Allahabad High Court
Indra Sen Singh vs State Of U.P. on 2 April, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:- 19.01.2018 Delivered On:- 02.04.2018 A.F.R. Court No. - 40 Case :- CRIMINAL APPEAL No. - 287 of 2011 Appellant :- Indra Sen Singh Respondent :- State Of U.P. Counsel for Appellant :- Apul Misra,A. Kumar Srivastava,Narendra Kumar Maurya,P.N. Misra,Rajiv Lochan Shukla,Upendra Kumar Mishra Counsel for Respondent :- Govt. Advocate AND Case :- CRIMINAL APPEAL No. - 377 of 2011 Appellant :- Basdev @ Gulgul Singh Respondent :- State Of U.P. Counsel for Appellant :- S.P. Pandey, Sanjeev Kumar Singh, Shrawan Kumar Dubey, U.K.Saxena Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
The learned Additional Sessions Judge, Court No. 2, Deoria, U.P. vide judgment dated 20th December, 2010 in Sessions Trial No. 65 of 2007 connected with Sessions Trial No. 66 of 2007 arising out of Case Crime No. 497 of 2006, Police Station-Rudrapur, District-Deoria has convicted the appellants for the offence of murder of one Sri Nivas Gupta and causing gunshot injuries to Kalicharan Gupta.
The two appellants convicted i.e. Sri Indra Sen Singh and Sri Basdev alias Gulgul Singh have been awarded sentences separately. The appellant Indra Sen Singh has been convicted under Section 302 IPC and has been awarded a sentence of life imprisonment with Rs. 5,000/- as fine, and in default of payment of fine, has been directed to suffer six months' rigorous imprisonment. He has been acquitted of the offences under Section 307 read with Section 34 Indian Penal Code.
The second appellant Basdev alias Gulgul Singh has been convicted under Section 302 read with Section 34 IPC and has been awarded a sentence of life imprisonment with Rs. 3,000/- as fine. He has also been found guilty and punished for the offence under Section 307 read with Section 34 IPC for which he has been awarded a sentence of five years imprisonment with Rs.2,000/- as fine, and in default of payment of fine, to undergo six months' of rigorous imprisonment. The sentences are to run concurrently.
The second appellant Sri Basdev alias Gulgul Singh has been given benefit of doubt and has been acquitted of the charges levelled against him under Section 27/30 of the Arms Act.
The fine of Rs.7,000/- imposed on both the appellants has been directed to be paid as compensation to the family of the deceased.
A further recommendation has been made criticizing the careless manner of investigation carried out by the Investigating Officer Sri N.K. Singh calling upon the Home Department as well as the Director General of Police to take appropriate action.
Aggrieved the appellants have impeached the judgment of the trial Court claiming to be innocent and the judgment being against the weight of evidence on record and in teeth of the legal submissions that have been advanced. The severity of the sentence has also been assailed.
The facts as unfolded in the prosecution story, and as noted by the trial Court as well, are that the incident resulting in the murder of the deceased and causing gunshot wound injuries to Kalicharan is of broad daylight said to have occurred at about 1:30 pm on 13th September, 2006. The FIR is stated to have been lodged at 2:35 pm at Police Station-Rudrapur, District-Deoria. The incident as transcribed in the written report, that forms part of the First Information Report registered at the police station, narrates that the deceased Sri Nivas Gupta alongwith Kalicharan Gupta were approaching the locality of Rudrapur, after re-filling the petrol tank of the deceased's motor cycle (stated to be of make Rajdoot during trial) bearing Registration No. UP-52-D-853 from the Rudrapur petrol pump, and when they arrived at a place in between the Nath Baba Temple and the Gate of the Local Block Development office premises, the appellants Indra Sen Singh and Basdev alias Gulgul Singh both opened fire from the fire arms in their hands aiming at the deceased and the injured. The FIR alleges an election enmity having political over tones relating to the elections of Village Pradhan. The allegation in the FIR is that the shot fired was a contact shot just above the ears of the deceased, as a result whereof, the deceased Sri Nivas Gupta immediately fell down on the spot and died. The pillion rider Kalicharan Gupta received pellet injuries over the upper part of his body and face.
The written information was tendered by Smt. Shanti Devi who is the wife of the elder brother of the deceased (bhabhi), and is stated to bear the thumb impression of the first informant Smt. Shanti Devi. The scribe of the contents of the information is one Chandrabhan son of Sri Ram Lakhan. The check report registered as the FIR has been ascribed by the Head Clerk Constable Sri Rajesh Kumar Singh who has also recorded the date, time and place of incident.
The first informant has narrated in the FIR that when she heard the noise of the shots being fired she immediately rushed across the place of incident and saw that her husband's younger brother (dewar), had been shot and had died. The incident was seen by a lot of people of the locality including the village in question and she also narrates that the appellant no. 1 Indra Sen Singh was armed with a double barrel gun and the appellant no. 2 Basdev Singh was armed with a single barrel gun who immediately after the incident ran away towards Pindra.
The Investigating Officer prepared a recovery memo dated 13th September, 2006 recording the recovery of two used cartridges of twelve bore, one manufactured in USA of LG Calliber and the other being of the make Shaktiman. The same was taken possession of in the presence of one Shankar Gupta and Parmeshwar Gupta, and after getting it sealed and signed, the same was retained by him. Simultaneously, he also prepared another recovery memo after taking samples of blood stained earth and other material from the spot which was also sealed and retained by him. The third item that was taken in custody, and was stated to have been handed over to the first informant in Supurdgi, was the Rajdoot Motor Cycle bearing Registration No. UP-52-D-853. The appellant Indra Sen Singh had been taken into custody and later on 16.09.2006, on the basis of information received during investigation, the second appellant Basdev was apprehended at about 4:30 am alongwith his single barrel twelve bore gun along with the cartridges of Make K.F. Special. The accused was taken into custody. The gun was believed to have been used in the commission of the offence in question. Accordingly, the gun and the live cartridges were taken in possession and sealed for retaining them for the purpose of trial. that was also taken into custody, believed to have been utilized for having committed the offence in question. The gun was recovered alongwith two cartridges of the make K.F. Special that was also taken into custody and sealed for retention.
The Investigating Officer is said to have arrived on the spot on the date of the incident itself and the inquest report of the deceased was prepared in the presence of the witnesses to the inquest. The injured Kalicharan Gupta was dispatched alongwith a police constable to the Community Health Centre, Rudrapur, District-Deoria where the injuries were examined and noted, and he was referred to the District hospital for X-ray and expert surgical operation.
The inquest report was followed by the dispatch of the body to the District Hospital, Deoria for post-mortem where it was carried out on the next date on 14.09.2006 at about 3:15 pm. The ante-mortem injuries which were two in number were recorded. The first being with regard to the fatal injury with an entry wound on the left side of the head of the deceased and the second injury was noted to be multiple pellet injuries spread over both sides of the left shoulder, on the front near the upper portion of the fore arm. The cause of death was opined as due to haemorrhage and shock caused by the injuries on the head by a fire-arm. The items recovered including the fire arm were sent for forensic and ballistic report. The charge-sheet was filed against the appellant and the charges were framed vide order dated 14th May, 2007. The trial commenced with the testimony of the prosecution witnesses, the first informant and eye-witness Smt. Shanti Devi deposed as PW-1 followed by the doctor who had conducted the post-mortem as PW-2. The injured Kalicharan Gupta who deposed as PW-3 was declared hostile by the prosecution. Doctor Durgesh Kumar who had conducted the preliminary medical examination at the Community Health Centre in the Rudrapur was produced as PW-4. The Sub-Inspector of police Sri Bechan Singh, who at the instance of the Investigating Officer Sri N.K. Singh had prepared and scripted the documents as the Investigating Officer had a pain in his hand, was examined as PW-5 and Sri Paachu Yadav Sub-Inspector of Police who had investigated the offence under Section 27/30 Arms Act deposed as PW-6.
It is worth mentioning that neither the Head Clerk Constable Sri Rajesh Kumar Singh who was the scribe of the First Information Report nor the Investigating Officer Sri N.K. Singh, inspite of having been nominated as witness for the prosecution and depicted in the calender submitted on behalf of the prosecution to the Court, were produced nor were they examined to support the prosecution story. The prosecution, therefore examined two witnesses of fact namely, Smt. Shanti Devi PW-1 eye witness and Sri Kalicharan Gupta PW-3 out of whom the second witness of fact had turned hostile and was declared as such. The prosecution story therefore rested on the support of a single witness of fact that is Smt. Shanti Devi who was also the eye witness, and partially by the deposition of PW-3 who after having admitted the incident, its timing place and the injuries, turned turtled when it came to identify the accused assailants thereby completely feigning ignorance about their presence. The other witnesses are the formal witnesses and as noted above two of the important formal witnesses namely, the scribe of the FIR registered at the Police Station namely, Sri Rajesh Kumar Singh and the Investigating Officer Sri N.K. Singh did not appear or depose before the trial Court to support the prosecution version.
The accused tendered their statement under Section 313 Cr.P.C. pleading not guilty and boldly denying their involvements with a defence of a complete false implication due to enmity. They also examined Sri Akshay Lal as DW-1.
The learned Additional Sessions Judge after having weighed the evidence and having considered the arguments advanced, after noting the lapses in the investigation and the criticism of contradictions in the statement of the eye witness PW-1 as well as the hostile statement of PW-3, came to the conclusion that the date, time and place of incident stood established as it was a broad daylight incident and further the eye witness account had established the presence of the two assailants namely, the appellants herein who were guilty of the offence of having committed the murder of the deceased and of having caused injuries to the injured Kalicharan.
The trial Court having noted every fact systematically and chronologically arrived at the inescapable conclusion of involvement of both the appellants on the strength of direct evidence, the expert evidence and the corroborative material to the effect that the appellants had respectively committed the murder of deceased and had caused injuries to the injured. The guilt was found to have been proved, and consequently convicted them of having committed the offence as narrated above.
The evidence of recovery of the fire arm from Sri Basdev and the cartridges from the spot were not found to be proved after having gone through the forensic evidence and the absence of any expert ballistic report to connect the utilization of the weapon licensed in the name of Basdev. Consequently the charges levelled under Section 27 read with Section 30 of the Arms Act were not found to be proved and the accused were absolved on that count giving them the benefit of doubt.
We invited the learned counsel to advance their submissions and we have heard Sri Rajiv Lochan Shukla alongwith Sri Sanjeev Kumar Singh for the appellant no. 1, Sri Indra Sen Singh and the appellant no. 2, Sri Basdev alias Gulgul Singh respectively. Sri Sagir Ahmad, learned AGA for the State alongwith Sri Virendra Pratap Yadav and Sri Awadesh Kumar Shukla brief holders on behalf of the State were heard at length on behalf of the State.
Sri Rajiv Lochan Shukla while advancing his submission has urged that the injured witness Kalicharan, who was a pillion rider on the motor cycle of the deceased and who according to the prosecution had sustained gun shot injuries, has clearly denied having seen any of the appellants in the role of assailants and consequently the prosecution declared him to be hostile. Sri Shukla then submits that this being the state of the evidence of the prosecution, the first issue that deserves to be examined is about the claim of the prosecution that the incident had been actually witnessed by PW-1 i.e. Smt. Shanti Devi. It is in this background he submits that Smt. Shanti Devi had actually been called by the police long after the incident and she arrived on the spot according to the own evidence of the prosecution collected during investigation much after the incident. The evidence before the Court by PW-1 is not only doubtful but is a complete incorrect testimony, inasmuch as, the site plan nowhere indicates as to from which place did PW-1 actually witnessed the crime. It is then urged that the fact that she had arrived at the block premises and was sitting near the gate of the block also is an incorrect statement. In view of the serious discrepancies that are apparent during cross-examination, he submits that at one place the witness has stated that she saw the first shot having been fired by a direct contact on the head of the deceased and on cross-examination she has described the shot having been fired from a distance of more than five or six feet. This change in the statement appears on account of the nature of the gun shot injuries as recorded in the post-mortem and injury reports with a view to match them. The witness has also faltered in her statement about the manner of assault as to whether the motor cycle was stationary or was moving when the said injury is stated to have been caused. It is also urged that the recovery of the motor cycle of the deceased is stated to have been followed by being given in custody to PW-1 immediately after the spot investigation was made, but during cross-examination it appears that the motor cycle was later on stated to have been sent the next day through the police constable. This also makes her presence doubtful, inasmuch as, the recovery memo is only a paper transaction as against the ocular testimony and the deposition made in Court. It is further submitted that PW-1 has not been able to explain or depose about the name of the person through whom she got the written report transcribed and got the FIR lodged. It is for this reason that the lodging of an FIR has been castigated by the learned counsel for the appellant as being anti-timed.
He then submits that the manner of arrival of PW-1 and having seen the utilization of the fire arms is also not corroborated by the ballistic report. The preparation of the inquest also contradicts the timing in the FIR.
He then submits that N.K. Singh at whose instance the entire case diary was noted by Sri Bechan Singh, the Sub-Inspector of Police on the pretext that N.K. Singh was suffering from a hand pain, about which there is no evidence except the bald statement of Sri Bechan Singh so as to believe that he was incapable of transcribing the case diary. Accordingly the case diary was prepared while sitting in the police station without carrying out any investigation and the documents were scripted in a manner that does not inspire confidence in the investigation at all. The trial Court according to Sri Shukla, was therefore misled by the oral testimony and the real evidence was suppressed by not producing N.K. Singh, the Investigating Officer and Sri Rajesh Kumar Singh, the scribe of the FIR who had been nominated as witnesses by the prosecution in the charge-sheet as well as in the calender.
Sri Shukla submits that the oral testimony of the eye witness PW-1, therefore is absolutely unbelievable and the prosecution has failed to prove the case beyond reasonable doubt.
Learned counsel then urged that this is a clear case of false implication as the evidence clearly indicates political enmity regarding the election of Gram Pradhan. He submits that the appellant no. 1, Sri Indra Sen Singh had contested the election against the deceased and this political rivalry according to the prosecution itself establishes that there was previous enmity for which there is a strong motive of falsely implicating the appellant.
The next argument advanced was about the veracity of the ballistic report which according to the learned counsel for the appellant nowhere establishes the utilization of the weapon recovered from the appellant. He further submits the word "licensed weapon" was being used which was in relation to Basdev, the appellant no. 2. The testimony therefore in relation to the recovery of the weapon is unreliable.
Sri Shukla has vehemently urged that PW-1 is a partisan and interested witness being the wife of the brother of the deceased, and therefore her testimony should be discarded as wholly unreliable as it is out of sheer vengeance.
Sri Shukla while advancing his submissions has relied on judgments to support his contention. His contention is that in view of the law laid down in the case of Ravishwar Manjhi Vs. State of Jharkhand 2008 (16) SCC 561, the various discrepancies in the prosecution case were noticed and the conviction and sentence was set aside and the appellant therein was acquitted. He has then cited the decision of Ratan Lal Vs. State of Jammu & Kashmir 2007 (13) SCC 13 to urge that non-examination of the Investigating Officer had seriously prejudiced the defence as in the present case and the appeal was allowed. The judgment applies on the facts of the present case as well. He has then invited the attention of the Court to the decision of Arvind Singh Vs. State of Bihar 2001 (6) SCC 407 to urge that this Court should discard the assumptions made by the trial Court and the evidence be re-assessed in order to set aside the conviction and sentence of the appellant.
He ultimately submits that the prosecution story cannot be sustained on the sole ocular testimony of Smt. Shanti Devi which does not in any way disclose the truthful version that has been suppressed and could not be proved by the prosecution beyond reasonable doubt. Hence, the appeal be allowed.
Sri Sagir Ahmad, learned AGA on the other hand submits that a solitary trustworthy testimony of a witness is sufficient for conviction and the turning hostile of the injured witness will have no impact for which he relies on the judgment of the Apex Court in the case of Masalti Vs. State of U.P. AIR 1965 SC 202. He further submits that non-production and non-examination of the Investigating Officer is not fatal for the prosecution as has been held by the Apex Court in the case of Dinesh Yadav Vs. State of Jharkhand 2017 (5) SCC 764.
To the same effect he has cited the judgment in the case of Bihari Prasad & Another Vs. State of Bihar 1996 (2) SCC 317 and relied upon paragraph 23. Another judgment to the same effect relied on by him is that of Mano Dutt & Another Vs. State of U.P. 2012 (4) SCC 79. He placed reliance upon paragraph 22 to contend that the evidence of a hostile witness does not ultimately effect the prosecution story if it has been otherwise proved. Sri Ahmad relies on the judgment in the case of State of Rajasthan Vs. Bhawani & Another 2003 (7) SCC 291.
He then submits that if PW-1 had failed to disclose the name of the scribe of the written report then such a discrepancy cannot be fatal to the prosecution. He submits that even if the name of the scribe was not mentioned in the FIR then also it makes no difference as no prejudice is caused to the appellant on such count for which he relies on Anil Kumar Vs. State of U.P. 2003 (3) SCC 569. He further submits that the argument of the learned counsel for the appellant that the prosecution cannot take any benefit by contending that the defence had not put questions so as to contradict the witness in terms of Section 154 of the Criminal Procedure Code. For this, he urges that the provisions of the Evidence Act read with the Criminal Procedure Code do carve out limitations in respect of the relevancy and probative value of statements so as to make them admissible but Section 154 of the Criminal Procedure Code which is also a provision in relation to the Rule of Evidence that confers wide power on the Court to allow evidence to be led by the defence, and if the defence has failed to avail any such opportunity, it is not open to it to claim any prejudice on this count. He further submits that in view of the amendments brought about in Section 313 Cr.P.C., the defence is also consulted and it is a joint effort of framing the question to be put to the accused and this has also diluted any prejudice being caused to the defence from leading evidence. He relies on the judgment in the case of Manu Sharma Vs. State (NCT of Delhi) 2010 (6) SCC 1 to buttress his submission on this count.
He then contends that cross-examination as to previous statement in view of Section 145 of the Evidence Act, 1872 read with Sections 161 and 162 Cr.P.C., it was open to the defence to have put questions but there is no material on record so as to establish any prejudice on this count to the defence.
We have noticed the arguments advanced by the learned counsel and have perused the record that have been produced before us.
The first thrust of the argument of the learned counsel for both the appellants is that the first information report is ante-timed. It is also stated that the prosecution witnesses have failed to name the person who had transcripted the written report, as PW-1 Shanti Devi the main witness claimed herself to be illiterate. It is also urged that the report appears to be ante-timed because of the fact that there is a clear over-writing in the inquest report about the commencement of the inquest proceedings and its conclusion that raises a doubt about the adjusting of the timing of the first information report. It is also submitted that one of the witnesses to the inquest report Shakuntala is said to have arrived at about 16:30 hrs (4.30 p.m.) whereas the inquest had already been completed at about 16:00 hrs. (4.00 p.m.). Thus in order to match the timing of the first information report with the timing of the inquest report, the first information report has been ante-timed. At the very outset this argument will have to be rejected for the reason that the incident is of about 1.30 p.m. and the first information report was lodged at 2.35 p.m. The original inquest report which is Ext. Ka-5 and has been proved as such by the prosecution witnesses categorically records the commencement of the timing of the inquest on 13.09.2006 at 15:45 hrs. and its conclusion at 1600 hrs. The time of the incident is recorded therein to be 14:35 hrs. The over-writing on the timing of commencement appears to be on account of an inadvertent error as the digit 5 has been transcribed over digit 4 as rectification and does not appear to be a deliberate interpolation. It is urged that the police station is not far of and that the arrival of the police is evident from the statement of the witnesses which indicates that the police had arrived during the same hours that are relatable to the timing referred to in the inquest report. It is thus clear that the timing does not in any way create any doubt about the interval of time between the timing of the incident which is 12:35 hrs., the timing of the lodging of the first information report which is almost one hour five minutes after the incident at 14:35 hrs. and the commencement of the inquest at 15:35 hrs. which is about one hour and ten minutes after the lodging of the first information report and continued upto 4.00 p.m. The contention is that the witness of fact namely PW-1 has given a different timing of the arrival of the police as against the evidence of PW-5 the Inspector who deposed to prove the investigation. In our assessment the same does not indicate any major discrepancy as the ocular testimony of PW-1 narrates the incident in a chronology which by itself is self sufficient. Any minor infirmity in the statement and the timing including that of the arrival of Shakuntala Devi therefore does not cut much ice so as to accept the argument relating to the ante-timing of the first information report.
The next issue is with regard to the non-mentioning of the name of the person who had transcribed the written report that was translated into the first information report on behalf of PW-1 informant. We have perused the original first information report and we find that the name of the scribe of the written report is one Chandra Bhan son of Ram Lakhan resident of Rudrapur Deoria. It is true that the said person has not been produced as a witness and has not been mentioned as one of the prosecution witnesses in the police report (Charge-sheet). It is also true that PW-1 could not disclose the name of the person who had transcribed the written report but the fact remains that the said written report was proved both by PW-1 and the police witness. PW-5 states that he arrived at about 2 O'clock on the spot. He has also stated that the first informant Shanti Devi was present when he had arrived. He also categorically stated that when he arrived at the scene of occurrence then the Investigating Officer and large number of passer-by had assembled there. He has also explained the over-writing on the inquest report. Not only this he also indicated the distance of the police station is 1-1.5 kms. from the scene of occurrence. The cross-examination of PW-5 nowhere indicates about any question being put to cast any doubt relating to the person who had prepared the written report namely Chandra Bhan. Thus the argument on this score that the prosecution had failed to produce Chandra Bhan the scribe of the written report and therefore this discrepancy is such that it should be read in favour of the accused, does not stand to reason. As noted above the first information report and its transcription has been duly proved by the witnesses and therefore this entire theory of the first information report having been prepared later-on as suggested by the learned counsel for the appellant deserves rejection.
The next argument advanced is to point out the discrepancies in the statement of PW-1 with a view to dislodge her presence and also to point out that her statement does not match the site plan so as to inspire any confidence to believe the statement of the PW-1. The submission of the learned counsel for the appellant is that the eye-witness account of PW-1 is a clear after thought which has been carefully prepared but on account of the serious pit falls in her statement about the timings, about the manner of the commission of the alleged offence and the use of weapons as well as the injuries sustained, all clearly lead to the conclusion that PW-1 is not a reliable witness and that her eye-witness account deserves to be discarded.
Coming to the two site plans that have been tendered by the prosecution, we may place on record that the first site plan is of the scene of the murder whereas the second site plan is with regard to the alleged recovery of one of the weapons. The main thrust of the argument of learned counsel for the appellant is that the first site plan nowhere indicates as to where PW-1 was located so as to enable her to clearly see the entire incident. It is urged that the site plan nowhere indicates where Sheela Devi is stated to have been sitting so as to fix her presence to enable her to witness the entire incident. It is correct that the site plan omits to give the description of the place from where PW-1 Sheela Devi saw the incident but it does indicate all the important landmarks in order to establish as to the scene of occurrence i.e. the place of recovery of the dead body, the motor-cycle, the blood stains, and other items that were recovered. PW-1 in her categorical statement had clearly stated that she was sitting at the gate of the block office from where she could clearly see the entire incident. She has also described the existence of the barbers' Saloon and the Pan Shop as well as a Merchandise shop on the Eastern side of the road. The description of the Western side has also been given. It is therefore not in contradiction with the statement given by PW-1 or even the place shown in the first information report and the other documents on record.
Learned counsel for the appellant has vehemently urged that as a matter of fact Shanti Devi was not present and that she arrived later-on. She therefore has given an incorrect description which is evident from the fact that at one place she has described the firing of a shot at a close range whereas in the first information report it is stated that shot was a contact shot. Learned counsel for the appellants submits that the post-mortem report which indicates the entry and exit wound therefore does not support the prosecution story.
We are unable to accept the submission inasmuch the entry wound does indicate the blackening of the area around the wound. There is no reason to disbelieve the testimony as she had viewed it from the other side of the road and it was not possible for her to exactly measure the distance with mathematical precision the distance from which the shot had been fired. But according to the medical report it was at such a close range that virtually blew up the brain matter of the deceased that was lying scattered from where the body was recovered. The foot note on the site plan of the scene of the incident gives six descriptions. It is correct that the said description nowhere indicates the motor-cycle or the gate of the block office from where PW-1 saw the incident but from the statements of PW-1 as well as PW-5 the description stands corroborated. PW-5 categorically stated that PW-1 was sitting at the gate and was waiting for the deceased to arrive who had left her behind in order to re-fuel his motor-cycle.
The cumulative effect of both the statements together with the site plan leaves no room for doubt that the description in the site plan is of the same place where the incident had occurred. Thus to dislodge the testimony of PW-1 on the basis of certain omissions in the site plan and to describe it as totally non-descriptive is an argument which can not be accepted for all the reasons referred hereinabove and hereinafter.
The recovery of two used cartridges from the spot one of the brand of LG USA and the other of Shaktiman does corroborate the statement of PW-1 who had indicated the firing of two shots. This is further corroborated by the statement of PW-5 Sub-Inspector Bechan Singh who has proved the document of recovery of these two cartridges as Ext. Ka-12 on 13.09.2006 itself which is the date of the incident.
It is here that we may put on record that PW-3 Kali Charan Gupta who is the injured eye-witness in his examination-in-chief has corroborated the date, the time, the place as well as the fatal injuries of the deceased and the injuries sustained by him. His statement to that extent could not be contradicted by any evidence on behalf of the defence. The defence has tried to take advantage of the hostility of PW-3 from the stage when he starts denying having seen the appellant assaulting the deceased and himself. He states that after he received the injuries he was unconscious. The fact remains that the said injured witness has received the injuries has been established by the testimony of PW-4 the doctor who conducted the medical examination of PW-3 who is admittedly the injured witness of the incident. It is thus established from the aforesaid evidence that the incident had occurred and the timing of the injuries sustained by PW-3 has also been proved to be fresh in cross-examination. PW-4 has also stated that the injuries were about of the timing 1.00 to 1.30 p.m. and could have been caused by a fire arm. Not only this the doctor also states that the distance of the shots having been fired could be 2-3 mtrs. The medical examination was stated to have been carried out on 13.09.2006 which is the date of the incident and it has also been explained that PW-3 was referred to the District Hospital, Deoria. At the time of examination the timing of the injuries could have been on a margin of 6 hrs. The aforesaid medical evidence therefore clearly corroborates the injuries on the person of Kali Charan Gupta PW-3 and its timing therefore establishes the timing of the incident and also corroborates the timing of the first information report. Thus PW-3 may have turned hostile on the issue of identification of the appellant, but rest of the evidence relating to the incident can not be discarded. The proposition that a hostile witness has to be disbelieved in entirety has not been accepted by the Apex Court now it has been held that the part of the testimony which corroborates either the prosecution story or the defence story can be acceptable provided it is corroborated by other evidence. Reference may be had to the cases of Govindraju Vs. State 2012(7) SCC, 722 and Veer Singh Vs. State of U.P. 2014(2) SCC, 455.
This being the position of the injured witness it will also be trite to remember the law in this regard that the evidence of an injured witness is placed on a higher pedestal of belief. Reference may be had to the cases of Inder Singh Vs. State of Rajasthan 2015(2) SCC, 734 and Jodhan Vs. State of Madhya Pradesh 2015 (11) SCC, 52.
It is in this background that we have to assess the ocular testimony of PW-1 who according to learned counsel for the appellant is unreliable and that she may have arrived on the scene after the incident but she was definitely not an eye witness of the incident. The examination-in-chief of PW-1 narrates that when the deceased along with the injured witness arrived at the scene, both the accused were present and two shots were fired, one after the other. After the firing of the first shot the deceased fell on the ground whereafter the second shot was fired. Learned counsel for the appellant submits that she has nowhere stated that as to whether this was on a moving motor-cycle or a stationery motor-cycle. From the cross-examination of PW-1 we do not find any such suggestion or cross-examination having been attempted by the defence to extract any such minute details. However her examination-in-chief states that as soon as the deceased arrived near, where the accused were standing, then appellant Indra Sen with his double barrel gun pointedly aimed at the temple of the head of the deceased and shot him from a close range. The second shot was fired by the appellant Basdev after the deceased had fallen on the ground. In the cross-examination that was conducted on 18.09.2008 she categorically stated that the shot which had been fired by the appellant Indra Sen was on the left side of the head of the deceased whereas the shot fired by the Basdev had hit both of them. On further cross-examination she explained that it was from about a distance of 5-6 feet. She however stated that when the firing took place the motor-cycle was moving but immediately thereafter she said that it had stopped and fell down. She further stated that the deceased fell down with the motor-cycle whereas the injured witness had not fallen down at the time of the first shot, but after the second short was fired he also fell down. She categorically stated that she was at about 25 feet from the gate of the block. It is thus evident from the testimony of PW-1 that she had clearly narrated the entire scene in her statement which was given almost at intervals firstly on 30.10.2007 and 20.11.2007 and again when her cross-examination concluded on 18.09.2008. This tendering of statement by PW-1 at intervals nowhere indicates any discrepancy which may lead to the conclusion that she has contradicted her own statement given in the examination-in-chief. Thus to contend that the deposition of PW-1 is not an eye-witness account has to be rejected, moreso when the incident is a daring broad day-light assault.
On the issue of recovery learned counsel for the appellant submitted that the manner in which the Rajdoot Motor-cycle was found on the spot and the body of the deceased inter-twined with the same is not supported by the medical evidence, inasmuch as if the feet and the clothes of the deceased were entangled with the motor-cycle, it is obvious that he fell down while riding the motor-cycle and even if it was in slow motion then too even some external injuries were bound to be present when the accident is taking place on a road side. Learned counsel submits that the total absence of bruises or even minor cuts after falling down from a motor-cycle clearly indicates a serious doubt about the manner of description of the falling of the deceased from the motor-cycle and consequently again cuts at the root of the eye-witness account.
We have considered the said submissions and have also perused the inquest as well as the post-mortem report. The inquest report indicates that the body was lying infront of the Merchandise shop of Ram Ashray Gupta. This status of the shop has also been indicated in the site plan. It also indicates that there is a gun shot wound on the head and the brain material is lying scattered on the ground below that is blood stained. The post-mortem report has disclosed only the fire arm injuries. This post-mortem report was proved by Dr. A.K.Srivastava PW-2 who entered the witness box and got himself examined. From the cross-examination no such question appears to have been put to the doctor about the absence of any external injury being omitted in the post-mortem report. Any such omission as alleged may also have been possible if the deceased immediately fell down from his motor-cycle, and non presence of any bruises can not negate the core of the prosecution story which is obviously the deceased having met his fate on account of the gun shot wound. To that extent even the hostile witness namely the PW-3 who was injured has supported the prosecution story. Thus the argument that there was an absence of bruises demolishes the case of the prosecution or creates even a reasonable doubt has to be discarded.
Learned counsel for the appellant urged that the manner in which the motor-cycle is stated to have been picked-up and recovered and then the statement of PW-1 who says that it was sent the next day belies the prosecution story of the motor-cycle having been given in her custody in the interregnum. The fact remains that the motor-cycle did reach PW-1. The question as to whether after the incident it was given to her in custody and then sent later-on can be of no consequence, firstly because PW-1 Shanti Devi is a lady and it is not the case of the defence that she knew how to ride a motor-cycle, secondly it was quite probable that the motor-cycle may have arrived at her place about which she might have gathered of its arrival from the police. The witness was involved in running to and fro to the police station and giving her statement to the police and then returned back home. In this background, the giving of the custody of the motor-cycle would not create a serious doubt or dent to the story of the prosecution as the fact remains that the witnesses have proved that the deceased and the injured were both seated on the motor-cycle that was being driven by the deceased when the incident happened.
One of the other arguments advanced by the learned counsel for the appellant is that the prosecution has utterly failed to prove the case as it has not produced Sri N.K.Singh the Investigating Officer or the scribe of the first information report namely Head Constable Sri Rakesh Singh. This argument does not hold water inasmuch as the production of Investigating Officer by itself will not be detrimental for the prosecution even though it is a lapse. We are fortified in this view by the decisions in the case of Behari Prasad vs. State of Bihar 1996(2) SCC 317 and Dinesh Yadav Vs. State of Jharkhand 2017(2) 164.
It is further submitted that certain documents were not adduced and the list of documents does indicate the absence of relevant material. For this reference has been made to the ballistic report and also the fact that an application had been moved for summoning of the documents which was erroneously rejected. We find from the calendar which has been prepared that the prosecution had adduced all possible evidence and once the order had been passed by the court below which remained unchallenged the said argument is no longer open to be advanced at this stage as even otherwise no prejudice is caused keeping in view the ocular testimony, the corroborating material which is already on record and the appellants had full opportunity to contradict. We therefore do not find any error on that count.
Coming to one of the major submissions on behalf of the State about motive, in this regard it is relevant to mention that the prosecution witness PW-1 has clearly stated there was a political rivalry as the deceased was elected as Gram Pradhan in the same election in which the accused had lost. Not only this, Indra Sen had attempted another assault a few months back and in the said criminal case the deceased had appeared as a witness where he had given his testimony just ten days before the present incident. The statement of PW-1 on 20.11.2007 while being cross examined is to be noticed. She categorically states that she does not know where the said case was continuing but she definitely knew that it was only after about eight-ten days of the testimony of the deceased that the present incident took place. It is thus clear that there was a clear cloud of motive on the part of the appellants that can-not be said to be without substance. It is urged by the learned counsel that since no details about the case was given then any such evidence can-not be read against the accused. In this regard it would be relevant to point out that in the statement of the accused under Section 313 Cr.P.C. the accused as against question no.16 has clearly stated that it was on account of political rivalry of the election of Gram Pradhan that the accused was sought to be falsely implicated. As against question no.18 for giving any evidence in defence the statement is Yes and no such evidence was led on this count.
The recovery of weapon as against the appellant Basdev was not found to be proved and he has been acquitted of the said charge. It is urged by the learned counsel for the appellants that so far as the alleged weapon of the accused Indra Sen is concerned there is no such recovery nor the recovery has been connected with the commission of the offence. We may at this juncture point out that two used cartridges were recovered one of them of the caliber of LG which obviously has pellets in it. The thrust with which the shots would have been fired have caused the injuries matching the caliber of the weapon as well as the cartridges used. This is evident from the medical report. The eye-witness account supports the same and merely because one of the weapons was not recovered and the other recovered weapon did not give a positive ballistic report, the same can not dislodge the prosecution story which is a broad day-light incident on a running and busy road. This argument of the learned counsel for the appellants does not hold water.
For all the reasons given hereinabove we do not find any merit in both the appeals. The prosecution has successfully proved the case and the trial court after assessing the evidence has arrived at the correct conclusion. We see no justification or any legal or factual error so as to warrant interference. Both the appeals lack merit and are hereby dismissed. A copy of this judgment shall be despatched to the trial court for necessary compliance. The accused/appellants shall serve out the sentences awarded to them by the trial court.
Order Date :- 02.04.2018 S.Chaurasia/ R/-