Jammu & Kashmir High Court
Yashvir Singh Son Of Kartar Singh R/O ... vs State Though Police Station Vijaypur on 28 November, 2022
Author: Mohan Lal
Bench: Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 23/2019
CrlM No. 417/2019
Reserved on :21.10.2022
Pronounced on: 28.11.2022
Yashvir Singh Son of Kartar Singh R/O Mandi Raj ....Appellant(s)
Ghar Gurah Salathia (District Samba)
Through :- Sh. Rahul Singh Sambyal with
Sh. Jagpal Singh Advocates
V/s
State Though Police Station Vijaypur ....Respondent(s)
Through :- Sh. Vishal Bharti, GA
CORAM:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
1. Instant Criminal Appeal is directed by the appellant against the judgment dated 08-03-2019 rendered by the court of Ld. Pr. Sessions Judge Samba in file No. 06/Sessions titled State V/S Yashvir Singh and Ors, whereby, appellant has been convicted and sentenced to undergo rigorous imprisonment for 7 years in FIR No. 100/2013 for commission of offence proved u/s 304-II RPC instead of offence u/ss 302/34 RPC charged against them. Be it noted, that out of the total four (4) accused persons including the appellant put on trial, remaining three (3) accused persons namely, Ranvir Singh S/O Kartar Singh, Tapinder Singh S/O Harbans Singh & Jagdish Singh S/O Kashmir Singh all residents of Mandi Raj Ghar Gurah Salathia District Samba have been acquitted.
2. Aggrieved of and dissatisfied with the impugned judgment and order dated 08-03-2019, appellant/convict has questioned it‟s legality, propriety and correctness on the following grounds:-
(i) that the impugned judgment dated 08-03-2019 is against facts and law, in as much as, the commission of offence u/s 304-II RPC has not even been proved by the prosecution beyond reasonable doubt and the trial court has failed to appreciate the evidence which was brought before it by the prosecution, the impugned judgment is a result of sheer miss-appreciation of evidence;
(ii) that the trial court has relied heavily upon the statements made by eyewitnesses who did not stand the test of cross-examination 2 CRA No. 23/2019 and in categorical terms deposed that appellant fired at the chest of deceased which itself causes doubt on the presence of eyewitnesses at the spot of occurrence, as the deceased received injury upon his thigh which is contrary to the version narrated by both the eyewitnesses;
(iii) that the court below has totally ignored the medical evidence produced by the prosecution wherein board of doctors specifically deposes before the court that the bullet shot suffered by the deceased could not have been received from front side of the body of deceased, but the shot was hit the deceased from the backside of the body which itself is sufficient ground to create a doubt on the veracity of eyewitnesses;
(iv) that the court below has not appreciated the aspect of the case that the person who brought the deceased in his car was a material witness who was intentionally and deliberately withhold and not included in the prosecution list of witnesses, moreso, the blood stained clothes of that person were not seized, prosecution deliberately tried to suppress the material facts and projected a false story, the so called eyewitnesses who are none other the real brother and wife of deceased during their cross-examination could not prove their presence on the scene of crime;
(v) that the court below has failed to appreciate the fact that prosecution has failed to establish as to whether the bullet shot was fired from the gun of accused, in as much as, it is proven fact that the fired cartridges seized from the spot of occurrence and three (3) live cartridges recovered from the house of appellant/convict were not only of different weight but were of different make, so the argument that bullet was fired from the gun of appellant has no substance;
(vi) that the prosecution eyewitnesses in one voice have deposed before the trial court that bullet was shot/fired at the chest of deceased, whereas, as per medical evidence of postmortem report the deceased suffered injury at the thigh, and this evidence is sufficient to create doubt regarding the presence of eyewitnesses on the scene of crime;
(vii) that the court below has failed to appreciate that fact that the statements made by the doctors who conducted the postmortem categorically shows that bullet injury suffered by the deceased is Circular in nature which means that gun was placed at right angle and not horizontally aimed at the chest of deceased, therefore, the version of prosecution that the appellant/convict fired bullet at the chest of deceased cannot be believed as true;
(viii) that the court below has filed to appreciate the evidence that ballistic expert who was put to cross-examination categorically deposed that it cannot be ascertained from the rifle seized by police that shot was fired from the same, in as much as, in the chamber of gun seized from the house of appellant the fired cartridge bears the name, "Ammunition Factory Khadi"
whereas, the fired cartridges recovered from the scene of crime bear the make of cartridges as "Indian Ordinance Factory", 3 CRA No. 23/2019 therefore, prosecution has failed to establish that deceased was shot from the rifle seized from the house of appellant.
3. Respondent has contested the appeal wherein the Ld. GA has vehemently contended, that the Ld. Trial Court after appreciating the evidence and material on record in it‟s right perspective has properly weighed and appreciated the evidence, prosecution has established the offences against appellant who has been rightly convicted for commission of offence u/s 304-II RPC and sentenced to suffer rigorous imprisonment for 7 years. Prayer has been made for affirmation of impugned judgment and dismissal of the appeal.
4. Sh. Rahul Singh Sambyal, Ld. Counsel for appellant/convict has submitted written arguments in addition to oral submissions advanced by him and has sought the acquittal of appellant/convict and setting aside/quashment of impugned judgment of conviction on the following counts:-
(i) Contradictions Between Medical And Ocular Evidence:-
It is argued, that the only two (2) eyewitnesses in the case namely PW-1 Atma Singh (real brother of deceased) & PW-2 Veena Rani (wife of deceased) have tendered evidence that deceased was standing and accused was also standing in front side of deceased facing each other and the distance between them was that of the gun-in-hands of accused Yashvir and he had put the barrel of the gun on the chest of deceased and in the same posture accused Yashvir fired on deceased, but it is very strange and beyond imagination that no injury has been caused and found in the chest of deceased, the only injury found on the body of deceased was on his left thigh with the entry wound on the back side of the thigh and exit wound on front side of thigh however if expert evidence of PW-31 Dr. Vijay Choudhary is taken into consideration the track of the said injury/wound on the left thigh of deceased the gunshot was not fired from the front side of the deceased if the same would have been fired from the front side of the deceased then the exit wound would have been back side of the deceased, the expert medical evidence totally rules out the possibility of injury found on the body of deceased to be caused from gunshot from the front side of the deceased which is contrary to the ocular evidence adduced by the aforesaid two eyewitnesses that the gunshot was fired on the deceased from the front side, the expert medical evidence completely rules out and negates the eyewitness‟s account regarding alleged occurrence which clearly shows that the presence of alleged eyewitnesses on the scene of crime is doubtful and it is unsafe to rely upon their depositions;
It is argued, that PW-31 Dr. Vijay Choudhary, PW-32 Dr. Sanjay Sharma & PW-33 Dr. Arjun Singh members of the board who conducted autopsy of the deceased Ramesh Singh have tendered evidence before the trial court that the injury/wound present on the thigh of deceased was circular in shape and there was no sign of blackening, burning of skin and tattooing of skin around the wound and taking into consideration the track of the wound as mentioned in the postmortem report the shot was not fired from the front side, and had the shot fired from front side then the exit wound would have been on the back side of the thigh, and as there was no 4 CRA No. 23/2019 blackening, burning of skin and tattooing of skin around the wound, it clearly implies that fire was shot from a far of a distance and not from close range as alleged by the eyewitnesses, moreso, in the site plan appended with the chargesheet deceased is shown to be sitting on the danga (platform) when he was fired upon. To support his arguments, Ld. Counsel for appellant convict have relied upon the judgments reported in
(i) AIR 2017 (SC) 1657 [KRISHNEGOWDA AND ORS. Versus STATE OF KARNATAKA], (ii) 1984 MPLJ 292 [RANCHHODSINGH DIWANSINGH versus STATE OF M.P], (iii) (2003) Supreme (Pat) 919 [Suresh Rai V/s State of Bihar], & (iv) 1997 CrLJ 1677 [MADAN RAI-- Appellant Versus STATE--Respondent].
(ii) Disclosure Statement & Recovery of Weapon Doubtful:-
It is argued, that PW-4 Yudhvir Singh, PW-6 Dinesh Singh and PW-7 Utkansh Slathia are the witnesses to the disclosure statement (EXTP-DS) of A-1 Yashvir Singh and recovery memo (EXTP-YS) of 12 Bore Rifle and cartridges pursuant thereto, but all of them have putforth contradictory versions before the trial court, in as much as PW-4 Yudhvir Singh has deposed that on 21-07-2013 he alongwith PW-6 Dinesh Singh went in police station Vijaypur where SHO was interrogating accused Yashvir Singh and during interrogation Yashvir disclosed that he hit the deceased with gunshot and concealed the rifle and cartridges in house but the disclosure statement on record with the file does not contain the wording that accused Yashvir disclosed before I/O the he fired upon the deceased, PW-6 Dinesh Singh in his cross-examination has completely shattered the prosecution version that on 21-07-2013 he received telephone call from P/S Vijaypur calling him to attend police station and telling him that accused has to confess the crime meaning thereby that the disclosure statement was not made in presence of PW-6 Dinesh Singh and moreso PW-6 Dinesh Singh has categorically stated that he went to his house from police station and did not accompany the police to the house of accused and in his presence no recoveries was made; PW-7 Utkansh Slathia is also witness to recovery of 12 bore rifle and live cartridges has stated that alleged seizure of weapon of offence was made at 3.30pm and at that time accrued was present at his house, it is argued, that had the accused present at his house at 3.30pm for recovery of weapon then he could not have made disclosure statement in police at 3.30pm, which clearly demolishes the entire evidence of the prosecution regarding disclosure statement made by the accused and recovery of the weapon of offence pursuant thereto;
It is argued, that PW-4 Yudhvir Singh has mentioned the time of disclosure statement made by A-1 Yashvir Singh as 4-5pm and recovery of weapon of offence as 5.45pm, PW-6 Dinesh Singh has mentioned the time of disclosure statement as 4.30pm, PW-7 Utkansh Slathia has mentioned the time of recovery of weapon of offence as 3.30pm, while as I/O PW-38 Mohd Iqbal Choudhary has mentioned the time of disclosure statement made by A-1 at 2pm on 21-07-2013 and recovery of weapon of offence at 3.10pm, in as much as all the aforesaid witnesses have led contradictory version to the disclosure statement made by the accused which further creates serious doubt regarding the credibility of disclosure statement made by the accused and recovery of weapon of offence, destroying the very foundation of the prosecution case;
(iii) Inordinate Delay In Recording Statements Of Prosecution Witnesses:-
It is argued, that PW-1 Atma Singh (real brother of deceased) and PW-2 Smt.Veena Rani (wife of deceased) as per the prosecution story are 5 CRA No. 23/2019 the eyewitnesses of the occurrence of dated 19-07-2013; statement of PW-1 Atma Singh has been recorded u/s 164-A Cr.Pc on 05-08-2013 after a delay of about 16 days while statement of PW-2 Veena Rani has been recorded u/s 164-A Cr.Pc on 30-08-2013 after a delay of about 41 days from the date of occurrence and both these witnesses as well as I/O of the case PW-38 Mohd Iqbal Choudahry (SHO) have putforth explanation that PWs Atma Singh and Veena Rani were busy in post funeral rites of deceased which is not a reasonable/plausible explanation regarding the delayed recording of their statements, if the delay in recording the statements of prosecution witnesses is not explained satisfactorily the evidence of prosecution becomes untrue, unreliable and untrustworthy and the presence of the eyewitnesses on spot becomes highly unnatural which casts serious doubt upon the prosecution case. Reliance has been placed on, 1978 Supreme (SC) 233 [Ganesh Bhavan Patel and another, Appellants Versus State of Maharashtra, Respondent];
(iv) It is argued, that in the present case more than two views are possible from the appreciation of prosecution evidence hence under criminal jurisprudence the view favoring the accused should prevail, therefore, the view that the deceased was fired from the back side on his left thigh and not from front side of his chest (as claimed by the two alleged witnesses) should have prevailed and the gunshot fired from the back side of the deceased on his thigh has not been attributed to the accused, hence A-1 Yashvir Singh could not have been convicted for offence u/s 304-II RPC.
To support his arguments, Ld. Counsel for respondent has relied upon the rulings reported in (i) 2018 Supreme (J&K) 961 [Mohammad Saleem-- Appellant versus State of J&K & Ors.--Respondents];
(v) It is argued, that eyewitnesses PW-1 Atma Singh & PW-2 Veena Rani have tendered evidence that they alongwith deceased reached Vijaypur Hospital on or before 11pm within half-n-hour of occurrence at 10.30pm, whereas taking into consideration the nature of injury suffered by deceased and the opinion of Doctor that the deceased could not have died if brought to Hospital within half-n-hour from the time of occurrence, which clearly proves/establishes that deceased remained on spot for a long time and none of the aforesaid eyewitnesses were present there, none evacuated the deceased within the time as a result of which deceased expired on spot and at later time the two alleged eyewitnesses came on spot after being called by the people residing thereby and when the deceased was taken to Hospital he had already expired and was declared as brought dead, in as much as, the Fard Surat-e-Hall Form appended with the chargesheet depicts that the deceased has died at Mandi Rajgarh i.e. the place of occurrence and in the said fard Surat-e-Hall Form no where presence of any eyewitness has been shown which fact has been endorsed by the investigating officer (I/O) in his cross-examination, meaning thereby, that the alleged eyewitnesses of the occurrence have not seen the occurrence with their naked eyes and possibility of their presence on the scene of crime is ruled out, which makes the prosecution case highly doubtful, concocted and unworthy of reliance;
(vi) It is argued, that eyewitness PW-2 Veena Rani in her deposition before the trial court has categorically tendered evidence that when she reached on spot her husband was already lying on ground in a pool of blood which clearly establishes/demonstrates that she reached on spot much after occurrence and has not witnessed the occurrence with her naked eye, 6 CRA No. 23/2019 appears to be a planted witness, hence her testimony as being the eyewitness of the crime is shaky, untrustworthy and unworthy of reliance;
(vii) It is argued, that PW-1 Atma Ram & PW-2 Veena Rani did not took the deceased to nearby CHC Gurha Slathia for treatment even though the CHC was located at a distance of half kilometer from the scene of crime so that the life of deceased could have been saved, but the said witnesses took the deceased to Vijaypur Hospital located at a distance of 5 kms from the scene of crime and the doctors declared the deceased brought dead, the conduct of PW-1 Atma Ram & PW-2 Veen Rani who are real brother and wife of the deceased is totally against normal human conduct and behavior which shakes the very foundation and credibility of the said witnesses making the prosecution case highly doubtful and concocted and unworthy of reliance;;
(viii) It is argued, that PW-2 Veena Rani (wife of deceased) has testified that she remained with her injured husband on spot for 15 minutes who was bleeding profusely at that time, but she did nothing to stop his bleeding though she was having dupatta with her at that time which could have been tied by her to save the flow of blood, but the said conduct of the witness even not tying the dupatta with the wound of deceased again raises serious doubt/suspicion regarding her presence on spot at the time of occurrence;
(ix) It is argued, that alleged eyewitnesses viz; PW-1 Atma Ram & PW-2 Veena Rani in their depositions before the trial court have testified that after the occurrence for 15 minutes deceased remained on spot i.e. almost upto 10.45 pm and there was light of bulbs on spot, another witness PW-4 Yudhvir Singh (cousin brother of Veena Rani) who is witness of disclosure and recovery of weapon of offence has putforth a highly contradictory version before the trial court that when he reached on spot at 10.30pm to 10.45pm Veena Rani and Atma Singh were not present on the spot of occurrence, there was total darkness and all the proceedings of seizing of clay etc. were conducted in the light coming from headlights of Police Gypsy which fact has been endorsed by the I/O that they conducted the proceedings on spot under the lights of their vehicle because it was dark on spot, the highly contradictory versions of PWs 1,2&4 Atma Ram, Veena Rani & Yudhvir Singh go to the root of the prosecution case demolishing its entire edifice that the occurrence has been seen by PW-1 & PW-2 Atma Ram & Veena Rani;
(x) It is argued, that eyewitnesses PW-1 Atma Singh & PW-2 Veena Rani have tendered evidence before the trial court that their clothes as well as the seat covers of the car in which deceased was shifted to Hospital at Vijaypur got stained with blood of the deceased, neither the clothes of the aforesaid witnesses nor the said car has been seized by the police during investigation and more importantly the person in whose car the injured (deceased) is stated to have been shifted to Hospital Vijaypur from the spot has neither been cited as witness in the chargesheet nor examined by the prosecution in the court otherwise, the said witness being most material witness of the prosecution who could have unearthed the true facts of the case has been willfully and intentionally withheld by the I/O and the prosecution to suppress the material facts regarding the genesis of the prosecution case, which further makes the prosecution version against the appellant highly doubtful, concocted and unworthy of reliance;
(xi) It is argued, that the two (2) empty cartridges case recovered from spot are of Khadki Ammunition Factory, while three (3) cartridges recovered 7 CRA No. 23/2019 from the house of appellant/convict as well as empty cartridge recovered from the barrel of gun are of Indian Ordinance Factory which are of different make, empty cartridges recovered from scene of crime could not be connected with three (3) cartridges recovered from the house of appellant and barrel of gun, which clearly demonstrates that two empty cartridges cases recovered from scene of crime were neither in possession of appellant nor same were fired by him, which further shakes the very foundation of the prosecution case making the prosecution version highly doubtful and concocted meaning thereby that prosecution has filed to prove the guilt of accused.
5. Sh. Vishal Bharti Ld. GA for respondent has supported the impugned judgment and has sought it‟s affirmation/confirmation on the following counts:-
(i) It is argued, that PW-1 Atma Ram (eyewitness) and PW-2 Veena Rani (eyewitness) real brother and wife of the deceased (Ramesh Singh) has categorically deposed before the trial court that when they reached Danga Chowk they saw accused Tapinder Singh and Ranvir Singh holding the arms of deceased Ramesh Singh, whereas, accused Jagdish Singh was beating Ramesh Singh, while accused Yashvir Singh (appellant/ convict) holding rifle in his hand fired upon the deceased. As per Ld. GA this evidence is sufficient to establish that eyewitnesses have seen appellant/convict firing upon the deceased which resulted in deceased‟s death in Hospital, the trial court has rightly appreciated the evidence and convicted appellant/convict;
(ii) It is argued, that PW-4 Yudhvir Singh, PW-6 Dinesh Singh & PW-7 Utkansh Slathia are the witnesses to the disclosure statement and recovery of weapon of offence viz; gun and cartridges and all of them have putforth corroborative evidence that appellant/convict made a disclosure statement and on his disclosure statement gun and cartridges were recovered, the evidence of these witnesses has been rightly appreciated by the trial court whereby appellant has been rightly convicted;
(iii) It is argued, that the ballistic expert has categorically stated that the bullets seized have been fired from the gun seized on the disclosure statement of appellant/convict which is a sufficient link evidence to prove the fact that the fire/bullet was shot from the gun of appellant/convict which resulted in the death of deceased.
6. To prove the case against appellant/convict prosecution has led oral as well as documentary evidence. Prosecution has examined as many as 34 witnesses out of total 38. Be it noted, that PWs 5,26,35&37 namely, Rajinder Singh, Varun Singh Slathia, Vinod Sharma & Mst. Anjum Ara (the then Addl. Munsiff JMIC Samba, who recorded the statement of witnesses u/s 164-A Cr.pc) have remained unexamined by the prosecution for reasons best known to it. Prosecution has examined oral witnesses as under:-
8 CRA No. 23/2019 PW Name Role
1 Atma Singh Eyewitness
2 Mst. Veena Rani Eyewitness
3 Pushpinder Singh Witness to seizure of dead body
4 Yudhvir Singh Witness to disclosure statement and recovery
of rifle and blood stained soil
6 Dinesh Singh Witness to seizure of blood stained soil
7 Utkansh Slathia Witness to recovery of rifle & live cartridges
8 Subash Chander 735/S Witness to seizure of vehicle and gun license
9 Rakesh Kumar 725/S -Do-
10 Shivdev Singh SI Witness to supurdnama of ring and seizure of
blood sample
10 Suraj Parkash MHC Witness to production of FIR No. 103/11 P/S
A Samba
11 Noor Hussain SI Witness to seizure of blood stain soil
12 Shakeel Ahmed SGCT Witness to supurdnama of ring
223/S
13 Anwar Sandotra Witness who produced Aks Shajara, Girdawari
(Patwari) and report from revenue department
14 Partap Singh (student) Hearsay witness
15 Mst. Davika Slathia -Do-
16 Smt. Bimla Devi -Do-
17 Smt. Neelam Slathia -Do-
18 Smt. Shashi Bala -Do-
19 Smt. Anjana Slathia -Do-
20 Smt. Sumeda Slathia -Do-
21 Smt. Beena Slathia -Do-
22 Smt. Sushma Slathia -Do-
23 Smt. Shabhe Slathia -Do-
24 Smt. Seema Slathia -Do-
25 Smt. Shakuntla Devi Circumstantial witness
27 Tarun Slathia Hearsay witness
28 ASI Girdhari Lal 424/Cr Witness who conducted photography of the
dead body
29 Kuldeep Kumar HC Witness who conducted photography of rifle
272/CR and cartridges
30 Darshan Lal MHC Witness to supurdnama of vehicle and other
126/S articles
31 Dr. Vijay Choudhary Witness to postmortem of dead body
(M.O.)
32 Dr. Sanjay Sharma Witness to postmortem of dead body
(M.O.)
33 Dr. Arjun Singh Witness to postmortem of dead body
(M.O.)
34 Rajinder Singh Jamwal Chemical opinion regarding rifle and cartridges
Scientific Officer FSL
Jammu)
36 Avtar Singh Jasrotia Witness to re-sealing of parcels and issuance of
(Tehsildar Vijaypur) authority letter
38 Mohd Iqbal SHO/I/O
Choudhary
7. P R O S E C U T I O N E V I D E N C E :-
Before coming to the conclusion whether prosecution has successfully substantiated charges against appellant/convict beyond hilt, I have found it 9 CRA No. 23/2019 pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court. Relevant portions of the testimonies of the prosecution witnesses are summarized hereunder:-
PW-1 Atma Singh (eyewitness) has stated that he knows the accused. The deceased Romesh Singh was his real brother. On 19.07.2013, at about 9/9.15 PM while searching for his cow when he reached near Danga Chowk, he saw the accused persons there and the accused Yashvir Singh Patwari was saying that he will finish the task today. The other accused were saying that they are with him in this mission. He returned home after finding his cow and after having dinner while he was watching T.V. that he heard a sound of gunshot at around 10/10.30 PM. He came out and simultaneously his brother Romesh Singh's wife also came out of the house. His sister-in-law told him that his brother had gone out for a walk. He alongwith his sister-in-law started walking towards Danga Chowk and on the way they heard sound of one more gunshot. On reaching Danga Chowk, they found accused Tapinder Singh and Ranvir Singh holding the arms of deceased Romesh Singh and accused Jagdish Singh beating the deceased Romesh Singh, whereas, the accused Yashvir Singh was holding rifle in his hand. They were about 20/25 feet short of the place of occurrence, when the accused Yashvir Singh on seeing them fired upon his bother. Thereafter, the accused Yashvir Singh said that he has finished the task and asked him to take away the dead body. A red coloured car bearing No.0068 was stationed on the spot and the accused Yashvir Singh and Ranvir Singh fled away in that car, whereas, accused Tapinder Singh and Jagdish Singh also fled away. On raising hue and cry, people of the locality came on spot. One person who is married in their village came on spot with a vehicle and they shifted the injured Romesh Singh to hospital at Vijaypur in that vehicle. The deceased Romesh Singh had sustained bullet injury on left leg. The doctors declared Romesh Singh as brought dead. The police came in the hospital and enquired about the incident from him. About 5/6 years back, the accused Yashvir Singh beat his mother also. In last Panchayat election Veena Rani Wd/O deceased Romesh Singh contested against the wife of accused Yashvir Singh. The dead body of the deceased was taken to Ramgarh hospital for postmortem, where the postmortem was performed on next day. Seizure memo EXTP-1 with respect to dead body, seizure memos EXTP-1/1 and EXTP- 1/2 with respect to clothes bear his signatures, contents whereof are correct. The receipt EXTP-2 with respect to dead body also bears his signature, contents whereof are correct. Supurdnama EXTP-2/1 bears his signature, contents whereof are correct. He has seen the seized clothes as well as rifle in the court. The police got his statement recorded in the court on 05.08.2013. In cross-examination has deposed, that house of the accused Yashvir Singh is about 40 feet from his house, whereas, the house of PW- 2 is about 20- 25 ft from his house. If someone has to go to Danga Chowk from the house of PW Veena Rani, then, one has to cross the house of his paternal uncle (Taya) Chamail Singh. Mst. Sheshu Devi daughter of Chamail Singh uncle lives in that house alongwith son-in-law of Chamail Singh. There are two Temples near the house of Chamail Singh one at about 40-50 ft away and another about 90-100 ft. away. Neither there is a Pujari in both these temples nor there was any person in those Temples at the time of occurrence. There is no specific person engaged to open or close these Temples. Both these Temples have been equipped with electric supply.10 CRA No. 23/2019
Mandir Radha Krishan is 40-50 ft. away from the house of accused Jagdish Singh. The deceased Romesh Singh was shifted to hospital in the vehicle of son-in-law of Chamail Singh and the vehicle was driven by son-in-law of Chamail Singh. He alongwith Veena Rani removed the deceased from the place of occurrence. The vehicle owner came on the spot by chance. When there was hue and cry, 5-7 women from the locality came on the spot. While shifting the injured to hospital, a train was crossing and they had to wait for a minute or two on Railway crossing. The SHO and Dy.SP reached the hospital after 5-7 minutes after they reached the hospital. The vehicle in which the injured was shifted to hospital was stained with blood of the deceased. Police came to village Rajgarh Mandi 2-3 times in connection with investigation of this case. The accused Yashvir Singh is his cousin brother also. His statement under section 164-A Cr.P.C. does not find mention about holding of the deceased by the accused Tapinder Singh from the right hand, when the accused Yashvir Singh fired upon the deceased. This is incorrect that Sheshu D/O Chamail Singh called PW Veena Rani from home. It is also incorrect that Sheshu Devi was present on spot when the deceased was shifted to hospital from the place of occurrence. Since, his cow would go towards Danga Chowk only, so, he went to search for the cow towards Danga Chowk at about 9-9.15 PM. There was some enmity with the accused Yashvir Singh prior to occurrence and they were not in talking terms at the time of occurrence. About 5-7 electric bulbs were on at the place of occurrence. He did not see the deceased Romesh Singh while on way for search of the cow and while returning also. He reached back home with cow at about 9.50 PM. His mother Shankuntla Devi used to live with his deceased brother Romesh Singh. He does not know whether the deceased Romesh Singh was sitting with his mother at the time of first fire but this is correct that at the time of first fire his mother was in the house of deceased Romesh Singh only. He did not know at the time of first fire that the deceased had gone out for a walk and had not returned back home. While going towards the place of occurrence with Veena Rani, he did not tell Veena Rani that he has just returned from this side and did not see the deceased. He heard the sound of second fire while going towards the place of occurrence. On reaching the spot with Veena Rani, 5-6 electric bulbs were on. The deceased was at a distance of gun only from the accused persons and the accused Yudhvir Yashvir had pointed gun towards the chest of the deceased and on seeing them, the accused Yashvir Singh fired upon the deceased. When they reached on spot, the deceased was facing them and the back of the accused Yashvir Singh was also towards them. The houses of Sudershan Singh and Bishan Singh are near the Danga Chowk. He did not see Sudershan Singh and Bishan Singh on spot at the time of occurrence. While removing the deceased from the spot to the vehicle, his clothes as well as the clothes of Veena Rani and owner of the car were stained with blood. Police did not seize their clothes. Police did not seize the seat cover of the vehicle which was stained with blood. The hospital at Vijaypur is about 5 kilometer from the place of occurrence. He did not take the deceased to hospital at Gurah which is about half a kilometer from the place of occurrence. There is hardly any doctor available in the said hospital. They reached hospital at about 10.45-11.00 PM. A mobile phone was found in the pocket of the deceased which was given to Veena Rani. Veena Rani was trying to contact somebody from that phone but he does not know whether the phone was connected or not. There are three horizontal surfaces at Danga Chowk one is adjacent to Radha Krishan Mandir, 2"" is adjacent to lane, 11 CRA No. 23/2019 over which there is a peepal tree and 3 is adjacent to the bath room. On the day of occurrence, he was posted in FCI Depot, Rajinder Pura. The deceased Romesh Singh had a car prior to his retirement. PW Utkansh @ Poshu is also a resident of his village, who may have been driving the vehicle of deceased Romesh Singh. He had two cows at the time of occurrence. He would milch the milk from both the cows and would sell it to two persons. It rained in torrents after the occurrence. The accused Tapinder Singh, Ranvir Singh and Yashvir Singh did not suffer injuries due to gun shot on spot. The deceased immediately fell down on sustaining the bullet injury. When they left for spot, it was dark night and there was light of electric bulbs only. He did not tell the Magistrate while making statement under section 164-A Cr.P.C. that clothes were seized in his presence and a seizure memo was prepared and police kept a seal on his Supurdnama. He did not go to Ramgarh hospital in the night of occurrence. At about 2-2.30 AM, he straight way went to the house of deceased and from there he went to his own house. Veena Rani returned home from Vijaypur hospital only. He did not meet the police on that night after returning from the hospital, but, the police came on spot at night at about 3.00 AM.The police came to the house of deceased also on that night and enquired from Veena Rani. He heard the sound of first and second fire but he does not know who fired those shots. There was no inverter installed in his house or in the Radha Krishan or Durga Temples on the day of occurrence. Electric bulbs installed in Temples and bathroom were on and there was light of these bulbs at the place of occurrence. He saw the accused Jagdish Singh beating the deceased from a distance. He did not inform anybody about the occurrence from the cell phone of the deceased which was found from the pocket of the deceased. He signed the statement which was recorded in the hospital by the police after the occurrence, but, he did not mention about the same in his statement recorded under section 164-A Cr.P.C. This is incorrect that he was not present on spot at the time of occurrence nor his statement was recorded by the police as suggested. The deceased remained on spot for about 10-15 minutes after sustaining bullet injury. The SHO did not accompany the deceased to Ramgarh hospital. From 19 July 2013 to 4/5 August 2013 police did not come to him nor he went to the police but the police told him that his statement has to be recorded in the court. He remained busy in performing the post death rites of his brother. This is incorrect that neither he witnessed the occurrence nor he saw the accused Yashvir Singh and Ranvir Singh running away in vehicle from the spot nor he took the deceased to Vijaypur hospital, so, there was delay in recording his statement in the court as suggested.
PW-2 Veena Rani (eyewitness) has deposed, that she knows the accused. On 19.07.2013 at about 10.15 PM, her husband Romesh Singh went out towards Danga Chowk for a walk. In the meanwhile, she heard the sound of gunshot. She called her brother-in-law Atma Singh and told him that her husband had gone out for a walk and then she alongwith her brother-in-law Atma Singh left towards Danga Chowk. On the way, she heard the sound of another gunshot. When they were 20-25 feet short of Danga Chowk, she saw that the accused Tapinder Singh and Ranvir Singh had held her husband from each arm and accused Jagdish Singh was beating her husband with blows. The accused Yashvir Singh was holding a rifle pointed towards her husband. As she raised hue and cry, the accused Yashvir Singh fired upon her husband. Thereafter, the accused Yashvir Singh said that he has finished Romesh Singh. When she and her brother-
12 CRA No. 23/2019in-law raised hue and cry, the accused Yashvir Singh and Ranvir Singh fled away in a red coloured car, whereas, other two accused fled away on foot. Thereafter, she and her brother-in-law shifted the deceased Romesh Singh to Vijaypur hospital. The deceased had sustained injury on left leg. While they were going towards Vijaypur hospital, they had to stop for a minute or two on the Railway Crossing. The accused Yashvir Singh beat her mother-in-law prior to the occurrence and as such there were differences between them and they were not in talking terms with the accused Yashvir Singh. Panchayat Elections were held prior to the occurrence and because of that elections also the accused Yashvir Singh was inimical to them and would abuse them frequently. The accused persons murdered her husband on the basis of previous enmity. The rifle shown to her in the court is the same with which the accused fired upon her husband. In cross-examination has stated that she did not have any cell phone on the day of occurrence and the land-line phone at her residence was out of order. The house of Atma Singh is about 20-25 ft away from her house. Atma Singh also did not have any cell phone with him at that time. She knew that her husband had gone towards Danga Chowk for a walk in routine. On hearing the sound of gunshot, she called her brother- in-law Atma Singh that her husband had gone for a walk and has not returned yet. She did not know whether Atma Singh had earlier also gone towards Danga Chowk for search of his cow nor Atma Singh told her that he has returned from Danga Chowk about 15-20 minutes earlier and did not find Romesh Singh on way. At the time of first gunshot, her mother-in- law Shankuntla Devi was lying on her bed in her house. There are 3- 4 houses in between her house and Danga Chowk. There was sufficient light of 7-8 bulbs on spot, when she reached on spot. The face of her husband was towards her and the back of the accused Yashvir Singh was also towards her. The back of accused Jagdish Singh was also towards her, whereas other accused were facing her. At that time, the accused Yashvir Singh and Ranvir Singh and her husband were standing and the distance between them was of the length of the gun only. Accused Yashvir had pointed the gun towards the chest of the deceased. The third fire was shot in her presence. The hospital at Rajgarh Mandi is about half a kilometer from the place of occurrence. The deceased was shifted to hospital at Vijaypur from the place of occurrence in 5-10 minutes, which is 4- 5 kilometers from the place of occurrence. The deceased was not taken to hospital at Rajgarh Mandi, Gurah Salathia because the doctor is hardly available in that hospital. On raising hue and cry, some ladies and son-in- law of Chamail Singh came on spot. She alongwith Atma Singh and son- in-law of Chamail Singh removed the deceased from the place of occurrence into the vehicle. The blood was oozing from the injury sustained by the deceased and clothes of all the three who removed the deceased from the spot were stained with blood. Police did not seize their blood stained clothes nor the blood stained seat cover of the vehicle. Police reached Vijaypur hospital 5-7 minutes after they reached the hospital. The police came to her house at night on the day of occurrence and enquired from her about the occurrence. Her statement under section 164- A Cr.PC was recorded in the court. This is incorrect that she did not witness the occurrence and she is making false statement as suggested. Accused 1 and 2 have two more brothers, one of whom is SPO in police. She did not have any cow those days and would purchase milk from somebody and not from Atma Singh. There are three horizontal platforms (Dangas) at Danga Chowk; over one of which is a big peepal tree. Her 13 CRA No. 23/2019 husband was standing on the ground and fell on the ground with face downward after sustaining injury. Her husband did not fall from the Danga. They had a vehicle at the time of occurrence and PW Poshu would drive the vehicle. She returned from the hospital on the same vehicle with the son-in-law of Chamail Singh. There was a rain fall on that night. It was raining when police came to her house because clothes of policemen had wet. She did not try to bandage the wound of her husband. Her husband retired as SI from BSF about a year prior-to the occurrence. Her husband would generally have dinner at 10.30 PM. Her husband had chapattis on that night and had taken dinner about 5-10 minutes before he left the house. She heard the first sound of gunshot after about 2-3 minutes when her husband left the house. On reaching the place of occurrence, she saw the deceased lying on spot and blood of the deceased had also fallen on the ground. It has not been mentioned in her statement under section 164-A Cr.P.C. that she alongwith Atma Singh and son-in-law of Chamail Singh shifted the deceased from the place of occurrence to Vijaypur hospital. She does not know as to how many people were arrested by the police on the night of occurrence. The hospital at Gurah Salathia is on way while going from Danga Chowk to Vijaypur hospital but they did not stop there. On the day of occurrence, after the deceased left home, she did not have any conversation with the deceased thereafter. She was at home from 20.12.2014 to 25.12.2014. On 22.12.2014, a dead body was found at Danga Chowk but she did not hear the sound of any gunshot on that day nor she saw that person being murdered, whose dead body was found. She returned from Vijaypur hospital alongwith son-in-law of Chamail Singh but she did not disclose this fact in her statement under section 164-A Cr.PC. No one from her family or from the family of her brother-in-law Atma Singh came on spot after the occurrence. She learnt about the death of her husband when the doctor declared him dead. The nick name of A-3 is Jojju, whereas, the name of brother of A-3 is Bantu. About 2/3 months prior to the occurrence, her mother-in-law was beaten by a monkey and her mother-in-law was removed to Vijaypur hospital by the brother of A-3 in a vehicle. She alongwith her husband accompanied her mother-in-law in that vehicle to Vijaypur hospital. About 4-5 years back, when the accused Yashvir Singh beat her mother-in-law, no report was lodged in the police. PWs Yudhvir Singh and Roshan Singh are her cousin brothers. She does not know the name of Chamail Singh's son-in-law, but he is the husband of Sheshu daughter of Chamail Singh. Son-in-law of Chamail Singh in those days was staying at Gurah Salathia. She does not know whether Sheshu daughter of Chamail Singh was at Gurah Salathia on the day of occurrence or not. She was never called by the police to identify the place of occurrence nor she herself identified the place of occurrence to the police. This is incorrect that PW Rajinder Singh Numberdar came at her home and told that her husband is lying at the place of occurrence, as suggested. PW-3 Pushpinder Singh (witness to seizure memo of dead body and clothes of deceased) has deposed, that he knows the accused and knew the deceased Romesh Singh also. On 19.07.2013, he received a phone call that Romesh Singh has sustained bullet injury. When he reached Vijaypur hospital Romesh Singh had died. Police seized the dead body and took the same to Ramgarh hospital for postmortem. On 20.07.2013, the police seized the clothes of the deceased in Ramgarh hospital after postmortem. Seizure memos with respect to dead body, Pajama and clothes of deceased bear his signatures, contents whereof are correct and are exhibited as 14 CRA No. 23/2019 EXTP-1, EXTP-1/1 and EXTP-1/2. He has seen the seized clothes in the court. In cross- examination has stated that Romesh Singh was his cousin brother. On receipt of phone call, he reached hospital in 10-15 minutes. By then, police had also reached the hospital. He did not inform the police about the occurrence. He signed the seizure memos EXTP-1/1 and EXTP- 1/2 in Vijaypur police station. This is correct that seizure memos with respect to seizure of clothes were prepared in the police station. He signed those documents in the police station. None else signed those documents in his presence. He did not enquire from PWs Atma Singh and Rajinder Singh about the occurrence on reaching the hospital. Police sealed all the 4 clothes in one parcel.
PW-4 Yudhvir Singh (witness to the disclosure statement of accused Yashvir Singh & recovery and seizure memo of rifle and cartridges) has deposed, that he knows the accused and knew the deceased also. On 21.07.2013, he alongwith Dinesh Singh went to police station Vijaypur, where, SHO P/S Vijaypur was interrogating the accused Yashvir Singh. During interrogation, the accused Yashvir Singh disclosed that he hit the deceased with gunshot and thereafter, fled away in a car. Accused Yashvir Singh further disclosed that he has concealed the rifle and cartridges in his house. Thereafter, SHO P/S Vijaypur took the accused to Rajgarh Mandi, Gurah Salathia. He alongwith one Posha resident of Rajgarh Mandi accompanied the police. Accused Yashvir Singh got a gun recovered from the flower-bed of the compound of his house alongwith three cartridges recovered from an almirah in his house. Police seized the rifle as well as cartridges and prepared seizure memo. Police prepared the disclosure statement of the accused in the police station when the accused made the disclosure. Disclosure statement EXTP-DS bears his signature, contents whereof are correct. Recovery/seizure memos with respect to rifle and cartridges bear his signatures, contents whereof are correct and are exhibited as EXTP-YS and EXTP-YS-1. Police kept two rings on his Supurdnama. Supurdnama on the file bears his signature, contents whereof are correct and is exhibited as EXTP-YS-2. On 19.07.2013, he heard that accused Yashvir Singh has fired upon Romesh Singh at Rajgarh Mandi. Police came on spot, however, there was no arrangement of light, but, the police with the help of headlights of two vehicles seized plain soil, two empty cartridges, one stick and a torch from the spot and prepared seizure memos. Seizure memos with respect to plain soil, blood stained soil, torch, stick and empty cartridges bear his signatures, contents whereof arc correct and are exhibited as EXTP-YS-3, EXTP-YS-4, EXTP-YS-S and EXTP- YS-6. He identifies the seized rifle, stick, torch in the court. Note: A sealed packet marked C' was opened in the court, from which two live cartridges were taken out which the witness identified. The police recorded his statement. In cross-examination stated that deceased Romesh Singh had married his cousin sister. He is an employee in Handicraft Department and posted at Tanoor. On 21-07.2013, he was on leave. He had written in his application for leave that he has to go to police station, so, he is proceeding on leave. He reached the police station at 4/5.00 PM alongwith Dinesh Singh. He did not go to police station prior to 21.07.2013, in connection with this case. Dinesh Singh is a resident of 17 Miles. He came to know about the occurrence on 19.07.2013 at about 10.30 PM and at that time there was no electric supply and he had gone out for a walk after dinner. The house of deceased is about one kilometer from his house. After coming to know about the incident, he went to his house and after 15- 15 CRA No. 23/2019 20 minutes reached on spot on bike. He was told about the incident by the wife of PW Dinesh Singh. When he reached on spot, Atma Singh and Veena Rani were not present there, but, SHO P/S came on spot. The accused made disclosure statement in the compound of police station in his presence and in presence of Dinesh Singh. Police interrogated the accused for about an hour. After the disclosure was made, SHO straight way come to the house of accused and reached there at about 5.45 PM. PW Dinesh Singh went to his house from the police station. It took about 45 minutes to complete the whole exercise at the place of recovery. PW Dinesh Singh is his cousin brother and real brother of PW Veena Rani. PW Dinesh Singh is an employee of electric department. He does not know where PW Dinesh Singh is posted. He does not know whether 21 of July, 2013 was a Sunday or gazetted holiday. The disclosure statement of the accused Yashvir Singh contained only the fact which the accused Yashvir Singh disclosed and that disclosure statement was read to him. However, the disclosure statement on the file does not contain that the accused Yashvir Singh stated that he fired upon the deceased. PW Dinesh Singh did not sign the recovery and seizure memo with respect to rifle and live cartridges. This is incorrect that he is making false statement because widow of deceased Romesh Singh is related to him and he wants to implicate the accused. He went to the house of accused Yashvir Singh on 21.07.2013 and prior to that he had never been to the house of Yashvir Singh. No empty cartridges were recovered from the house of the accused Yashvir Singh. The recovered rifle and cartridges were not sealed in his presence. The police kept two rings on his supurdnama in the house of accused Yashvir Singh but those rings were not used in his presence. Besides the wife of PW Dinesh Singh, one Kulbir Singh also told him about the occurrence. On 19.07.2013, the accused no.2 was an Auto driver and had a business of cable network also. PW Dinesh Singh telephoned him to come to police station on 21-07-2013 between 3.45 to 4.00 pm. This is incorrect that police telephoned him on 20.07.2013, telling him that the accused have confessed their guilt from whom a rifle has been recovered and the police asked him to bring one more witness alongwith and in this background, he applied for leave of one day on 20.07.2013 from the AHTO, as suggested.
PW-6 Dinesh Singh (witness to the disclosure statement of accused Yashvir Singh & recovery and seizure memo of rifle and cartridges) has deposed, that he knows the accused and knew the deceased also. On 21.07.2013, he alongwith Yudhvir Singh went to police station Vijaypur where the police was interrogating the accused in connection with murder of Romesh Singh. During interrogation, the accused Yashvir Singh disclosed that a 12 bore gun from which he fired upon the deceased Romesh Singh and the cartridges have been concealed by him in the compound of his house. Police took the accused to the house of accused from where a 12 bore rifle and three live cartridges were recovered. The gun was recovered from the flower-bed of the compound of the house, whereas, cartridges were recovered from the Almirah lying in the house. On 19.07.2013, there was a scuffle between the accused Yashvir Singh and deceased Romesh Singh at Danga chowk, where the other accused were also present and the accused Yashvir Singh fired upon the deceased Romesh Singh and thereafter, fled away alongwith Ranvir Singh in a car. He was in his house at that time and was told about the incident by Veena Rani Wd/O Romesh Singh at about 10.30 PM telephonically. Police prepared the disclosure memo with respect to the statement made by the 16 CRA No. 23/2019 accused Yashvir Singh. The disclosure statement bears his signature, contents whereof are correct and is exhibited as EXTP-DS. The receipt with respect to dead body EXTP-2 also bears his signature, contents whereof are correct. He has seen the seized rifle in the court. In cross- examination has stated that Veena Rani Widow of deceased Romesh Singh is daughter of his real maternal uncle. He is a 4th class employee in PDD department and a businessman also. He is a resident of 17 Miles, which is about seven kilometers from the place of occurrence. Police station Vijaypur is about 2 kilometer from his house. PW Yudhvir Singh telephoned him at about 3.30 PM to come to police station. He reached Gurah Morh in about 10 minutes. He also received telephone call from the police station Vijaypur on 21.07.2013, calling him to police station and telling him that the accused have to confess the crime. He came to know about the arrest of the accused on 20.07.2013, in the evening. The police recorded his statement on 21.07.2013. Accused made the disclosure statement after his examination under section 161 Cr.PC. On 21.07.2013, he went to his house from police station Vijaypur and did not accompany the police to the house of accused Yashvir Singh. Since, he did not accompany the police to the house of accused, so recoveries were not affected in his presence. Accused Yashvir Singh made disclosure statement at about 4.30PM, whereas, his statement under section 161 Cr.PC was recorded in the afternoon at about 2.30 PM. He did not go to Danga Chowk, Rajgarh Mandi on 19.07.2013 nor he saw the accused Yashvir Singh and deceased fighting. He did not see the accused firing at the deceased nor he saw the accused 1 and 2 fleeing from the spot in a car. This is incorrect that he had a quarrel with the accused no. 1 in connection with receipt of revenue extracts in the year 2011. In fact, he has no enmity with the accused no.1 nor he is making false statement. Police was interrogating the accused in the verandah of the police station. All the accused were present there. This verandah is outside the official room of SHO. Accused were standing, whereas, SHO was sitting on a chair. He signed the disclosure memo and then came out. He does not know who else signed the disclosure memo thereafter. He was asked by the SHO to come to the place of recovery but he refused in view of some pre- occupation.
PW-7 Utkansh Salathia (witness to recovery, seizure of rile and cartridges and supurdnama) has deposed, that he knows the accused. On 19.07.2013, at about 1.30 AM at night while returning home from a marriage, when he reached Danga Chowk, Gurah Salathia, he saw SHO P/S Vijaypur alongwith police personnel standing on spot. Police called him also. Police handed over a ring to Yudhvir Singh in his presence and a document was prepared in which his signatures were obtained. On 21.07.2013, he was going to a shop to get his phone recharge and when he reached near the house of his uncle accused Yashvir Singh, he saw the police there. His uncle was also present there. He went inside the house on being called by the police. Uncle Yashvir Singh took out a gun from a flower bed inside his house and handed over to the police. On opening, the gun had an empty cartridge inside. Thereafter, the accused Yashvir Singh and police went in the house and in the lobby of the house there was an almirah from which the accused took out three live cartridges. Thereafter, police sealed the recovered gun in a cloth and prepared some documents and obtained his signature as well as signature of Yudhvir Singh. Police seized the three live cartridges also. Police recorded his statement as well.
17 CRA No. 23/2019The memos of recovery/seizure of rifle EXTP-YS and recovery/seizure of cartridges EXTP-YS-1 and Supurdnama EXTP-YS-2 bear his signatures, contents whereof are correct. He has seen the gun as well as cartridges (two live cartridges and one empty cartridge in the court). In cross- examination has stated that out of three cartridges recovered from the almirah of the accused Yashvir Singh, two were live and one was empty. This is incorrect that cartridges recovered were manufactured by the Indian Ordinance Factory, whereas, one he has seen in the court is made by Ammunition Factory, Khadki. The weight of each cartridge was 30 grams, whereas, weight of each cartridge mentioned in the recovery memo is 20 grams On 20.07.2013, when he reached Danga Chowk, the front of both police Gypsy‟s was towards Danga Chowk with their headlights on. The house of deceased Romesh Singh is opposite to his house. He does not know who was SHO P/S Vijaypur at that time. On 21.07.2013, police did not keep any ring on Supurdnama in his presence. The deceased Romesh Singh was not related to him. In those days, he was a student of 12" class in Ranbir School, Jammu, but, he was not going to school those days. He went to Danga Chowk on his own because some people standing there. He does not know whether people of the locality were present there but when the accused Yashvir Singh and the police were present there, there was no light at that time. Yudhvir Singh also went to the house of accused with him. Yudhvir Singh was present in the lobby of the house, when cartridges were recovered from the almirah. The houses of Gurdev Singh and Rajinder Singh Lumber are near the Danga Chowk. The accused Yashvir Singh is also not related to him. He has a friendship with the son of deceased Romesh Singh. It is incorrect that on 21.07.2013, a ring was kept on Supurdnama of Yudhvir Singh in his presence. The empty cartridge lying in the barrel of the gun was sealed with the gun only. He has not seen that cartridge in the court. The police did not call Sarpanch, Numberdar or Chowkidar of the village, when the Gun and cartridges were recovered. PW-8 Subash Chander (witness to seizure memo of vehicle, documents and search of accused) has deposed, that on 21.07.2013, he was on naka duty alongwith other policemen and SHO P/S Vijaypur at Railway crossing, Vijaypur, when a vehicle bearing no. JK21-0068 driven by the accused Ranvir Singh came from Vijaypur side. Yashvir Singh was also sitting in the vehicle. Both the accused were arrested and the vehicle was seized. The license of 12 bore gun and documents of the vehicle were also seized and seizure memo was prepared. The seizure memo with respect to vehicle alongwith documents bear his signature, contents whereof are correct and is exhibited as EXTP-SC. Seizure memo with respect to license also bear his signature, contents whereof are correct and is exhibited as EXTP-SC-1. Both the accused were searched and search memos were prepared. The search memos with respect to both the accused bear his signatures, contents whereof are correct and are exhibited as EXTP-SC/2 and EXTP-SC/3. On 20.07.2013, personal search of the accused Jagdish Singh and Tapinder Singh was also conducted in his presence and search memos were prepared, which are part of the file, bear his signatures, contents whereof are correct and are exhibited as EXTP-SC4 and EXTP- SC/5. He has seen the seized gun, license as well as seized R/C of the vehicle in the court. In cross-examination has stated that on 21.07.2013, they searched for the accused at various places like Raya and Baguna etc. and laid naka at about 1.30 PM. When the vehicle was stopped, no one else except the police personnel was present on spot. Place of naka is about five 18 CRA No. 23/2019 kilometer from Gurah Salathia. Accused were arrested on 21.07.2013 at about 1.45 PM. On 19.07.2013, he did not accompany the SHO P/S Vijaypur to Danga Chowk, Gurah Salathia. On 19.07.20 13, the SHO did not bring any accused along in his presence to police station from Gurah Salathia. In those days, Iqbal Choudhary was SHO P/S Vijaypur. The seized D/L, R/C of the vehicle and gun license were in the name of accused Yashvir Singh. He does not know whether SHO P/S Vijaypur went to the house of accused Yashvir Singh on 21.07.2013 or not. His statement was recorded at the place of naka only on 21.07.2013. On 20.07.2013, his signatures were obtained on search memos by Moharer of the police station in the police station.
PW-9 Rakesh Kumar (witness to personal search of accused Yashvir Singh, seizure of 12 Bore gun license and search memos) has deposed, that he knows the accused. On 21.07.2013, while being posted as PSO with Iqbal Choudhary, SHO P/S Vijaypur, he accompanied the SHO to Railway crossing Vijaypur in connection with naka duty. The SHO was investigating the case under FIR no. 100/2013. During naka duty, a vehicle tearing no. JK21-0068 being driven by the accused Vicky with accused Yashvir Singh on board was stopped at naka. Both the accused were de- boarded from the vehicle and their personal search was conducted. During the personal search of accused Yashvir Singh, a license of 12 bore gun was recovered. The vehicle alongwith its papers was also seized. The seized memos were prepared. The seizure memos EXTP-SC and EXTP-SC/1 bear his signatures, contents whereof are correct. The search memos EXTP- SC/2, EXTP-SC/3, EXTP-SC/4 and EXTP-SC/5 bear his signatures, contents whereof are correct. The accused were brought to police station. He has seen the seized documents in the court today. His statement was recorded. In cross-examination has stated that in those days, Const. Subash Chander was also a PSO with SHO. On 21.07.2013, he alongwith Subash Chander were on duty with the SHO for the whole day. Naka was laid at about 12:30 PM. The license was recovered from the pocket of the accused Yashvir Singh. No civilian was present on spot at the time of seizure of the documents. They reached back in police station at about 3/3:30 PM from the place of naka. He does not remember whether after returning from naka duty, SHO went to the house of any accused or not. Neither he nor Const. Subash Chander went to the house of any accused on that day. He did not see Gangman of railways near the railway crossing on that day. During the course of naka duty, a train passed from that place and the railway barrier was closed and then opened. At the time of arrest of accused no. 1 & 2 and seizure of vehicle and documents, the SHO did not call gang man of railway on spot. At the time of arrest of accused 1 &2, the brother of accused Ravinder Kumar was present on spot. The accused Vicky and Yashvir were not arrested from Gurah Slathia. He does not know how many accused were arrested in this case on 19.07.2013. He did not accompany the SHO on 19.07.2013 to Danga Chowk, Gurah Slathia. He never went to Rajgarh Mandi Gurha Slathia during the investigation of this case nor he accompanied the SHO to that place. The personal search of the accused 3 & 4 was conducted on 20.07.2013 in the presence of the Mohrar of the police station.
PW-10 Shivdev Singh (witness to supurdnama of ring) has deposed, that on 20.07.2013, while being posted in police station Vijaypur, the I/O kept one ring on the Supurdnama of Atma Singh in his presence at Ramgarh hospital. Apart this, the I/O also seized blood. The Supurdnama EXTP-2/1 19 CRA No. 23/2019 bears his signature contents whereof are correct. The /O recorded his statement also. In cross-examination stated that on 19.07.2013, he was posted in police station Vijaypur and was at Vijaypur on 20, 21 & 22 of July 2013. He was not on leave from 19-07-2013 to 25-07-2013. When ring was kept on Supurdnama of Atma Singh, no other civilian except Atma Singh was present on spot. Supurdnama was drafted by ASI Noor Hussain, reader to the then SHO. He has not seen the ring as well as parcels D, E & F in the court today.
PW-10 Suraj Parkash (witness who recorded statement of injured) has deposed, that in 2011, he was posted in police station Samba. On 12.05.2011, ASI Sham Singh recorded the statement of an injured in GMC Jammu, on the basis of which FIR no. 103/2011 was registered against the accused Yashvir Singh in P/S Samba. In cross examination, stated that he does not know against whom FIR nos. 102/2011 and 104/2011 were registered in P/S Samba. He did not know the accused Yashvir Singh and other accused persons on the day, the aforesaid FIR was registered. He knows the accused Yashvir only and does not know other accused.
PW-11 Noor Hussain (witness to supurdnama of ring, sample of blood and empty cartridges) has deposed, hat he knows the accused. On 20.07.2013, while being posted in P/S Vijaypur, blood sample taken out by doctors during postmortem of deceased Romesh Singh was given to lqbal Choudhary, the then SHO P/s Vijaypur in his presence at Ramgarh hospital. An empty cartridge was also recovered from the injury of the deceased sustained by him in his leg which was given to the SHO by the doctors. SHO seized the sample of blood as well as empty cartridge and prepared seizure memos. Sample of blood as well as empty cartridge were sealed. The sealed parcels and ring used for sealing the parcels was kept on Supurdnama of one Atma Singh. On 21.07.2013, on the disclosure statement of accused Yashvir Singh, a 12 bore gun was recovered from the compound of the house of accused Yashvir Singh and 3 live cartridges were also recovered from an almirah in the lobby of the house of Yashvir Singh. The recovered rifle and cartridges were seized, which were sealed in separate parcels and the ring used for sealing the parcels was kept on Supurdnama. The seizure memo with respect to the sample of blood and empty cartridge bear his signatures, contents whereof are correct and is exhibited as EXTP-NH. The Supurdnama s EXTP-2/1 and EXTP-SA bear his signatures, contents whereof are correct. He has seen the seized empty cartridges in the court. In cross-examination has stated that he has not seen the seized gun and live cartridges in court today. He has also not seen the rings which were kept on Supurdnama in his presence. He did not sign the disclosure statements of accused. He was posted in police station Vijaypur from the year 2012 to March 2014. He knows Atma Singh from the day of occurrence, when he met him at Vijaypur Hospital near the dead body. During investigation of the case, he drafted several documents on the instructions of the SHO. He does not remember the timing when they went to the house of accused Yashvir Singh, however, they went on spot in two vehicles. Two of the accused were arrested after the occurrence and were brought to the police station on 20.07.2013. The information about the occurrence was received at about 11 PM in the police station. After 5- 10 minutes of registration of the case, he alongwith SHO left the police station and reached Vijaypur hospital in 4-5 minutes. His statement was recorded on 20.07.2013 at Ramgarh hospital. Some part of the 20 CRA No. 23/2019 investigation done in his presence on 21.07.2013, is not part of his statement. The parcels with regard to seized rifle and live cartridges were prepared by Const. Shakeel Ahmed over which SHO affixed his seal personally. He alongwith Shivdev Singh, SI accompanied SHO to P/S Ramgarh. Apart from the preparation of parcels of blood, empty cartridge and trouser, the parcels were sealed also at Ramgarh Hospital. Atma Singh, brother of the deceased and some others who were also present in the hospital witnessed the sealing of the parcels by the SHO. PW-12 Shakeel Ahmed (witness to supurdnama of seized soil and empty cartridges) has deposed, that on the intervening night of 19/20 July 2013, he accompanied SHO P/S Vijaypur to Hospital at Vijaypur. A large number of people were present in the hospital. The dead body of the person who had sustained bullet injury was lying in verandah of the hospital. The SHO seized the dead body and directed ASI Abdul Hamid and SG Ct. Mohd. Rafiq to shift the body to Ramgarh hospital. Thereafter, he alongwith Subash and Rakesh Singh, accompanied the SHO and DSP to Rajgarh Mandi, Gurah Slathia. ASI Noor Mohd. and Shivdev Singh also accompanied them. The SHO prepared the site plan of the place of occurrence. Blood was lying on spot. The SHO seized the blood stained and plain soil from the spot. Apart this, two empty cartridges were also lying on spot which were seized. The seized soil and empty cartridges were sealed on spot and ring used for sealing the parcels was kept on supurdnama of one Yudhvir Singh. On 21.07.2013, he alongwith ASI Noor Hussain, and PSO of the SHO and DSP accompanied the SHO and DSP to the house of accused Yashvir Singh. On the nishandehi of accused Yudhvir Singh, a rifle was recovered from the lawn of the house of accused Yashvir Singh, which was seized. The accused Yashvir Singh thereafter, went inside the house and got three live cartridges recovered from an almirah lying in lobby of the house. The recovered rifle as well as live cartridges were sealed in parcels. The ring used in sealing the parcels was kept on Supurdnama of Yudhvir Singh. The parcels were brought to the police station, where his statement was also recorded. The Supurdnama EXTP- YS/2 and EXTP-SA, bear his signatures, contents whereof are correct. In cross examination has stated that he is posted in Police Station Vijaypur since 2013. On the day of occurrence, at about 10:30 PM, he was having his dinner in the mess and left with the SHO in about 10 minutes. Gurha Slathia is 7-8 Kms from Vijaypur. It must have taken half an hour to reach place of occurrence from the hospital. From the place of occurrence, a stick, a torch and an empty bottle were also recovered, but he did not know whether those were seized or not. No one else was present on spot, however, people were wailing across the road. SHO called some civilians on spot. This is incorrect that the investigation was conducted on spot during night with the headlights of the policy gypsies because it was dark. On 21.07.2013, he accompanied SHO to Rajgarh Mandi at about 2:30 PM from the police station Vijaypur and returned at about 5:15 PM. In this period, the accused Yashvir singh was with the SHO P/S Vijaypur and SDPO. It took half an hour to complete exercise in the house of accused Yashvir Singh. This is incorrect that two live cartridges and one empty cartridge was recovered from the house of accused and the parcels prepared with respect to cartridge contained two live and one empty cartridge as suggested. He does not know from where the ring was obtained to seal the parcels in the house of accused Yashvir Singh on 21.07.2013. He does not know whether the SHO called any panch or 21 CRA No. 23/2019 sarpanch of Vijaypur on 21.07.2013 in the house of accused Yashvir Singh. He did not know PW Yudhvir Singh prior to the day of occurrence. PW-13 Anwar Sadotra (witness who prepared map of scene of crime) has deposed, that on 20.08.2013, while being posted as Incharge Patwari Gurha Slathia, he accompanied the police on the direction of Tehsildar to the place of occurrence. On the nishandehi of police, he prepared a site plan with respect to alleged place of occurrence and also prepared copy of Khasra girdawari of said place and handed over to the police. The copy of Khasra girdawari attached with the file is not true as per record because inadvertently, the Khasra no. 465 has been mentioned in copy, whereas, on record it is Khasra no. 645. However, in dasti map, Khasra no. has been mentioned as 645. Both the documents are in his handwriting and signatures and are marked as EXTP-AS and EXTP-AS/1. He has not mentioned the name of the Mandi and Danga in the khasra girdawari. He does not personally know where occurrence had taken place. He has shown Danga in the map which is marked as E. There are houses of people about 30 ft. away from mark E. He prepared map on the basis of latha but he has not mentioned in the map that it was prepared on the basis of latha. PW-14 Vinay Partap Singh has deposed, that he knows the accused but has no knowledge about the occurrence. The police came in the village in connection with investigation of case regarding death of Romesh Singh and obtained his signature on a paper.
PW-15 Devika Slathia has deposed, that she knows the accused. On 19.07.2013, at about 10:30/10:45 PM, she heard sound from the side of the house of PW Veena Rani. She came out of the house and went towards Danga Chowk and saw the deceased Romesh Singh in pool of blood. PW Veena Rani was present on spot who was yelling and told her that Yashvir Singh, Patwari has fired upon Romesh Singh. However, she did not see the accused Yashvir Singh on spot. She returned home. Police recorded her statement. Police did not read over that statement to her. She has two children. At the time of occurrence, her daughter was not married and was living with her. Her husband was present at home. The sister-in-law (Devrani) of PW Veena Rani was also going ahead of her towards Danga Chowk. She remained at Danga Chowk for 5 minutes and during that period, her husband did not come on spot. Her husband was present at home on the day of occurrence. She or her husband did not go to the house of Romesh Singh deceased on that night because deceased Romesh Singh had been taken to hospital. She came to know about the death of deceased Romesh Singh on next day. On reaching back home, she told her husband that the deceased Romesh Singh was lying in pool of blood at Danga Chowk. However, her husband did not go on spot. She was strolling in the lawn of her house when she heard the cries.
PW-21 Veena Slathia has deposed, that she knows the accused. On 20.07.2013, PW Veena Rani told her that patwari accused present in the court has killed Romesh Singh. Note. The witness was declared hostile with permission to the prosecution to cross-examine her. On cross examination by PP stated she heard about the animosity between the deceased Romesh Singh and accused Yashvir Singh who were not in talking terms. The police recorded her statement but did not read over the statement to her. In cross-examination by defense counsel stated that the police did not enquire from her about the occurrence prior to 22.08.2013. Her mother in law and mother of the deceased are real sisters. She did not 22 CRA No. 23/2019 go to Danga Chowk in the night of 19.07.2013, which is about 500- 550 mts from her house.
[ PW-23 Shoba Slathia has deposed, that she knows the accused. Deceased Romesh Singh was her brother-in-law (jeth). On 19.07.2013, at about 10/10:30 PM, she heard some cries from Danga Chowk side. On hearing the cries, she went on spot and found her sister-in-law (jethani) crying, who told her that Patwari Yashvir Singh has fired upon Romesh Singh. She also told her that the accused Tapinder & Vicky held the deceased from the hands and the accused Jagdish was hitting the deceased with blows. Accused Yashvir Singh patwari is her cousin brother. Her husband Atma Singh shified the deceased to hospital at Vijaypur. There was lot of blood loss as a result of which the deceased died. She is not in talking terms with the accused. In cross examination stated that her statement was recorded on 22.08.2013, over which her signatures were obtained by the police. From 19.07.2013 to 22.08.2013, she remained in house of her sister-in-law Veena Rani and during this period, the police came to the house of deceased twice in her presence. She does not know as to when her husband went out of the house on the day of occurrence. While going from home to Danga chowk, she did not receive any telephone call nor anybody came to her house during this period. When she reached on spot, the deceased was lying in pool of blood and her husband and sister in law Veena Rani were crying. There are 4-5 houses near the place of occurrence but she did not see anybody from those houses on spot. Her daughters, who aged 20 years and 25 years respectively at the time of occurrence, did not come on spot. The house of accused Vicky is adjacent to their house. She does not know whether she was present in her house or not on next day of occurrence when accused no. 2 was arrested by the police from his house. Her house is 20-25 ft. away from house of deceased. Chamail Singh is her paternal uncle (Taya). Mst. Sheshu is daughter of Chamail Singh, who frequently visits her paternal house. She did not tell police in which vehicle deceased was taken to hospital. Her mother in law Shakuntla, lives with her sister in law Veena Rani. At the time of occurrence, she had two cows in her house and she would milch milk from both the cows twice a day. On the day of occurrence, one cow did not return home. There is a hospital at a distance of about a Km from the place of occurrence but the doctors are hardly available in that hospital. She did not record her statement before the police for 33-34 days because her sister in law was in shock and people were coming for mourning.
PW-24 Sumedha Slathia has deposed, that she knows the accused and also knew the deceased Romesh Singh. On 19.07.2013, she was strolling on the rooftop of her house when she heard some noise from the side of Danga Chowk. She ran towards that place towards which 2-3 more persons were running and on reaching the spot, she found Romesh Singh in a pool of blood. Wife of Romesh Singh and brother Atma Singh and sister-in-law (bhabi) were crying on spot. Wife of Romesh Singh was saying that patwari has fired upon her husband, who was accompanied by 2-3 persons. In the meanwhile, a vehicle came on spot and Romesh Singh was removed from that place. She returned home. Police recorded her statement. In cross-examination stated that her statement was recorded after one month of occurrence in the house of deceased. The person who came with vehicle is the husband of one Sheshu and son in law of Chamail Singh. Chamail Singh is paternal uncle (Taya) of the deceased. House of Chamail Singh is 10-15 ft. from the place of occurrence. Mother of the deceased fell 23 CRA No. 23/2019 unconscious on spot and she dropped her at her house. When she reached on spot, the electric light was on. Her house is approx. 300 ft. away from the place of occurrence. Till her statement was recorded by police, she had been visiting the house of deceased and during that period, the police came in the house of deceased once. On the day of her examination by police, statements of Shoba Devi and Devika Slathia, was also recorded. The Govt. dispensary is half a Km from the place of occurrence. The injured was not taken to dispensary but to Vijaypur hospital, which is about 5 Kms from the place of occurrence. Veena Rani & Atma Singh did not go to the dispensary to get the ambulance and deceased kept lying on spot till husband of Sheshu came with a vehicle on spot. This is incorrect that she did not go on spot and she is making false statement in the court. PW Devika Slathia is her sister-in-law jethani). This is incorrect that in those days, her husband worked in Jammu and would return to home every evening as suggested. She did not visit the house of Veena Rani on the night of occurrence. She has three children and all of them were present in the house on that day.
PW-25 Shakuntla Devi has deposed, that she knows the accused. About 5-6 years back, the accused Yashvir Singh patwari beat her and on this count, she was not in talking terms with the accused Yashvir. Accused are sons of her brother-in-law (Devar). In Panchayat elections, her daughter-in-law contested against the wife of accused Yashvir, in which the wife of accused Yashvir was declared victorious. About 3 years back, there were three gun fires at Danga Chowk. After the 3rd fire, when she reached on spot, she enquired from PW Veena Rani as to what was happened to which Veena Rani replied that accused Yashvir has fired upon Romesh Singh. The other accused were also with accused Yashvir Sihgh. After about 2 minutes, son-in-law of her brother-in- law (jeth) removed the deceased Romesh Singh in a vehicle to Vijaypur hospital. It rained on that night. The police recorded her statement. In cross-examination has stated that she has two sons including the deceased Romesh Singh. She was staying with her son Romesh Singh. Her son Atma Singh had kept two cows at that time, which would give milk. At the time of first gunshot, the deceased Romesh Singh was at Danga Chowk. She was told by Veena Rani that deceased has gone to Danga Chowk. The second gunshot was fired after two minutes. Veena Rani and Atma Singh left towards Danga Chowk after the second gunshot. After about two minutes, third fire was shot. When she reached on spot, son-in-law of her brother-in-law (Jeth) had already reached on spot. There is a PHC opposite to the place of occurrence. Her statement was recorded on the 10" day after the occurrence by the police. Deceased suffered gunshot on left leg. She left for Danga Chowk after hearing third gunshot. The houses of Sudershan, Bishan and Rajinder Singh Lamber are near the Danga Chowk. Her statement was recorded by the police at her residence. PW Veena told her that the accused Yashvir Singh patwari fired a gunshot on the leg of the deceased Romesh Singh. The person who took the deceased in vehicle is the husband of Sudesh alias Sheshu. There are two Temples and three Dangas near the place of occurrence.
PW-27 Tarun Salathia has deposed, that he knows the accused. Deceased Romesh Singh was his father. Accused Yashvir Singh and Ranvir Singh are related to him, who have fastened enmity with them. About 6/7 years back, the accused Yashvir Singh and Ranvir Sing beat his grandmother and thereafter, they were not in talking terms with the accused. In 2011, his 24 CRA No. 23/2019 mother contested Panchyat selection warainsth 19.07.2013, the accused Yashvir Singh along with other accused killed his father with a gunshot. In 2011, the accused Yashvir Singh fired upon one Avi Kumar also in connection with which a case is pending against the accused Yashvir Singh in the court. In cross-examination has stated that the police recorded his statement and read over the same to him before he signed the statement. When the accused beat his grandmother, no complaint was lodged in the police. Accused Yashvir Singh did not fire upon Ravi Kumar in his presence nor he has knowledge as to where that occurrence took place. He was not present on spot on 18.07.2013 or 19.07.2013. On 19.07.2013, he was posted at Kishtwar. He was told by his mother that his father died at about 12/12.30 AM.He reached home on 20.07.2013. His statement was recorded by the police at his residence on 28.07.2013. On that day, the statements of his brother and grandmother were also recorded. He was told about the occurrence by his mother and he told the police about all those things. He does not know when the statement of his mother was recorded in the court. The name of his brother is Varun Salathia. PW-28 Girdhari Lal (photographer DPL Samba) has deposed, that on 20.07.2013, he was posted as photographer in photo section of DPL, Samba. On 20.07.2013, on the request of SHO, P/S Vijaypur, he photographed a dead body in mortuary of Ramgarh hospital. 10 photographs attached with the file are the same which he clicked. They are marked as J to S. In cross-examination has stated that he reached Ramgarh hospital at 9.00 am.He has not seen that camera today in the court with which he clicked those photographs. SHO P/S, Vijaypur did not receive the negatives of those photographs in his presence nor the photographs were delivered to the SHO by him. The photographs marked as J to S did not bear his signatures. The photographs marked as A to 1 appear to have been clicked on the same day i.e. 20.07.2013. PW-29 Kuldeep Kumar (photographer crime branch Samba) has deposed, that on 21.07.2013, he was posted as photographer in Crime Branch Samba. On 21.07.2013, on the request of Iqbal Choudhary, the then SHO P/S Vijaypur, he accompanied the SHO and SDPO to Rajgarh Mandi Gurah Slathia and took photographs of gun and cartridges. Thereafter, he developed the photographs and handed over to the SHO. He has seen those photos in the court today. They are marked as A to I. In cross-examination has stated that when he reached the police station on 21.07.2013, the SHO told him that they have to go to Gurah Salathia in connection with recovery. He reached P/S Vijaypur at about 11.30 am. He does not know whether SHO, P/S, Vijaypur or SDPO called any panch, sarpanch of the village on spot at the time of photography. In the photographs marked as A to S, the rifle is seen lying on the floor. He has not seen the gun or cartridges in the court today. The photography was conducted at about 3/3.30 pm. After recovery, they returned to police station Vijaypur. It has not been mentioned on the photographs that he developed the photographs and handed over to police. It has been wrongly mentioned in photograph marked B that it has been taken by ASI Girdhari Lal. None of the photographs bear his signatures. It has wrongly been mentioned in some of the photographs that they were clicked by ASI Girdhari Lal on 20.07.2013.
PW-30 Roshan Lal (Moharir P/S Vijaypur) has stated, that on 20.07.2013, he was posted as Mohrar P/S, Vijaypur. In this case, whatsoever articles 25 CRA No. 23/2019 were seized by the I/O on 20.07.2013, were deposited in Malkhana of police station Vijaypur and entry in this regard was made in Malkhana register no.19. The vehicle seized in this case was kept on Supurdnama of one Mst. Dimple on 31.08.2013. Supurdnama with respect to vehicle bears his signature, contents whereof are correct and is exhibited as EXTP- RL30. The articles were kept in the Malkhana on the orders of SHO P/S vide Sr. no. 76 to 84. He has seen the seized articles except those mentioned at Sr.no 76, 77, 79 & 80 in the court. In cross-examination has stated that he did not issue any copy of register 19 to the IO or SHO. He did not open the parcels of seized articles to see them personally. He does not know whether the parcel marked-H contained three live cartridges at the time of deposit or not. Note: The parcel-H was opened in the court which contains two live cartridges and one empty cartridge. The SHO deposited the articles in the Malkhana at about 3.00/4.00 am on 20.07.2013. Sr. nos. 76 to 84 of Malkhana register 19 does not contain his signatures. The I/O did not collect anything to suggest as to his posting as I/C Malkhana P/S Vijaypur on 20.07.2013. He was present in Vijaypur P/S from 20.07.2013 to 31.08.2013.
PW-31 Dr. Vijay Chodhary (Member of board who conducted autopsy of dead body of deceased Romesh Singh) has deposed, that on 20.07.2013, he was posted as Asst. Surgeon CHC, Ramgarh. He was a member of the board constituted for conducting autopsy on the body of Romesh Singh S/O Karnail Singh R/O Mandi Rajgarh, Gurah Salathia. On examination of the body of deceased, they found the following injuries:
i) Wound of entry circular in shape with smooth margins with 3.5 "x3" on anterior side of left thigh upper 3d Tissue and muscles around the track of wound are lacerated. Pink in colour with clots.
Femoral artery and its branches ruptured inside the track.
ii) Exit wound is seen over mid third of left thigh oblong in shape approximately 3"x2" with irregular averted edges. During dissection of tract a red coloured plastic object (air cushion wad of cartridges) circular in shape was found. The postmortem report is in his handwriting. As per the opinion of the board, the person died because of injury to the major vessels of left lower limb leading to hemorrhagic shock.
Following specimen were-handed over to the police.
iii) Jar A - Air Cushion Wad.
iv) Jar B - Blood sample The certificate on the file is true, it bears his signature and is exhibited as EXTP-3/VC. The injuries mentioned above were sufficient in ordinary course of nature to cause death. In cross-examination has deposed, that after the postmortem, the police never came to him and show him the clothes of the deceased nor the police sought his opinion in respect of the marks present on the clothes of the deceased corresponding to the injuries suffered by the deceased. There was no blacking of the entry wound. If a person is fired upon from the front side and falls on a hard surface, there is a possibility that the person would sustain injury marks on the back side of the head or on his back. As per the report, the deceased had no injury marks on his back side. It is true that if a person is fired upon by placing the mouser of the barrel of the gun placed at the right angle, a circular wound is caused. If the barrel of the gun is placed as inclined to the surface, the injury caused would be oval in shape. The diameter of the air 26 CRA No. 23/2019 cushion wad as seen by him in the court is much smaller in size than the dimensions of the entry and exit wounds as mentioned in the postmortem report. Police did not seek his opinion in respect of the distance from which the shot could have been fired at the deceased nor about the direction from which the same was fired. There was no sign of blacking/burning/tattooing of the skin around the wound. Taking into consideration the track of the wound as mentioned in the postmortem report, the shot was not fired from the front side because if it would have been fired from the front side then the exit wound would be on the back side of the thigh. The chapatti if taken by a person would be converted into semi digestive stage after one and a half hours. It is true that the primary treatment for the prevention of occurrence of hemorrhagic shock is to control the source of bleeding. A person receiving such kind of injury, if gets primary treatment within time, he can be saved. The primary treatment for excessive bleeding to avoid hemorrhagic shock is available in all the PHCs and CHCs. In case the deceased would have been taken to the nearest health Centre within time, there was a possibility of his survival. There were no ante mortem injury marks present on the body of the deceased. The weapon of offence or cartridges were not shown to him by the police during or after the postmortem to seek his opinion regarding the connection of weapon of offence with the injury sustained by the deceased.
PW-32 Dr. Sanjay Sharma (Member of board who conducted autopsy of dead body of deceased Romesh Singh) has deposed, that on 20.07.2013 he was posted as Medical Officer CHC Ramgarh. He was a member of the board constituted for conducting autopsy on the body of Romesh Singh S/O Karnail Singh R/O Mandi Rajgarh, Gurah Salathia. On examination of the body of deceased, they found the following injuries:-
i) Wound of entry circular in shape with smooth margins with 3.5"x3" on anterior side of left thigh upper 3.Tissue and muscles around the track of wound are lacerated. Pink in colour with clots.
Femoral artery and its branches ruptured inside the track.
ii) Exit wound is seen over mid third of left thigh oblong in shape approximately 3"x2" with irregular averted edges. During dissection of tract a red coloured plastic object (air cushion wad of cartridges) circular in shape was found. The postmortem report is in his handwriting. As per the opinion of the board, the person died because of injury to the major vessels of left lower limb leading to hemorrhagic shock.
Following specimen were handed over to the police.
iii) Jar A - Air Cushion Wad.
iv) Jar B- Blood sample The postmortem report EXTP-3/VC on the file is true, it bears his signatures. In cross-examination has stated that the there was no blacking or tattooing around the wound. Both the injuries suffered by the deceased were ante mortem injuries. The police did not seek his opinion regarding presence of gun powder on the clothes of the deceased. PW-33 Dr. Arjun Singh (Member of board who conducted autopsy of dead body of deceased Romesh Singh) has deposed, that on 20.07.2013, he was posted in CHC, Ramgarh. He was a member of the Board constituted 27 CRA No. 23/2019 for conducting autopsy on the body of Romesh Singh S/O Karnail Singh R/O Mandi Rajgarh, Gurah Salathia. On examination of the body of deceased, they found the following injuries:
i) Wound of entry circular in shape with smooth margins with 3.5x3" on anterior side of left thigh upper 3rd.Tissue and muscles around the track of wound are lacerated. Pink in colour with cloths.
Femoral artery and its branches ruptured inside the track.
ii) Exit wound is seen over mid third of left thigh oblong in shape approximately 3"x2" with irregular averted edges. During dissection of tract a red coloured plastic object (air cushion wad of cartridges) circular in shape was found. The postmortem report is in his handwriting. As per the opinion of the board, the person died because of injury to the major vessels of left lower limb leading to hemorrhagic shock. Following specimen were handed over to the police.
iii) Jar A - Air Cushion Wad.
iv) Jar B- Blood sample The postmortem report EXTP-3/VC on the file is true, it bears his signatures. In cross-examination has stated that there was no blacking or burning or tattooing around the wound. Both the injuries suffered by the deceased were ante mortem injuries. The police did not seek his opinion regarding presence of gun powder on the clothes of the deceased. PW-34 Rajinder Singh Jamwal (Scientific Officer FSL Jammu) has deposed, that on 23.07.2013, while being posted as Scientific Officer, FSL, Jammu, he received four sealed packets through SI Shiv Dev Singh no. EXI 085754 which were forwarded by the SDPO Vijaypur vide letter no. SDPO/V/13/FSL/2167-69 dated 23.07.2013 in case FIR no.100/13 under sections 302/34 RPC, 3/27 Arms Act of P/S Vijaypur. These were received in the Laboratory vide CR no. 1068 dated 23.07.2013. Packet C was sealed with 4 intact seals of which one seal tallied with the specimen seal impression forwarded by the Tehsildar (S) Samba HQ Vijaypur/Executive Magistrate 1st Class vide authority letter no. 601/TSV dated 22.07.2013. It contained two 12 bore fired cartridge cases 2 (KF12) which were marked RB 605/13 and RB 606/13 by him. Packet F sealed with 6 intact seals of which two tallied with the specimen seal impression. It contained one red plastic cushion wad having putrefied smell in a plastic container which was marked RB 607/13 by him. Packet G sealed with 14 intact seals of which 5 tallied with the specimen seal impression. It contained one (82CM/124CM) 12 bore SBBL shotgun bearing "ZAROO GUN FACTORY 17189-04" which was marked RB608/13 by him. One 12 bore fired cartridge case (KF 12) recovered from the chamber of the above shotgun was marked RB 609/13 by him. Packet H sealed with 7 intact seals of which 3 tallied with the specimen seal impression. It contained three live 12 bore cartridges each of no.1 size pellets 3 (KF12) which were marked RB 610/13 to RB 612/13 by him. On examination, the 12 bore SBBL shotgun marked RS 608/13 was subjected to thorough physical examination, cotton swaps from the barrel of this shotgun were chemically tested. Test firing was conducted from this shotgun successfully. Test fired cartridge case marked RB 610/13 was compared with the fired cartridge cases marked RB 605/13, RB 606/13 and RB609/13 under Leica FSC 28 CRA No. 23/2019 System. The cushion wad marked RB607/13 was subjected to thorough examination with the help of Scientific Aids. In his result, the 12 bore SBBL shotgun marked RB 608/13 was found in working condition and bearing signs of discharge prior to test firing from it. Three 12 bore cartridges cases marked RB 605/13, RB 606/13 and RB 609/13 have been fired from the 12 bore SBBL shotgun marked RB 608/13. Red plastic cushion wad marked RB 607/13 has been fired from a 12 bore shotgun. The certificate bears his seal and signature, contents whereof are correct and is exhibited as EXTP-RS/34. The exhibits marked RB 605/13 to RB 612/13 shown to him in the open court in open condition are the same which he has examined in the laboratory. In cross-examination has stated that it is true that 12 bore shotguns with different style and different length of barrel are available in the market. He cannot say the quantity i.e. number of pellets present in number 1 cartridges of 12 bore gun, the same is consulted by the table prescribed in the reference book. He does not remember the velocity of fire of the 12 bore shotgun cartridge. If the 12 bore shot gun is fired from the point blank range it causes heavy impact damage on the target. The police concerned did not seek his opinion for presence of finger prints on the gun under exhibit no.RB608/13. No photograph of the wound alleged to be caused on the body of the deceased were shown to him for seeking his opinion for comparing the wound with impact being caused by the test fire on Gell. It is true that when a 12 bore shot gun is fired the gases are emitted from the muzzle of the gun. The police did not send him the clothes of the deceased for seeking his opinion in respect of presence of any of the gases which could have been emitted from the 12 bore shotgun as well as the presence of gun powder on the same. He has not mentioned in the report the dimension of red plastic cushion exhibited as RB 607/13. It cannot be ascertained as to from which specific cartridge and from which 12 bore shotgun the said wad could have been fired. It is true that two fired cartridge cases exhibited as RB606/13 and RB605/13 bear "Indian Ordinance Factory 65mm 30 gram special". The length of the open cartridge case is 65 mm, whereas, the fired cartridge case recovered from the chamber of the gun marked RB609/13 bears "ammunition factory Khadki special 65mm 30 gram." The other three live cartridges forwarded to him marked as RB610/13 to RB 612/13 also bear "'ammunition factory Khadki special 65 mm 30 gram." It is true that in packet H forwarded to him only three live cartridges were present. He has not mentioned in his report the time of firing of the alleged fired cartridge cases. He has not mentioned the dimension of firing pin of the gun exhibited as RB608/13 in his report. Neither the dimension of firing impression present on the three said fired cartridges as well as test fire cartridge have been mentioned in his report. He has not mentioned in his report that the dimension of the said firing pin was compared with the firing pin impression present on the said cartridges. He has not taken the photomicrograph of the test and the crime exhibits. The details of comparison observations are not mentioned in his report. He has not received any pellets in respect of the present case from the police concerned. Range of fire was not asked to him by the police. PW-36 Avtar Singh Jasrotia has stated that on 22.07.2013, while being posted as Tehsildar Vijaypur, Shivdev Singh SI produced 8 sealed parcels marked A to H before him for the purpose of re-seal. He resealed all those parcels and returned them to the police officer alongwith an authority letter addressed to Director FSL, Jammu. The authority letter on the file bears 29 CRA No. 23/2019 his signature, contents whereof are correct and is exhibited as EXTP-AS-
36. In cross-examination has stated that he did not open the sealed packets to see the contents thereof. He has mentioned the contents of the parcels in the authority letter as per the information given by the police. PW-38 Mohd Iqbal Choudhary (SHO/I/O who conducted the investigation of the case) has stated that he knows the accused. On 19.07.2013, while being posted as SHO P/S Vijaypur at about 11.00 am, an information was received in P/S Vijaypur from reliable sources that the accused Yashvir Singh alongwith two companions with common criminal intention to kill has fired upon one Romesh Singh s/o of Karnail Singh R/O Mandi Rajgarh, Gurah Salathia causing injuries, who has succumbed to the injuries while being shifted to Vijaypur hospital and dead body of the deceased is lying in the hospital. On the strength of this information, FIR no. 100/2013, for the commission of offences punishable under sections 302/34 RPC and 27 Arms Act was registered and investigation commenced. He alongwith some police personnel reached Vijaypur hospital and took possession of the dead body. He deputed ASI Ab. Majid and SGCt. Rafiq Ahmad to get postmortem conducted in Ramgarh hospital. Thereafter, he alongwith SDPO and police personnel reached on spot at Rajgarh Mandi, Gurah Salathia and after spot inspection prepared the site plan. He seized blood stained and plain soil, two empty cartridges of 12 bore gun, a stick, a torch and an empty bottle from the spot and prepared seizure memos. The plain soil, blood stained soil and two empty cartridges were sealed and packed in separate parcels. The dead body was got photographed and postmortem was conducted by the board of doctors. During postmortem a wad was recovered from the injury of the deceased, which was seized. Apart this, blood stained clothes of the deceased and blood sample of the deceased were also seized and sealed. After postmortem, the dead body was handed over to the legal heirs of the deceased. The ring used for sealing the parcels was kept on supurdnama of Atma Singh. Statements of the witnesses were recorded. Accused Tapinder Singh and Jagdish Singh were arrested on 20.07.2013, whereas, the accused Yashvir Singh and Ranvir Singh were arrested on 21.07.2013. During interrogation, the accused Yashvir Singh disclosed that he has concealed weapon of offence i.e. 12 bore gun and three live cartridges regarding which he only has the knowledge and which he can get recovered. Thereafter, the accused Yashvir Singh was taken to his residence at Rajgarh Mandi, Gurah Salathia. From the compound of the house of the accused, a 12 bore gun was recovered which was seized and sealed on spot. Three (3) live cartridges were recovered from an almirah in the house of the accused which were also seized and sealed on spot. The ring used for sealing the parcels was kept on Supurdnama of one Yudhvir Singh. The documents were prepared on spot and statements of the witnesses were recorded. The place of recovery was photographed. Thereafter, they returned to police station and the recovered cartridges which were sealed in packets were deposited in malkhana of the police station. During investigation, he got all the sealed packets resealed through Executive Magistrate 1st Class Vijaypur and sent them to FSL, Jammu for analysis. He also got the place of occurrence demarcated through Revenue Agency and obtained the revenue extracts with respect to the place of occurrence. Statements of the witnesses under section 164-A and 161 Cr. PC were recorded. FSL report and postmortem report were obtained. The hard copies of photography conducted were also obtained and attached 30 CRA No. 23/2019 with the file. FIR and 'Surat-e-haal' memo bear his signatures, contents whereof are correct and are exhibited as EXTP-IC and EXTP-IC/1. Site plan bears his signature, which is true as per position on spot and is exhibited as EXTP-IC-2. Seizure memos EXTP-YS-3, EXTP- YS-4, EXTP-YS-5 and EXTP-YS-6 bear his signatures, contents whereof are correct. The site plan with respect to place of recovery also bears his signature, which is true as per position on spot and is exhibited as EXTP- IC-3. Seizure memo EXTP-I with respect to dead body, seizure memo EXTP -NH with respect to blood sample and wad bears his signatures, contents whereof are correct. Seizure memo EXTP-1/1 with respect to Torch and receipt EXTP-2 with respect to dead body bear his signatures, contents whereof are correct. Seizure memos EXTP-SC, EXTP-SC-1, EXTP-Ws, EXTP-YS, EXTP-YS-1, EXTP-2/1, EXTP-SA, EXTP-YS-2, EXTP-SC-2, EXTP-SC-3, EXTP-SC-4, EXTP-SC-5 and EXTP-RL bear his signatures, contents whereof are correct. Search memos with respect to A-1, A-2 and A-3 bear his signatures, contents whereof are correct and are exhibited as EXTP-IC/4, EXTP-IC/5 and EXTP-IC/6. All these documents were prepared on his instructions. He clicked 14 photographs with his own mobile. The hard copies of which have been placed on record. They are marked as A to N. As per his investigation the accused are proved to have committed offences punishable under sections 302/34 RPC and 3/27 Arms Act. In cross-examination has stated that he himself took over the investigation. He does not know whether the deceased died on spot or not, however, in 'Surat-e-hal' memo it has been mentioned that the deceased died on spot. In site plan EXTP-IC-2, the involvement of A-2 Ranvir Singh is not reflected. As per site plan, the deceased was sitting on the Danga. Accused 1 and 2 were arrested from Railway crossing Vijaypur. There is no documentary evidence on the file to suggest as to when accused no. 1 concealed the rifle in the compound of his house. At the time of arrest of A-1 and A-2, none except the police personnel were present on spot. In the arrest memo of A-2, Ravinder son of Kartar Singh and Rajinder Singh son of Harbans Singh who have been cited as witnesses are not the police personnel. As per arrest form, A-2 was arrested from Gurah Salathia. The arrest form with respect to A-2 is in his handwriting and is exhibited as EXTP-1C-D. It has been written with two pens. He went to the house of accused no. 1 for the first time on 21.07.2013, when gun was recovered. He did not go to the house of accused no.2. The disclosure statement EXTP-WS does not make a mention that rifle is the weapon of offence. Disclosure statement EXTP-WS does not contain that the accused murdered the deceased with rifle. He did not seek opinion regarding the presence of finger prints on the rifle. He also did not seek expert opinion regarding presence of finger prints on the articles seized from the place of occurrence. He did not seize the blood stained clothes of PWs Veena Rani and Atma Singh. Accused no.1 made disclosure statement in his office on 21.07.2013 at about 2.00 pm. No witness has specifically stated that the accused no.1 pointed the gun towards the chest of the deceased and then fired upon the deceased. He has not cited the person who prepared the documents on his instructions as a witness in the case. He did not seize his own cell phone or its memory card with which he clicked photographs of the place of occurrence. In photograph marked-B, the light shown was that of head light of police Gypsies because the power was off. In photograph marked-B, the light outside the Danga Temple is shown to be on. A large number of people were present on spot including Yudhvir Singh and Rajinder Singh. This is correct that houses of Bishan Singh and Sudershan 31 CRA No. 23/2019 Singh are adjacent to the place of occurrence. He did not seize the vehicle in which the deceased was shifted to hospital from the place of occurrence nor he enquired from the driver of the said vehicle. There is nothing on the file to suggest that expert from the FSL test fired a cartridge, which was handed over empty to him. Cartridges marked-RB-606/13, RB-605/13 were seized from the spot whereas cartridge marked-RB-609/13 was found from the chamber of the seized gun. Out of the three live cartridges, which were sent to FSL, one live cartridge marked-RB-610/13 was test fired, which is empty, whereas, other two cartridges RB-611/13, 612/13 are live cartridges. This is true that make of two empty cartridges recovered from the spot was Indian Ordinance Factory and remaining four cartridges had a maker of Khadki Ammunition Factory. He had recorded the statements of some of the witnesses before the arrest of the accused on 20.07.2013. He came to know that the PWs Veena Rani and Atma Singh are the eye witnesses to the occurrence. He got the statement of Atma Singh recorded under section 164-A Cr.PC on 05.08.2013 and that of PW Veena Rani on 30.08.2013, because, there was bereavement in the family, and people were pouring in to mourn the demise. So, there was a delay in recording their statements. 21 July 2013, fell on Sunday. He does not know whether PW Yudhvir Singh is a Govt. employee and in order to appear as witness he took leave on 21.07.2013. When PW Dinesh Singh came in the police station, the disclosure statement was about to be made. Statement of PW Dinesh Singh was recorded on 21.07.2013 at about 4/4.30 PM. PW Yudhvir Singh accompanied him to the house of the accused no. 1 at the time of recovery of weapon. He does not know the exact time of the death of deceased. When he reached hospital, PW Atma Singh was already present there. He does not know whether PW Veena Rani was also present in the hospital at that time or not. This is incorrect that PWs Veena Rani and Atma Singh have not witnessed the occurrence and they have been planted as eye witnesses. This is incorrect that since he could not find any witness of the occurrence, so, there was a delay in recording the statements of PWs Atma Singh and Veena Rani in order to falsely implicate the accused. The accused Tapinder Singh and Jagdish Singh were arrested from Gurah Salathia but the time of their arrest has not been mentioned. It has not been mentioned in the C.D. file of 20.07.2013, as to in whose presence the accused Tapinder Singh and Jagdish Singh were searched. In the arrest form of accused Tapinder Singh, some of the columns are in his handwriting and some are in the handwriting of his Reader Noor Hussain, ASI. The arrest form was filled in the police station. The signatures of the witnesses in the arrest form were also obtained in the police station. The houses of Sudershan Singh and Khushal Singh have been shown at serial no. 09 of the site plan which are 70-80 ft towards west from the place of occurrence. The house of Bishan Singh son of Chur Singh has been shown at serial no.07 of the site plan, which is also on the western side at a distance 50-60ft from the place of occurrence. This is incorrect that he deliberately avoided enquiry from Sudershan Singh and Bishan Singh and did not examine them as witnesses in order to falsely implicate the accused, as suggested. He has not investigated as to in which vehicle the deceased was taken to hospital from the place of occurrence neither he seized that vehicle. This is incorrect that the driver of the vehicle in which the deceased was transported to the hospital was not examined because he was narrating the truth absolving the accused. PWs Veena Rani and Atma Singh were present in the hospital when he reached the hospital. PW Atma Singh disclosed him about the occurrence at Ramgarh hospital. However, 32 CRA No. 23/2019 narration made by the PW Atma Singh was taken down in the diary but his statement was not recorded. That narration is in his personal diary. The site plan EXTP-IC-2 does not depict the presence of the accused. In the arrest form of accused Yashvir Singh, some columns are in his handwriting and some are in the handwriting of his Reader. The column for place of occurrence at Gurah Slathia is in his handwriting.
8. Appellant/convict to demolish the case of prosecution has examined as many as four (4) witnesses in his defence namely, DW-1 Ravinder Singh S/O Kartar SIngh, DW-2 Ravinder Singh S/O Harbans Singh, DW-3 Deepak Singh S/O Salochan Singh & DW-4 Navdeep Singh S/O Rajinder Singh. The depositions of defence witnesses recorded before the trial court are summarized as under:-
9. D E F E N C E E V I D E N C E:-
DW-1 Ravinder Singh in examination-in-chief by defence counsel has stated that on 19.07.2013 at about 6/6:15 pm, he left his home and reached police post Utterbehni on his duty at about 7 pm. At about 1:45 am at night, Iqbal Choudhary, SHO, brought him to police station Vijaypur in connection with gunshot sustained by Romesh Singh. On reaching P/S Vijaypur, he found all the four accused and one Ravinder Singh alias Bantu in the police station. He enquired from the accused as to what has happened, to which, the accused replied that they were sleeping in their houses, when the SHO brought them to the police station and told that Romesh Singh has sustained gunshot and in this connection, they have to be interrogated. Accused Yashvir Singh further told that the police has brought his rifle alongwith. SHO told him that in case he had not been discharging his duty, he too would have been implicated. SHO put all the four accused in the lock up, prepared arrest memos and obtained his signatures as well as signatures of Ravinder Singh alias Bantu. Arrest memos on the file bear his signatures, contents whereof are correct and are exhibited as EXTP-DI, EXTP-D2 and EXTP-D3. The arrest memo EXTP- 1 with respect to A-2 also bear his signatures, contents whereof are correct.
In cross-examination by PP stated that they are four brothers. On the day of occurrence, his duty was from 8 PM to 2 am. On reaching P/P Utterbehni, he recorded his entry in the daily diary of Police post, which he has produced in the court. He does not know, whether SHO recorded his arrival in the daily diary of P/P Utterbehni, when he came to the P/P at 1:45 am. On that day, ASI Tilak Singh was 1/C PP, who was present in the post. He was let of from the police station on 21.07.2013, in the evening. He did not inform his superior officers or 1/C PP that he was detained in P/S for 2 days. He did not put date below his signatures on arrest memos. The accused Yashvir Singh is his real brother.
DW-2 Ravinder Singh has stated that on 19.07.2013, he was sleeping in his house. At about 12:30 am, 4-5 police personnel came and picked up him and his brother Tapinder Singh and told them that there has been a murder in connection with which they have to be interrogated. When they came out of the house, 2-3 vehicles of the police and the accused Yashvir Singh, Ranvir Singh and Jagdish Singh were also standing there. A constable was also standing on spot with a rifle. He enquired from the 33 CRA No. 23/2019 accused Yashvir Singh, Ranvir Singh and Jagdish Singh as to what has happened and why the accused are there, to which the accused Yashvir Singh replied that a murder has been committed. Thereafter, they were taken to the police station and from there SHO went away and returned after 1-2 hours with Ravinder Singh alias Sonu, brother of Yashvir Singh. Thereafter, SHO directed that all the accused be kept in lock up and the rifle of Yudhvir Singh is kept in his office. The police obtained his signatures. The arrest memos EXTP-D/1, EXTP-D/2 & EXTP-D/3 bear his signatures contents whereof are correct. In the morning, he was let of by the police. In cross-examination stated that his brother Tapinder Singh is an accused in this case. Earlier, he was an employee in CPWD but he resigned and now he is working as contractor. On 19.07.2013, at night, he was told by Parshotam SI that a murder has taken place. He was detained in police station till next morning. He complained to Ashok Singh Dy.SP about his illegal detention, who did not take any action. He did not lodge any written report in the court against SHO. The police obtained his signatures on papers with respect to the arrest of the accused. DW-3 Deepak Singh has deposed, that on 19.07.2013, at about 10/10:30 pm, while he was sleeping, he heard some noise from the side of chowk. He opened the window of his room and saw deceased Romesh Singh lying there. In the meanwhile, another boy Navdeep Singh also reached on spot. One person who is married in their locality also came on spot in an Indica car, who put the deceased in the car. Thereafter, he returned home. At about 11/11:30 pm, two gypsies of police came on spot. The police, personnel came to his house and enquired about the occurrence and he told the police whatsoever, had happened. In cross examination has stated that he is an employee in Fisheries department. He does not know what was the day on 19.07.2013. He does not know the number of that vehicle. He does not know the name and rank of the officer of the police who came to his house and enquired about the occurrence.
DW-4 Navdeep Singh has deposed, that on 19.07.2013, at about 10/10:30 PM, in the night, he was sleeping outside his house that he heard noise of some people crying. He went to Danga Chowk alongwith one Deepak Singh and saw that Romesh Singh had fallen down. In the meanwhile, his father also reached on spot. One person who is married in their locality came on spot with a vehicle. Thereafter, he alongwith Deepak Singh and that person put the injured Romesh Singh in the vehicle. Thereafter, he alongwith Deepak Singh returned home to change the clothes and when they reached on spot, the vehicle in which Romesh Singh was boarded had left. He returned home. At about 11/11:30 pm, police came to his house and enquired about the occurrence. He told police whatsoever he told in the court today. In cross-examination has stated that the police simply enquired from him but did not record his statement. However, the police recorded the statement of his father. None else reached on spot except him and Deepak Singh. Apart from his house, the houses of Bishan Singh, Deepak Singh and Gurdev Singh are adjacent to the place of occurrence. DW Deepak Singh was bearing undergarments only when he came on spot. His father went to inform the family of deceased.
10. I have heard Sh. Rahul Singh Sambyal Ld. Counsel for appellant/convict and Sh. Vishal Bharti Ld. GA for respondent. I have also perused the record of trial court, scanned the evidence putforth by the prosecution and 34 CRA No. 23/2019 have gone through the judgments relied upon by Ld. Counsel for appellant/convict. The case of prosecution has been tried to be proved by
(i) Direct evidence of eyewitnesses viz; PW-1 Atma Singh & PW-2 Veena Rani, (ii) Circumstantial evidence of disclosure statement made by appellant/convict and recovery of weapon of offence proved by witnesses viz; PWs 4,6&7 Yudhvir Singh, Dinesh Singh & Utkansh Slathia, and (iii) medical evidence of doctors viz; PW-31 Dr. Vijay Choudhary, PW-32 Dr. Sanjay Sharma & PW-33 Dr. Arjun Singh.
11. The 1st limb of arguments canvassed by Ld. Counsel for appellant/convict is, that there are severe contradictions between the ocular evidence of eyewitnesses PW-1 Atma Singh (real brother of deceased Ramesh Singh), PW-2 Veena Rani (wife of deceased) and the medical evidence of PWs 31,32 &33 Dr. Vijay Choudhary, Dr. Sanjay Sharma & Dr. Arjun Singh, in as much as, the eyewitnesses have categorically led evidence that deceased and appellant were standing in front of each other and facing each other and the distance between them was of the gun in hands of accused Yashvir Singh who had put the barrel of the gun on the chest of deceased and in the same posture accused fired upon the deceased, but it is strange enough that deceased had not received any bullet injury on the chest, whereas, the medical evidence of the doctors aforesaid categorically demonstrated/ proved that deceased had received injury on his left thigh which clearly proves that deceased did not receive injury from the gunshot of appellant/convict, the contradictions between „medical‟ and „ocular evidence‟ clearly rules out the presence of eyewitnesses on the scene of crime which makes the prosecution story highly doubtful and unsafe to rely upon.
In AIR 2017 (SC) 1657 [KRISHNEGOWDA AND ORS.--
Appellant versus STATE OF KARNATAKA--Respondent] relied by Ld. Counsel for appellant/convict, Hon‟ble Supreme Court while setting aside the judgment and order of conviction rendered by the Division Bench of High Court of Karnataka in a case of murder u/s 302/34 IPC and reaffirming the order of acquittal passed by the trial court and observing that when there are severe contradictions in oral and medical evidence conviction would be bad, in paragraphs 29,& 32 of the judgment held as under;-
35 CRA No. 23/201929. Once there is a clear contradiction between the medical and the ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused.
32. Hence we deem it appropriate to set aside the judgment of the High Court and re-affirm the order of acquittal passed by the Trial Court. The accused shall be set at liberty provided they are not required in any other case. Accordingly the appeals are allowed. In 1984 MPLJ 292 [RANCHHODSINGH DIWANSINGH versus STATE OF M.P] relied by Ld. Counsel for appellant/convict, High Court of Madhya Pradesh while observing that a statement of medical witness under Section 45 of Evidence Act contradicting the statement of ocular evidence the prosecution case becomes doubtful, in para 12 of the judgment held as under:-
(12.) Under somewhat similar circumstances, it was laid down in Mohan Singh v. State of Punjab AIR 1975 S C 2161 that:
"the expert stated that he came to the conclusion that the injuries on the victims were probably caused by one gun fire only. He was not categorical about it. The reasons for his conclusion were the dimensions of the injuries. Held, that the expert had not seen the injuries and it would need super-human ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers were not categorical. It would be unsafe to place implicit reliance on the evidence of the expert."
Therefore, from the observations made above, it is not the opinion of an expert which will be binding on the Court. The Court has to see other aspects of the case and while examining those aspects, certain formalities also are to be observed by the prosecution and these formalities are mentioned in Katarey v. State of U. P. A I R 1976 S C 76 as under :
"where injuries found are forensically of the same species, e. g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon, it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in course of justice. "
As to the appreciation of evidence of the Ballistics Expert, the Supreme court in Kartar Singh v. State of Punjab AIR 1977 SC 349. has observed as under:
"evidence Act (1872), S. 45 -Firearms-Ballistic experts report- Reliance on-Recoveries of fired cartrige cases and firearms and evidence of expert corroborating testimony of eye-witnesses in regard to guilt of accused -Expert stating that he came to conclusion that they could not have been fired through any other firearm 36 CRA No. 23/2019 because every firing pin, firing pin scrape, and breach face mark has its own individuality-Evidence of expert held could be relied upon in convicting accused. "
Similarly, in State of Uttar Pradesh v. Sughar Singh AIR 1978 SC
191. it was observed as under : -
"12. Turning to the medical evidence that was furnished by Dr. Chauhan (P. W. 10), he has described the 13 ante mortem injuries which he noticed on the dead body of Uma Shanker during the post mortem examination as follows : -"1. Lacerated wound 3 cms. diameter x muscle on anterior aspect, right arm 15 cms. , below shoulder, margins inverted and blackened. 2. Lacerated wound 1 cm. , diameter x muscle just into lower part of No. 1 margins inverted and blackened. 3. Lacerated wound 11/4 cm. , diameter x muscle 1 cm. below injury no. 2 margins inverted and blackened. 4. Lacerated wound 11/4 cm. diameter x muscle 1 cm. out and below injury No. 1 margins inverted and blackened. 5. Lacerated wound 2 1/2 cm. diameter x 1 cm. muscle, 11/2 cm. below and into No. 4 margin inverted and blackened. 6. Lacerated wound 1 cm. diameter x muscle 1 1/2 cm. below and into No. 5 margins blackened and inverted. 7. Lacerated wound 5 cm. x 3 cm. muscle obliquely on postero lateral aspect of right arm, 19 cms. below shoulder-margins everted. 8. Lacerated wound 1/2 cm. x 1cm. musle on posterior aspect of right arm 2 1/2 cm. into middle of No. 7 margins everted.
9. Lacerated wound 1 cm. diameter x muscle just above No. 8 margins everted. 10. Lacerated wound 5 cms. x 4 cms. x muscle obliquely in right lumber region. 11. Lacerated wound 4 cms. x 2 cms. x muscle vertically, 2 cms. below No. 10 margins everted. 12. Lacerated wound 1 cm. diameter x muscle on right buttock upper part margins everted. 13. Lacerated wound 2 1/2 cms. x 1 1/2 cms. x peribonel cavity, horizontally 7 cms. left and below umbilicus margins inverted. Loops of intestines had come out through wounds. The scalp was intact. "
Besides the above injuries, the Medical Officer also noticed that there was a commented fracture on the right humerus as also a commented fracture on the hip bone under injury Nos. 11 and 12. He also stated that three wad covers were recovered from the right arm and three metal pieces were also recovered from the hip bone. In his opinion, the cause of death was shock and hemorrhage on account of the above injuries. According to him the first six injuries were gunshot wounds on the right arm, being inlet wounds; the margins were inverted and blackened. Injuries Nos. 7 to 9 were exit wounds corresponding to injuries Nos. 1 to 6. The other inlet injury was number 13, while injuries Nos. 10 to 12 were exit wounds corresponding to this injury. In cross-examination it was elicited from him that no complete pellet was recovered from injuries Nos. 1 to 13. As regards metal pieces, that were recovered from injury No. 13, he could not definitely say to what they related and of what metal they were. Certain possibilities in the alternative were also elicited from him in his cross-examination, for, he first stated that injuries Nos. i to 6 could have been caused by one fire only and from a distance of 3 ft. but he again asserted that the injuries caused to right arm were possible to have been caused by more than one fire; similarly, the inlet injury No. 13 that had been caused near the 37 CRA No. 23/2019 umbilicus could have been caused from a distance of more than six feet and could have been caused by two shots. Now beyond giving approximate distance from which the shots were fired by accused Nos. 1 to 5 and further stating that during the firing the deceased had turned and Dhani Ram stating that the first shot fired by accused No. 1 had hit uma Shanker in his stomach, no further or precise details as to the exact distance from where the shots had been fired or other parts of the body where the shots had landed etc. were given by either of the two material witnesses, namely, Mannu Lal (P. W. 1) and Dhani Ram (P. W. 14 ). Even so, the High Court has taken the view that the prosecution version as given by these two witnesses does not fit in with the injuries as noted in the post mortem report. The High Courts reasoning in this behalf runs thus:
"all the six injuries Nos. 1 to 6 are situate close to each other. Considering that the margins of all the injuries were blackened, the likelihood is that these are the result of one gun shot. No undue importance can be attached to the size of injuries Nos. 1 and 5 because the entry of the wads could cause a bigger wound. To expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult. On a consideration of the nature of these injuries Nos. 1 to 6 we are of opinion that they are the result of one gun shot fired from the right hand side, i. e. from the west at the time the deceased was travelling from north to south. This shot was evidently fired from a distance of about one yard. Injury No. 13 is the inlet wound 2 1/2 cms. in length. As this injury corresponds to injuries 10 to 12, injury No. 13 must be the composite injury as a result of the pellets entering the body together. It may be mentioned here that three pieces of metal were recovered from the right hip bone showing that more than three pellets had entered the body. As the edges of gunshot wounds were not blackened, it must have been fired from some distance though not from a long distance, otherwise on account of dispersal more than one gunshot would have been found in that region. In case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side. This would also show that this part of the story is not correct. The nature of the injuries also strongly suggests that the assailants were on one side i. e. towards the west and the two shots had been fired one after another by the same person or by two different persons. The prosecution version is different. "
If the aforesaid reasoning is carefully scrutinized it will appear clear that quite a few assumptions have been made by the High Court and the reasoning also fails to take into account the alternate possibilities that were elicited by the defence itself in the cross-examination of the Medical officer and it is by adopting such process of reasoning that the High Court has come to the conclusion that the prosecution version does not fit in with the medical evidence. The High Court has observed "to expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult". In the first instance the observation is contrary to the medical evidence, for the doctor has categorically stated in his cross-examination that the right arm injuries (being injuries Nos. 1 to 6) could be caused by two shots, a 38 CRA No. 23/2019 possibility which was elicited during his cross-examination by defence itself. Secondly, the conclusion based on such observation to the effect that injuries Nos. 1 to 6 are the result of one gun shot is again contrary to the direct evidence of the two witnesses, for, both of them have stated that Swami Din (A-2) and Ram Gopal (A-3) emerged from the right hand side (i. e. from the west as the deceased was walking north-south)and fired two shots in quick succession one after another which must have hit the deceased Uma Shanker on his right arm. Further, we fail to appreciate how the High Court could observe to the effect that "in case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side and this would show that this part of the story is not correct". In fact, the evidence of both the witnesses has been that it was Sughar Singh accused No. 1, who emerged from Matan-ki- Matian side, i. e. eastern side and fired the first shot and according to Dhani Ram (P. W. 14) that shot hit the deceased in his stomach. Injury No. 13 is, therefore, quite consistent with the aforesaid story of the prosecution witnesses. It is also not possible to accept the High Court‟s view to the effect that: "the nature of the injuries also strongly suggests that the assailants were on one side i. e. towards the west and the two shots had been fired one after another by the same person or by two different persons: but the prosecution story is different. In our view, according to the prosecution version, Sughar Singh accused No. 1 emerged from Matan-ki-Matian (eastern side) and fired a shot in the stomach of the deceased and immediately thereafter Swami Din accused No. 2 and Ram Gopal accused No. 3 who had emerged from the western side fired a shot each, which shots must have hit the right arm of the deceased. This version of the prosecution witnesses would be clearly consistent with the injuries noted in the post mortem report and medical evidence of Dr. Chauhan. It is, therefore, impossible to accept the view of the High Court that the prosecution version does not fit in with the medical evidence on record. After all the incident of firing upon the deceased had taken place in broad day-light at about 2. 30 p. m. during the course of which the three assailants had used fire arms, namely, two guns and one pistol and such an incident had been witnessed by the two prosecution witnesses, namely, Mannu Lal (P. W. 1) and Dhani Ram (P. W. 14) from the close quarters and their evidence substantially tallies with the medical evidence on record especially in the light of the alternate possibilities elicited from the medical officer in his cross-examination by the defence itself. In view of such direct evidence of eye-witnesses of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eye- witnesses would be of no significance whatsoever (vide Karnail Singh v. State of Punjab AIR 1971 SC 2119.) However, as stated above, we are clearly of the view that the prosecution evidence pertaining to the assault by guns and pistol substantially tallies with the medical evidence available on the record. If the principles which are mentioned above are taken into consideration, we are of the opinion that the fact that there was firing by gun is beyond dispute. It is also beyond dispute that the deceased died because of a gun shot wound and there is ocular evidence to support this fact also. But the difficulty arises when we compare the medical evidence with the 39 CRA No. 23/2019 ocular evidence. The medical evidence clearly indicates that the gun shot could not be fired from the position which the prosecution alleges and if gun is fired from that position, then the nature of the injuries will be altogether different. To avoid this, the prosecution has modulated the story by introducing certain facts which create doubt in our mind whether only on the basis of the medical evidence, which is partly supported by ocular evidence, we should convict the accused. The story put forward by prosecution which is belied by the medical evidence is that a shot was fired from a certain height and unless the shot is fired from a certain height, the injuries received by the deceased cannot be inflicted. To meet this difficulty, the prosecution has introduced the fact that the shot was fired after climbing a stone, which is decidedly the modulation and improvement of the story. We have already said that some of the witnesses say that gun was fired from the window and the others say that the gun has fired after climbing the stone. This evidence clearly belies the story put forward by the prosecution, on which the prosecution wants us to convict the accused. There are other eye- witnesses who deposed that they did not see as to who fired the gun. To meet this difficulty, the prosecution has introduced an electric bulb on a pole and this evidence is clearly a false evidence, which is created to prove the story of the prosecution so that it will be plausible to say that the other eye-witnesses saw the incident in the light from the electric bulb. If there would have been no light, then it is not possible to see the person and the place from which the gun was fired. Therefore, even if the principles which are mentioned above, are applied to the case, we are of the opinion that it is not proved beyond reasonable doubt that the appellant is the author of the crime and as such, he is entitled to acquittal, giving him benefit of doubt. Accordingly, we give benefit of doubt to the appellant and set aside his conviction and sentence passed under section 302 of the Indian penal Code by the trial Court.
In (2003) Supreme (Pat) 919 [Suresh Rai versus State of Bihar], relied by Ld. Counsel for appellant/convict, the Division Bench of Patna High Court while acquitting the accused who were convicted for commission of offence u/s 307/149 of IPC and sentenced to rigorous imprisonment for life on the ground that the ocular evidence was totally inconsistent with the medical evidence, in paragraphs 18,19,20,21,33&34 of the judgment held as under:-
18. The learned counsel appearing for the appellants submitted that from the evidence of the P.Ws. it is clear that at the time of the alleged occurrence the tractor on which the deceased was going with P.W. 3 was facing east and the assailants were in the north west of the tractor and firing was made by Shivadhar Rai upon P.W.3 from the northern side, so, by no stretch of imagination, the shot fired by Shivadhar Rai upon P.W. 3 could have caused injury on his right leg as found by the Doctor (P.W.
8). It was next submitted that according to P.W. 6, Kameshwar Rai fired upon P.W. 3 from a distance of 8-9 yards. P.W. 3 also stated that when he ran up to a distance of 8-10 steps 40 CRA No. 23/2019 (approximately 15 feet), he was fired on his back but P.W. 8 Dr. S.K. Jha, who examined the injuries of P.W. 3, has stated that he four a lacerated wound in the left scapular region of P.W. 3;
margin of the wound was irregular and charred. According to him, charred wound can be caused from a very close range i.e. from a distance of 9" to 1-1/2 feet. But, according to P.W. 6, Kameshwar Rai fired upon P.W. 3 from a distance of 8-10 yards and P.W. 3 himself has stated that when he had covered a distance of fifteen feet, he was fired on his back, so, in these circumstances no charring injury was possible and the ocular evidence of the witnesses is totally inconsistent with the medical evidence.
19. The learned counsel then submitted that the Doctor, who conducted post mortem examination on the dead body of the deceased found fire arm wound on the left lower back; size 1 c.m. in diameter which was the wound of entry which is possible only if fire would have been shot from the east specially in view of the fact that as per the evidence of the witnesses the deceased was sitting on the left mud guard of the tractor facing south. But, all the witnesses have stated that the assailants came from north west direction and P.W. 4 has stated that all of them fired from the same place and if the fire was shot from the north west direction, the injury would have been caused on the right of the deceased. As such, the ocular evidence of witnesses is totally inconsistent with the medical evidence of P.W. 5 so far as injury of Raja Rai is concerned and the manner of occurrence as stated by the witnesses in their evidence becomes highly improbable and doubtful.
20. The learned A.RR failed to convince that how the injury as found by the doctor (P.W. 5) on the person of the deceased on his left side was caused. Similarly, he could not give any convincing reply that how the fire arm injury was caused to P.W. 3 on his right leg when Shivadhar Rai, who is alleged to have fired pon P.W. 3 on his leg, was on the northwest side of the tractor. Therefore, the inconsistency between the ocular evidence and the medical evidence could not be explained by the prosecution beyond all reasonable doubt and l find force in the submission of the learned counsel for the appellants that the alleged occurrence did not take place in the manner alleged by the prosecution (AIR 1956 SC 526 Santa Singh vs. State of Punjab relied on).
21. In this connection, learned counsel further pointed out that the deceased was sitting on the left mud guard of the tractor which was on the front portion of the tractor and if the deceased suffered injury on the left side of his body he will fall down near the mud guard which is situated on the front of the tractor but the I.O. found the dead body of the deceased on the tiller which was fixed in the rear portion of the tractor and it is not understandable that how the body of the deceased was found on the tiller.
33. On consideration of the evidence, facts and circumstances of the case, as discussed above, I am of the definite view that the occurrence had not taken place in the manner as alleged by the prosecution and the evidence of the eye witnesses suffers with serious infirmities and contradictions which goes to show 41 CRA No. 23/2019 that they are not the real eye witnesses to the alleged occurrence and since the occurrence had not taken place in the manner alleged, no independent witnesses has supported the prosecution story. I am, therefore, of the view that the prosecution had not proved its case beyond all reasonable doubts and the appellants are entitled to get the benefit of doubt. As such, I am of the view that the learned trial court was not justified in convicting and sentencing the appellants in the manner as stated above. Accordingly, the appellants are acquitted of the respective charges levelled against them and the order of conviction and sentence recorded against them is hereby set aside.
34. In the result, therefore, these appeals are allowed. The appellants, namely, 1. Suresh Rai, 2. Awadhesh Rai, 3. Shivadhar Rai, 4. Radheshyam Singh, 5. Ram Pravesh Singh Yadav (Cr. Appeal No. 478/99) and appellant Kameshwar Rai (Cr. Appeal No. 525/99), who are on bail are discharged from the liabilities of their bail bonds. The appellant Gopal Rai @ Gopalji Rai (Cr. Appeal No. 495/99), who is in custody is ordered to be set at liberty forthwith, if not wanted in any other case. Bal Krishna Jha. In 1997 CrLJ 1677 [MADAN RAI--Appellant versus STATE-- Respondent], relied by Ld. Counsel for appellant/convict, the Division Bench of High Court of Uttar Pradesh while setting aside the conviction of accused and acquitting him for commission of offence u/s 302 IPC and observing that in case a fire arm injury there would be presence of blackening near the injuries and it should be necessary that there should be tattooing also if the injuries are caused by the gunshot from the distance of 3 feet, 4 feet, upto range of 6 feet, in paras 33,35,36,37,38 &39 of the judgment held as under:-
(33) The learned counsel for the appellants drew the attention of the Court to the post-mortem report Ext. ka 1 proved by PW 4 Dr. Chandra Bhal Tripathi. The ante-mortem injuries on the persons of the victim have been noted above. In the post-
mortem report PW 4 Dr. Chandra Bha1 Tripathi in injury No. 1 mentioned multiple gunshot pellets entry wounds 22 cm x 22 cm in an area over forehead, frontal region of head, both, side face, front and right side neck and front of upper part of right side neck and front of upper part of right side chest distorted (flattened), pellets were found lodged in the scalp and fore head deeper tissues (muscle) and facial muscle. He had not mentioned anything about the nature of the injuries and presence of the blackening near the injuries caused by the gun shot. He in his statement stated that if a fire arm injury is caused in post-mortem there would be blackening and if there is blackening in the wounds, it would be necessary 42 CRA No. 23/2019 there should be tattooing also. If the injuries were caused by gun shot from a distance of 3 feet, tattooing is generally caused from shot at a distance from 4 ft. and in some cases it may range up to 6 ft. He stated for running of pellet, the disposal as under:-RANGE in yards equal to diameter in inches of perpendicular cross-Sectional area on a fault minus one. The actual cross-
Sectional area diameter on calculation was said to be 5 or 6 inches. According to the formula given by the witness, the firing range in the present case may range between 4 to 5 yards. He had not found tattooing in any of the injuries in the ante-mortem injuries of the deceased. PW 4 Dr. Chandra Bhal Tripathi stated that at the time the dead body was brought before him and the wounds for treatment if washed, in such circumstances there may be blackening found.
(35) SRI A. D. Giri placed reliance on Lyons Medical Jurisprudence for India 10th Edition page 276 and placed the following paragraph :"great heat is evolved by the chemical changes which result in the conversion of the small volume of solids constituting the charge into a large volume of gas.
At this high temperature the gases resulting from the explosion, on coming into contact with the oxygen of the air, enter into active combustion. If this flame impinges on the skin as it must do if the shot is fired within a few inches of the surface, a burn is produced round the wound. If the gun is fired at a right angle to the body the burn covers an area circular in shape and about 6 inches in diameter. If the burnt area be oval in shape the indication is that the barrel of the gun was inclined to the surface; the direction of the inclination being indicated by the proximity of the wound to one or other end of the burnt area. The end nearer the wound is the direction towards which the shot travelled. Thus if the wound is nearer the upper end of an oval patch of burning, its position suggests that the shot travelled from above downwards. "
(36) He also placed reliance from Jhala and Raju Medical Jurisprudence Vth Edition page 345 and placed the following paragraph :"as discussed above, there is always discharge of flame, gas and smoke to a varying degree with all firearms when trigger is pulled. Hence in close proximity of all fire-arms, effects of flame are invariably encountered. This distance does not extend beyond few inches. This is so, because of the special type of powder usually employed in the fire-arm. Even with evidence of burning or scorching (effect of flame) the wound also shows blackening or 43 CRA No. 23/2019 charring because of shot or carbon particles. These are results of incomplete combustion. These soot particles are inherently light and hence are subject to counteracting forces of air resistance and gravity which over-power the projectile force due to pressure in the barrel. This leads to another positive sign of forensic importance. As long as the carbon particles retain the force, they are capable of penetrating the skin. This leads to carbonaceous tattooing. Such tattooing has its limitations. Firstly, because of the circumstances discussed they are not armed with force beyond 18" or 1 1/2". This offers a very important clue in fire-arm injuries. Absence of such carbonaceous tattooing proves that the firearm responsible was at a distance of more than 18".
(37) SRI Giri also cited from Jhala and Rajus jurisprudence page 355 which is quoted as under
:"if the bullet has a perpendicular impact, the aperture is round. This has already been discussed earlier, while describing the abrasion collar. If the impact is slanting or inclined, the injury would be oval or valvular. "
(38) SRI Giri placed the passage from page 219 of Modis Text Book of Medical Jurisprudence and Toxicology 18th Ed. 1972 as under :"no blackening or scorching is found if the firearm is discharged from a distance of more than four feet. "
(39) SRI Giri also placed 1993 Cri LJ 1736 at page 1747: (1993 All LJ 571) para 26 Mohd. Islam v.
State in which it has been held that: "the author has also described the results of an experimental study undertaken with a view to compare the result by a 12 bore shot gun with 12 bore country made pistols from varying distance which are as follows :
Scorching was found up to a distance of 1 feet with the standard shot gun and up to 6 inches with the country made pistol. Tattooing was obtained up to a distance of 2 feet with the standard 12 bore shot gun and up to 1 feet with the country made pistol. Blackening was obtained up to a distance of 3 feet with the standard gun and 1 feet with the country made pistol.
Ratios of the judgments (Supra) make the legal proposition manifestly clear, that for severe contradictions between medical and ocular evidence conviction would be bad and accused would be entitled to benefit of doubt. Applying the ratios of the judgments (Supra) to the facts of the case in hand, it is pertinent to mention here, that close look at the evidence of two eyewitnesses of the occurrence namely PW-1 Atma Singh & PW-2 Veena 44 CRA No. 23/2019 Rani reveal that on the day of occurrence of 19-07-2013 when both of them after hearing sound of gunshot at around 10/10.30pm reached Danga Chowk they found accused Tapinder Singh & Ranvir Singh holding arms of deceased Ramesh Singh while accrued Yashvir Singh was holding gun in his hand towards chest of the deceased and on seeing them accused Yashvir Singh (appellant/convict) fired upon deceased Ramesh Singh who sustained injury. As per the evidence of aforesaid eyewitnesses, appellant/convict has fired upon the deceased on his chest, which clearly imply that deceased should have received gunshot injury on his chest. When I look at the medical evidence, three (3) doctors namely PW-31 Dr. Vijay Choudhary, PW-32 Dr. Sanjay Sharma & PW-33 Dr. Arjun Singh (members of the board constituted for conducting autopsy on the body of deceased Ramesh Singh) have categorically stated that deceased had received injury on anterior side of his left thigh and the entry wound was circular in shape with smooth margins, there was no sign of blackening/burning/tattooing of the skin around the wound and taking into consideration the track of the wound as mentioned in the postmortem report (EXTP-3/VC) the shot was not fired from the front side, because if it would have been fired from front side then exit wound would have been on the back side of the thigh. In Madan Rai's case (Supra) [1997 CrLJ 1677] relied by Ld. Counsel for appellant/convict, High Court of Uttar Pradesh has categorically held, that if the gunshot is fired from the distance of 3 feet, 4 feet upto 6 feet there would be blackening/burning and tattooing of the skin around the wound. As per the medical evidence of aforesaid PWs 31, 32 & 33 namely Dr. Vijay Choudhary, Dr. Sanjay Sharma & Dr. Arjun Singh they have found no sign of blackening/burning/ tattooing of skin around the injury suffered by deceased on his left thigh during their postmortem report which clearly establishes/proves that the gunshot has been fired from a distance more than 6 feet and not from a close range as alleged by eyewitnesses PW-1 Atma Ram & PW-2 Veena Rani. The eyewitnesses account of PW-1 Atma Ram & PW-2 Veena Rani if taken into consideration, the deceased would have received injury on his chest, as both the eyewitnesses had seen with their naked eyes appellant/convict firing gunshot upon the deceased, but it is highly strange and beyond comprehension that deceased did not suffer any injury on his chest. The eyewitness‟s account is very much silent and unbelievable as 45 CRA No. 23/2019 how and who caused the gunshot injury on the left thigh of deceased Ramesh Singh from behind, as the deceased was facing towards appellant/convict who were facing each other head to head. In Suresh Rai's case (Supra) [2003 Supreme (Pat) 919] relied by Ld. Counsel for appellant/convict, a Division Bench of Patna High Court held, that charred injury and irregular wound is only possible and can be caused from a very close range from a distance of 9 inch to 1 ½ feet. In the case in hand, as no charring injury has been found on the body of deceased Ramesh Singh, the ocular evidence of eyewitnesses PW-1 Atma Singh & PW-2 Veena Rani that appellant/convict and deceased were facing each other head to head in a very close range and in the same posture appellant fired gunshot upon the chest of deceased is totally inconsistent with the medical evidence, therefore, the manner of occurrence as stated by the eyewitness in their evidence becomes highly improbable and doubtful. Ld. GA has failed to convince as how the injury was found by the doctors on the person of the deceased on his left thigh when the appellant/convict is stated to have fired upon the chest of deceased Ramesh Singh. Similarly Ld. GA could not give any convincing reply as to how the fire arm injury has been received by the deceased on his left thigh when the eyewitnesses have seen appellant firing on the chest of the deceased facing his face towards the face of the deceased. The eyewitnesses (PW-1 Atma Ram & PW-2 Veena Rani) in the case in hand have not seen the assailant who fired from the backside of the deceased and caused injury on the left thigh of the leg of the deceased, and even it is not the version of the said eyewitnesses that the appellant/convict a lso fired upon the deceased from the backside of his left thigh of the leg. Therefore, the inconsistency between the "ocular evidence" and the "medical evidence" could not be explained by the prosecution beyond all reasonable doubt, which makes the presence of the eyewitness on the scene on crime highly doubtful. I find force in the arguments canvassed by Ld. Counsel for appellant/convict that alleged occurrence did not take place in the manner alleged by the prosecution.
12. The 2nd argument canvassed by Ld. Counsel for appellant/convict is, that witnesses of disclosure statement and recovery of weapon of offence have led highly contradictory versions which belie the prosecution story, in as much as, PW-4 Yudhvir Singh (witness to disclosure statement of appellant/convict) has deposed, that he alongwith PW-6 Dinesh Singh 46 CRA No. 23/2019 were in police station Vijaypur where SHO was interrogating the accused who disclosed before the SHO that he hit deceased with gunshot and concealed the rifle and cartridges in his house, PW-6 Dinesh Singh in his cross-examination completely shatters the prosecution version by deposing that he received telephone call from police station Vijaypur calling him to attend the police station and telling him that accused has to confess the crime which means that the disclosure statement by appellant was not made in presence of Dinesh Singh, while PW-7 Utkansh Slathia has stated that recovery of weapon of offence was made at 3.30 pm and at that time he was at home which further clarifies that at the time recovery was made PW-7 Utkansh Slathia was at his house, the contradictory versions create serious doubt regarding the credibility of the disclosure statement and recovery of weapon of offence destroying the very foundations of the prosecution case.
It is apt to mention here, that PW-4 Yudhvir Singh and PW-6 Dinesh Singh are witnesses to the disclosure statement of appellant/convict Yashvir Singh and recovery and seizure of weapon of offence viz; rifle and cartridges. PW-4 Yudhvir Singh has categorically tendered evidence, that on 21-07-2013 he alongwith Dinesh Singh went in police station Vijaypur at 4/5pm where during the interrogation of accused Yashvir Singh by SHO (I/O) accused disclosed that he hit deceased with gunshot whereafter he fled away and concealed the rifle and cartridges in his house, whereafter, SHO took the accused to Raj Garh Mandi Gurha Slathia where accused Yashivr Singh got gun recovered from flower bed of the compound of his house alongwith 3 cartridges and police prepared disclosure statement (EXTP-DS) and recovery memo (EXTP-YS). PW-6 Dinesh Singh has made a highly contradictory statement regarding the disclosure statement of accused Yashvir Singh and recovery of alleged weapon of offence by deposing, that he received a telephone call from police station Vijaypur on 21-07-2013 calling him to attend police station and telling him that accused has to confess the crime, he went to his house from police station Vijaypur and did not accompany the police to the house of accused so the recoveries effect were not made in his presence. The evidence led by PW-4 & 6 Yudhvir Singh and Dinesh Singh is contradictory to each other on material particulars of the case regarding the disclosure statement and recovery of weapon of offences which clearly 47 CRA No. 23/2019 demonstrates that in presence of PW-6 Dinesh Singh accused had not made the disclosure statement and he was told by the police that accused has to confess. Moreso, in presence of PW-6 Dinesh Singh no recoveries of weapon of offence have been effected. PW-7 Utkansh Slathia is also witness to recovery of 12 bore gun and cartridges. His evidence demonstrates that gun and empty cartridges were recovered from the house of accused while from the lobby of his house from almirah accused took over 3 live cartridges. It is pertinent to mention here, that PW-4 Yudhvir Singh has stated the time of discourse statement as 4 to 5 pm and recovery of weapon of offence as 5.45pm, PW-6 Dinesh Singh has mentioned the time of disclosure statement as 4.30pm, PW-7 Utkansh Slathia has mentioned time of recovery of weapon of offence as 3.30pm while I/O PW-38 Mohd Iqbal Choudhary has mentioned the time of disclosure statement by appellant at 2pm and recovery of weapon of offence at 3.10pm. Investigating officer of the case PW-38 Mohd Iqbal Choudahry has conducted the investigation and has recorded the disclosure statement of appellant Yashvir Singh and effected recoveries pursuant thereto. If the evidence of I/O is taken into consideration and relied upon, then it is clearly demonstrated/established that disclosure statement has been made by appellant/convict at 2pm and recoveries of weapon of offence viz; gun and cartridges have been effected at 3.10pm, which clearly establishes that till 3.10pm the legal formalities regarding disclosure statement and recovery of weapon of offence were complete. If this evidence of I/O is appreciated, then the other evidence of PWs 4,6&7 Yudhvir Singh, Dinesh Singh and Utkansh Slathia demonstrating that accused made disclosure statement at 4 to 5pm, 4.30pm and recovery of weapon of offence made at 5.45pm and at 3.30pm is highly contradictory, reddened, untrustworthy and inadmissible in evidence. All the witnesses of disclosure and recovery memo have tendered highly contradictory and distorted versions which create serious doubt regarding the creditworthiness and reliability of the prosecution witnesses aforesaid which destroy the very edifice of the prosecution case, meaning thereby, that the prosecution witnesses aforesaid have failed to prove the disclosure statement made by the accused and recovery of weapon of offence.
13. The 3rd argument portrayed by Ld. Counsel for appellant/convict is, that there is inordinate delay of 16 & 41 days respectively in recording the 48 CRA No. 23/2019 statements of eyewitnesses PW-1 Atma Singh and PW-2 Veena Rani u/s 164-A Cr.pc when both the eyewitness were available to the I/O , but I/O of the case or even the eyewitnesses have not putforth reasonable/plausible explanation before the trial court during recording of their evidence in regard to the delayed recording of their statements during the course of investigation, which has seriously doubted the creditworthiness of the prosecution case, whereby, the presence of eyewitnesses on the scene of crime is highly unnatural and doubtful. Reliance has been placed upon the judgments reported in, (i) 2017 CRI. L.J 169 (SUPREME COURT) [Harbeer Singh v. Sheeshpal and others] & (ii) 2003 (3) JKJ 506 [HC (DB)] (Prem Singh & Anr. Versus State of J&K).
In 2017 CRI. L.J 169 (SUPREME COURT) (Harbeer Singh v. Sheeshpal and others) Hon‟ble Supreme court while acquitting the accused u/s 303 IPC for commission of murder on the ground of recording of delayed statements of prosecution witnesses by police, in paras 15,16 & 17 held as under:-
15. We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Court that PW3 and PW9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW9 and the distance of Sheeshpal‟s Dhani from Sikar road. Besides, it appears that there have been improvements in the statements of PW3. The Explanation to Section 162 Cr.pc.
provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 Cr.P.C., may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. [See Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9 SCC 431; Radha Kumar Vs. State of Bihar (now Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions covered by the Explanation to Section 162 Cr.pc. Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW3 and PW9 and the same was sought to be unconvincingly explained by reference to the fact that the family had to sit for shock meetings for 12 to 13 49 CRA No. 23/2019 days. Needless to say, we are not impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.pc. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain vs. State of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
In 2003 (3) JKJ 506 HC (DB) [Prem Singh & Anr. Versus State of J&K], Hon‟ble J&K High Court while acquitting the accused for commission of murder u/s 302 RPC on the ground of delayed recording of statement of eyewitness, in paras 11,12,&14 of the judgment held as under:-
11. Another damaging circumstance to the case of the prosecution is that the statement of PW Ghulam Mohi-ud-Din was recorded on 13.12.1997 after a period of one month and 20 days of the occurrence. This witness was available but the statement could not be recorded and reason therefore has also not been explained.
According to this witness, he sent his son Shakhi Mohd to lodge a report written by PW Ghulam Nabi, Chowkidar who is his brother. He has further stated that he saw the accused taking the deceased from Walnut trees to the place of occurrence. One accused had caught hold the deceased from the arms and the other from legs. This incident was narrated by him to Ghulam Nabi, Chowkidar In police statement he has stated quite differently. There is no written complaint on record. His statement has been recorded after a period of one month and 20 days and from the evidence, it is manifest that he has remained tight lipped for the said period and did not disclose this fact to the police till his statement was recorded Under Section 161 Cr.pc. PW 50 CRA No. 23/2019 Ghulam Nabi has not corroborated him, as a result of which his evidence cannot be relied upon for recording conviction. It is settled principle of law that if a statement is recorded after a long delay, it loses its legal significance and credibility. Learned counsel for the appellants in support of this plea has relied upon judgments delivered in cases titled Balakrishna Swain v. State of Orissa, (AIR 1971 SC 804) Ganesh Bhavan Patel and Anr. v. State of Maharashtra, (AIR 1971 SC
135) and Satnam Singh v. State of Rajasthan (AIR 2000 SC 423). Defence counsel has also relied on judgment delivered in case titled Chanchal Kumari and Ors. v. Union Territory, Chandigarh, (AIR 1986 SC 752).
12. Ghulam Mohi-ud-Din is the only eye witness to prove the charge of murder. Testimony of solitary witness is very important from the point of accused and prosecution both. This witness remained tight lipped for over one and half month and assuming that he disclosed it to Ghulam Nabi Chowkidar, his version has not been supported by the said prosecution witness. Therefore, this witness cannot be said to be reliable witness and no conviction can be recorded on his solitary testimony.
14. For the aforesaid reasons, we are of the considered view that the learned trial court has not looked to these aspects of the case, as a result of which has come to erroneous conclusion in holding the accused guilty of commission of offence. The judgment of trial of the trial court, therefore, cannot be maintained and is set aside and the accused- appellants are acquitted of the charge. Bail bonds are discharged. From the ratios of judgments (Supra), the legal position which emerges is, that it is settled principle of criminal jurisprudence that the delay in recording the statements of prosecution witnesses u/s 161 Cr.pc though those witnesses were available for examination when I/O visited the scene of occurrence or soon thereafter would cast a doubt upon the prosecution case. Moreso, in 1978 Supreme (SC) 233 [Ganesh Bhavan Patel and another, Appellants Versus State of Maharashtra, Respondent], relied by Ld. Counsel for appellant/ convict, Hon‟ble Supreme Court set aside the conviction in a murder case u/s 302 r/w 34 IPC on the ground that there was inordinate delay in recording statements of witnesses. Ratios of the judgments of "Harbeer Singh", "Prem Singh" & "Ganesh Bhavan Patel's" cases (Supra) squarely apply to the fact of the case in hand. In the case in hand, PW-1 Atma Singh (real brother of deceased) is an eyewitness of the occurrence, was very much available to the I/O for recording his statement u/s 161 or 164-A Cr.pc at the time of occurrence or thereafter, but his statement has been recorded on 05-08-2013 u/s 164-A Cr.pc after a delay of 16 days from the date of occurrence of 19-07-2013. Similarly, PW-2 Smt. Veena Rani (wife of deceased) another eyewitness of the occurrence was also very much available to the I/O on the day of occurrence or even thereafter and it is strange enough that I/O has recorded her statement on 30-08-2013 after a delay of 41 days with the explanation 51 CRA No. 23/2019 that both the eyewitness were busy in post funeral rites. The explanation putforth by the I/O does not appeal to human conscious as the funeral rites ceremony would have expired on 13th day of the occurrence, whereafter, no plausible or reasonable explanation has been tendered by the I/O for such delayed recording of the statements of PW-1 & 2 Atma Singh and Veena Rani. From the evidence tendered by the aforesaid eyewitnesses, it is discernible that the delay in recording the statements of these eyewitnesses during investigation has not been satisfactorily explained by the prosecution, therefore, there is possibility of embellishment in prosecution version which indicates that long inordinate delay in recording statements of aforesaid eyewitnesses was utilized by the prosecution for spinning a false prosecution story and fabricating evidence with the object of securing conviction of appellant, whereby, danger creeps in the introduction of coloured version and concocted story as a result of deliberation and consultation.
14. The 4th argument urged by Ld. Counsel for appellant is, that in the present case more than two views are possible from the appreciation of prosecution evidence hence under criminal jurisprudence the view favoring the accused should prevail, therefore, the view that the deceased was fired from the back side on his left thigh and not from front side of his chest (as claimed by the two alleged witnesses) should have prevailed and the gunshot fired from the back side of the deceased on his thigh has not been attributed to the accused, hence, A-1 Yashvir Singh could not have been convicted for offence u/s 304-II RPC.
In 2018 Supreme (J&K) 961 [Mohammad Saleem--Appellant versus State of J&K & Ors.--Respondents] relied by Ld. Counsel for appellant, Hon‟ble Supreme Court while observing that if two views are possible from the appreciation of prosecution evidence, the view favouring the accused should prevail, in para 10 of the judgment held as under:-
10. During the pendency of the petition before this Court, the petitioner has been acquitted for his involvement that surfaced against him in both the cases. In case FIR No. 5/2004, registered in Police Station, Kunzer, Baramulla, the Court has come to the conclusion that the prosecution has produced only one witness out of 15 witnesses listed in the charge sheet to prove its case and the witness produced and examined before the Court has neither supported the case of the prosecution nor has he deposed anything against the accused, as a result of which, the prosecution has 52 CRA No. 23/2019 failed to prove its case which is, accordingly, dismissed. In case bearing FIR No. 40/2002, registered in Police Station, Crime, Kashmir, the accused has been acquitted by giving him the benefit of doubt and the relevant extracts of the judgment of the Court of learned Additional Sessions Judge Srinagar, which have a bearing on the subject, read as follows:
"Hence there are two versions in the prosecution case one version of occurrence as per the statements of ocular witnesses and the other as per that expert medical forensic evidence the scrutiny of which does not completely rule out death by poisoning due to suicide, the circumstances not incompatible with innocence of the deceased (AIR 2010 SC 762). It is not safe to construe that oral evidence depicts the correct version of the occurrence. It means there is a case of conflict between the oral ocular evidence and medical evidence confirming cause of death of poisoning only, leading to two stories one in favour of the prosecution and another in favour of the accused.
Thus, when two parallel interpretations are possible on the basis of the same evidence put forth by the prosecution, one favouring the prosecution and another favouring the accused. It is the interpretation in favour of the accused which is to prevail and it carves out parallel story placing a reasonable doubt on the case propounded by the prosecution. The benefit of the doubt goes to the accused and not the prosecution. (AIR 2011 SC 2328). The prosecution case therefore fails the same is hereby dismissed the accused are acquitted by giving them benefit of doubt. Their bail bond shall stand discharged. The file shall go to the records after due completion."
Applying the ratio of the judgment (Supra) to the facts of the case in hand, it is apt to reiterate here, that the eyewitnesses‟ account of direct evidence putforth by PWs 1 &2 Atma Singh & Veena Rani demonstrate that deceased Ramesh Singh was fired gunshot by appellant/convict on his chest, meaning thereby, that the gunshot fired from back side of the deceased on his thigh is not attributed to appellant/convict. It is unambiguously reiterated here, that the medical evidence of doctors PWs 31,32&33 namely Dr. Vijay Choudhary, Dr. Sanjay Sharma & Dr. Arjun Singh members of the board who conducted the postmortem of the deceased have categorically stated, that injury/wound was present on the left thigh of the deceased fired from back side which was having exit wound on the front side of the leg having no sign of blackening/burning of skin/ tattooing of skin. The ocular evidence is totally contradictory to the medical evidence, therefore, it is unsafe to construe that oral evidence depicts the correct version of occurrence. It means that there is case of conflict between oral/ocular evidence and medical evidence confirming cause of death leading to two stories one in favour of prosecution and 53 CRA No. 23/2019 other in favour of accused and it is the interpretation in favour of accused which is to prevail and the benefit of doubt goes to the accused and not to the prosecution.
15. Dealing with 5th to 11th arguments urged by Ld. Counsel for appellant/convict, it is again reiterated, that eyewitnesses PW-1 Atma Singh & PW-2 Veena Rani have tendered evidence that they alongwith deceased reached Vijaypur Hospital on or before 11pm within half-n-hour of occurrence at 10.30pm. Taking into consideration the nature of injury suffered by deceased and the opinion of Doctor that the deceased could not have died if brought to Hospital within half-n-hour from the time of occurrence, it is clearly proved/established that deceased remained on spot for a long time and none of the aforesaid eyewitnesses were present there, none evacuated the deceased within the time as a result of which deceased expired on spot and at later time the two alleged eyewitnesses came on spot after being called by the people residing thereby and when the deceased was taken to Hospital he had already expired and was declared as brought dead. Fard Surat-e-Hall Form (EXTP-IC/1) appended with the chargesheet depicts that the deceased has died at Mandi Rajgarh i.e. the place of occurrence and in the said Fard Surat-e-Hall Form nowhere presence of any eyewitness has been shown which fact has been endorsed by the investigating officer (I/O) in his cross-examination, meaning thereby, that the alleged eyewitnesses of the occurrence have not seen the occurrence with their naked eyes and possibility of their presence on the scene of crime is ruled out, which makes the prosecution case highly doubtful, concocted and unworthy of reliance. Eyewitness PW-2 Veena Rani in her deposition before the trial court has categorically tendered evidence that when she reached on spot her husband was already lying on ground in a pool of blood which clearly establishes/demonstrates that she reached on spot much after occurrence and has not witnessed the occurrence with her naked eye, her testimony as being the eyewitness of the crime is shaky, untrustworthy and unworthy of reliance. PW-1 Atma Ram & PW-2 Veena Rani did not took the deceased to nearby CHC Gurha Slathia for treatment even though the CHC was located at a distance of half kilometer from the scene of crime so that the life of deceased could have been saved, but the said witnesses took the deceased to Vijaypur Hospital located at a distance of 5 kms from the scene of crime and the doctors 54 CRA No. 23/2019 declared the deceased brought dead, conduct of PW-1 Atma Ram & PW-2 Veen Rani who are real brother and wife of the deceased is totally against normal human conduct and behavior which shakes the very foundation and credibility of the said witnesses making the prosecution case highly doubtful and concocted and unworthy of reliance.
16. PW-2 Veena Rani (wife of deceased) has testified that she remained with her injured husband on spot for 15 minutes who was bleeding profusely at that time, but she did nothing to stop his bleeding though she was having dupatta with her at that time which could have been tied by her to save the flow of blood, but the said conduct of the witness even not tying the dupatta with the wound of deceased again raises serious doubt/suspicion regarding her presence on spot at the time of occurrence. Alleged eyewitnesses viz; PW-1 Atma Ram & PW-2 Veena Rani in their depositions before the trial court have testified that after the occurrence for 15 minutes deceased remained on spot i.e. almost upto 10.45 pm and there was light of bulbs on spot, another witness PW-4 Yudhvir Singh (cousin brother of Veena Rani) who is witness of disclosure and recovery of weapon of offence has putforth a highly contradictory version before the trial court that when he reached on spot at 10.30pm to 10.45pm Veena Rani and Atma Singh were not present on the spot of occurrence, there was total darkness and all the proceedings of seizing of clay etc. were conducted in the light coming from headlights of Police Gypsy which fact has been endorsed by the I/O that they conducted the proceedings on spot under the lights of their vehicle because it was dark on spot. The highly contradictory versions of PWs 1,2&4 Atma Ram, Veena Rani & Yudhvir Singh go to the root of the prosecution case demolish it‟s entire edifice that the occurrence has been seen by PW-1 & PW-2 Atma Ram & Veena Rani.
17. Eyewitnesses PWs 1&2 Atma Singh & Veena Rani have tendered evidence before the trial court that their clothes as well as the seat covers of the car in which deceased was shifted to Hospital at Vijaypur got stained with blood of the deceased, neither the clothes of the aforesaid witnesses nor the said car has been seized by the police during investigation and more importantly the person in whose car the injured (deceased) is stated to have been shifted to Hospital Vijaypur from the spot has neither been cited as witness in the chargesheet nor examined by the prosecution in the court otherwise. The said witness being most 55 CRA No. 23/2019 material witness of the prosecution who could have unearthed the true facts of the case has been willfully and intentionally withheld by the I/O and the prosecution to suppress the material facts regarding the genesis of the prosecution case. Moreso, the two (2) empty cartridges case recovered from spot are of Khadki Ammunition Factory, while three (3) cartridges recovered from the house of appellant/convict as well as empty cartridge recovered from the barrel of gun are of Indian Ordinance Factory which are of different make, empty cartridges recovered from scene of crime could not be connected with three (3) cartridges recovered from the house of appellant and barrel of gun, which clearly demonstrates that two empty cartridges cases recovered from scene of crime were neither in possession of appellant nor same were fired by him. The evidence of other circumstantial/hearsay witnesses of PWs 8, 9, 10, 11, 12, 13, 14, 15, 21, 22, 24, 25, 27, 28, 29,30 namely, Subash Chander, Rakesh Kumar, Shivdev Singh, Suraj Singh, Noor Hussain, Shakeel Ahmed, Anwar Sadotra, Vinay Partap Singh, Devika Slathia, Veena Slathia, Shobha Slathia, Sumeda SLathia, Shakuntla Devi, Tarun Slathia, Girdhari Lal, Kuldeep Kumar & Roshan Lal, in absence of credible and reliable evidence of the eyewitnesses, by no stretch of any imagination link appellant/convict with alleged commission of crime attributed to him.
18. The witnesses examined by the prosecution have not been able to putforth in their evidence a ring of truth so as to inspire confidence in the court. None of the material witnesses examined by the prosecution have found corroboration from each other and have suffered glaring contradictions going to the root of the case. Evidence of prosecution witnesses is qualitatively and quantitatively insufficient to bring nexus between appellant/convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the appellant/convict and commission of offences. It would be highly dangerous and hazardous to hold the appellant/convict guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution therefore becomes doubtful. For the foregoing reasons and discussion, prosecution has miserably failed 56 CRA No. 23/2019 to prove the guilt of the appellant/convict beyond reasonable doubt for commission of offence u/s 304-II RPC for which he is convicted by the trial court. Criminal conviction appeal, therefore, deserves to be allowed and the same is allowed. Resultantly, the impugned judgment and orders of conviction dated 08-03-2019 r/w 14-03-2019 rendered by the trial court of Ld. Pr. Sessions Judge Samba in file No. 06/Sessions titled State Versus Yashvir Singh and Ors. based on surmises, assumptions and presumptions is unsustainable in the eyes of law and the same is set aside/quashed. Appellant/convict namely Yashvir Singh S/O Kartar Singh R/O Mandi Rajghar Gurah Salathia (District Samba) who is on bail, is, therefore, cleanly acquitted of the charges levelled against him and proved for commission of offence u/s 304-II RPC. He shall stand discharged from his bail and personal bonds. Seized case property shall be destroyed after the period of appeal is over. Criminal conviction appeal is disposed off and after due compilation under rules, shall be consigned to records. Record of the trial court be sent back alongwith copy of the judgment for information of the said court.
Jammu MOHAN LAL
28-11-2022 JUDGE
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No