Madhya Pradesh High Court
Devendra Singh Solanki vs State Of M.P. on 7 July, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.84 of 2001
Between:-
DEVENDRA SINGH SOLANKI S/O
AMAR SINGH SOLANKI, AGED 50
YEARS, R/O VILLAGE SURERA,
POLICE STATION ATMADNAGAR,
DISTRICT AGRA (U.P.) AT PRESENT
IRRIGATION COLONY, DABRA,
DISTRICT GWALIOR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SHAILENDRA SINGH - ADVOCATE)
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
DABRA, DISTRICT GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
2
(BY SHRI NAVAL KISHORE GUPTA -
PUBLIC PROSECUTOR )
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Reserved on 20/06/2022
Delivered on 07/07/2022
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This appeal coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
(1) The present appeal has been directed against the judgment of conviction and order of sentence dated 05/12/2000 passed in Sessions Trial No.264/1991 by First Additional Sessions Judge, Dabra, District Gwalior, whereby the appellant has been convicted u/s 302 and 307 I.P.C. and sentenced to undergo life imprisonment and 10 years R.I. respectively.
(2) The case of the prosecution in nutshell is that on 21/04/1991 at about 11.30 in the night when complainant Narendra Singh (PW/5) was sleeping alongwith his family members on terrace of his rented premises situated at Dhimarpura, Dabra, someone knocked the door at the ground floor. The complainant asked as to who it was, that accused/appellant challenging him told his name and while abusing him called for him. Getting scared he hide himself in the bathroom on the terrace itself and saw the appellant 3 standing with two others with .12 bore guns in their hands in front of door of his house. Deceased Makhhan Singh, who is the father of the complainant, threw one brick towards the accused/appellant to frighten the appellant and other accused and in return the accused/appellant fired from his .12 bore gun on Makhhan Singh, which hit him on his chest and he fell down. Gunshots were also fired on the complainant Narendra Singh, but he managed to escape. The accused persons then fled from the scene of incident in a Fiat Car, which they had parked in front of Sarman Ki Chakki. When complainant saw his father, he was already dead. At that moment his brother Jagdish (PW/8) also came over there. (3) FIR was lodged by complainant Narendra Singh (PW/5) vide Ex. P/12 and on its basis, investigation began. Spot map was prepared vide Ex.P/4, vide Ex. P/10 blood-stained soil was collected and vide Ex. P/9 empty and missed cartridges of .12 bore gun were recovered. The dead body was send for post mortem and vide Ex. P/3 post-mortem report was prepared. The accused Devendra and Ashok were arrested vide arrest memo Ex. P/5. As per seizure memo Ex. P/8, a .12 bore gun was recovered at the instance of accused Devendra and as per seizure memo Ex. P/7 cartridges of .12 bore gun in a belt were recovered from Ashok and as per seizure memo Ex. P/11 Fiat car No. USB/719 was seized in an abandoned condition from Irrigation (Sinchai) Colony.
(4) After investigation charge sheet was filed against three persons namely Gopaldas s/o Babulal, Devendra Singh s/o Amar 4 Singh and Ashok s/o Murarilal and after committal the matter was placed before the Sessions Court. Vide separate order's dated 11/05/2012 charges u/s 302 and 307 IPC were framed against all the three persons and the Session was put to trial. In all 8 witnesses were examined, Kalu s/o Bansilal as PW/1, Murarilal Dubey s/o Shivram Dubey as PW/2, Dr. V. P. Mathur s/o B.R. Mathur as PW/3, Ashok Kumar s/o Vanshdhir PW/4, Narendra Singh s/o Makhhan Singh as PW/5, Smt. Santosh w/o Narendra Singh as PW/6, Trilok Singh s/o Jagdish Singh as PW/7 and Jagdish s/o Makhhan Singh as PW/8 respectively. (5) After detailed scrutiny learned Trial Court acquitted Ashok and Gopal from the charges u/s 302 and 307 I.P.C., but Devendra, the appellant herein was convicted for the aforementioned offences for life and 10 years respectively. Aggrieved this appeal had been preferred.
(6) The following contentions were raised by the counsel appearing for appellant-Devendra Singh in furtherance of his arguments:
(i) That, F.I.R lodged by Narendra Singh (PW/5) is a concocted document, as in his statement para 4 he had stated that he went to lodge the report on 22/04/1991 at about 4.00 AM in the morning, whereas in the F.I.R. Ex. P/12 the time of intimation to the Police Station is mentioned as 00.15 AM on 22/04/1991, thus, the F.I.R. is ante-timed and could not be relied.
(ii) That, non-mentioning of the fact of non-sending of the report or not proving the fact of forwarding the copy of FIR to 5 concerned Magistrate as envisaged u/s 157 CrPC by the Investigation Officer, could be said to be fatal for the case of the prosecution.
(iii) That, Narendra (PW/5) is not a credible witness as firstly he is the son of the deceased, an interested witness and secondly his testimony is liable to be discarded due to material contradictions with regard to the presence of the appellant, his role in the entire incident and lastly the statement is belying the medical evidence, as to the manner in which gun-shot injury was caused to the deceased.
(iv) That, absence of ballistic expert's report to prove the factum of use of the seized gun and the cartridges in the incident by the appellant would affect the creditworthiness of the prosecution case.
(7) In furtherance of the first contention the learned counsel for the appellant argued that sole eye-witness Narendra (PW/5) in his examination-in-chief had made a specific averment that the incident took place at about 11.30 PM on 21/04/1991 and since it was late in the night he reported the matter at about 4.00 AM on the next day i.e. 22/04/1991, whereas in the FIR Ex.P/12, the time of receiving of the information by the Police is mentioned as 00.15 AM on 22/04/1991, thus, since the F.I.R. is ante-timed the very version of the prosecution case is doubtful and cannot be relied. To bolster his submissions reliance was placed on the judgment of Hon'ble Supreme Court in the matter of State of Andhra Pradesh Vs. Patnam Anandam reported in AIR 2005 SC 764 and while 6 placing reliance on para 9 submitted that since there is no explanation for the variance in the time mentioned in the FIR lodged by the complainant and the time of intimating the matter to the police in the statement made before the Court the prosecution story appears to be concocted. Further reliance was placed in the matter of State of M.P. Vs. Kriparam reported in (2003) 12 SCC 675 for the proposition that with regard to time of lodging of the report there was a direct contradiction visible from the evidence of Narendra Singh (PW.5) and the time mentioned in the FIR. This contradiction as per the learned counsel makes a lot of difference, more so when the prosecution failed to explain the cause of ante-timed FIR.
(8) With regard to second contention counsel for the appellant argued that there is no iota of evidence produced by the prosecution with regard to sending of the FIR, as per section 157 Cr.P.C., to the Magistrate empowered to take cognizance of such offence upon a police report. As per section 157 CrPC, the report is mandatorily required to be send forthwith, else creates doubt about the veracity of the FIR and in absence of any explanation of the time of sending the FIR to the concerned Magistrate, the very existence of the FIR comes under cloud and becomes doubtful. To substantiate the arguments reliance was placed on the judgment of the Hon'ble Supreme Court in the matter of State of Rajasthan Vs. Teja Singh & others reported in AIR 2001 SC 990, wherein the Hon'ble Supreme Court has held that requirement of law is that FIR should reach the concerned Magistrate without any undue 7 delay. Further reliance was placed in the matter of Arjun Marik and others Vs. State of Bihar reported in 1994 Supp (2) SCC 372, reiterating the above proposition with special mention of para 24 and 25. Further reliance was placed in the matter of Mehraj Singh (L/Nk.) Vs. State of U.P. reported in (1994) 5 SCC 188 for the proposition that with a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks and one of the checks is the receipt of copy of the FIR, by the local Magistrate. If the report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Further reliance was placed in the matter of Ramesh Baburao Devaskar & others Vs. State of Maharashtra reported in AIR 2007 SC (Supp) 1606 for the aforesaid proposition and on the strength of the above contended that since as to when copy of FIR was forwarded to the concerned Magistrate had not been disclosed by the prosecution, the possibility of lodging of manipulated FIR cannot be ruled out.
(9) With regard to the third contention it was argued by the counsel for the appellant that Narendra Singh (PW/5) had stated that as soon as he heard the voice of appellant Devendra he hide himself in the bathroom and stayed there till the appellant fled away from the incident, thus, could not have seen the incident and therefore, is not a credible witness. Further it was argued that 8 appellant fired the gun shot from downstairs towards terrace and hit his father in the chest, thus, the bullet must have travelled in upward direction, whereas as per statement of Dr. V.P. Mathur (PW/3) who had done the autopsy, gun-shot injury on chest flowed in downward direction, which falsify the ocular evidence of Narendra Singh (PW/5). It was also argued that Narendra Singh (PW/5) in cross-examination had stated that during the course of incident while returning, appellant fired a gunshot, which broke the bulb, but no traces of glass were found on the spot, Further, there is no mention in the FIR, of the fact that he saw the incident from the bathroom and there is a variance in his statement & statement of Jagdish (PW/8), brother of complainant, as to the manner in which the appellant left the scene of incident, as Narendra Singh (PW/5) had deposed that appellant had left in a car, whereas Jagdish (PW/8) stated that he saw the appellant running alone, bare foot with other accused persons, thus there are major contradictions in his statement, which shakes his credibility. In the said context reliance was placed in the matter of State of U.P. Vs. Shiv Kumar & others reported in AIR 2005 SC 2992. (10) Lastly for the fourth contention it was argued that though the empty, missed, other cartridges and the gun were seized from the vide Ex.'s P/7, P/8 and P/9 respectively, the same were not sent for obtaining report of Ballistic expert, in absence of which it could not be said that the empty/missed bullets recovered were fired from the said gun or pertained to the said gun and as it had been demonstrated that the entire version of the prosecution story 9 starting from recording of the ante-timed FIR, non-compliance of section 157 Cr.P.C., contradictions in the medical evidence and ocular evidence of the eyewitness, is totally untrustworthy and cannot be & should not be believed. It was further contended that in the present case since injury has been caused by a firearm, the opinion of the ballistic expert is of a considerable importance, as the investigation & failure to produce the expert opinion would affect the creditworthiness of the prosecution case. In the said context further reliance was placed in the matter of Sukhwant Singh Vs. State of Punjab reported in AIR 1995 SC 1601 and in the matter of Puran Singh Vs. State of Uttaranchal reported in (2008) 3 SCC 795.
(11) Apart from the above contentions it was also argued that from the entire story of prosecution the very presence of the appellant appears to be doubtful and while placing reliance in the matter of State of Rajasthan Vs. Lala @ Abdul Salam reported in AIR 2008 SC 1497, harped the credibility of the statement of Narendra Singh (PW/5) and lastly while placing reliance in the matter of Hardip Singh Vs. State of Punjab reported in 1994 Supp (1) SCC 183 contended that when there are two sets of evidence of eyewitnesses contradicting each other, the benefit of the same should go to the accused. It was also argued that since the investigating officer was not examined, the credibility of entire prosecution story is shaken and on the touch stone of the above factual matrix does not appear to be steadfast.
(12) Thus, on the strength of the above arguments prayed for 10 allowing the appeal and consequently acquit the appellant of the charges of offence u/s 302 & 307 I.P.C.
(13) Per contra learned Public Prosecutor appearing for the respondent/State submitted that immediately after the incident which occurred on 21/04/1991 at 11.30 PM, complainant Narendra Singh (PW/5) reported the matter to the Police at 00.15 hrs on 22/04/1991, though while deposing before Court Narendra Singh (PW/5) had stated that since it was late in the night he reported the matter at 4.00 AM, which is a minor contradiction and could have happened due to efflux of time since statement of complainant Narendra Singh (PW/5) was recorded after a lapse of 9 years on 14/08/2000 from the date of incident, his creditworthiness cannot be doubted. It was further argued that discrepancies in the statement of eyewitness Narendra Singh (PW/5) and contents of FIR are not of such nature which could create doubt over the prosecution story. It was also argued that the statement of Narendra Singh (PW/5) were trustworthy as he withstood his testimony with regard to his version of the story made in the FIR and statement made u/s 161 Cr.P.C. Santosh (PW/6) w/o Narendra Singh also showed the presence of the appellant with gun at the time of incident and no marked contradiction could be made out while confronting with her statement u/s 161 Cr.P.C. The presence of appellant at the scene of incident is also established by Jagdish (PW/8), as he had seen him running from the spot.
(14) In context to late communication of the FIR to the concerned Magistrate, learned Public Prosecutor while relying on 11 sections 145, 146 and 155 of the Evidence Act argued that the purpose of communication of the FIR to the Magistrate "Forthwith" is for checking the possibility of its manipulation and if there is no delay in lodging the FIR then any delay in communicating it to the Magistrate would be of little consequence and the manipulation of the FIR would then be ruled out and since this point was not raised on behalf of the appellant at any point during examination of the prosecution witnesses and for the first time it had been raised during final arguments of this appeal, the prosecution was under no obligation to give an explanation. He further stated that there is no Universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes vulnerable and unreliable. In support of his contentions, he placed reliance on the judgment of Hon'ble Supreme Court in the matter of State of Rajasthan Vs. Daud Khan reported in (2016) 2 SCC 607. He further placed reliance on the judgment of Hon'ble Apex Court in the matter of Brahm Swaroop and Another Vs. State of Uttar Pradesh reported in (2011)6 SCC 288.
(15) With regard to the arguments regarding Narendra Singh (PW/5) being an interest witness as he is son of the deceased and his creditworthiness, as advanced on behalf of the appellant, placing reliance on the judgment of Brahma Swaroop (supra) it was submitted by the learned Public Prosecutor that merely because Narendra Singh (PW/5) was the son of the deceased, his testimony cannot be discarded, more so, a relation would not 12 conceal the actual culprit and made allegations against innocent person. The presence of Narendra Singh (PW/5) and Santosh (PW/6) on the spot of incidence had very well been established by the prosecution and were even put through a grueling cross- examination on behalf of the appellant/accused but nothing could be elicited to discredit their testimony either. Also both the eye- witnesses had very categorically deposed about the motive behind the incident, which was a dispute regarding the house in which they were living, for which litigation was pending before competent Civil Court.
(16) It was also contended that the arguments on behalf of the appellant that since Dr.V.P. Mathur (PW/3) had stated that injury No.1 was in downward direction, the ocular statement of Narendra Singh (PW/5) that appellant had shot the deceased from gun facing upward, creates doubt about his veracity, has no force as from the statement of Dr. V.P. Mathur (PW/3), it was well established that deceased Makhan Singh was having 4 gun shot injuries and 11 pellets were found inside the body, thus, mere on the basis of direction of the entry of the bullet, the testimony of eyewitness Narendra Singh (PW/5) cannot be discarded on this point, (17) Further relying on the decision of Brahma Swaroop (supra), it was argued that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect core of prosecution case, does not prompt court to reject evidence in its entirety.
13(18) With regard to the contention of the appellant that in absence of ballistic experts report it is not possible to establish that the empty cartridges found from the spot were fired from the gun seized from the appellant or the pellets found in the body were from the cartridges fired from the gun seized, the Public Prosecutor while relying on the decision of the Hon'ble Apex Court in the matter of Gulab Vs. State of Uttar Pradesh reported in 2021 SCC Online SC 1211, contended that examination of a ballistic expert is not an inflexible rule in case involving use of lethal weapon and failure to produce a report of the ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eyewitnesses. Further reliance was placed on the judgment rendered by Division Bench of Allahabad High Court in the matter of Shivshankar Vs. State of U.P. reported in 2002 CriLJ 2673 for the contention that though it is always desirable to examine the investigating officer, however, non-examination of the investigating officer does not in any way create any dent in the prosecution case and could not be a ground for disbelieving eye-witnesses, as also the appellant could not point out a single instance which could he said to have caused prejudice to him by such non-examination. Thus, on the strength of the said submissions prayed for dismissal of the appeal. (19) Heard the counsel for the parties in extenso and perused the evidence on record.
Legal Issues 14 Ante-timed FIR (20) It is true that prompt lodging of the FIR eliminates the chances of embellishment and concoction creeping into the account contained therein, which in the present matter had been lodged by Narendra Singh (PW/5) very promptly, i.e. within a period of 45 minutes of the incident, coupled with the fact that inquest was send immediately thereafter in the morning and statements of complainant and other witnesses u/s 161 Cr.P.C. were also recorded on 22/04/1991, the dead body was sent for postmortem at 8.30 AM to the hospital, spot map was prepared on the same day, which indicates that in the early hours of morning of 22/04/1991 the investigation was started by the police. At 5.00 PM in the evening of 22/04/1991 the appellant and other co-accused persons were arrested and on the very next day i.e. on 23/04/1991 the accused persons were produced before the concerned Magistrate demanding their police remand. The FIR recorded at the behest of Narendra Singh (PW/5), contained all the essential features of the prosecution's case including the names of witnesses, time and place of incident, name of the victim, motive, name of the accused persons, weapon in their hands and the manner of assault. Thus, all the things lend a seal of assurance not only of the presence of eye-witness and other witnesses at the place of incident, but also to the participation of the appellant in the crime. Merely on the basis of statement of Narendra Singh (PW/5) that he had reported the matter to the Police at 4.00 AM, the contents of FIR cannot be disbelieved, as it is a minor 15 discrepancy and may be attributed to loss of memory, as his statements were recorded after a lapse of 6 years on 14/08/2000 from the date of incident dated 21/04/1991.
(21) Further, merely because Narendra Singh (PW/5) is son of the deceased, his testimony cannot be discarded, as it is a settled law that mere relationship to one of the parties is not a factor that would affect the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. It is also trite to mention that it is by now well settled that a related witness cannot be said to be an 'interested witness' merely by virtue of being a relative of the victim and Hon'ble Apex Court in plethora of its judgment has held that witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons and thus has a motive to falsely implicate the accused. (Reference be had to the decision of the Hon'ble Apex Court in the matters of Brahma Swaroop's case (supra) and Gulab Vs. State of Uttar Pradesh (supra), which in the present case is missing).
Delay in sending report to the Magistrate (22) Undoubtedly, the argument that the FIR is a concocted document, since there is no document on record to show as to when the copy of FIR was send to the concerned Magistrate, coupled with a fact that investigation officer was not examined by 16 the prosecution, though appears to lucrative, but in the present context is misplaced as from the record it is revealed that the appellant was arrested on 22/04/1991 at about 5.00 PM and on 23/04/1991 he was produced before the concerned Magistrate for seeking police remand, which was granted vide order sheet dated 23/04/1991 till 25/04/1991, which clearly indicates that the incident was brought to the notice/knowledge of the Magistrate immediately on the next day of the arrest of the appellant, which according to us appears to be sufficient compliance of section 157 Cr.P.C. Otherwise also no prejudice is shown to have been caused to the appellant, rather it is noticed in reality there is no delay in preparing the FIR as it was registered on 22/04/1993 at 00.15 hrs and assuming that there was some delay in transmitting the said information to the Jurisdictional Magistrate, this fact alone would not give any room to doubt that the FIR was created after much deliberations. While considering the above situation, it is also to be bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if it is found that such ocular evidence is worthy of acceptance, the element of delay sending the complaint to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case. (Reference be had to the decision of the Hon'ble Apex Court in the matters of State of Rajasthan Vs. Daud Khan (Supra) and Brahma Swaroop's case (supra)).
Failure to examine Ballistic Expert (23) It is an admitted fact that deceased Makhan was shot with a 17 gun, both from the medical and ocular evidence it is established that the Devendra had shot with the gun. Vide Ex. P/7 and P/8 bullets and gun were recovered from the acquitted accused Ashok and present appellant respectively. However, no report of ballistic experts was called for to prove the factum of injuries having been caused by means of the seized gun, so as to connect the appellant with the crime.
(24) The question which now posed before this court would be "Whether failure to produce the expert opinion before the Trial Court in such cases affects the creditworthiness of the prosecution case". The answer would be "NO". The Hon'ble Supreme Court while dealing a similar issued in the matter of Gulab Vs. State of Uttar Pradesh (supra) in para 21 to 23 reproduced below had concluded that failure to produce a report by a ballistic expert, who can testify to the fatal injuries being caused by a lethal weapon is not sufficient to impeach the credible evidence of the direct eye-witness:
"21. However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab, has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held:
"41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert 18 evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State[1950 SCR 821]. In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-19
mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
(emphasis supplied)
22. Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted:
"18. In the instant case the investigating officer has categorically stated that guns 20 seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses."
23. The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eye-witnesses."
(25) Now in the above context the entire evidence is scrutinized, it would be evident that Narendra Singh (PW/5), who is the maker of the FIR, apart from minor discrepancies in his court statement, had specifically established presence of the appellant on the spot of incident at 11.30 PM on 21/04/1991 with a gun and causing gunshot injuries to his father, resulting in his death. There was prompt FIR at 00.15 AM on 22/04/1991 and investigation started early in the morning of 22/04/1991, with inquest being send for calling the witnesses, statements u/s 161 Cr.P.C. of the witnesses were recorded, dead body was send for postmortem, spot map was 21 prepared, arrest were made, thus, there was no delay for conducting the investigation. Mere stating that the FIR was lodged at 4.00 AM in the morning of 22/04/1991 in place of 00.15 AM, by Narendra Singh (PW/5), would not shake his credibility, as this minor discrepancy could be attributable to efflux of time in recording of the court statement after a lapse of more than 9 years i.e. 14/08/2000. Even the Dr. V.P. Mathur (PW/3) who conducted the autopsy Ex.P/3, had proved the fact that deceased died due to gunshot injuries and 11 pellets were found inside the body, which corroborates the ocular evidence.
(26) Further, the interpretation of section 157 Cr.P.C. is no longer res integra. A detailed discussion on this subject is found in decision rendered by Hon'ble Apex Court in the matter of Brahma Swaroop Vs. State of U.P. (supra), which lays down that reason of "forthwith" communication of a copy of FIR to Magistrate is to check the possibility of its manipulation, therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR and if there is no delay in lodging the FIR, then any delay in communicating the report to the Magistrate would really be of little consequence, since manipulation of the FIR would then be ruled out. Further, there is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and in the present case since there was a prompt FIR with all essential features of the prosecution case, which lends a seal of assurance not only to the presence of 22 eyewitnesses at the place of incident, but also to the participation of the appellant in the crime, some delay in communicating the FIR to the Jurisdictional Magistrate, would not be fatal for the case of the prosecution.
(27) It is also held by the Hon'ble Apex Court in the matter of Sheo Shankar Singh Vs. State of U.P. reported in (2013) 13 SCC 539 that before such a contention is countenanced, the accused must show prejudice having been caused by delayed dispatch of the FIR to the Magistrate and where no prejudice is caused to have been shown, the lodging of FIR cannot be doubted and in the present matter no prejudiced caused had either been pleaded or argued.
(28) Lastly, in the obtaining facts & circumstances of the case absence of ballistic expert's report, would not prove fatal to the case of the prosecution. Since the evidence of the eyewitness and the medical evidence are of an unimpeachable character and the injuries disclosed by the post-mortem notes are also clearly consistent with the direct evidence. Therefore, failure to produce the ballistic expert's report to testify use of the weapon seized alone would not be sufficient to disbelieve the credible evidence of direct eye-witness, thus, we do not think that counsel for the appellant is right in contending as a general proposition that in a case where firearm had been used by the accused, in addition to direct evidence, prosecution should lead evidence of ballistic expert, however, good the direct evidence may be. Consequently & for the reasons stated above, the judgments cited by the counsel 23 for the appellant do not come to rescue of the appellant & no recourse could be taken thereof, as they do not apply to the factual matrix of the case.
(29) On the basis of the aforesaid discussion, it is evident that as per the medical evidence, the death of the deceased was homicidal in nature and was caused by means of a gun and ocular evidence is corroborated by medical evidence. The motive of the accused which emerges from the statement of Narendra Singh (PW/5) and Santosh (PW/6) is that there was some property dispute in furtherance of which this heinous crime was committed. Thus, we are of the considered opinion that the trial court has properly and legally analyzed and appreciated the entire evidence available on record and did not commit any mistake in convicting and sentencing the appellant/accused. Therefore, the impugned judgment of conviction and sentence dated 05/12/2000 passed by 1st, Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No. 264/1991 is hereby affirmed. (30) Consequently, the appeal fails and is hereby dismissed. (31) The appellant is on bail, his bail bonds are canceled and he is directed to surrender before the trial Court within 15 days from today for serving out remaining part of custodial sentence as awarded by the trial Court.
(32) A copy of the judgment be also sent to the Trial Court along with its record for information and compliance.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
07/07/2022 07/07/2022
Pawar/-
ASHISH
PAWAR
2022.07.08
15:16:09
+05'30'