Himachal Pradesh High Court
Prem Chand vs State Of Himachal Pradesh on 13 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.492 of 2018.
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Reserved on : 09.10.2023.
Date of decision: 13.10.2023.
Prem Chand .....Appellant.
of
Versus
State of Himachal Pradesh .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 No For the Appellant : Mr. Aman Sood, Advocate, Legal Aid Counsel.
For the Respondent : Mr. Yashwardhan Chauhan, Senior Additional Advocate General with Ms. Sharmila Patial, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General.
Tarlok Singh Chauhan, Judge Appellant has been convicted and sentenced under Sections 302 and 326B of the Indian Penal Code (for short 'IPC') and under Sections 25 and 27 of the Arms Act and aggrieved thereby has filed the instant appeal.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 2
2. The case of the prosecution is that on 05.11.2014 at about 12.30 a.m., ASI Rajesh Kumar, Probation Officer, .
telephonically informed Police Station, Padhar that one person namely, Adesh Kumar, son of Prem Chand, resident of Village Dharmehar, Post Office Jhatangari, Tehsil and Police Station, Padhar, District Mandi, had been shot by gun by his father Prem of Chand and had been brought for treatment in Civil Hospital, Jogindernagar and from there referred to Tanda Medical College.
rt Thereafter, on 05.11.2014, at about 4.00 a.m., a telephonic information was received from Tanda Medical College in the Police Station that injured Adesh Kumar has expired. Upon which, ASI Ashok Kumar along with other police officials rushed to Tanda Medical College in the vehicle and Dy. S.P. Rajesh Kumar along with other police officials and QRT visited the Police Station at about 7.30 a.m. and rushed to the spot where Nisha Devi, wife of the deceased (daughter-in-law of the appellant) got recorded her statement under Section 154 Cr.P.C. with the police wherein she stated that she had been married to Adesh Kumar and out of the wedlock, one daughter was born, who is now one year old, named Mehak. Her husband was labourer and both used to reside with her mother-in-law. On 4.11.2014, she and her husband after having ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 3 meal were sleeping inside the room, whereas, her mother-in-law was also sleeping in the adjoining room.
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3. At about 10.00 p.m., her father-in-law Prem Chand came under the influence of liquor and entered into the room of her mother-in-law and started quarrelling and abusing her, whereupon, the mother-in-law raised an alarm and called her son Deshu to save of her. Upon which, she and her husband tried to open the door of her mother-in-law's room, but the same was bolted from inside.
rt Suddenly, her mother-in-law raised alarm that she had been burnt with acid and called for help, upon which, her husband forcibly pushed the door and the same got opened and at that moment when her husband entered the room, her father-in-law Prem Chand shot at him with the gun and also threatened that he will not spare her also.
The bullet struck her husband, as a result of which, he fell down and blood started oozing out. Upon raising alarm, her uncle Hem Ram, aunt Bhagwanti also came to the spot. Thereafter, her father-in-law ran away from the spot along with the gun. After sometime, Kali Ram also came there and her mother-in-law told him that she was burnt with acid by her husband upon which Kali Ram called a vehicle and thereafter took Adesh Kumar in an injured condition upto the road with the help of Jai Singh and then brought him to the hospital for treatment, but her husband was referred to Tanda Medical ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 4 College and she came to know that during treatment, he has expired and on the basis of this statement, a formal FIR came to be .
registered against the appellant.
4. Police visited the spot and prepared spot map and took into possession one wooden stick, blood stained soil, plastic bottle containing acid, burnt mattresses and sample of cotton cloth vide of separate memo and sealed it with seal 'T'. The police also took into possession one sweater, shirt, salwar stated to be worn by Bhagi rt Devi, mother-in-law of the complainant and sealed with seal 'O'.
Police also took into possession broken pieces of bangles through seizure memo and sealed with seal 'K'. Police filled up form No. 25- 35 and obtained postmortem report of the deceased and an application was moved to the Medical Officer, Jogindernagar to obtain MLC and during investigation while the appellant was in custody, police recorded his statement under Section 27 of the Indian Evidence Act and placed it on record. Police also prepared the spot map on the basis of the statement given by the appellant and got recovered the gun. Police also moved an application to ADM, Mandi for obtaining signatures. The photographs were clicked and after recording the statements of the witnesses and completing investigation, challan was presented in the Court.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 55. Finding a prima facie case, appellant was charge-
sheeted for the commission of offences punishable under Section .
326B and 302 IPC and under Sections 25 and 27 of the Arms Act to which he pleaded not guilty and claimed trial.
6. The prosecution examined as many as 28 witnesses in support of its case and on closure of the prosecution evidence, of appellant was examined under Section 313 Cr.P.C. in which he denied the prosecution evidence and pleaded innocence. He was rt also called upon to enter into his defence, but he chose not to lead any evidence in defence.
7. After recording evidence and evaluating the same, the learned Court below convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- (Rs. Twenty Thousand) under Section 302 IPC and in default of payment of fine, he was directed to undergo simple imprisonment for one year. Under Section 326B IPC, the appellant was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (Rs. Five Thousand) and in default of payment of fine to undergo simple imprisonment for one year. The appellant was further convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2,000/- (Rs. Two Thousand) under Sections 25/27 of the Arms ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 6 Act and in default of payment of fine to undergo simple imprisonment for three months. However, all the sentences were .
directed to run concurrently.
8. It is vehemently argued by Shri Aman Sood, Advocate, Legal Aid Counsel, for the appellant that the findings recorded by the learned Court below are totally perverse and contrary to the of evidence on record and, therefore, the appellant deserves to be acquitted. rt
9. On the other hand, Shri J.S.Guleria, learned Deputy Advocate General, would argue that the findings recorded by the learned Court below are detailed one whereby all material aspects of the case have been considered and, therefore, same warrants no interference.
10. We have heard the learned counsel for the parties and gone through the records of the case.
11. In order to appreciate the contentions of the parties, it would be necessary to discuss the evidence that has come on record.
12. For this purpose, firstly, it would be necessary to refer to the testimony of the complainant Nisha Devi, who appeared as PW-4 in the witness box and stated that she was housewife and her marriage was solemnized with Adesh Kumar three years ago and ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 7 out of the wedlock, they had one daughter. Her husband was labourer. On 04.11.2014, after taking dinner, she and her husband .
went to their room while her mother-in-law went to her room and at that time her father-in-law was not present in the house and came to the house under the influence of liquor at about 10.00 p.m. Her father-in-law started knocking the door of my mother-in-law and on of opening the same, her father-in-law started beating her and also started quarrelling with her. Her mother-in-law cried loudly and called rt her husband. She also stated that acid was poured upon her mother-in-law and thereafter her husband went to the room of her mother-in-law and she also followed him. Her husband tried to open the door with force but it was bolted from inside and thereafter her husband pushed the door with force and it opened. The moment her husband opened the door, her father-in-law fired gun shot at her husband and he was also threatening to kill her. Her husband received gun shot on his chest and fell down near the door. Blood started oozing out from his chest and his clothes were blood stained and so was the cot. After hearing noise, Hem Chand and Bhagwanti came on the spot. Her father-in-law fled away from the spot along with the gun. After sometime, Kali Ram also came on the spot and her mother-in-law disclosed to Kali Ram that her husband fired a gun shot on his son Adesh Kumar. She also disclosed to Kali ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 8 Ram that her husband had poured acid upon her. Kali Ram called a vehicle and her husband was taken to Jogindernagar hospital by .
her along with Kali Ram and Jai Singh. Her mother-in-law came to the hospital in another vehicle. Her husband was referred to Tanda Medical College. She also went to Tanda Medical College and after hospitalization of her husband at Tanda, she along with Jaisi Ram of came back to village Bharyan. Later on, she came to know that her husband succumbed to gun injury at the Tanda Medical Hospital.
rt Her husband died due to gun shot which was fired by her father-in-
law Prem Chand. Police came on the spot and recorded her statement Ext.PW-4/A under section 154 Cr.P.C. which bore her signatures in red circle. Police prepared the spot map and also clicked the photographs Mark N-1 and N-2. Police recorded her statement twice and her third statement was also recorded before the Judicial Magistrate. At this stage, her examination-in-chief was deferred for want of statement under Section 164 Cr.P.C. On 04.07.2016, the witness was again examined and by that time, she had got remarried to one Sunder Singh and stated that she was earlier married to Adesh Kumar, now deceased and further stated that her statement was got recorded before the learned Judicial Magistrate under Section 164 Cr.P.C. on 02.03.2014 and the same is Ext. PW-4/B and it bore her signatures.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 913. Upon being cross-examined, she stated that her father-in-law was having one son Adesh Kumar and he loved him so .
much. My father-in-law and Adesh Kumar were having good bonding with each other. After 2-3 days prior to 04.11.2014, she had gone to her parental home. Her husband was neither interested in hunting nor she had seen any gun with him. On 05.11.2014, she of came to her matrimonial home at about 10-11 a.m. On that day, she was in great shock and pain and was not in a position to rt understand anything or to depose anything. On 05.11.2014, she had not talked with the police. The statement recorded on 04.11.2014 was based on hearsay and the same was disclosed to her by the police. On 02.03.2015, she had not come to the Court of her free will and rather police officials had taken her to the Court of learned Judicial Magistrate 1st Class. Police had tutored her to depose in the manner in which she deposed. She further stated that acid was kept in the house to burn grass and her mother-in-law had not disclosed her that when she was switching on the light a bottle of acid had accidentally poured upon her. PW-4 further deposed that she had put her signatures on Ext. PW-4/A at the instance of police and contents of the same were not read over to her nor she herself had gone through the contents of the same. The witness further deposed that she was not present at her matrimonial home on ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 10 04.11.2014 and as such was not aware as to what happened there.
At this stage, learned Public Prosecutor for the State requested for .
re-examination of the witness on the ground that the witness has given contradictory statement in cross-examination to the examination-in-chief. His request was considered and allowed. In cross-examination, she again stated that statement dated of 09.12.2015 was not given by her as per her own will and was not even true. However, later she admitted that statement under Section rt 164 Cr.P.C. was given by her out of her own free will and further stated that because she had settled in second marriage, she wanted to forget her past and that is why she is deposing differently in his cross-examination.
14. On being cross-examined by the appellant, she admitted that she had given entire examination without any pressure. She further admitted that the police had read over the statement to her on 09.12.2015 and that such statement had been given by her before the Court.
15. Now the other crucial witness to the incidence is PW-1 Bhagi Devi wife of appellant Prem Chand, who stated that she was housewife and had solemnized marriage with the appellant about 23 years back. She had two children, one girl named Lata Devi and and son Adesh Kumar. Her daughter Lata Devi was married and her ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 11 son too was married with Nisha Devi 2-3 years ago and out of the wedlock, one daughter was born. She further deposed that her .
husband Prem Chand "did not take drink" nor would quarrel with anyone in the house. On 04.11.2014, her husband had gone out of home and when he came back in the night, she along with her son had already taken the meal and her daughter-in-law had already of gone to her parents' house. Her son had slept all-alone in his room and her husband came at about 10.00 p.m. and he had not taken rt any drink. At this stage, this witness was declared hostile and permitted to be cross-examined by the learned Public Prosecutor. In cross-examination, she tried to deny the entire prosecution case, but admitted that her clothes were burnt with acid, but volunteered to state that her clothes burnt when she was switching on the light.
She also admitted that she had sustained acid burn injuries on her right arm and on account of burn injuries, she cried loudly. She also admitted that her son after hearing cries had come from his room and knocked the door of her room. She further admitted that her son had opened the door with force and came inside the room. She also admitted that her son sustained gun shot on his chest, as a result of which, he fell down and blood started oozing out from his wounds. However, she denied the suggestion that her daughter-in-
law came out of the room. She further denied the suggestion that it ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 12 was her husband, who, all of a sudden, fired gun shot at her son, who was standing at the door. She admitted that on hearing noise, .
her 'jeth' Hem Chand and 'jethani' Bhagwanti also came to the spot.
She, however, admitted that Kali Ram telephonically asked Jai Singh to bring vehicle. She also admitted that her son was brought to Jogindernagar Hospital for treatment. The witness also admitted of that she too had gone to Jogindernagar Hospital in another vehicle.
She admitted that her son was referred from Jogindernagar Hospital rt to Tanda Hospital and she later came to know about the death of her son. She denied the suggestion that she had disclosed to the police that her husband had thrown acid upon her and intentionally killed her son by firing a gun shot. She denied having given portions 'A to A, B to B, C to C, D to D, E to E and F to F' of statement Mark-B to the police. She admitted that police had come to the spot and recorded her statement. The witness also admitted that she was brought to the Court of Judicial Magistrate 1st Class, Jogindernagar by the police where her statement was recorded. Confronted with the statement, the witness admitted that after recording her statement, the Judicial Magistrate had obtained her thumb impression. She also admitted that she was medically examined in Jogindernagar Hospital on the request of the police. She admitted that she had put her thumb impression over MLC at the time of her ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 13 medical examination. She also admitted that the police had recovered her burnt clothes in the presence of Suresh and Sunder .
Singh vide memo Ext. PW-1/A. The witness thereafter identified the clothes that were taken into possession by the police. She lastly admitted that she had gone to meet her husband in jail and further admitted that her daughter-in-law after occurrence was residing in of her parents' house.
16. On being cross-examined by the appellant, the witness rt deposed that her son was having a gun which he had brought over 2-3 days prior to the occurrence. She had inquired from her son from where he had brought the gun, who, in turn, disclosed that he had brought the same from his friend. Her son came on the door of her room along with the gun after hearing noise, but could not say how her son sustained gun shot. She agreed to the suggestion that when her son entered her room, his foot struck with the luggage and he fell down and during this process, the gun might have fired and he might have sustained bullet injuries. She further deposed that Kali Ram, Ex-Pradhan, had come to the spot at about 10.30 p.m. and her husband had come in her room after arrival of Kali Ram.
Her husband picked up her son and embraced him and thereafter lifted him to the hospital. Prior to that, he had also picked up acid bottle and tried to commit self-immolation, but she saved him.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 14However, she further deposed that her husband had not gone to the hospital. Lastly, the witness deposed that she had no intention to .
give statement before the Magistrate.
17. All the other evidence, except two eye-witnesses, are the witnesses to establish the link.
18. PW-2 Bhagwanti Devi stated that PW-1 Bhagi Devi of called her and she was weeping as his son was lying there, but she did not know what had happened to him. However, her son Adesh rt had sustained injuries, but she did not know how he had sustained such injuries, though a gun was lying nearby. At this stage, she was declared hostile and on being cross-examined, the witness admitted that at about 10.00 p.m., she heard voice of Bhagi Devi from her house and then came to her house along with her husband and at that time main door of the house of Prem Chand was open, but denied that upon their entering, Prem Chand had run away from the spot along with the gun. In cross-examination by the appellant, the witness admitted that Nisha Devi had gone to her parental house 2-3 days prior to the alleged occurrence and on 04.11.2014 the appellant had gone to work from the morning. After arrival of Kali Ram during night, Prem Chand had come to the house. On seeing Adesh Kumar, the appellant lifted him and embraced him and thereafter rushed towards the bottle of acid which was lying over the ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 15 clothes and stared pouring it on himself. Bhagi Devi snatched the bottle from his hands. She admitted that she had seen gun with .
Adesh Kumar 2-3 days prior to the occurrence.
19. PW-3 Sunder Singh is the witness to the lifting of the sample of soil, but stated that he was not aware from where the soil was lifted, but soil was packed in his presence by the police. This of witness was too declared hostile and in his cross examination by the learned Public Prosecutor denied that soil was lifted from inside the rt room of the appellant near the door, however, admitted that police had come to the spot and recorded his statement. However, the witness did not deny the recovery of 'danda', plastic bottle and recovery effected of four cloth parcels which were taken into possession vide memo Ext. PW-3/A and identified his signatures on the same.
20. PW-5 Suresh Kumar stated that he was driver by profession and his statement was recorded by the police and at that time Sunder Singh was also present at the spot and the police had gone to the house of Prem Chand where his son had been murdered, but stated that nothing was recovered in his presence, however, admitted his signatures on the cloth parcel. The witness was declared hostile and on being cross-examined by the learned Public Prosecutor, he admitted that blood stained soil was lifted by ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 16 the police inside the room of Prem Chand and this soil was put in a paper and paper was put in a cloth parcel and sealed with seal .
impression 'T' at six places. He also admitted that one blood stained 'danda' was taken into possession by the police. He admitted that one plastic bottle containing black liquid was taken into possession, however, he denied that one burnt mattress was lying on the cot but of admitted having taken into possession the burnt cotton. The witness also admitted that broken pieces of bangles were also taken into rt possession, however, denied that one sweater worn by the appellant was taken into possession, but admitted that shirt, salwar and gents woolen sweater were put in a cloth parcel and sealed with seal 'O' and its specimen was also taken on the cloth parcel which bore his signatures. He admitted his signatures on recovery memo Ext.
PW-1/A. He also admitted that appellant Prem Chand was his relative.
21. PW-6 Hem Singh stated that at about 9.30 p.m., Bhagi Devi had called him and he accordingly went to the house of Prem Chand, appellant. The door of house of appellant was open. Bhagi Devi told him that her son Adesh Kumar had sustained bullet injury and no one had fled away from the house of Prem Chand, whereas, a gun was lying on the spot and Kali Ram, Pradhan, also came there. Adesh Kumar was lying there and her mother had been ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 17 holding him and blood was oozing out from the chest of Adesh. He stated that appellant was his younger brother and further stated that .
Nisha Devi, wife of deceased Adesh Kumar had taken him to Civil Hospital, Jogindernagar from where he was referred to Tanda Medical Hospital, but he was not aware who fired gun shot at Adesh.
This witness was declared hostile and permitted to be cross-
of examined by the learned Public Prosecutor. In cross-examination, he denied that upon reaching the house of appellant, the appellant rt had fled away from his room. He denied that Bhagi Devi told him that the appellant was under the influence of alcohol and had poured acid on her, as a result of which, she sustained injury. He denied that Bhagi Devi had raised alarm upon which her son had come to her rescue and then the appellant fired gun short at him, as a result of which, he sustained injuries on his chest. On cross-examination by the defence, the witness stated that police never met him after his visit to Tanda Medical College along with deceased. He denied the police having recorded his statement, but stated that he was telephonically called by the police at Drang.
22. PW-7 Jai Singh stated that one year back Adesh sustained bullet injuries and was taken to Civil Hospital, Jogindernagar on the call of Kali Ram Pradhan and many persons were present there and Nisha Devi could probably be one of them.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 18He had taken deceased Adesh to Hospital, but his wife Nisha Devi was not in his car. This witness like other witnesses was declared .
hostile and permitted to be cross-examined by the learned Public Prosecutor. On being cross-examined, the witness admitted that Bhagi Devi, Khem Chand, Om Prakash and Dhoopu were travelling in his car to Civil Hospital, Jogindernagar and later on they came in of another vehicle and after giving first aid to the injured, he was referred to Tanda Medical College and he had not noticed that in the rt ambulance which was taken to Tanda, Kali Ram Pradhan, Hem Chand, his wife, Onkar and Nisha Devi were travellling. He denied the suggestion that Bhagi Devi and Dhoopu returned back to the house from Jogindernagar, but volunteered to state that he had gone to Tanda in his car and Adesh Kumar was admitted in Tanda Hospital at about 2.15 a.m. He denied that on 05.11.2014 after hospitalization of Adesh, he along with Nisha had come back to the house and when they reached in the house, they came to know about the death of Adesh. He admitted that Prem Chand was his maternal uncle, but denied that he was resiling from his previous statement due to this relation. In cross-examination by the appellant, the witness admitted that on 04.11.2014 he had not seen Nisha Devi at Village Dharmehar, Civil Hospital, Jogindernagar and ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 19 Tanda Medical College and he was not aware that Bhagi Devi was providing maintenance to Nisha Devi and her daughter.
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23. PW-8 Prakash Chand admitted his signatures on disclosure statement. According to him, the statement was already written and he was not aware about its contents or the other persons, who had appended the signatures over Ext. PW-8/A. He of stated that appellant was in custody and had not disclosed anything with regard to concealment of gun.
rt The witness was declared hostile and permitted to be cross-examined. In cross-examination, he admitted his signatures over sketch Ext. PW-8/B and further admitted that the gun was put in a cloth parcel in his presence and 'khakha' Ext. PW-8/B was also prepared. He further admitted that he did not put his signatures on any paper before going through the contents thereof. He further admitted his signatures on the parcel Ext.P-18 and on opening the parcel, gun Ext. P-19 came out. He further stated that gun Ext. P-19 was not shown to him, but did not deny the same having been taken into possession and volunteered to state that open gun was not shown to him.
24. PW-9 Budhi Singh stated that no statement had been given by the appellant in his presence and, as such, he was declared hostile and permitted to be cross-examined. In his cross-
examination, he too admitted that gun was put in a cloth parcel and ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 20 'khakha' was prepared. He also admitted that the specimen seal impression Ext. PW-8/C bore his signatures and likewise he .
identified his signatures on Ext.PW-8/D. He too admitted his signatures on Ext. P-18 and like PW-8, he too stated that open gun that is without parcel was not shown to him.
25. PW-10 Kali Ram stated that he was present in his of house when he heard voice of gun shot and then he went to the house of Souju Ram and told him about the gun shot. Thereafter, rt they went to the house of Prem Chand where he along with his wife Bhagwanti (not Bhagi Devi) were present while Adesh had sustained gun shot injuries and mother of Adesh and his aunt were weeping on the spot and his wife was not present there. When he asked mother of Adesh regarding injuries sustained by him, then she disclosed that gun shot was fired accidentally from his own hands. The witness was too declared hostile and permitted to be cross-examined. In cross-examination, he denied that wife of Adesh was not present on the spot and admitted that wife of Adesh never told him regarding leaving of her matrimonial house. He admitted that Bhagi Devi, mother of Adesh had disclosed him that her husband came to the room under the influence of alcohol and started abusing and beating her. He admitted that Adesh after hearing noise from the room of Bhagi Devi came there, however, he denied the suggestion that her ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 21 husband after opening the door had fired gun shot at him and further denied the suggestion that the appellant had also threatened to kill .
Bhagi Devi. However, he admitted the suggestion that acid burns were there on the arms of Bhagi Devi. The witness denied the suggestion that Bhagi Devi had poured acid on her, however, admitted the suggestion that Nisha Devi along with Adesh had come of to Civil Hospital Jogindernagar. He, however, admitted the suggestion that Adesh was referred to Tanda Medical Hospital and rt had been taken thereby by Nisha, Omi and Hem Chand in 108 ambulance. He further admitted the suggestion that Nisha had come back to her home along with Jai Singh. He also admitted the suggestion that injured Adesh succumbed to the injuries at 3.10 a.m. at Tanda Medical College. He further admitted the factum of postmortem and thereafter dead body having been handed over to Hem Singh. He also admitted the suggestion regarding taking photographs Mark K-1 to K-4. On being cross-examined by the appellant, he stated that he had reached the house of Prem Chand at 10.00 p.m. and at that time Bhagi Devi and her sister-in-law were present at the spot, however, he denied the suggestion that the appellant had come to the spot after 10 minutes on his arrival. The witness stated that he lifted Adesh within 15 minutes and further stated that Nisha had not come to Jogindernagar in his vehicle, but ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 22 stated that she might have come in another vehicle. The witness further stated that he had seen gun many times in the hands of .
Adesh. He denied the suggestion that Nisha had not left to Tanda Medical College in his presence. He further stated that he had not inquired from Bhagi Devi as to how she had sustained burn injuries of acid. He stated that he had not seen appellant Prem Chand in his of house after his arrival. He denied the suggestion that Bhagi Devi had told him about accidental fire by Adesh or that appellant Prem rt Chand had picked up Adesh and hugged him. He also denied the suggestion that he had asked Prem Chand to stay at home. He admitted the suggestion that Bhagi Devi had not talked much with him and volunteered to state that she was weeping and crying loudly and again stated that at the time, his first priority was to save Adesh.
He denied the suggestion that Bhagi Devi had not told him about consumption of liquor and uttering abuses by the appellant.
Volunteered to state that Bhagi Devi was crying loudly "jala dia-jala-
dia". He denied the suggestion that police had told him about the fact of quarrel between Prem Chand and Bhagi Devi and pouring of acid upon Bhagi Devi. He further stated that he had not seen Prem Chand at the time of his visit to the place of occurrence. He denied the suggestion that he had not gone to the spot. He further denied the suggestion that he had not taken Adesh to Jogindernagar ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 23 Hospital and Tanda Medical Hospital. He stated that he did not take drink and denied the suggestion that he was sleeping in his house .
after taking drink. He further stated that appellant had never taken drink in his presence but denied the suggestion that he was deposing falsely.
26. PW-11 Pankaj Kumar Kaushal was a formal witness, of who proved letter dated 09.11.2014 Ext. PW-11/A that was sent by the police of Police Station, Padhar and received in the Office of rt D.M. Mandi. This letter was referred to him to supply necessary information and on verifying the records, he prepared reply Ext.
PW-11/B and supplied the same. He was not cross-examined.
27. PW-12 Desh Raj prepared site plan Ext.PW-12/B on the application Ext. PW-12/A moved by police of Police Station, Padhar.
On being cross-examined, the witness stated that site plan had been prepared by him in his office after visiting the spot.
28. PW-13 doctor Susheel Sharma conducted postmortem and issued report Ext. PW-13/D. In his cross-examination, he denied that he had prepared the postmortem report as per inquest report.
29. PW-14 doctor Suman Bisht, Medical Officer, Civil Hospital, Jogindernagar stated that the injured had been brought with the history of gun shot by his father with a gun at about 10.30 p.m. on 04.11.2014. The patient was conscious but was in serious ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 24 condition. Police arrived at the hospital and moved an application Ext. PW-14/A for medical examination of the injured and after giving .
first aid treatment, he issued MLC Ext. PW-14/B and referred the injured to Tanda Medical College. On being cross-examined, he denied the suggestion that he neither examined injured nor referred him to RPGMC, Tanda.
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30. PW-15 doctor Riti Kapoor examined Bhagi Devi brought by the police in an injured condition with the history of acid attack by rt her husband and issued MLC Ext. PW-15/B. In cross-examination, she admitted that she had not mentioned probable duration of injury.
She also admitted that injuries mentioned in MLC could be possible by way of hot water and that the injury could be accidental but not dangerous to life and injuries mentioned in Ext. PW-15/B could be possible by self-pouring and abrasions could be possible by way of fall. She admitted that there was no black mole on the left side of chin of appellant present in the Court. But, volunteered to state that the appellant present in the Court was the same person, who was medically examined by her.
31. PW-16 Sanjeev Kumar entered rapat No.11A Ext.
PW-16/A and on being cross-examined denied the suggestion that Ext. PW-16/A was manipulated later on.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 2532. PW-17 HHC Hoshiar Singh stated that MHC Tilak Raj handed over 12 parcels to him and he handed over the same to .
RFSL, Bhiuli and receipt thereof was deposited with MHC.
33. PW-18 HHC Hoshiyar Singh stated that on 05.11.2014, ASI Rajesh Kumar had telephonically informed Police Station, Padhar that a person namely, Adesh Kumar had been shot by his of father and referred to Tanda Medical College. On this information, G.D. entry No.3 dated 05.11.2014 was entered in the official rt computer vide Ext. PW-18/A. On the same day, a telephonic information was received from Police Station, Padhar that Adesh had expired and G.D. entry No. 5 was entered. ASI Ashok Kumar along with other police officials had departed from Police Station to Tanda Medical College as per rapat Ext. PW-18/C and on the same day, Dy. S.P. Rajesh Kumar along with police officials had reported the arrival of police party in the Police Station, Padhar. In cross-
examination, he admitted that he had not issued certificate under Section 65 of the Indian Evidence Act.
34. PW-19 HHC Suresh Kumar stated that at the relevant time he was posted as a constable in Police Station, Jogindernagar.
On 04.11.2014, an information from Civil Hospital, Jogindernagar was received that an injured was brought with the history of gun shot and regarding this, G.D. entry No. 48 was entered vide Ext.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 26PW-19/A and G.D. entry No.2 Ext. PW-19/B regarding arrival of the police party along with Dy.S.P. was also made. As per rapat Ext.
.
PW-19/B ASI Rajesh Kumar was not aware till 1.15 a.m. as to how the injured had sustained injuries by gun shot. He further stated that he did not know as to at what time Rajesh Kumar had telephonically informed at Police Station, Padhar.
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35. PW-20 MHC Tilak Raj stated that statement of Nisha Devi was received on the basis of which FIR Ext. PW-20/A was rt registered. Case file was prepared and the same was sent to Dy.S.P. through PSI Sanjay Kumar. On 05.11.2014, Dy. S.P. handed over one sealed parcel containing pieces of broken bangles, another parcel containing blood stained soil, another parcel containing burnt pieces of cotton, cloth, parcel containing one sweater and shirt, another parcel containing 'danda' and acid bottle and yet another parcel containing gun. The above mentioned articles were deposited in the 'malkhana' and entries in the relevant register were made. On 06.11.2014, HC Rup Lal had deposited one sealed parcel containing blood stained clothes of appellant Prem Chand along with sample seal and on 10.11.2014, 12 sealed parcels were handed over to HHC Hoshiyar Singh for depositing the same in RFSL, Mandi and he had given back the receipt after deposing the same at RFSL, Mandi. In cross-examination, the witness stated that ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 27 statement under Section 154 Cr.P.C. Ext. PW-4/A was not written in his presence. He denied the suggestion that Ext.PW-4/A was not .
received in the Police Station. He further denied that as per his statement under Section 161 Cr.P.C., the case property did not tally with the entries of 'malkhana' register qua the parcel in which salwar was found.
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36. PW-21 SI Sanjay Kumar stated that he along with Dy.
S.P. Rajesh Kumar and other police officials was present at place rt Dharmehar where Dy. S.P. Rajesh Kumar had recorded the statement Ext. PW-4/A of complainant Nisha Devi under Section 154 Cr.P.C. The said statement was handed over to him by Dy. S.P. Rajesh Kumar and he had taken the same to Police Station, Padhar and handed over to MHC Tilak Raj. After registration of the case, case file was prepared by MHC and handed over the same to him and he in turn handed over the case file to Dy.S.P. Rajesh Kumar at place Ghatasani. On being cross-examined, he stated that Dy. S.P. Rajesh had got recorded statement under Section 154 Cr.P.C. from SHO Sanjeev Sood.
37. PW-22 ASI Rajesh Kumar stated that on 04.11.2014, an information was received from Civil Hospital, Jogindernagar that a person with gun shot injury had been brought to the hospital and they accordingly went to the hospital and moved an application ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 28 Ext.PW-14/A for examination of the injured upon which MLC Ext.
PW-14/B was obtained and the patient was referred to RPGMC, .
Tanda. Since, the matter pertained to Police Station, Padhar, he telephonically informed ASI Ashok Kumar regarding the same and handed over the MLC of Adesh to MHC, Jogindernagar to further send the same to Police Station, Padhar. On being cross-examined, of he was not in a position to tell as to how the injured sustained gun injury and as per the report one Dhoop Singh was with the injured rt and disclosed that he did not know about the incident.
38. PW-23 SI Bhim Sen stated that ASI Ashok Kumar after completion of investigation handed over the case file to him for preparation of challan. He also stated that supplementary challan was prepared by him and presented the same in the Court.
39. PW-24 ASI Ashok Kumar stated that on 05.11.2014 at around 1.00 a.m., ASI Rajesh Kumar, I.O. Police Station, Jogindernagar had telephonically informed him that Adesh had been brought to Civil Hospital, Jogindernagar with the alleged history of gun shot and doctor had referred him to Tanda Medical College and at about 4.00 a.m., he received a telephonic call that Adesh had died and he in turn gave this information to Dy. S.P. Rajesh and as per his direction, he visited the Tanda Medical College where the body of Adesh was kept in the dead house and he clicked the photographs ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 29 and filled form No. 25-35 Ext. PW-13/B and moved an application to the Medical Officer for conducting postmortem of the dead body of .
Adesh. After postmortem, the dead body was handed over to Kali Ram and Hem Chand for cremation. On 05.11.2014, he reached the Police Station, Padhar and handed over the case file for further investigation along with the appellant as he got medically examined of the appellant and obtained MLC Ext. PW-15/D. The doctor referred the appellant to Zonal Hospital, Mandi, where he remained admitted rt as he had sustained injuries. On 06.11.2014, he obtained police remand of the appellant, who joined the investigation and during investigation disclosed that he had no licence of the gun which was used in the commission of the offence and then he moved an application to ADM, Mandi regarding the licence of the gun and recorded the statements of the witnesses as per their versions and also got recorded the statements of Bhagi Devi and Nisha under Section 164 Cr.P.C. in the Court of leaned Judicial Magistrate Ist Class. In cross-examination, the witness stated that on 05.11.2014 Dy.S.P. handed over the case file to him. He denied that Dy. S.P. was present in the Police Station, Padhar on 05.11.2014, but volunteered to state that he himself had made a call at about 4.00 a.m. to Dy. S.P., who was at his residence at Mandi. He further stated that ASI Rajesh Kumar, who had informed him regarding the ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 30 gun shot by the appellant had not conducted investigation in this case at any point of time.
.
40. PW-26 Deepak Katoch obtained prosecution sanction order Ext. PW-23/A.
41. PW-27 Sanjeev Singh, Scientific Officer, RFSL, Mandi stated that on 10.11.2014 four sealed parcels were received in the of Ballistic Division of laboratory through HHC Hoshiyar Singh. These were examined and thereafter he issued report Ext. PW-23/B which rt was signed by him and by Assistant Director Rajesh Kumar. In cross-examination, he admitted that he along with the members of the FSL team had visited the spot on the same day and the report was filed by Assistant Director N.P. Dube but did not remember the condition of the room and claimed to have mentioned the same in the report. He further clarified that it was not possible to make reference about the time of fire and he had not seen the body as the same had been removed from the seen of occurrence. He denied the suggestion that if the gun suddenly falls, it can fire, but volunteered to state that fire can be made after making the cock full pull and then trigger is struck. He denied the suggestion that if the cock is pulled to be full and suddenly the gun falls down, it cannot fire. He denied that as per the report Ext. PW23-B, he had mentioned regarding cutting and opening of the parcel on ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 31 10.11.2014 and volunteered to state that the parcel was received in the laboratory on 10.11.2014 and when they reached the spot the .
appellant was not present. On that day, he had seen the gun on the scene of occurrence which was also mentioned in the report but had not mentioned regarding separate pattern of the gun fire.
Volunteered to state that the question was not asked by the police of and, therefore, he had not mentioned regarding the direction of the gun shot in his report but had mentioned that holes were on the rt clothes as he had not received the body. It was a muzzle loading gun and the propellant could be used according to the holder of the gun.
42. PW-28 is Vishal Bhamnotra, Judicial Magistrate 1 st Class, Jogindernagar, who recorded the statement of Nisha under Section 164 Cr.P.C. Ext. PW-4/B. In cross-examination, he stated that Nisha had not moved any application for recording her statement but she had voluntarily given her statement. He denied that Nisha was under the pressure of police agency and tutored at the time of recording her statement.
43. The investigation in the matter was conducted by PW-25 Rajesh Kumar Dy. S.P. According to his investigation, the appellant was the person, who had fired his son Adesh and poured acid on his wife Bhagi Devi. In cross-examination, he stated that on ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 32 05.11.2014 Forensic Team had visited the spot after his arrival and they directed him to take sample of the spot. They themselves .
clicked some photographs but there was no record regarding the presence of Forensic Team on the spot on 05.11.2014. When he visited the spot, the dead body was not there and when he investigated the room, the articles were gathered there. The of appellant was apprehended by the local people along with ASI Hem Raj on 05.11.2014 at about 3.00 p.m. near the 'khad' in a secluded rt place and the Forensic Team reached on the spot after about one hour. He was not aware about the make of gun till its recovery and had prepared the spot map Ext. PW-20/B at about 12.30 p.m. The appellant had been sent for medication examination after the witness had reached Police Station, Padhar. On the gun Ext.P-19, name of Sanjeev and date 17.11.2014 were mentioned after carving and when the gun was recovered, he did not notice this fact. This in entirety is the evidence led by the prosecution.
44. Now, adverting in furtherance of the contentions that the findings are perverse, learned counsel for the appellant would vehemently argue that it is absolutely preposterous on the part of the prosecution to come forward with the story that the appellant, who was father, would have killed his son and in absence of motive, the case of prosecution must fall like a pack of cards. However, we find ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 33 no merit in such contention because a motive or the failure of the prosecution to establish a firm motive need not necessarily lead to .
the acquittal of an accused, more especially, where the prosecution adduces direct, cogent and unimpeachable evidence like in the instant case to establish the commission of the offence, motive for the offence, the absence thereof or its insignificance recedes into of the background. This was so held by this Court in Criminal Appeal No.148 of 2019 in case titled Deepak Kumar vs. State of rt Himachal Pradesh, decided on 06.09.2023, wherein in para-49, it was observed as under:
"49. We are not impressed by these arguments as it is more than settled that absence of a motive or the failure of the prosecution to establish a firm motive need not necessarily lead to the acquittal of an accused. More especially where the prosecution adduces direct, cogent and unimpeachable evidence like in the instant case to establish the commission of the offence, motive for the offence, the absence thereof or its insignificance recedes into the background. In this context, it shall be apt to refer to the observations made by learned Division Bench of the Punjab & Haryana High Court in Bahadur Singh Versus State of Punjab, 2007 Criminal Law Journal 2885 more particularly Paras 15 to 17 thereof, which reads as under:
"15.The motive for a crime, being generally embedded in the mind of an accused, is a ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 34 matter of inference to be drawn from the circumstances that surround a case. The absence of a motive or the failure of the .
prosecution to establish a firm motive need not necessarily lead to the acquittal of an accused. Where the prosecution adduces direct, cogent and unimpeachable evidence to establish the commission of the offence, motive for the offence, the absence thereof or its insignificance recedes into the back- ground. In a given case, the motive may appear insignificant but one of cannot lose sight of the complexities of the human psyche. Human beings do not respond to situations with mathematical certainty. A given set of circumstances may lead to an adverse rt reaction on the part of an individual, whereas another may simply ignore them. As human conduct is, by its very nature, unpredictable, the fact that the motive appears to be minor or inconsequential, cannot, by itself, be a circumstance to doubt the participation of an accused in the com-mission of an offence."
16.In Tarseem Kumar v. The Delhi Administration, AIR 1994 SC 2585: 1994 Cri LJ 470 the Apex Court held :-
"Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reason- able doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 35 circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was .
the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court should as- certain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to of commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been rtsuggested or established on behalf of the prosecution."
17.In Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808, the Apex Court held :-
"Motive for doing a criminal act is generally a difficult area for prosecution. One can- not normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg. V. Palmer (Shorthand Report at page 308 (sic) CCC May 1856) thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." Though, it is a sound proposition that every criminal act is done with a motive, it ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 36 is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological .
phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. In Atley v. State of U. P. (AIR 1955 SC 807: 1955 Cri LJ 1653) it was held that is true, and where there is clear proof of motive for the crime, that lends additional of support to the finding of the Court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the rt contrary conclusion". In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have implied him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution."
45. Learned counsel for the appellant would then argue that no conviction can be based on the sole testimonies of the witnesses, who are always interested in the success of the prosecution case, least concerned with the innocence of the person like appellant. We, however, do not find any merit in such contention as it is settled law that evidence of official witnesses cannot be disbelieved or discarded merely for the reason that they are official witnesses.
::: Downloaded on - 13/10/2023 20:37:55 :::CIS 37Presumption is that if the witness is impartial and independent, unless proved contrary, there is no presumption for doubting the .
credibility of official witnesses in principle. Statements of official witnesses can be based for conviction of the accused; however, before basing conviction on the evidence of the official witnesses, strict scrutiny with care and caution is required. In cases, where the of evidence of the official witnesses is found to be cogent, reliable and credible, conviction can be based only on the basis of the evidence rt of the official witnesses.
46. In coming to such conclusion, we are duly supported by a recent judgment of the Hon'ble Supreme Court in Sathyan Vs. State of Kerala Neutral Citation: 2023 INSC/703 wherein it was observed as under:
"22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi) (2013) 6 SCC 588:
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 :
2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 38 no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at .
large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely of on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence. rt
23. Referring to State (Govt. of NCT of Delhi) v. Sunil (2001) 1 SCC 652, in Kulwinder Singh v. State of Punjab (2015) 6 SCC 674, this court held that: -
"23....That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy.
When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."
24. We must note, that in the former it was observed:-
"21.....At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature...If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 39 the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the .
documents made contemporaneous with such actions."
25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi) 2023 SCC Online SC 784, had observed that the testimonies of police witnesses, as well as pointing out memos do not stand vitiated due to the absence of of independent witnesses.
26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official rt witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on "any good reason"
which, quite apparently is missing from the present case."
47. A perusal of the testimonies of the official witnesses leaves no scope for doubting the prosecution story which has been proved to the hilt. Even otherwise, even if, the testimonies of the official witnesses are kept aside for a moment, it would be noticed that complainant PW-4 Nisha Devi has proved the prosecution case in its entirety. Even though, after her remarriage, she did try to deviate from her examination-in-chief, but then she admitted the correctness of her statement under Section 164 Cr.P.C. having been made by her out of her free will and volition and further admitted that she on account of having settled in second marriage wanted to ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 40 forget her past and was trying to depose differently in her cross-
examination.
.
48. That apart, the case of the prosecution is duly proved by independent witnesses PW-10 Kali Ram, Ex-Pradhan of Gram Panchayat, Tarswan, whose, testimony has already been referred to above in detail.
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49. Thus, what stands proved on record and even otherwise rightly held by the learned Court below is that:
rt
(i) the appellant firstly quarrelled and then gave beatings to her wife Bhagi Devi and thereafter thrown acid upon her, as a result of which, she sustained injuries
(ii) wen her son Adesh had come to rescue her, then his father-appellant fired from an unlicensed gun resulting in injuries in the chest of Adesh which led to the recovery of various articles from the spot.
(iii) the recovery of the gun from a secluded place in pursuance to disclosure statement made by the appellant and presence of injuries on the person of the appellant and his wife at about the same time as that of the alleged offence and the conduct of the appellant having fled away from the spot and then apprehended by the people along with ASI further proves the case of the prosecution.
(iv) the scientific report itself shows that gun fire was made with the tun and pellets that were recovered from the body of the deceased.::: Downloaded on - 13/10/2023 20:37:55 :::CIS 41
50. However, here it needs to be stated here that the learned Court below has clearly fallen in an error in treating this case .
to be one of circumstantial evidence and thereafter relying upon a large number of authorities without considering that the case of the prosecution was that of direct evidence and not circumstantial evidence. Nevertheless, the learned Court below has rightly linked of injuries of the deceased with the gun shot fire by the appellant, the recovery of the gun from bushes at the instance of the appellant and rt connected the weapon of offence i.e. gun after the analysis report.
The learned Court below has further rightly held failure of the appellant to explain the incriminating material in the statement under Section 313 Cr.P.C. Lastly, the learned Court below has rightly concluded about the conduct of the appellant when he fled from the scene of occurrence as no sane father, who is innocent, would leave his bleeding son and simply fled away from the spot.
51. As a last ditch effort, the learned counsel for the appellant would argue that given the fact that non-official witnesses, more particularly, PW-1 to PW-9 have not supported the case of the prosecution and have been declared hostile, the least the appellant was entitled to the benefit of doubt. However, again, we find no merit in this contention for the simple reason that not only the official witnesses, PW-4 Nisha Devi and PW-10 Kali Ram have proved the ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 42 case of the prosecution beyond reasonable doubt, but as regards the link evidence, no doubt, these witnesses have been declared .
hostile by the prosecution as they have resiled from their earlier statements given to the police. But, then, it is settled law that evidence of hostile witnesses would not be totally rejected if the statements are in favour of the prosecution or the accused, but could of be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be rt accepted. It is not quite strange that some witnesses do turn hostile but that by itself cannot prevent the Court from finding the accused guilty if there is otherwise acceptable evidence in support of conviction. The dependable part of the hostile witnesses can always be relied upon. For, it is the duty of the Court to separate the grain from chaff and the maxim "falsus-in-uno, falsus-in-omnibus"
has no application in India as held by the Hon'ble Supreme Court in Nisar Ali vs. The State of Uttar Pradesh, AIR 1957 SC 366.
52. As already observed above, even though, PW-1-Bhagi Devi had turned hostile, but she has not denied about her clothes being burnt by acid and she has also not denied about the death of her son or he having sustained gun shot injuries. She has further not denied having contacted PW-10 Kali Ram and asking Jai Singh to bring a vehicle. She has also not denied taking her son firstly to ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 43 Jogindernagar and thereafter to Tanda and has also not denied the recovery that was effected by the police. Likewise PW-3 and PW-4 .
have also not denied their signatures on the recovery memos and the recovery effected before them. Likewise PW-5 and PW-6 too have not denied their signatures over recoveries memos and the recoveries that were effected in their presence. Infact, PW-7 has of proved the presence of the complainant at the spot on the date of incidence when he stated that Nisha Devi wife of Adesh Kumar rt might have been there. Likewise, PW-8 and PW-9, who are witnesses of the recovery of the gun have not disputed their signatures over 'khakha' Ext. PW-8/B and the parcel Ext. P-18 and the recovery of the gun, which, according to them was only shown wrapped in a parcel.
53. That apart, MLC Ext.PW-14/B of Adesh issued by the Civil Hospital, Jogindernagar clearly describes the history as follows:
"Alleged H/o being shot by father with gun around 10.30 p.m. on 4/11/14"
54. The Court cannot be oblivious to the fact that this is an exceptional case where a father is found to have killed his own son.
In such case, it is normally at the first instance that the true version in the statements of the family members comes forth, be it under Section 154 Cr.P.C. or otherwise, on the basis of which FIRs are ::: Downloaded on - 13/10/2023 20:37:55 :::CIS 44 formally registered. Thereafter, the family members normally reconcile to the fact that a close family member is no more and now .
the honour of the family must be saved and then the families try to prevail upon all those associated with the case describing it as a personal loss and further convince that when they have already reconciled with the situation as immediate family members even of after losing one of their loved ones, therefore, these persons should also reconcile as they have nothing personal in the matter and rt invariably request or try to prevail upon them to turn hostile and resile from their statements that have earlier been given to the police. The police, on the other hand, would not ordinarily falsely implicate someone when the allegations are so exceptional and in case they would have done so, the same would have created uproar and chaos in the society. After-all, one would not tolerate a father having been implicated as an accused for murdering his own son.
55. In view of the aforesaid discussions and for the reasons stated above, we find no merit in this appeal and the same is accordingly dismissed, so also the pending application, if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 13th October, 2023.(krt) ::: Downloaded on - 13/10/2023 20:37:55 :::CIS