report of the Forensic Science Laboratory.

Next submission of learned counsel for the appellant is that memo of recovery of weapon does not contain the signature/thumb impression of the appellant. Learned counsel for the appellant has placed reliance upon the decisions of Supreme Court in Jaskaran Singh Vs. State of Punjab, 1997 SCC (Cri) 651.

In Jaskaran Singh (Supra), Hon'ble Supreme Court has held that the absence of the signature or the thumb impression of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.

In Jaskaran Singh (Supra), there was dispute regarding the ownership of a revolver and the cartridge recovered therein. The prosecution in that case was unable to lead evidence to show that the crime weapon belonged to the said appellant and, therefore, the observation was made by the Hon'ble Supreme Court in that context. In the instant case, both knife and country made pistol belonged to the appellant and therefore, the ratio laid down by Hon'ble Supreme Court in Jaskaran Singh (Supra) is not applicable to the facts of the present case.

However, in State of Rajasthan Vs. Teja Ram, AIR 1999 SC 1776, Hon'ble Supreme Court examined the said issue at length and considered the provisions of Section 162(1) Cr.P.C, which reads that a statement made by any person to a police officer in the course of an investigation done, if reduced to writing, be not signed by the person making it. Therefore, it is evident from the aforesaid provision that there is a prohibition in peremptory terms and law requires that a statement made before the Investigating Officer should not be signed by the witness. The same was found to be necessary for the reasons that a witness will then be free to testify in court, unhampered by anything which the police may claim to have elicited from him. In the event that a police officer ignorant of the statutory requirement asks a witness to sign his statement, the same could not stand vitiated. At the most the Court will inform the witness, that he is not bound by the statement made before the police. However, the prohibition contained in Section 162(1) Cr.P.C. is not applicable to any statement made under Section 27 of the Indian Evidence Act as explained by the provision under Section 162(1) Cr.P.C. The Court further held as under:

"The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it.

In Galakonda Venkateshwara Rao Vs. State of Andhra Pradesh, AIR 2003, SC 2846, Hon'ble Supreme Court has again considered the entire issue and held that merely because the recovery memo was not signed by the accused, will not vitiate the recovery itself as every case has to be decided on its own facts. In the event that the recoveries are made pursuant to the disclosure statement of the accused, then despite the fact that statement has not been signed by him, there is certainly some truth in what he said, for the reason that the recovery of the material objects was made on the basis of his disclosure statement.

The Court further held thus:

"The facts that the recovery is in consequence of the information given is fortified and confirmed by the discovery of wearing apparel and skeletal remains of the deceased which leads to believe that the information and the statement cannot be false."

In view of the aforesaid legal position and the fact that weapon of assault, i.e. country made pistol and knife were recovered on the pointing out of the accused-appellant, merely because the recovery memo does not bear the signature or thumb impression of the accused-appellant shall not vitiate the recovery. All the articles were sent to Forensic Science Labortory, Lucknow. As per report of the Forensic Science Laboratory dated 4.2.2005, the recovered knife contained disintegrated blood. Moreover, the Forensic Science Laboratory, Lucknow vide its report dated 13.4.2005 has also confirmed that recovered empty cartridge was fired from the country made pistol recovered at the instance of accused-appellant.

Now, so far as the contention of learned counsel for the appellant that at the time of obtaining sanction of the District Magistrate, weapons of assault were not produced before him also does not have any substance. The country made pistol, cartridges and knife were recovered at the instance of the accused and the memos thereof were prepared, which was signed by the accused and the witnesses of recovery. Further, PW-16, SI Jai Prakash Singh, the investigating officer of Case Crime No. 121 of 2004, under Section 25 of the Arms Act has deposed in his cross examination that when he took up the investigation, the recovered country made pistol, cartridges and knife were kept in the Maalkhana. He further deposed that on 20.9.2004 when he produced the aforesaid weapons before the District Magistrate, the same were in sealed condition. He also stated that he kept the sealed bundle containing country made pistol, cartridges and knife in the office of the District Magistrate and he could not say as to whether the District Magistrate has seen them or not as the sealed bundle was produced before the District Magistrate by his office clerk. He received the aforesaid bundle with the seal of the District Magistrate. He also deposed that the office clerk of the District Magistrate has handed over him the prosecution sanction along with the sealed bundle.

In view of the aforesaid fact, it cannot be said that the recovered country made pistol, cartridges and knife were not produced before the District Magistrate for obtaining the sanction.

So far as the other contention of learned counsel for the appellant in respect of non-mentioning of the date and time in the GD for sending the report to the court is concerned, it is to be noted that PW-11, Constable Ram Suranjan Prasad, who has prepared the chik FIR of case crime No. 115 of 2004, under Section 302 IPC against the accused appellant has deposed in his examination-in-chief that he prepared chik FIR at 8.15 AM 01.9.2004 on the basis of written information handed over by the first informant Hari Narayan, which he proved as Ext. Ka-3. He further stated that as to on what date, the Circle Officer has put his signature on the FIR, he did not know as he did not write the general diary. In the general diary, it was mentioned that special report shall be sent to the officer concerned at the earliest and information whereof is being given to the superior officer concerned on R.T. set. This case rests on the eyewitness account coupled with medical evidence and merely because of non-mention of time in the general diary, the whole prosecution story cannot be thrown out as it might have been an oversight. Moreover, pursuant to the first information report, the investigation of the case started immediately and inquest proceedings have been concluded within an hour of lodging of the first information report.

Hon'ble Supreme Court in Pala Singh Vs. State of Punjab, 1972 (2) SCC 640 has held that delay in forwarding the first information report to the court is not fatal in a case in which investigation has commenced promptly on its basis.

In Rabindra Mahto and another Vs. State of Jharkhand, 2006 (10) SCC 432, Hon'ble Supreme Court has held that in every case mere delay in sending the first information report to the Magistrate, the Court would not conclude that the FIR has been recorded much later in time than shown. It is only extraordinary and unexplained delay, which may raise doubts regarding the authenticity of the FIR.

The next point urged by the learned counsel for the appellant is that in the FIR sharp edged weapon was mentioned, but only a domestic knife was allegedly recovered at the instance of the appellant.

It may be noted that the place where the deceased was done to death and the place from where the informant had witnessed the occurrence is about 150 steps. The word described in the first information report is only sharp edged weapon. PW-14, Dr. H.S. Lal, who has conducted autopsy on the cadaver of the deceased has noted the following injuries:

"1. Incised wound 10 cm x 3 cm bone deep on right side neck underline muscle, vessels, trachea, oesophagus cut.

2. Gun shot wound of entry 1 cm x 1 cm bone deep on the left side back upper part. Metallic shaped shot recovered from surface of lower and of scapula left side . Direction- back to forward, margins inverted, blackening around the wound."

Perusal of injury No. 1 suggest that it was caused by sharp edged weapon. Even if, the knife, which was used in the commission of the crime, was of domestic use, but it was very much sharp edged and merely because it was mentioned in the FIR that accused-appellant slit the neck of the deceased by sharp edged weapon and the recovered knife was for domestic use, does not make any difference.

The next submission of learned counsel for the appellant is that witnesses of recovery of weapons of assault are not reliable as they are police personnel. PW-9 Ram Adhar Pandey is an independent witness, who resides in village Harkha Pyas, police station Ghughli, district Maharajganj. He has deposed that country made pistol and knife were recovered by the police in his presence. Accused-Jawahar got one country made pistol, two cartridges, and a knife recovered by digging the ground and confessed his crime. The investigating officer sealed country made pistol and cartridges separately and prepared their memos, on which his signature was obtained. PW-13, Surendra Shukla is also an independent witness, who resides at Harkhi Tola Nipaniya, police station Ghughli. In his evidence, he has deposed that on the date of occurrence, at about 2.30 PM, police of police station Ghughli brought the accused to the village. This witness was told by the investigating officer that accused Jawahar wants to get the weapons from which he killed his father, recovered and asked him to accompany him. This witness has further deposed that he along with police personnel, accused and several persons of the village reached old well situated across the canal Harkhi Miner. Near the well there were bushes and trees. Near the well, some portion of the land was dig from before on which some grasses were lying. Accused took out one plastic bag from there. The bag contained one country made pistol, one empty cartridge, one live cartridge, one household knife having bloodstained on it. The accused admitted that he has fired at his father from the recovered country made pistol and thereafter hacked his father to death by the knife. The investigating officer kept country made pistol and cartridge in one cloth and knife in another and sealed it and prepared memos thereof, which was signed by this witness. In Addition to the aforesaid two independent witnesses, PW-12, SSI B.L. Chaudhary and PW-18, Adya Singh, who were also the witnesses of recovery, have fully supported the prosecution case and have stated that accused got the weapons from which he killed his father recovered in their presence.

It is fallacious impression that when recovery is effected pursuant to any statement made by the accused and the document is prepared by the investigating officer on the basis of recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article, it is for the investigating officer to take the signature of any persons present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down as a proposition of law that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. In the instant case, the document of recovery prepared by the investigating officer was attested by two independent witnesses, i.e. PW-9, Ram Adhar Pandey and PW-13, Surendra Shukla and, therefore, the submission of the learned counsel that there is no independent witness of the recovery has no substance. Moreover, the evidence of the police personnel cannot be discarded merely on the ground that they are police official.

In Tahir Vs. State of (Delhi) (1996) 3 SCC 338, Hon'ble Supreme Court held thus:

"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

In State Government of NCT of Delhi Vs. Sunil and another, (2001) SCC 652, Hon'ble Supreme Court held that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

The last contention voiced by the learned counsel appearing on behalf of the appellant is that while recording the statements of the accused under Section 313 Cr.P.C., all the incriminating circumstances were not put to the accused. In support of his contention, learned counsel for the appellant has relied upon the decision of Hon'ble Supreme Court Sukhjit Singh Vs. State of Punjab, (2015) 1 SCC (Cri) 76, Ranvir Yadav Vs. State of Bihar, (2009)3 SCC (Cri) 92 and Reena Hazarika Vs. State of Assam, 2018(3) JIC 752.

In Sukhjit Singh Vs. State of Punjab (Supra) Hon'ble Supreme Court has held that on a studied scrutiny of the questions put to the accused under Section 313 Cr.P.C. in entirety, we find that no incriminating material has been brought to the notice of the accused while putting questions.

The ratio laid down in Ranvir Yadav Vs. State of Bihar (Supra) was that when the incriminating materials have not been put to the accused under Section 313 Cr.P.C., it tantamounts to serious lapse on the part of the trial court convicting the accused, which is vitiated in law.

In Reena Hazarika Vs. State of Assam (Supra) the Hon'ble Supreme Court held that if the accused takes a defence after the prosecution evidence is closed, the Court is duty bound to consider the same and if the same is not considered, the conviction may stand vitiated.

The provisions of Section 313 Cr.P.C. clearly states that it is obligatory for the Court to question the accused on the evidence adduced by the prosecution and circumstances against him so as to enable him to explain it. However, it would not be enough for the accused to contend that he has not been questioned or examined on a particular fact or circumstances, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words, in the event of an inadvertant omission on the part of the trial court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the Court.

A three-Judge Bench of Hon'ble Supreme Court in Wasim Khan Vs. State of U.P., AIR 1956 SC 400, and Bhoor Singh and another Vs. State of Punjab, AIR 1974 SC 1256, Hon'ble Supreme Court held that every error or omission in compliance of the provisions of Section 342 of the old Cr.P.C. does not necessarily vitiate the trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.

In State (Delhi) Administration Vs. Dharampal (2001) 10 SCC 372, Hon'ble Supreme Court held thus:

"Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellant court can always make good that lapse by calling upon the accused to show that explanation the accused has as regards the circumstances established against the accused but not put to him.

This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the counsel for the accused and get the answer of the accused. If the accused could not give any plausible or explanation, it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused."

In Santosh Kumar Singh Vs. State through CBI, (2010)9 SCC 747, Hon'ble Supreme Court held as under:

" The provisions in Section 313 Cr.P.C., therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him, the same cannot ipso facto vitiate the trial unless it is shown that some prejudice was caused to him."

In the case in hand, it may be noted that no such point was raised and no such objection seems to have been advanced before the trial court and it is being raised for the first time before this Court, which appears to be an afterthought. Secondly, learned counsel appearing on behalf of the appellant was unable to place before us as to what in fact was the circumstances, which was not put to the accused while recording his statement under Section 313 Cr.P.C.

In view of the above, the submission of learned counsel appearing on behalf of the appellant that while recording the statement of the accused under Section 313 Cr.P.C., all incriminating materials were not put to the accused, has no leg to stand.

Criminal law is designed as a mechanism for achieving social control and its purpose is to regulate and control the activities within the society. Criminal justice system has a larger objective to achieve, i.e. safety and protection of the people at large and it would be a lesson not only to the offender, but to the individual at large so that such crime would not be committed by anyone. Taking a lenient view of a serious offence will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society. In the instant case, the accused appellant has brutally assassinated his father initially by firing a shot and thereafter hacking him to death. The accused-appellant is also involved in the commission of murder of his step mother Vimla for which trial is pending in the court below. This is a case of patricide where the accused-appellant has not only committed the murder of an innocent old and feeble person, but also slurred the relation of father and son.

In view of what has been indicated herein above, we are of the view that the impugned judgement and order dated 17.07.2009 passed by the learned Additional Sessions Judge (Fast Track ) Court No. 3, Maharajganj does not call for any interference by this Court.

Accordingly, the appeal is dismissed.

The appellant Jawahar alias Babu Ram is in jail. He shall remain in jail to serve out the sentence as awarded to him by the learned Trial Court and affirmed by us.

Office is directed to transmit a copy of this order to the Court below for information and compliance.

(Anil Kumar-IX, J) (Naheed Ara Moonis, J) Dated: 17.01.2020 Ishrat

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