Allahabad High Court
Viveka Nand And Another vs State Of U.P. on 22 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:52273-DB Reserved on 13.2.2024 Delivered on 22.3.2024 Case :- CRIMINAL APPEAL No. - 770 of 1997 Appellant :- Viveka Nand And Another Respondent :- State of U.P. Counsel for Appellant :- Satish Trivedi,Amit Daga,Jitendra Singh,Prateek Rai,Sandeep Kumar Singh,Satya Prakash Rai,Shivendra Raj Singhal,Somya Chaturvedi,Sushil Kumar Pal Counsel for Respondent :- M.D. Mishra,Dga,Rajiv Lochan Shukla,Vinay Sharma Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Ms. Somya Chaturvedi and Shri Vinay Saran, learned Senior Advocate assisted by Shri Pradeep Kumar Mishra and Shri Satya Prakash Rai, learned counsel for the appellants; Shri Rajiv Lochan Shukla, Shri Vinay Sharma and Shri Siddharth Shukla, learned counsel for the informant; learned A.G.A. for State and perused the material on record.
2. This criminal appeal has been preferred assailing the judgement and order dated 14.3.1997 passed by Sri Aditya Prakash, 7th Additional District and Sessions Judge, Muzaffarnagar, in S.T. No. 165 of 1995, convicting and sentencing the appellants under Sections 302/34 IPC to undergo imprisonment for life.
3. Initially this appeal was preferred by (I) Vivekanand and (ii) Azadveer. During pendency of appeal, appellant no.2, Azadveer, died and appeal has been dismissed as abated against him on 9.3.2022. This appeal has been argued only on behalf of appellant no.1, Vivekanand. Convict, Satyaveer, had preferred Criminal Appeal No. 452 of 1997, separately, but on account of his death during pendency of appeal, aforesaid appeal was dismissed as abated on 9.3.2022.
4. The prosecution case, as per FIR, is that the elder brother of the informant, namely, Brijpal Singh, s/o Bhagat Singh, was Pradhan of the village. He had old enmity with Satyaveer, s/o Chhajju Singh, who belongs to his Khandan (Clan) regarding passage to his grove. Manure of Pradhan (Brijpal Singh) is lying in the grove and for collecting the same, the buffalo cart (Buggi) of Pradhan is taken to the grove, which is opposed by Satyaveer and his sons. They used to abuse and threaten of life. Today, i.e., 24.9.1993, at about 07:45 p.m., nephew of the informant, namely, Sameer, s/o Bripal Singh, Smt. Bala, w/o Kripal Singh, mother of Sameer, Nirmla Devi, Devendra and Indrapal, sons of Vikram Singh, r/o Village Lakhnoti were standing outside the house of Brijpal on the road. Gas light was present. Azadveer and Vivekananad, sons of Satyaveer Singh, having country-made pistols in their hands and Satyaveer having licensed gun, came on balcony of their house from the road side and after exhortation, they fired on Sameer with weapons in their hands due to which Sameer got injured and fell down. The witnesses and other persons present on the scene of occurrence raised alarm and cried for help. Then convicts came down from their house and vanished from the passage outside of their house. The informant picked the injured, Sameer, with help of people of the village and after boarding him in jeep took him to P.H.C., Purkaji. The doctor advised them to take injured to Muzaffarnagar Hospital and they took him to Muzaffarnagar, where he was declared dead by the doctor. Hence FIR was lodged.
5. On the basis of FIR, case under Section 302 IPC was registered and investigation was conducted. During investigation on 7.10.1993 at about 02:00 p.m., on the pointing out convict, appellant no.1, Vivekanand, a 12 bore country-made pistol was recovered from his sugar cane field. On the basis of aforesaid recovery, case under Section 25 Arms Act was also registered against convict, Vivekanand. Both the trials were conducted together by the trial court. During pendency of this appeal, appellant no.2, Azadveer, has died.
6. In the case under Section 25 Arms Act, which was registered as S.T. No. 166 of 1995, the appellant no.1 was acquitted. Against the same, a Government Appeal No.521 of 2019 has been preferred by the State, which is being decided by a separate judgment of date.
7. Before the trial court, prosecution produced eleven prosecution witnesses and the defence produced three defence witnesses.
8. PW-1, Dharmpal, was the informant and elder brother of Brijpal Singh, who was Pradhan of the village on 24.9.1993, i.e., the date of incident. He stated that Brijpal used to dump manure in the grove, which was not liked by deceased convict, Satyaveer and his sons, Azadveer and Vivekananad, appellant no.2 & 1 respectively and they used to quarrel with him. When the buffalow cart of Brijpal was taken inside the grove, convicts used to threaten Brijpal and his son, Sameer, the deceased. He proved the FIR version before trial court as it is. He further stated that the incident was seen by Indrapal, Devendra, Smt. Nirmla Devi and Smt. Bala and the informant. After the deceased was declared dead at Muzaffarnangar hospital, he left dead body of deceased in the hospital and went to Purkaji and got the report written by Shiv Kumar and after signing the same gave it at the police station. In his cross-examination, PW-1 stated that the house of Brijpal was north facing. In the northern side of his house, there is adjacent road and another passage situated on northern side of aforesaid passage. The Baithak (drawing room) of Chandraveer is situated on the west of northern passage. The aforesaid Baithak is adjacent of Baithak of Brijpal and is on the eastern side. There are two passages of exit in the house of Brijpal. One is through his house and other passage is through his Baithak. There are two courtyards (Chowk) in the house of Brijpal and a passage between them. Chowk of Baithak of Brijpal is surrounded by 14 ft. wall on south and 16 ft. wall on west. The entire Chowk is surrounded by wall of 4 ft. with 2 ft. iron rod over the same. It was further stated that boundaries of the house are uneven and its height at some places is 4-4 & ½ ft. and at some places it is 5 &1/2 - 6 ft. A person, standing outside the Chowk, can be seen from some places and cannot be seen from some other places. The eastern wall of the Chowk is about 7 ft. high and the western one is of same height. There is design in the northern wall on account of which it is uneven in height. Eastern wall and western wall of Chowk are of one height. The Chowk of the house is north-south and is about 11 ft. in height. and east-west it is about 12 ft. in height. It was further stated by PW-1 in his cross-examination that Sharanveer, s/o now deceased convict, Satyaveer, was murdered. PW-1 claimed that he was witness of inquest report of Sharanveer. Azadveer and Jai Kumar were tried in the aforesaid murder case and both were acquitted. PW-1 denied that he got them implicated in the aforesaid case. PW-1 further proved that there was dispute regarding throwing of garbage in the grove between Satyaveer and Brijpal for last 5-6 years. Satyaveer used to stop the buffalo cart of Brijpal going to grove and used to abuse him. 2-3 times, Brijpal had gone to police station and gun of Satyaveer was also got deposited by the police in police station. He denied that Brijpal never made complaint against Chandraveer, etc. PW-1 admitted that he forgot to mention in FIR that he was standing in front of house of Brijpal on 24.9.1993 with mother of deceased, Sameer, Nirmla Devi and others at the time of incident. In his statement before Investigating Officer he had stated that he was standing at the place of incident with Sameer, Nirmla and others. He cannot say why this fact was not mentioned in his statement by the Investigating Officer. PW-1 further stated that lantern was burning in the Chowk of Pradhan (Brijpal). He admitted that he never informed the Investigating Officer that lantern was burning in the Chowk of Pradhan and he explained that on account of murder of his nephew, he was quite disturbed. Therefore, he failed to inform the Investigating Officer about the burning of lantern in the Chowk. He admitted further that at about 12:00 p.m., on the date of incident, inspector reached at the place of incident. No one was present at the scene of incident and in the Chowk of Brijpal. At that time gas lantern was present in the Chowk. He had informed the inspector about the place where gas lantern was placed. Thereafter inspector stated that tell these things in the morning. When the site plan was prepared by the inspector, on the next morning, he informed about the place where gas lantern was burning. He denied that he did not inform the Investigating Officer about the place where gas lantern was burning. PW-1 further denied in his cross-examination that he was not present at the scene of incident. He stated that he was present on the spot and therefore he got the FIR lodged. He had informed the inspector that he had seen the entire incident and he cannot tell the reason why this fact was not mentioned by the inspector and further stated that inspector was colluding with convicts. Therefore, he did not mention in his statement that he had seen the incident. He also could not clearly mention in the FIR that on the date of incident, father of Sameer was not present and therefore, Satyaveer exhorted convicts to eliminate him. Brijpal had gone to Ahmedabad on the night of incident and someone made him phone call. He came back in the next evening at 4-5:00 p.m. Two sons and daughter of Brijpal were residing at Muzaffarnagar. PW-1 further stated that as soon as the bullet hit Sameer, he fell down on the Khadanja. He was immediately picked up by his mother, Bala Devi, Devendra and Indrapal and Tahmad (a piece of cloth worn around waist by men) worn by Sameer was taken out from his body and his injuries was tied by the same. He went towards the Gher (compound) to bring jeep for taking Sameer to hospital. Jeep, drove by Munish, son of his brother, Kripal, belonged to Brijpal. He admitted that he neither informed the inspector about the fact of tying of Tahmad on the wound of Sameer nor he mentioned it in the FIR. He admitted the aforesaid fact for the first time before the trial court. He denied that the fact of tying of Tahmad on wound of deceased was on information of anyone. It was further stated by PW-1 that just before being shot, Sameer was having his face towards the east. He was towards the north of Sameer at the distance of 2-3 ft. Nirmla Devi was towards his west very close. Bala Devi was standing close to Nirmla Devi. Devendra and Indrapal were standing towards his north. All the three gun shot fires were made simultaneously, but their sounds were different. Soon after firing, convicts ran away. He did not see them running away. He admitted that he mentioned in the FIR that convicts vanished from the northern side of their house from the passage, only on suspicion. He also admitted that he mentioned the fact of convicts coming down from their balcony and going towards passage on the back of their house on suspicion only. He admitted that alongwith injured, Sameer, Nirmla Devi, Sandeep, Amrish were there in the jeep alongwith him while going to hospital. Munish was driving the same. P.H.C. Purkaji is 2 & ½ km. Away. Devendra and Indrapal were not in jeep. Sandeep, s/o Indrapal, was there. He admitted that he was in blood stained clothes. He lodged the FIR. He saw blood stains on his clothes, but he did not take his clothes to the inspector. He admitted that when convicts exhorted to kill Sameer, the informant and other witnesses did not move, but only saw upwards and by then the convicts fired. No pellet hit the persons standing near to Sameer. He heard three sounds of firing, but he does not know how may shots hit the deceased, Sameer. He did not see any pellet or Tikli on the scene of incident. When the inspector reached the scene of incident in night, it was dark and therefore, he went back. In the next morning when inspector reached scene of incident, he found small trace of blood on the scene of incident, but he did not take any blood stained earth or any other substance in his possession. The doctor of P.H.C., Purkaji, did not give any medical treatment to deceased. He immediately advised him to take the deceased to Muzaffarnagar, which was 25 km. away. He admitted only in his cross-examination that when the deceased was in Muzaffarnagar hospital, then apart from his jeep, two other vehicles came. There were some family members in the vehicle, which included Raj Singh, Harendra Singh, Devendra Singh, Kripal Singh, Indrapal Singh and Devendra. He admitted that chik report was given to him and his signatures were not taken thereon. He admitted that when he reached the police station, the information of death of Sameer had not reached there. After recording his statement, the inspector after taking 3-4 constables along went to the scene of incident. No other statement was recorded at the police station. In his cross-examination, PW-1 stated that Devendra and Indrapal reached the hospital after him at about 9:30 a.m. He does not know when Dharmpal, Babu Ram, Sompal, Harveer and Harendra reached the hospital on 25.9.1993. After 5-7 minutes of reaching the hospital, inspector of Purkaji reached the hospital. He also accompanied him to the place of incident and recorded the statements. Formalities regarding inquest of dead body of deceased was done by police of police station Kotwali. The formalities in the form of inquest was completed at 9-10:00 a.m. on 25.9.1993. The dead body of deceased was taken for post mortem at 11-11 & ½ a.m.. Dead body was received at 4-4 & ½ p.m. On 25.9.1995 the inspector did not make any site plan before him. The statements of four witnesses were recorded in the Chowk of Brijpal. When Khokha (Cartridge) and Tikli of bullests were recovered from balcony of convicts, no signature of any witnesses was taken on the memo of recovery prepared. Then he stated that on the balcony of convicts, statements of Sompal nd Pravendra were recorded in support of the recovery of Khokha. He denied that he did not see the incident and it did not take place on the place alleged.
9. PW-2, Nirmla, stated in her statement that on the fateful day she was standing outside her house on the road alongwith Bala, Dharmpal Singh, PW-1, Indrapal, Devendra, and Sameer. Gas lantern was burning in the house when at about 7:45 p.m., convicts came. Satyaveer stated that today father of Sameer is not there. It is good opportunity to eliminate Sameer. Appellants, Azad and Vivekanand, had country-made pistols while co-convict, Satyaveer, was armed with gun. All of them bent forward from the boundary wall of their balcony and fired from their weapons. Sameer suffered gun shot wounds and suddenly fell down on the floor. She opened Tahmad of Sameer and tied it around his body. Convicts ran away from the passage outside their house. Sameer was taken to hospital, Purkaji, in jeep. She admitted in her cross-examination that Brijpal is her husband and she alongwith her children is residing at Muzaffarnagar. On the date of incident, she was present in the village. Sameer took her to the hospital Purkaji at 5:30 p.m. and returned at 6:00 p.m. on the fateful day because she was suffering from pain in chest and fever. Two days after the incident dated 24th September, 1993 her statement was recorded. PW-1, Dharmpal, was also standing with her at the time of incident, but his name was not mentioned by the inspector. She cannot say why it was not mentioned. PW-1 is her brother-in-law (Devar) and she knows his name well. She informed the inspector that gas lantern was burning in the house at the time of incident, but why it was not mentioned in her statement she cannot say. She stated that she informed the inspector that exhortation was made by Satyaveer, but how inspector assigned role of exhortation to all the three convicts she cannot tell. She further stated that she informed inspector that convicts bent forward from the boundary wall of their balcony and thereafter they fired, but why this fact was not written by the inspector, she cannot say. She informed the inspector that she had accompanied Sameer to P.H.C., Purkaji, but why he had also not noted it, she cannot tell. She admitted that when she came back at about 3-4:00 a.m. in the night of 24/25.9.1993, Harendra, Devendraa and Indrapal came back to village. She does not remember that PW-1, Dharmpal, was present at that time or not. When she had gone to Purkaji, she left behind the gas lantern burning. When she returned in the early morning, the same was not found. She admitted that she had shown gas lantern to the inspector and also the place where it was burning at the time of incident. She further admitted that after returning from Muzaffarnagar, she met Dharmpal, PW-1, on 25.9.1993. When Sameer was taken inside the hospital at Muzaffarnagar, Tehmad was tied around his body. She was standing outside the hospital and was informed that Sameer has died. She stated that at the time of incident, she does not remember towards which direction her face was. Sameer was towards her south, Dharmpal was towards north of Sameer. Devendra and Indrapal were also there. She stated that when exhortation was made, she did not get disturbed nor got disturbed after seeing the weapons in the hands of convicts. When convicts exhorted, she saw up and thereafter they fired on Sameer. He fell down on the Khadanja. She had seen the blood on shirt of Sameer. She does not remember whether his blood had fallen on the ground or not. She admitted that when she tied the Tehmad around the body of the deceased, Dharmpal was not present. He had gone to bring jeep. She admitted that Devendra, PW-3, Indrapal and Dharmpal, PW-1, had come to her place on that night to inquire about her husband, Brijpal, whom they had not seen for many days. She stated that on account of heat, all the persons were standing outside the house on Khadanja. On the fateful day, deceased had taken food at 12:00 hours. She admitted that Smt. Bala is her sister-in-law (Jethani) and remains in Parda in front of elders. She stated that she was residing with the deceased in the village because her mother and daughter were able to cook food at Muzaffarnagar. She was living in village with Sameer, when he was murdered.
10. PW-3, Devendra, s/o Vikram Singh, stated that convicts and Brijpal belong to common ancestors. Harveer is real brother of Satyaveer and Udayveer is their another brother. On the fateful day he was standing outside his house with Indrapal. Dharmpal (PW-1) was passing from his home and he asked him where he is going. Dharmpal informed that Brijpal has not come to the village for many days and he is going to his house to inquire about him. Thereafter he went to the house of Brijpal alongwith Indrapal and Dharmpal. They saw Bala, Nirmla and Sameer standing outside the house. Gas lantern was burning in the Mardana Chowk of the house of Brijpal Singh. When they were talking, convicts, Satyaveer, Vivekanand and Azadveer came on their balcony. While Satyaveer was armed with licensed gun, Azadveer and Vivekanand armed with country-made pistols. They exhorted that today father of Sameer is not in village, lets kill him. Saying this, all of them fired on Sameer and he suffered fire arm injuries. After suffering injuries, he started leaning backwards and fell down flat on the ground. Nirmla shouted on Dharmpal and asked him to bring jeep immediately and Tahmad worn by Sameer was taken out and tied around his body. In the meantime, Dharmpal and Munish came with jeep. Bala, Nirmla, Indrapal, Dharmpal, Sandeep and Amrish picked Sameer and kept him in Jeep. It was being driven by Munish. Apart from Sameer, Nirmla, Dharmpal, Sandeep and Amrish were sitting therein. On 25.9.1993 the inspector inquired from him about the incident. After firing on Sameer, all the three convicts went away. Earlier Azadveer had fired upon son of Shyam Singh, but case was not registered against Azadveer. He informed the inspector that when he was standing outside of his house alongwith Indrapal, Dharmpal was passing. He alongwith Indrapal accompanied Dharmpal to the house of Brijpal to inquire about Birjpal. He cannot say why this fact was not mentioned by the inspector in his statement. He also stated that why the inspector did not mention about the presence of gas lantern in Mardana Chowk of Brijpal he cannot tell. He also informed the inspector that Nirmla shouted and asked Dharmpal to bring jeep immediately and Munish brought jeep, but the inspector did not mention this fact also in his statement, nor about tying Tehmad around body of the deceased, which was informed by him to the inspector. PW-3 admitted that he had earlier enmity with Vivekanand and Satyaveer regarding which FIR was lodged by his brother, Indrapal against them. They were bailed out in 1994. He admitted that Indrapal was beaten by them and application for cancellation of bail of Vivekanand and Satyaveer was filed by Brijpal and Dharmpal before the High Court. After being declared dead, dead body of Sameer was taken somewhere from the hospital and then Tehmad tied around his body was not there. He admitted in his cross-examination that he reached the scene of incident alongwith Indrapal and Dharmpal and were talking about Brijpal not coming to the village, when firing was made on Sameer. He stated that blood was coming out from the wounds of Sameer and Tehmad was tied around the wounds. Gun shot injury was on right side of his chest. He does not remember whether blood of Sameer had fallen on the earth or not. He admitted that in the election of Pradhan, his father contested election against Brijpal and he had lost. He also denied in his statement that Vivekanand was student and residing at Muzaffarnagar at the time of incident. He denied that Vivekanand passed B.Sc. examination from D.A.V. College in the Ist Division. He also denied that Vivekanand passed intermediate examination from Muzaffarnagar in 1991.
11. PW-4, Dr. Vishnu Datt Tyagi, conducted the post mortem of the dead body of the deceased and he stated that he found gun wound of entry 2.0 cm X 1.2 cm. muscle deep on right side on his chest wall at one o'clock position, 9 cm.x far right nipple. Margin inverted and lacerated direction backward and horizontal. One plastic wad was recovered from the wound. Second wound was multiple gun shot wound in area 38.0 cm. on right side chest wall, left side chest wall and upper chest wall size ¼ cm. X ¼ cm. muscle deep, margin lacerated and inverted. Third injury was multiple gun shot wounds ¼ cm. X ¼ cm. muscle deep on right lower arm middle part front aspect and upper shaft. Two small rounded metallic shots recovered from muscle of upper right arm. In the internal examination, PW-4 found right lung ruptured at many places and eight small metallic balls were recovered from lungs. Heart had ruptured on four places. In cavity of right lung, half liter of blood was found. Half liter blood was also found on abdominal cavity. Liver was found ruptured on many places. Five metallic pellets were found in the liver. From the dead body of the deceased, one Angochha (towel), one Baniyan and one underwear were taken in possession, sealed and given to the policemen. 19 metallic pellets were sealed and given to the policemen. The doctor expressed possibility of death of the deceased on 24.9.1993 between 8:30-9:00 p.m. In the stomach of the deceased, ½ liter liquid was found. It was stated that if he consumed Lassi, Maththa or milk before 1-2 hours before his death, recovery of such liquid in his stomach was possible. PW-4 stated in his cross-examination that since heart, lungs and liver of the deceased were ruptured, possibility of death of the deceased at the place and time of incident was possible. Since one plastic wad was recovered from the injury no.1, therefore, if standard weapon was used, this injury could have been caused within 6 ft. of firing. The doctor expressed ignorance about extent of dispersal of metallic pellets coming out from fire arms. He further stated that all the three injuries suffered by the deceased were horizontal. He also stated that all the three injuries suffered by the deceased could have been caused by single fire arm and also by more than one fire arm. In re-examination of PW-4, he stated that only injury no.1 was horizontal and in the post mortem, he did not mention that injury nos. 2 & 3 were also horizontal.
12. PW-5 proved lodging of the FIR and completing other formalities required.
13. PW-6 proved the conduct of inquest proceedings before him. He was cross-examined on the question, that he mentioned the date of 25 September, 1993 in the first column of the inquest report, but later it was corrected to 24.9.1993. He explained that when inquest proceedings were conducted, policemen of police station, Purkaji, had brought the chik report, but no G.D. report registering the case. He initially admitted that he got the clothes of the deceased taken out, but he did not see whether there were any bullet marks on them or not, but later he denied that he never got his clothes taken out. He further stated that at the time of inquest, he did not know the time of death of the deceased, therefore he did not mention the same in the inquest report.
14. PW-7 proved that dead body was given to him in sealed condition for being taken to the post mortem house. He did not permit anyone to touch the dead body of the deceased in the way.
15. PW-8, who was the witness of recovery of the weapons on the pointing out of the appellant no.1, proved recovery of incriminating country-made pistol before him on the pointing out of appellant no.1, Vivekanand. He proved that he knows the convicts, who belong to his village. He proved that recovery of incriminating country-made pistol was made on the pointing out of appellant no.1 from his sugar cane field on the southern side of his grove. PW-8 admitted that 6-7 months ago, dispute took place between Satyaveer and Vivekanand with Dharpal and Indrapal. He was named as witness on the side of Dharmpal and Indrapal. He denied that he is aware whether Devendra s/o Vikram Singh, who is his cousin mentioned him as witness in case registered against Satyaveer and Vivekanand by Devendra. He denied that no recovery of incriminating weapon was made in his presence.
16. PW-9, Vijendrapal Singh, Sub Inspector, Police Station Khatauli, District Muzaffarnagar, proved that on the date of incident dated 24.9.1993, he reached the scene of incident in the night and stayed there. In the morning of 25.91993, he recorded the statement of Smt. Bala, Smt. Nirmla, Devendra Kumar and Indrapal. He inspected the scene of incident on the pointing out of informant. He recovered used cartridge from the scene of incident and prepared memo in the presence of witness, Pravendra and Sompal. He read the memo to them and got their signatures on the sealed bundle. He proved that he got the recovery of the country-made pistol made on the pointing out of Vivekanand, when he was in jail. He also stated that the case crime No. 271 of 1993, under Section 25/4 Arms Act was registered against Vivekanand. He further proved that recovery of incriminating country-made pistol was made from the sugar cane field of convict, Vivekanand. He proved that the country-made pistol recovered was sent to ballistic expert. Ballistic expert found that the recovered empty cartridges were fired from the same country-made pistol. He proved that he did not find gas lantern on the place of incident in the chowk where the incident took place. He admitted that in the site plan, he has only stated that at place "C" gas lantern was shown to be burning, but he has not mentioned that gas lantern was found by him on the place of incident. In his cross-examination PW-9 admitted that he could not make inspection of the place of incident in the night of 24-25.9.1993 because there was no provision of proper light. He further stated in his cross-examination that distance between place "E" shown in the site plan to place "A" would be around 5-6 steps. The width of the road between place of incident and the house of the accused was 14 or 15 ft. The height of the northern wall in the Chowk of the deceased is 6-6 & ½ ft. He did not find any blood at point "A". Otherwise he would have made memo of the same. He proved further record of the investigation conducted by him. He admitted that date of second Parcha in the case diary is of 25.9.1993 and after conclusion of the Parcha, no date was mentioned. In the entire case diary, date is nowhere mentioned below the signature of C.O. PW-9 admitted that PW-1, Dharmpal, never stated in his statement under Section 161 Cr.P.C. recorded by him that he was also standing at the place of incident alongwith Sameer, Nirmla and others. Dharmpal also never informed him that gas lantern was burning in the Chowk of Pradhan. Dharmpal, the informant, never showed him any blood stains on his clothes. Statement of PW-2, Nirmla, was not recorded in the presence of PW-1, Dharmpal. PW-2, Nirmla, also never informed that when Nirmla, and other witnesses were standing with Sameer, gas lantern was burning. He further stated that Nirmla never informed in her statement under Section 161 Cr.P.C. that convicts fired on Sameer after bending forward from their boundary on balcony. He further stated that Nirmla never informed that the Tehmad of Sameer was opened by her and tied by her on his wound nor she stated that she went to the hospital with Sameer. She neither showed him any gas lantern nor place where it was burning. In the morning she did not show him any gas lantern. PW-9 further stated that PW-3 Devendra, did not informed him that he was standing in front of his house alongwith Indrapal when Dharmpal passed from there and they accompanied Dharmpal to the place of incident. PW-3 never informed that he went with Indrapal and Dharmpal to know why Brijpal has not come for many days in the village. Devendra never informed him that gas lantern was kept in Mardana Chowk nor he informed him that Nirmla asked Dharmpal to bring jeep soon and Munish brought the jeep. PW-8, Harendra, never informed him that Vivekanand made the recovery team follow him for recovery of incriminating country-made pistol. He did not inform that police personnel got themselves searched before the recovery of country-made pistol. He also did not inform him that Vivekanand has torn the copy of recovery memo and thrown it. He stated that investigation of case under Arms Act was made by his subordinate officer.
17. PW-10 proved that he conducted investigation of the case crime no. 136 of 1993 under Arms Act, while being posted police station Purkaji. He stated that he had not appeared before the District Magistrate for taking Sanction in this case, but had sent the report through pairokar. He could not say what document was brought by pairokar from the office of C.O. of granting Sanction. He stated that site plan of this case was prepared earlier by V.P. Singh, who investigated the case of murder. He had also recorded the statement of witnesses and has also made the memo of recovery. District Magistrate after opening the seal wherein recovered arms was kept, sealed it again, but sample of second seal is not on record.
18. PW-11, FSL expert, stated that when he received the bundle containing two used cartridges, they were properly sealed, he marked them as "EC-1" and "EC-2". In the second bundle, a 12 bore country-made pistol was found, but he stated that EC-1 was fired from country-made pistol produced before him marked "M.E.-17". The used cartridge EC-18 was not fired from country-made pistol produced before him. The expert further stated that three injuries found on the body of the deceased could have been caused by 12 bore firm arm recovered. He stated that if the accused fired from height of 10 ft. and the injured was 15 ft. away even then such injury could have been caused. The ballistic expert stated that tikli of bullet could have entered inside the body of the deceased even from such long distance. The expert further stated that all the three injuries could have been caused by single weapon. He further stated that it is wrong to suggest that all the injuries were caused from 6 ft. only. He further stated that where angle of projectile is not horizontal, the shape of injury is oval, but when it is horizontal, the possibility of the injury being circular in shape is there. Finally he stated that the 12 bore cartridges are of different numbers, 1, 2, 3 to 12. There are more than 100 pellets in every cartridges. Where the size of barrel is less, the dispersal of pellets is more and vice versa.
19. In the statement of surviving appellant no.1 recorded under Section 313 Cr.P.C., he stated that mother of the deceased, Sameer, did not resid in the village. He denied that any recovery was made from him. He stated that false recovery has been shown. He never got any country-made pistol recovered. He further stated that he has old enmity with informant, Dharmpal and his brother Vikram. On account of enmity, PW-2, Nirmla, has given false statement against him. He further stated that character of Sameer was not good. He and his father, who is Pradhan of the village, had enmity with number of persons in village. He had gone to Meerut for admission in M.Sc. at the time of incident. He was not in the village and was falsely implicated.
20. DW-1, DW-2 and DW-3 were also examined before the trial court, who were Record Keepers in the Police Office, Muzaffarnagar, Pharmacist of District Hospital, Muzaffarnagar and Head Constable Police Station Kotwali, District Muzaffar Nagar, respectively.
21. DW-1, Record Keeper in the Police Office, Muzaffarnagar, stated before the court that on 24.3.1993 he was posted as Record Keeper in Police Officer Muzaffarnagar. He has brought G.D. of Police Station Kotwali, District Muzaffarnagar, which contains the memo of Muzaffarnagar hospital of deceased, Dabbu, r/o Lakhnauti, Police Station Purkaji, District Muzaffarnagar, which was sent by Dr. C.L. Rawat to police station aforesaid informing about bringing of one person named, Dabbu, in dead condition to the hospital on 24.9.1993 at 8:50 p.m. and keeping of his body in mortuary. Memo aforesaid is recorded in G.D. No.46 at time 22:10 hours and he is filing photocopy of the same. Learned counsel for the appellant has referred to the same being Ex.Kh-1 and has stated that the deceased was taken to the hospital at Muzaffarnagar at 8:50 p.m. on 24.9.1993 by Sompal s/o Jile Singh resident of same village.
22. DW-2 proved that doctor C.S. Rawat was posed in District Hospital, Muzaffarnagar and he was posted as Pharmacist there. He testified that on paper No.92 signatures of Dr. C.S. Rawat are there which he recognizes. Dr. C.S. Rawat, has now been transferred. By paper No.92 information was sent to Police Station Kotwali, Muzaffarnagar, about keeping of dead body of deceased, Dabbu, in mortuary.
23. DW-3, Head Constable, Police Station Kotwali, District Muzaffar Nagar, proved that in the memo, Dabbu, s/o Brikpal, aged about 26 years, resident of village Lakhnauti, Police Station Purkaji, District Muzaffarnagar was mentioned. He filed photocopy of G.D. entry before the court and proved the same from General Diary produced in court. He proved the report no.46 of incident in dispute registered at 22:10 hours by constable clerk, Mazid Khan. Handwriting of Mazid Khan, was proved on G.D. before court.
24. Learned Senior Counsel for the appellant has made following submissions:-
(I) The prosecution case is absolutely false. The deceased was shot dead by someone and his dead body was taken by Sompal s/o Jile Singh to the District Hospital, Muzaffarnagar as clear from statement of DW-1, DW-2 and DW-3. The prosecution case that the dead body of the deceased was taken in a jeep first to P.H.C. Purkaji and then to District Hospital, Muzaffarnagar where after some time doctor declared Sameer dead is false and concocted story. He has submitted that it is a case of blind murder because of dispute of father of the deceased, Brijpal and also the deceased, Sameer, with number of person in the village on account of political rivalry. There was prior enmity of Dharmpal, PW-1 and his brother with the surviving appellant, Vivekanand and his father, Satyaveer, hence they were falsely implicated alongwith appellant no.1, Azadveer, also in this case;
(ii) Source of light in the form of gas lantern was neither mentioned in the FIR nor in the statement of prosecution witnesses of fact in their statements. The Investigation Officer of the case, PW-9, has clearly stated before the court that none of the witnesses informed him about the fact of gas lantern burning on the place of incident in their statements recorded under Section 161 Cr.P.C. Submission is that the presence of gas lantern was introduced for the first time in the statements of the witnesses of fact before the trial court and it would be considered to be improvement in the prosecution case only. The Investigating Officer has clearly stated before the trial court that he did not find any gas lantern on the scene of incident and in the site plan only he mentioned the place "C" where he was informed that gas lantern was burning;
(iii) Witnesses of recovery of empty cartridges from the balcony of the convicts, namely, Pravendra and Sompal, were not produced before the court to prove the recovery of the empty cartridges. Therefore the recovery allegedly made from the house of the accused is doubtful;
(iv) PW-2, Nirmla, mother of the deceased, Sameer, was not at all in the village, when the incident took place and she was called from Muzaffarnagar and made witness of the case. PW-9 had admitted that Nirmla never informed him about her presence at the scene of occurrence. She is alleged to have gone with the deceased to the P.H.C., Purkaji and also to District Hospital, Muzaffarnagar, but at no place, her presence could be proved by prosecution or by any documentary evidence. Her presence near the deceased is also belied from fact that when the firing was made on the deceased, not a single pellet hit Nirmla, who was standing close to the deceased. Not a single pellet was recovered from the scene of incident by the Investigating Officer, when the ballistic expert has stated that in the cartridge recovered from the scene of incident more than 100 pellets were there. Only 19 pellets were recovered from the body of the deceased. The fate of remaining pellets was not ascertained by the Investigating Officer;
(v) The presence of PW-1, Dharmpal, on the scene of incident is highly doubtful. At the most he claims himself to be chance witness as he had gone with PW-3, Devendra and Indrapal to inquire why Brijpal has not come to village for last many days. It has been submitted that this story has been cooked up to justify the presence of PW-1, Dharmpal, on the scene of occurrence and also of his being eye-witness before the court. He was also standing close to the deceased, when he was fired upon, but surprisingly like other witnesses on the spot, like Smt. Bala, Smt. Nirmla and Indrapal, he also did not suffer even one pellet injury. After the firing was made from the roof on Sameer by the convicts, PW-1, did not cry for help nor he chased the convicts, whom he knew very well. Therefore the presence of PW-1 on the scene of occurrence is doubtful. PW-9 has stated in his statement before the court that in the statement of PW-1 recorded by him under Section 161 Cr.P.C., he never informed that Brijpal had not come for many days, therefore, he had gone with Indrapal to know about him when the incident took place.
(vi) PW-4 autopsy doctor, and PW-11, Ballistic Expert, have stated that from the standard weapon, the range of firing is about 6 ft. only, but PW-11 has stated that it can be more. He has submitted that distance between the alleged place of firing and place where the deceased was standing was about 15 steps and therefore, possibility of gun shot wound suffered by the deceased from such long range is not there. The wad found in the injury no.1 cannot be found if firing is made from 15 steps away. The areas of dispersal of pellets found by way of injury nos. 2 & 3 also proved that firing was not made from 15 steps away. Since dispersal of pellets in such a situation would have been more and had spread considerably causing injuries to witnesses standing close to the deceased as per allegations in the FIR.
(vii) The recovery memo of country-made pistol allegedly prepared in the presence of two witnesses does not inspire confidence. PW-11 has stated before the court that he was not informed by the witnesses of recovery that convict, Vivekanand, went ahead and took them to the place where he had hidden the country-made pistol and got the recovery made. It has further submitted that procedure of recovery of the weapon is not as per Section 27 of Evidence Act.
(viii) It is clear that recovered weapon was sent from the police station to the District Magistrate for keeping it in Malkhana. Therefore, the prosecution has failed to prove that weapon recovered was same, which was sent to the Malkhana. PW-10 admitted that after the District Magistrate opened the seal of the recovered weapon and it was again sealed, sample of the seal was not kept on the record. There is every possibility of planting of weapon. It was got matched with the empty cartridge alleged recovered from the balcony of convicts, whereof there is no witness;
(ix) It has vehemently been argued that Sompal, who took the dead body of Sameer, to the District Hospital, Muzaffarnagar, after the incident of 24.9.1993, was not produced as witness before the trial court. None of the witnesses stated that the deceased was taken by Sompal to the hospital, when DW-1, DW-2 & DW-3 have proved that it was Sompal who took the dead body of the deceased to the hospital. It appears that the prosecution changed the entire case and falsely implicated the appellant and other convicts by getting FIR lodged by PW-1 at 23:00 hours on 24.9.1993, when the deceased was taken to hospital as per Ex.Kha at 8:50 p.m. and his dead body was kept in mortuary.
(x) Motive of the crime assigned to the convicts is that Saranveer, s/o accused, Satyaveer, was murdered. PW-1 claimed that he was witness of inquest report of Saranveer. Appellant No.2, Azadveer, (since deceased) and Jai Karan were tried in the aforesaid murder case and both were acquitted. Further motive of the crime was stated to be dispute regarding throwing of garbage in the grove between convict, Satyaveer and Brijpal, father of the deceased. Satyaveer used to stop cart of Brijpal, when it was taken to the grove and the dispute between them was taken to the police station and gun of convict, Satyaveer taken from him and got deposited in police station. It has been submitted that only on account of petty dispute of dumping of garbage, the offence of murder cannot be committed by the convicts. It has been submitted that PW-1 had enmity with deceased, appellant no.2, Azadveer, since Azadveer was acquitted in the case of murder of Saranveer and on account of aforesaid fact he got the accused falsely implicated in this case.
(xi) PW-4, Autopsy doctor, stated that all the injuries suffered by the deceased were horizontal, when the firing is alleged to have been made from the height of 20-21 ft. on the deceased. Therefore, the horizontal injuries could not have been caused to the deceased. It has been submitted that the deceased was killed by someone from close range and his dead body was taken by Sompal to the hospital as clear from Ex.Kha-1. Thereafter only to settle scores with convicts, prosecution cooked up false story and lodged the FIR. In the FIR, the witnesses were introduced and subsequently in the statements before the court, number of improvements were made by witnesses like source of light was shown. Other facts stated before the trial court were denied by PW-9. He denied that he was ever informed about so many things by the witnesses, which have been stated before the court. PW-9 stated that PW-1 never informed him that he was present on the place of incident alongwith deceased, Sameer, Nirmla and others. PW-2 also never informed PW-9 that convicts fired on Sameer after bending from the boundary of their balcony. She neither showed any gas lantern to PW-9 nor gave him any lantern to be exhibited. The presence of Devendra, PW-3, on the place of incident was also not informed to PW-9 during investigation.
25. Learned counsel for the informant has opposed the submission and he has submitted his reply as follows:-
(I) Learned Senior Counsel for the appellant has placed undue reliance on the fact that the dead body of the deceased was taken by the Sompal, s/o Jile Singh to District Hospital, Muzaffarnagar and DW-1, DW-2 and DW-3 have duly proved the same on the basis of material on record proved before the court. He has stated that there is no substance in this argument and this will not affect the prosecution case set up by PW-1 in the FIR, which was duly proved by PW-1, PW-2 and PW-3 by giving cogent statements. He has submitted that Sompal was also related to the family of the accused and informant. Therefore his non examination before the court would not be fatal for the prosecution case.
(ii) Second argument is that even if the source of light, i.e., gas lantern, was not mentioned in the FIR nor in the statements of prosecution witnesses of fact recorded under Section 161 Cr.P.C. and the same was disclosed before the court in the first time; it will not affect the prosecution case. The reliance has been placed on the judgment of Apex Court in the case of Tahsildar Singh and another Vs. State of U.P., 1959 AIR 1012 and has been submitted that if the witness stated certain crucial facts before the Investigating Officer during recording of his statement under Section 161 Cr.P.C., but the same was not found in the statement of witness recorded by the Investigating Officer and during trial he stated that he had informed the Investigating Officer about such fact, mere omission of important facts in the statement of the witnesses recorded under Section 161 Cr.P.C. will not be considered as vital contradiction. He has submitted that the omissions in the statements of the prosecution witnesses were explained by them by stating that they had informed the Investigating Officer, but they did not know why the facts were not mentioned by the Investigating Officer. It has been submitted that such omission cannot be read against the prosecution case. Smt. Nirmla, mother of the deceased, was present with him at the time of incident. The deceased was young unmarried boy and Nirmla, his mother, had come to live with him in the village, since there was no one to cook food for deceased, Sameer. The sister of the deceased and mother of Smt. Nirmla lived at Muzaffarnagar to look after and cook food for family members residing at Muzaffarnagar. Brijpal, her hsuband, was admittedly away and therefore, she has come to live in the village with Sameer, her son. There is nothing wrong about her presence with the deceased at the time of incident. The argument, that she was standing close to deceased, Sameer and had not suffered a single pellet injury, cannot be a ground for disbelieving the prosecution case. She was standing close, but luckily she did not suffer any injury like other witnesses and it cannot be said that merely because she did not receive any injury, her presence on the scene of occurrence is doubtful. Non recovery of pellet from the scene of incident also cannot be a ground for disbelieving the prosecution case in totality. The Investigating Officer did not conduct proper investigation and hence no recovery of pellet was made by him from the scene of incident. The benefit of the same cannot be extended to the accused.
(iv) The presence of PW-1 cannot be doubted since he has clearly stated that he alongwith PW-3, Devendra, and Indrapal had gone to the house of the deceased to inquire why Brijpal, father of the deceased, who was also Pradhan of the village, had not come to the village for long time. He has submitted that being brother and neighbour, both, of Brijpal, it was not unnatural for PW-1 to be present in front of the house of Brijpal at the time of incident. He has submitted that merely because, this fact was not stated before the Investigating Officer, it cannot be disbelieved. PW-1 explained how he reached the scene of incident in his statement before the court. It has further been submitted that in examination of the witnesses, PW-1 and PW-3 they were not confronted with their statements recorded by Investigating Officer in court Section 161 Cr.P.C. asking them to explain why they omitted to state the fact as to how and why they went to the house of Brijpal where they became witnesses to the incident in dispute.
(v) The argument, regarding the fact that the ballistic expert, PW-11 and autopsy doctor, PW-4, had stated that the range of firing of standard weapon is about 6 ft. only, is incorrect. He has submitted that PW-11 has also admitted that the range of firing can be more also depending upon the weapon. He has submitted that the recovery of wad from injury no.1 suffered by the deceased does not conclusively prove that he was hit from close range and not from the distance of 15 steps away as alleged and shown in the site plan. It has been submitted that the dispersal of the pellets in the form of injury nos. 2 & 3 proved that the fire was made from long distance and on account of the same dispersal of pellets was found. Had firing been from close range there would have been no injury caused to the deceased by dispersal of pellets in the form of injury Nos. 2 & 3.
(vi) Regarding the doubt expressed by learned Senior Counsel for the appellant that the recovered weapon was not promptly sent to the District Magistrate and the details about its being sent to the District Magistrate, it has been submitted by learned counsel for informant that none of the prosecution witnesses were cross-examined by the defence on these issues and in their absence thereto it is not open for the convicts to doubt the up-keeping of the weapon in the Malkhana. He has submitted that as per Section 114, illustration (e) of Evidence Act, there is presumption that official acts have been regularly performed. No evidence was led in rebuttal of the same. The argument, that Sompal was not produced as witness before trial court and therefore, genesis of incident as it took place was changed by prosecution, has been denied. It has been submitted that merely because name of Sompal was mentioned in hospital record, but he was not examined before the court nor examined by the Investigating Officer, would not bely by the prosecution case. Sompal is witness of recovery of two empty cartridges from the balcony of the convicts.
(vii) The argument regarding motive of the crime being week is unfounded. For 5-6 years dispute regarding dumping of manure/garbage in the grove was continuing between father of the deceased, Brijpal and convict, Satyaveer. convicts used to obstruct the cart carrying garbage/manure of Brijpal for dumping in the grove. The passage of the cart was hindered by convicts and hence they caused the murder of son of Brijpal, namely, Sameer, when he was alone in his house.
(viii) Regarding injury being horizontal, learned counsel for the informant has submitted that it is stated by PW-2 that convicts leaned forward from the boundary wall of the terrace and thereafter fired on the deceased. He has submitted that by leaning forward from the terrace, the gradient of the firing was reduced and injuries suffered became horizontal in nature.
(ix) Lastly, non production of Sompal and Pravendra, witnesses of recovery of empty cartridges, will not affect the prosecution case since memo of recovery was prepared by PW-9 and he proved the same before the trial court.
26. After hearing the rival contentions, the first issue to be decided is as to whether the incident as alleged to have taken place by the prosecution took place or not. The argument of learned Senior Counsel for the appellant is that it is clear from Ex.Kha-1 that dead body of deceased, Sameer, was taken by Sompal, s/o Jile Singh, to the District Hospital, Muzaffarnagar, on 24.9.1993 at 8:50 p.m. It is mentioned in the Ex.Kh-1 that dead body of Dabbu, s/o Brijpal Singh, aged about 26 years, r/o Lakhnauti, Police Station Purkaji, District Muzaffarnagar, was taken to District Hospital, Muzaffarnagar, by Sompal, s/o Jile Singh, resident of same address. For ready reference, Ex.Kha-1 is quoted below:-
"एस०ओ० कोतवाली मु० नगर आपको आवश्यक कार्यवाही हेतु सूचित किया जाता है कि एक व्यक्ति मृतक अवस्था में जिसका नाम डब्बू s/o श्री बृजपाल सिंह उम्र 26 वर्ष R/O ग्रा. लखनौती P/S पुरकाजी जिला मु० नगर को सोमपाल s/o श्री जिले सिंह R/O same address द्वारा आज दिनांक 24.9.93 को समय 8.50 p.m. अस्पताल लाया गया शव को अस्पताल के शव गृह में रखवा दिया गया है।"
27. A perusal of the aforesaid document (Ex.Kha-1) shows that name of the deceased has been mentioned as Dabbu while the prosecution has everywhere given his name as Sameer, but name of deceased, his age and address corroborate with particulars of Sameer stated by the prosecution in evidence. This Court finds that this document was filed in evidence and also duly proved by DW-1. In the questions put up to surviving appellant, Vivekanand, under Section 313 Cr.P.C., this Court finds that he has denied the incident and has stated that he has old enmity with Dharmpal and his brother, Vikram and Nirmla has given false statement under their influence. He has further stated that Sameer was not having good character and he and his father had enmity with number of persons in the village. He was murdered for this reason by someone. This Court also finds that DW-1, DW-2 & DW-3 were not cross-examined by the prosecution at all and prosecution did not avail the opportunity of cross-examination of the aforesaid defence witnesses. Non cross-examination of the defence witnesses regarding the document Ex.Kha-1 proves that prosecution had nothing to say in rebuttal of the documentary evidence, when it was sufficient to belie the prosecution case. If the aforesaid document is accepted as genuine and unassailed by the prosecution, the entire prosecution case set up before the trial court comes under black clouds. The aforesaid document proves that dead body of the deceased, Sameer, mentioned as Dabbu, was taken by Sompal to the District Hospital and it was kept in mortuary as clear from statements of DW-2 & DW-3. Thereafter, FIR was lodged by PW-1 and the witnesses PW-2 and PW-3 were introduced therein and the entire investigation was done on its basis and trial was also conducted. This issue was raised before the trial court, but the trial court has brushed aside the documentary evidence in the form of Ex. Kha-1, which was the information sent by District Hospital, Muzaffarnagar to S.H.O., Kotwali, Muzaffarnagar, relying upon the statement of PW-2, Nirmla that she had taken Sameeer to the District Hospital and he was breathing and died after 20-25 minutes. The trial court has not considered the aforesaid document and the statements of DW-1, DW-2 & DW-3 in its judgment under challenge which has prejudiced to the defence case. Statement of surviving appellant, Vivekanand, recorded under Section 313 Cr.P.C. was also not considered by the trial court at all, wherein he clearly stated that the entire prosecution case is false. He has been falsely implicated because of his old enmity with Dharmpal and his brother, Vikram. Whether the explanation given by the convict in his defence before the trial court under Section 313 Cr.P.C inspired confidence or not has not been considered by the trial court. The explanation of surviving appellant is that the deceased and his father had enmity with number of persons in the village because the father of the deceased was a political person and also sitting Pradhan of the village and deceased also did not have good character hence he was murdered by someone and he was falsely implicated alongwith his brother and father. His explanation, that he was falsely implicated in this case seen alongwith document Ex.Kh-1, was sufficient to raise reasonable doubt in the mind of the Court regarding the prosecution case. Trial court, while convicting the appellant, has completely failed to take note of the explanation offered by the appellant in his statement under Section 313 Cr.P.C., which was not improbable in the facts of the case.
28. The Supreme Court in the case of Reena Hazarika Vs. State of Assam, reported in AIR 2018 SC 5361, in paragraph-16 of the judgment, observed as follows :
16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing"
29. In the present case, as the appellant has come with a specific and plausible defence but the trial court did not consider it and without considering it convicted the appellant. In our considered opinion, therefore, the conviction of the appellant from this angle too, is unsustainable.
30. The next point to be decided in this appeal is whether the omissions pointed out by PW-9 in the statements given to him by PW-1, PW-2, PW-3 during investigation amounted to contradiction or improvement in prosecution case before the trial court by the prosecution witnesses. Reliance has been placed by learned counsel for applicant on the judgment of Apex Court in the case of Tahsildar Singh and another Vs. State of U.P., reported in 1959 AIR 1012 = 1959 SCR Supl. (2) 875. He has submitted that the majority view in the aforesaid judgment was that mere omissions did not amount the contradictions. A statement to the police could be used under Section 162 of the Code only for the purpose of contradicting a statement in the witness box under the second part of Section 162 of Evidence Act, but it could not be used for the purpose of cross-examining the witness under the first part of Section 145 of the Act. A statement made to the police, but not reduced to writing, could not be used for any purpose, not even for contradiction. It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police, should be treated as contradictions. An omission in the police statement could amount to a statement and be used as a contradiction only when (i) it was necessarily implied from the recital or recitals found in the statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the statement before the police and that before the Court could not stand together. It was for the the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, whether the recital intended to be used for contradiction was one of the nature indicated above.
31. This Court has found that after going through the statement of the prosecution witnesses that there was following omissions in their statements recorded by the police:-
(I) Presence of gas lantern on the scene of occurrence shown to the Investigating Officer, PW-9, when their statements were recorded. PW-9 only admitted that he was shown place where alleged gas lantern was burning, but he was not shown any gas lantern. When he went to the scene of incident in the night of 24-25.9.1993 at about 12:30 hours, he did not find any source of light and therefore, he went back to the place of incident on the next day at 10:00-10:30 a.m. and conducted the investigation and made recovery of empty cartridge, etc.
(ii) PW-1, Dharmpal, never informed Investigating Officer that at time of incident, he was standing with Sameer, Nirmla, etc. PW-1 did not show him any blood stains on his clothes.
(iii) PW-2, Nirmla, did not state in her statement that Dharmpal was present alongwith her at the time of incident. She only stated that her son, Sameer and other persons were there. She also did not inform that any gas lantern was burning in her house at the time of incident. PW-2 also did not inform him that convicts had bent forward from the wall of their boundary and fired on the deceased. She also did not inform that she has taken out the tehmad of Sameer and tied it on his wounds. She also did not inform him that she had gone with Sameer to hospital. Even on the next day in the morning, she did not show him any gas lantern.
(iv) PW-9 stated that PW-3, Devendra, also did not inform him that he alongwith Indrapal were standing in front of their house and Dharmpal, PW-1, passed from their house and they had gone with Dharmpal to know about whereabouts of Brijpal to his house. The Investigating Officer has further stated that PW-3 never informed him that at the scene of incident, Dharmpal, was also standing with him nor he informed him that he went to the house of Brijpal to know about his whereabouts since he had not come to village for long time. PW-3 did not inform him that the gas lantern was burning in Mardana Chowk of Brijpal's house nor he informed him that Nirmla shouted and instructed Dharmpal to go and bring jeep soon and Munish brought jeep. PW-3 also did not inform PW-9 that deceased was wearing Tehmad and it was taken out and tied on his injury. He also did not inform that convict, Vivekanand informed Investigating Officer that he wants to get recovery of weapon made. Investigating Officer further stated that PW-9 never informed him that Vivekanand was leading and took the police to his sugar cane field and the police personnels made their mutual search. He also did not inform PW-9 that copy of memo of recovery given to Vivekanand was torn by him and thrown.
32. Learned counsel for the informant has not disputed that in the statements of the PW-1, PW-2 and PW-3 recorded before the police, they had stated these things and therefore, there is any contradiction in the statements of the witnesses recorded under Section 161 Cr.P.C. and their statements recorded before the court. Therefore as per the Constitution Bench Judgement in the case of Tahsildar Singh and another (supra), there can be no contradiction. When there is no statement regarding certain facts, which may be contradicted, there is no question of contradiction. It is only a case of omission of certain facts by the prosecution witnesses in their statements recorded under Section 161 Cr.P.C. by the Investigating Officer. The Apex Court has held that omission in police statement can be used as contradiction only in three contingencies noted above. This Court finds that from the statements of witnesses under Section 161 Cr.P.C., the first contingency that the omission can be implied from the recital found in the statements of witnesses under Section 161 Cr.P.C. or subsequently there is negative aspect of a positive recital in their statements or statement before the police and the statement before the court could not stand together, is not inferable from the statements of the witnesses recorded under Section 161 Cr.P.C. Omissions in their statements, which have later been tried to be made good before the court can be considered as improvement as held by the Apex Court in the case of Yudhishtir Vs. State of M.P., 1971 (3) Supreme Court Cases 439. The prosecution had tried to fill lacuna in the prosecution case by improving statements of PW-1, PW-2 and PW-3 before the trial court by showing the presence of gas lantern on the place of incident so that the accused could be identified with the help of source of light on the scene of incident. The presence of PW-1 on the scene of occurrence was sought to be proved by way of improvement in the statements of PW-1, PW-2 and PW-3 by showing that he had come to the house of Brijpal/his son, Sameer, to know as to why Brijpal has not come to his house/village alongwith PW-2 and Indrapal. Therefore, this Court finds that the prosecution witnesses have made improvements in their statements to prove the prosecution case before the trial court, but the trial court has not considered the improvements made by the prosecution witnesses before the trial court properly and has convicted and sentenced the accused.
33. The third point which requires consideration in this case is regarding recovery of weapon allegedly made on pointing out of the surviving appellant, Vivekanand. PW-8 has made the recovery of the country-made pistol on the pointing out of appellant no.1 from his sugar cane field in the presence of two witnesses, namely, Pravendra and Sompal. This Court finds that the manner and more of recovery of the country-made pistol allegedly used in the crime is not in accordance with Section 27 of the Indian Evidence Act. The Apex Court in the case of Ramanand @ Nandlal Bharti Vs. State of U.P., AIR 2022 Supreme Court 5273 has considered the relevant law in paragraph nos. 66, 67 & 68 herein quoted herein below:-
"66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence."
34. The Apex Court in the same judgment has delineated the requirements of procedure for such recovery in paragraph no.53 which as follows:-
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
35. This Court finds that in the present case, two witnesses, namely, Pravendra and Sompal, were not independent witnesses, but one of them, Sompal had taken the dead body of the deceased to the hospital as considered hereinabove and also related to both the sides. As per the procedure qualified by the Apex Court, two witnesses should have been called at the police station itself and in their presence, statement of the accused should have been recorded expressing willingness to get the hidden weapon recovered. The exact statement and exact words uttered should have been in the first part of Panchnama and drawn by the Investigating Officer. The first part of the Panchnama ought to have been drawn in the police station in the presence of two independent witnesses so to lend credence to the statement of accused expressing his willingness to get the recovery of weapon used in the crime made on his own freewill. Only after the completion of the formalities of first part of the Panchnama the accused alongwith two independent witnesses would have proceeded to the place of recovery and then after recovery of the incriminating weapon, the entire process would have been recorded in the second part of Panchnama. In the present case the statement of PW-8 does not prove at all that he complied with the procedure of Section 27 of Evidence Act while getting the recovery of country-made pistol made form pointing out of the appellant no.1, Vivekanand.
36. This Court has found that PW-1, PW-2 & PW-3 are closely related to the deceased and PW-3 has admitted in his statement that he has enmity with convict, Vivekanand and his father, Satyaveer, regarding FIR lodged by his brother, Indrapal against them. There is no clear evidence of the presence of PW-1 and PW-3 at the scene of occurrence. PW-1 is real uncle of the deceased, Sameer, while PW-3 is brother of PW-1. All the witnesses are highly interested witnesses. They are related witnesses of the deceased. The Apex Court has cautioned that in case of interested/related witnesses, the court should proceed with care while deciding the admissibility of such evidence. The word 'interested' implies that the witness is personally involved in seeing the convicts convicted by all means. The testimony of such interested witnesses is notoriously unreliable and cannot be relied without additional evidence. Evidence of interested witnesses deserves verification before acceptance. The Apex Court in the case of Mano Dutt and Anr vs. State of Uttar Pradesh, 2012 (4) SCC 79, has held that the acceptance of evidence of interested witnesses is dependent on two factors:-
(i) the court's inspection;
(ii) prudence in appraising such evidences.
37. This Court finds number of lacuna in the statements of PW-1, PW-2 & PW-3, which affect the credibility of their statements before the court and cannot be summarized as follows:-
(I) The conduct of witnesses is unnatural. They admit that they saw the convicted persons going on their balcony with weapons in their hands, they exhorted to kill Sameer, but none of the three witnesses have stated that they even moved from the place, where they were standing or made any attempt to protect Sameer from the assault, which was being aimed at him.
(ii) They neither raised any alarm nor cried for help, when the firing was made on Sammer. This fact is admitted in their statements. PW-2, Nirmla, who was mother of the deceased, has also not admitted raising alarm, loosing mental balance because of sudden fire arm injury caused to her son, which later proved fatal for his life.
(iii) None of the above witnesses have stated in their statements that when the convicts had come down from the balcony, they tried to apprehend them or challenge them. Their conducts are not natural since they stated that the convicts came down and went towards back of their house peacefully.
(iv) None of the witnesses have stated that the convicts threatened any of the person standing near the deceased, namely, Nirmla, Bala, Dharmpal, Devendra and Indrapal and normally after committing crime, the assailants threaten the persons standing nearby of dire consequence, in case they make attempt to apprehend them or hinder their way.
(v) All the persons noted above were standing very close to the deceased and in case the suggestion of the prosecution made to PW-11, the forensic expert, is accepted that firing on the deceased could have been caused from 15 ft. then the dispersal of pellets only on 38 cm., on right side chest, left chest wall and upper chest wall of the deceased was not credible. The dispersal of pellets fired from 15 ft. would have been definitely much more and had caused pellet injuries to at least one person standing very close to the deceased.
(vi) The theory of tying Tehmad around the wounds of the deceased does not appear to be credible, which was probably cooked up to explain the lack of recovery of any blood stain earth from the place of incident. PW-4, Doctor, Vishnu Dutt Tyagi, who conducted post mortem of the deceased, found one Angochha (towel), one Baniyan and one underwear on the person of the deceased. If he was tying Angochha (towel) around his waist at the time of incident how he was also wearing Tehmad on his waist has not been explained. Both the clothes are tied only around waist by males.
(vi) In the statement of all the prosecution witnesses of fact about the presence of gas lantern at the scene of occurrence is in contradiction of statement of Investigating Officer, PW-9, who has clearly denied showing of any gas lantern to him by the aforesaid witnesses, when he visited the scene of incident on the very day of the incident and also on the next day. He only admitted that the place "C" was shown to him as the place where the alleged lantern was burning and no such lantern was shown to him by the witnesses.
(vii) The prosecution witnesses deliberately did not mention the name of deceased as "Dabbu" and named him as Sameer only. It appears that the common name of the deceased, "Sameer", was "Dabbu" and it was mentioned in document Ex. Kha-1 and since the aforesaid document was against the prosecution, name of deceased was not stated as "Dabbu" by any witness. This appears to be the reason for non-cross-examination of DW-1, DW-2 & DW-3 regarding document Ex.Kha-1 and the name of the deceased mentioned therein.
(viii) The statements of fact witnesses that convicts leaned forward from the balcony and thereafter fired on him have been made to justify the injury No.1, which was found to be horizontal and also to reduce the distance of firing. This also appears to be improvement.
38. Therefore it is clear that testimonies of PW-1, PW-2 and PW-3 were of interested/related witnesses and trial court has not considered this aspect of the case, while convicting the appellants.
39. The other arguments raised by the parties did not go to the root of the case. Once the defence has succeeded in creating reasonable doubt regarding the prosecution case in the mind of the Court, the other submissions as to the recovery of pellets, blood stains earth, non recovery of Tehmad of the deceased, etc., do not remain much significant. The question whether the injuries have been caused from the alleged distance or not and whether the wad could have been found in the body of the deceased or not, if firing was made from 15 steps away, do not remain of much consequence. The prosecution case becomes doubtful in view of the document Ex.Kh-I which is totally against recitals in the FIR and the statements of PW-1, PW-2 and PW3.
40. This Court after considering the arguments of learned counsel for the parties and going through the evidence on record of both sides and re-appreciating the judgment of trial Court, is of the firm view that the prosecution has failed to prove the charges levelled against the appellant and other convicts and the prosecution case is highly doubtful. Accordingly the judgment and order of the trial court is set aside. Surviving appellant, Vivekanand, is acquitted of all the charges.
41. Let this judgment and order notified to the trial court for compliance of Section 437-A Cr.P.C. The compliance report shall be sent by the trial court to this Court within a month. Record of trial court shall also be sent back within a week.
42. This Criminal Appeal is allowed.
Order Date :- 22.3.2024
Ruchi Agrahari
(Ram Manohar Narayan Mishra,J.) (Siddharth, J.)