Allahabad High Court
Ashok Kumar And Another vs State Of U.P. on 19 October, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Appeal No. 5648 of 2004
1..Ashok Kumar
2. Manoj Kumar Versus State of U.P.
Connected with
Criminal Appeal No. 77 of 2005
Dev Muni Ram Versus State of U.P.
Counsel for the appellant: Sri O.P. Singh, Senior Advocate assisted by Sri S.N. Singh
Counsel for the respondent : Ms. Usha Kiran, A.G.A.
Hon. Rakesh Tiwari, J.
Hon. Anil Kumar Sharma, J.
( By Hon. Anil Kumar Sharma, J.) In both these appeals, the appellants have challenged the judgment and order dated 30.9.2004 passed by Sri Mohd. Husain, the then Additional Sessions Judge/Fast Track Court no. 4, Ghazipur in S.T. No. 658 of 2003 (State Vs. Dev Muni Ram and two others ), in Case Crime 384 of 2003, under section 302 IPC and 7 Criminal Law Amendment Act, S.T. No.654 of 2003 (State Vs. Dev Muni Ram and two others ) in Case Crime No.385 of 2003, under section 307 IPC, S.T. No. 655 of 2003 (State Vs. Dev Muni Ram son of Lachhi Ram ) in Case Crime 386 of 2003, under section 3/25 Arms Act, S.T. No. 656 of 2003 (State Vs Ashok Kumar son of Ram Dayal), in Case Crime 387 of 2003, under section 3/25 Arms Act and S.T. No. 657 of 2003 (State Vs.Manoj Kumar son of Raj Nath), in Case Crime 388 of 2003, under section 3/25 Arms Act, P.S. Bhudkuda, district Ghazipur, whereby all the three accused-appellants aforesaid, have been convicted and sentenced as under :
Sl. No. Name of accused Under Section Imprisonment Fine Default addl. imprisonment 1 All appellants 302/34 IPC Life Imprisonment Rs.4000 One year 2 All appellants 307/34 IPC 7-years' R.I. Rs.1000 Six months 3 Dev Muni Ram 25 Arms Act 3-years' R.I. Rs.1000 Six months 4 Manoj Kumar
-do-
-do-
-do-
-do-
5Ashok Kumar
-do-
-do-
-do-
-do-
The sentences awarded to each accused-appellant were to run concurrently. All the accused were, however acquitted under section 7 of Criminal Alaw Amendment Act.
2. The prosecution story, in nut shell, is that on 7.8.2003 at about 11.00 a.m. Smt. Prabha Devi wife of the deceased Vehphu Ram, resident of Village Padumpur Megar Rai, P.S. Bhudkuda, district Ghazipur, submitted a written report at P.S. Bhudkuda wherein she stated that same day at about 10.00 a.m. she along with her husband Vehphu Ram was going towards Rampur Balbhadra and when they reached in front of pumping set of Kanhai Yadav on account of old enmity due to land dispute their pattidar Devmuni Ram son of Lakshiram, Ashok Kumar Harijan son of Ram Dayal Harijan, resident of Village Khutahi, P.S. Shadiyabad and Manoj Kumar, son of Rajnath Harijan, resident of Village Saidpur Budhe Mahadev, P.S. Saidpur district Ghazipur, who were already hidden in the clump of leaves there all of a sudden killed her husband by firing shots from their country made pistol. The dead body is lying on the spot, public had assembled at the spot and had jammed the road. The report further stated that due to indiscriminate firing the public was frightened. The incident was witnessed by co-villagers Virendra, son of Daulat Ram and Ramashrya, son of Ram Surat Ram. On the basis of this report a case at Crime No.384 of 2003, under section 302 IPC and 7 Criminal Law Amendment Act, was registered, investigation whereof was taken over by the S.O. Om Prakash Singh. He reached at the spot, interrogated the complainant and at her instance prepared site-plan. The inquest of the deceased was prepared and his dead body alongwith usual papers was sent for post mortem examiantion in selaled cover.
3. Dr. Sanjay Kumr Rai condcted autopsy upon the cadaver of the deceased on 8.8.2003 at 3.30 p.m. He found that both eyes of 40 years old deceased were half open and mouth was closed. Rigor Mortis was present in lower extremities and passed off in upper extremities. He found the following ante-mortem injuries on the pereson of the deceased :
(i)Fire arm wound of exit 5 cm.x 5cm. x cranial cavity deep present in left temporal parictal area, magins everted ;
(ii)Fire arm wound of entry 4cm.x 4 cm. x cranial cavity deep present in occipital region, margin inverted, grease collar and abrasion collar present;
(iii)Fire arm wound of entry size of 1.5cm. x 1.5 cm. x thoracic cavity deep present on right side of chest 6 cm. below right axilla. Blackening tatooing present.
(iv)Fire arm wound of exit 3 cm. x 3 cm. x thoracic cavity deep present on right side of chest 10 cm. below right clavicle, margins everted.
(v)Fire arm wound of entry 2.0 cm. x 2.0 cm. x cavity deep present on right side of chest abrasion and grease collar present, blackening present.
(vi)Fire arm wound of exit on right side of chest 3 cm. x 3 cm. x cavity deep on back just above right iliac crest, margin everted.
(vii)Fire arm wound of exit on right side of back 10 cm above injury no. 6 size of 3 cm. x 3 cm. x cavity deep.
(viii)Fire arm wound of entry size of 3 cm. x 3 cm. x cavity deep on right side of middle of back 20 cm. Below seven 7th process margins inverted, abrasion and grease collar present.
(ix)A fire arm wound of entry 2 cm. X 2 cm. x cavity deep present on left side of chest, 4 cm. below left clavicle margins inverted abrasion and grease collar present.
On internal examination, Dr. Sanjay Kumar Rai found that left temporal and occiptal bones were fractured, brain and memberances, pleura, pericardium and both lungs were lacerated. On careful dissection and probing the doctor found that Injury no.1 is co-related with injury no.2. On dissection of injury no. 3 rib was found fractured and a conical metallic bullet was recovered. Injury no. 4 was co-related with injury no. 8, injury no.5 was co-related with injury no.7 and injury no. 6 is co-related with injury no.9. In the stomach semi digested food was found. In the opinion of the doctor, the deceased suffered death about a day before due to shock and hemorrhage, as a result of ante-mortem fire-arm injuries.
4. The Investigating Officer collected sample of plain and blood stained earth, an empty cartridge of 315 bore, 1 empty cartridge of 12 bore,1 empty cartridge of 303 and one bullet each of 315 and 303 bore were recovered from the spot and prepared memos in presence of public witnesses. On 7.8.2003 during search of the accused persons on the information of the informer all the three accused persons were arrested at 5.00 p.m. Near village Sofipur, who made life attempt on police personnel and from the hand of accused Dev Muni Ram, a country made pistol of 315 bore containing one empty cartridge and from left pocket of his pant two empty cartridges were recovered. On search of accused Ashok Kumar, a country made pistol of 12 bore containing an empty cartridge in the barrel and three live cartridges were recovered from his possession. Accused Manoj Kumar, was found in possession of a country made pistol of 303 bore and two empty cartridges. The recovery memo was prepared on the spot and its copy was furnished to all the three accused persons.
5. On the basis of the recovery memo, separate cases under section 307/34 IPC and 25 of the Arms Act were registered at the Police Station against each accused and investigation whereof was entrusted to Sub Inspector Lal Bahadur Singh. The articles recovered from the possession of the accused and from the spot were sent for examination to the Forensic Science Laboratory, Lucknow and their reports Ext. Ka-27 and Ka-28 were received. The investigation of all the aforesaid cases ended in charge-sheet against the accused persons.
6. After committal of the case to the Court of Session, charges for the offence punishable under section 302/34 IPC and 7 Criminal Law Amendment Act and section 307/34 IPC were framed against all the accused persons. Each accused was further charged under section 25 of the Arms Act. The appellants objected their guilt and claimed trial.
7. In order to prove the charges framed against the accused persons, the prosecution has examined scribe of written report of Ram Saran, PW-1, complainant Smt. Prabha Devi PW-2, eye witnesses Ramashray PW-3 and Virendra Ram, PW-4, Constable Shiv Narain Ram PW-5, Constable Gangadhar Tiwari PW-6, Dr. Sanjay Kumar Rai, PW-7, Om Prakash Singh PW-8, Constable Nagendra Singh PW-9 and Sub Inspector Lal Bahadur Singh PW-10.
8. All the accused persons in their separate statements under section 313 Cr.P.C have again denied the entire prosecution story and claimed false implication on account of animosity. They have not adduced any evidence in defence but have filed written statement u/s 233(2) Cr.P.C. Accused Dev Muni Ram has stated that he is not involved in the murder of Vehafu Ram, who was his pattidar and had several enemies. He has been killed by any such person and his wife in connivance with her paramours had falsely indicted him in the case. The police had also shown his illegal arrest and recovery of fire arm from Sofipur. In fact he was picked up by the police from his residence and lodged in lock-up where two other persons named Ashok and Manoj were already there. He is a student of Homeopathic Board of Electro Medicines, Patna and to ruin his career he has been implicated in the case. Accused Ashok Kumar has stated that he is a scooter mechanic in Jakhania. He was repairing scooter of Manoj. The police took him, Manoj and the scooter to Bhudkuda police station. Demanded money else threatened to implicate him in serious case. He did not abide them, so he has been indicted. Accused Manoj Kumar has averred that he is agent of LIC. He was going on scooter for work, but the scooter broke down near Jakhania which was being repaired by Ashok. Police came there and took both of them along with scooter. They demanded money and he had hot talks with sub-inspector of police, so they involved them in false police encounter and murder case.
9. The learned trial Court through the impugned judgment and order have convicted the accused-appellants as stated above in para-1 of the judgment.
10. We have heard the learned counsel for the parties at length and perused the original record of the case carefully.
11.Learned senior counsel castigating the findings of the trial court have arguned :
i) that the FIR is ante-timed and has been prepared in consulation with the police;
ii) that there was no motive for accused Manoj Kumar and Ashok Kumar to commit the crime and the complainant did not know them from before;
iii) that no witness of the locality has been examined and only interested/partisan witnesses have been examined;
iv) that the incident had not taken place in the manner as alleged by the prosecution and presence of alleged eye witnesses is not proved;
vi) that the police has fabricated case u/s 307/34 IPC and false recovery of illlicit arms had been shown;
vii) that the investigation is not fair rather it is tainted.
Per contra learned AGA has argued that the FIR has been promptly lodged; that there was enmity between the deceased and accused Dev Muni Ram; that other accused are relatives of Dev Muni Ram; that the case of the prosecution is based on direct evidence, so motive loses its importance; that it is a broad-day light murder of the deceased while he was going along with his wife for making purchases on the eve of Rakshabandhan; that the cases u/s 307/34 IPC and 25 Arms are fully proved through the police eye witnesses, who have no animus with the accused-appellants and if there is any short-comings in the investigation, it will not affect the otherwise reliable testimony of eye-witnesses which is fully corroborated by medical evidence, so the learned trial Court has not at all erred in convicting and sentencing the accused-appellants through impugned judgment and order.
FIRST INFORMATION REPORT
12. The alleged incident took place at about 10 a.m. on 7.8.2003 in Mahar Khurd situated on Rampur Balbhadra-Ghazipur road in front of paddy field of Ashok Harijan of village Padumpur Magar Rai. The distance between the place of occurrence and the police station Bhudkuda is 6 kilometers. The written report Ex. Ka-1 of the incident had been submitted by the complainant Smt. Prabha Wati PW-2 (wife of the deceased) at 11 a. m. in P.S.Bhudkuda, which was scribed by Ram Saran PW-1 on the dictation of PW-2. The check report Ex. Ka-2 on the basis of written report was prepared at the police station at 11 a.m. on 7.8.2003 by Constable Ganga Dhar Tiwari PW-6. He has proved the check report and copy of corresponding GD Ex. Ka-3 regarding registration of the case at crime no. 384/03. He has denied the suggestion that information regarding murder had been received at 8 a.m. He has further deposed that the investigating officer returned back to police station at 19.00 hrs the same day. Although a suggestion had been given to this witness that the report had been ante-timed, which had been denied by him, but no material could be elicited from this witness to substantiate the suggestion. PW-1 has also corrobroated PW -2 about preparation of written report Ex. Ka-1 at her instance. He had fairly admitted in cross-examination that he did not witness the incident. He reached at the spot before arrival of the police and several persons had already arrived there. He went with Prabhawati on cycle and before reaching police station he wrote the written report at Ram Singh Pur turn. He has specifically denied the suggestion that he penned down the report at the police station at the instance of police sub-inspector. PW-2 has also stated that she came to Ram Singh Pur with Ram Saran and dictated report to him and then submitted the same at the police station. She is a rustic illiterate woman. According to her she stayed at the spot for an hour and then went with Ram Saran to lodge the report. She had seen the brutal murder of her husband, so naturally she would have taken some time to compose herself. We cannot expect from her that she would give exact minute-to-minute details of the incident and allied matters. As per investigating officer he reached at the police station at about 12 O'clock in the noon and remained there till 1.30 p.m. In the meantime he has inspected the spot, prepared site plan, conducted inquest proceedings and also recovered articles found on the spot connected with the crime. Learned counsel for the appellants has contended that the complainant did not know accused Ashok and Manoj from before, but she had given their parentage and address in the report, which smells deliberations and connivance of the police in naming them. It is true that name, parentage and place of residence had been given by the complainant in her written report Ex.Ka-1 and in cross-examination she could tell only the names of these two accused. But it has come in evidence of PW-3 and PW-4 that they knew these accused persons from before, so it might be possible that their father's name and village of residence was told by them to the complainant. No specific question had been asked by the defence counsel from this witness on this issue during cross-examination. It was necessary because of provisions of Section 145 Evidence Act, as in her statement u/s 161 CrPC she had given these particulars. The same day, the accused persons were arrested at about 5.00 p. m. along with illicit arms and ammunition and cases u/s 307/34 IPC and 25 Arms Act were registered against them. In the recovery memo Ex.Ka-14, particulars of case u/s 302 IPC and 7 Criminal Law Amendment Act find place therein, so it cannot be said that the FIR of case crime no. 384/02 is ante-timed. Thus, we find that there is no delay in reporting the crime to the police, which came into action soon after registration of the case. In the facts and circumstances of the case the instant report is quite prompt, which rules out any possibilities of embellishment or concoction.
MOTIVE
13. The consistent case of the prosecution case from its inception is that accused Dev Muni Ram and deceased Vehafu Ram are closely related to each other. PW 2 has admitted in her cross-examination that fathers of her husband and Dev Muni Ram were real brothers. Although their property was partitioned but criminal cases were pending between them, so the accused bore enmity with them. Accused Manoj and Ashok are relatives of Dev Muni Ram accused, as stated by PW-3 and are on visiting terms with him. PW-4 corroborating this fact has stated that accused Dev Muni Ram has introduced accused Ashok and Manoj to him. Learned counsel for the appellants had argued that parentage of accused Ashok and Manoj was although mentioned in the written report by the complainant, but in cross-examination she could not tell their names. This fact is admitted to PW-2. If she could not state the fathers' name of these accused, it will not make any difference, because of statements of PW-3 and PW-4.
14. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Nowadays murders are being committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature such as the instant case, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:
"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is .....need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered"
In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:
"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a find of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."
Thus, in view of the above legal position, the prosecution would not fail on account of weak motive for accused Ashok and Manoj. Moreover, the instant case is based on direct evidence of eye witnesses, so motive takes a back seat and loses importance.
PARTISAN WITNESS AND NON EXAMINATION OF INDEPENDENT WITNESSES
15. Learned counsel for the appellants has contended that the prosecution has not examined independent witnesses, and the witnesses examined in the case are partisan and interested witnesses, so no reliance on their testimony should be placed. Refuting the argument, the learned AGA has submitted that it is not the law that related witnesses are not reliable witnesses, the only caution required that their statement may be closely scrutinized by the Court. Admittedly PW-2 is the widow of the deceased and PW-4 has admitted in cross-examination that on account village connection deceased was his uncle and his wife is aunt. Being relative of the deceased PW-4 was also related with accused Dev Muni Ram on account of his relationship with the deceased. PW-3 has stated that he was not friendly with the deceased nor inimical with accused Dev Muni Ram. Both PW-3 and PW-4 have been cross-examined by the defence counsel at length, but nothing could be shown from their testimony which may show their affinity with the family of deceased or animosity with accused Dev Muni Ram, so it would not be appropriate to label them as interested or partisan witnesses.
16. Learned counsel for the appellants has then contended that PW-3 and PW-4 both are chance witnesses, so they are not reliable witnesses. In this connection suffice to say that it is not the rule of law that chance witness cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same is otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. It has been so held in the cases of Acharaparambath Pradeepan vs. State of Kerala, 2007(57) ACC 293 (SC) and Sachchey Lal Tiwari vs. State of U.P., 2005 (51) ACC 141 (SC). In this connection it is important to note that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Thus, the prosecution story has no dent for non-examination of any other witness. In the case of Mahesh Vs. State of M.P. 2012 Cri LJ 2710. In para-17 of the report, following observations have been made:
"17. The prosecution has examined at least three eye-witnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the different and various roles played by the accused persons. Since eye-witnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."
In the instant case also the prosecution has examined three eye witnesses of the incident including the widow of the deceased, who will never screen out the real offender, who have killed her husband in broad-day light We have to examine from the evidence of eye witnesses examined in the case, whether they are reliable and trustworthy.
MANNER OF INCIDENT, PRESENCE OF EYE WITNESSES AND THEIR RELIABILITY
17.Smt. Prabha Wati PW-2 has stated in the written report as well in her deposition that at the time of incident she was going to Rampur Bazar with her husband on foot. In cross-examination she had stated that they made the programme to visit market on the day of incident and they did no tell any body about it. The reason of going to market has been given by her that it was the month of Sawan and she had to purchase Rakhis and it was Rakshabandhan 3-4 days thereafter. From the calendar for the year-2003 we find that on 12.8.2003 it was Rakshabandhan. This fact proves the purpose of visit of the deceased with his wife to the Rampur Bazar. Rakhi is such a item, which is usually purchased by the ladies of the house, unless for any reason she is unable to go to the market. Since the market was distantly situated from the village of the deceased, so it is quite natural for him to have accompanied his wife for shopping. There is nothing abnormal in it, rather the Rakshabandhan festival ahead lends credence to the testimony of PW-2 and her presence on the spot at the time of incident.
18. Before analyzing the evidence of eye-witnesses it would be pertinent to note that complainant Smt. Prabha Wati PW-2 is rustic and illiterate woman. In the cases of Dimple Gupta (minor) vs. Rahiv Gupta, AIR 2008 SC 239, State of Punjab vs. Hakam Singh, (2005) 7 SCC 408, State of H.P. vs. Shreekant Shekari, (2004) 8 SCC 153 and State of Rajasthan vs. Kheraj Ram, (2003) 8 SCC 224 the Hon'ble Supreme Court has held that it is impossible for an illiterate villager or rustic lady to state with precision the chain of events as such witnesses do not have sense of accuracy of time etc. Expecting hyper technical calculation regarding dates and time of events from illiterate/rustic/villager witnesses is an insult to justice-oriented judicial system and detached from the realities of life. She has deposed that when they reached near the field of Ashok Harijan the accused persons armed with country made pistols came out from clump of leaves from the western side and started firing on her husband and he fell down on eastern patri of the road and died. At that time she was 3-4 steps behind him. She was stunned and in fear started shivering. She could not do any thing. Ram Saran, Virendra and Ramashray and others reached at the spot and witnessed the incident. All these three witnesses have been examined by the prosecution. However, Ram Saran PW-1 has stated that he has not witnessed the incident, he reached at the spot after hearing sound of fires and when he reached at the spot several other people had come there but police did not come till then. This witness is the scribe of written report Ex. Ka-1 and has accompanied the complainant to the police station. In cross-examination P.W. 2 has stated that when she saw the accused for the first time they were 2-4 steps south to pumping set of Kanahiya Yadav and accused were 10 steps in south from them. The distance between the accused and her husband was not much. To quote her own words -
^^?kVuk okys fnu eqfYteku dks eSaus lcls igys ?kVuk Lfky tgka eqfYteku esjs ifr dks ekjs ogka ns[kkA dUgS;k lkno ds iafixa lSV ls djhc 2&4 dne nf{k.k esa igyh ckj eqfYteku dks ns[kkA eqfYteku eq>ls djhc 10 dne nf{k.k rjQ FkSA esjs ifr eq>ls djhc 4 dne vkxs FksA tc esjs ifr ds Åij xksyh pyh rks esjs ifr vkSj eqfYteku ds chp ,d&vk/k dne dh nwjh FkhA esjs ifr dks idM+dj ekjsA lHkh eqfYteku blh nk;js esa FksA lHkh eqfYteku us ,d lkFk esjs ifr dks xksyh ekjsA esjs ifr Qk;j dh pksV [kkdj fxj x;sA eSa Mj dj ogha [kM+h jg x;h] u Hkkx ik;h u cksy ik;hA rhuks eqfYteku ekj dj Hkkx x;sA if'pe rjQ Hkkx x;sA fQj nksckj ykSV dj vkdj ugha ekjsAA eSa gYyk ugha dh cfYd HkhM+ ns[k dj jksus fpYykus yxh tks vkokt xksyh dh lqudj vk;s FksA fQj dg fd eSa HkhM+ ns[kdj ugha jks;h Fkh cfYd vius ifr dh feV~Vh ¼'ko½ dks ns[kdj jksus yxhA eqfYteku ekjdj Hkkx x;s eSa vius ifr dk 'ko ns[kh rks jksus yxhA^^
19. Ramasharay PW 3 has also corroborated PW 2 with regard to murderous fire-arm assault by all the accused persons on the deceased in his statement recorded on 10.5.2004. In examination-in-chief this witness has stated, thus-
^^?kVuk gq;s vkt ls djhc 8 ekl gqvkA nl cts fnu dk le; FkkA eSa jkeiqj tk jgk Fkk eq>ls dqN nwj vkxs eSaus csgQw o mudh ifRu izHkkorh dks tkrs gq;s ns[kkA ;s yks Hkh jkeiqj dh rjQ gh tk jgs FksA tc csgQw o mudh ifRu v'kksd ds [ksr ds ikl igWqps ogha lkeuh vksj dUgbZ dk ifEiax lSV Hkh gSA rc rd eqfYteku v'kksd] eukst o nsoequh lM+d ds if'pe rjQ dh iRrh dh vkM+ ls fudy dj vk x;sA rhuks eqfYteku ds gkFk esa dV~Vk FkkA rhuksa eqfYteku feydj csgQw dks lM+d ds fdukjs jksd fy;s rFkk xksyh pykdj Qk;j fd;sA Qk;j dh pksV yxus ls csgQw fxj iM+s rFkk mudh e`R;q mlh le; gks x;hA^^ He has been cross-examined by the defence about the manner of incident and he has stated as under:
^^----ckr djrs le; eSa pkj xksyh dh vkokt lqukA ekjus okys csgQw ls djhc ,d dne] csgQw ls if'pe rjQ FksA csgQw xksyh dh pksV ls tehu ij fxj x;s FksA--------csgQw ej x;s FksA eSaus 'kksj ugha fd;kA eqfYteku Hkkx x;sA----- xksyh pyus ds 10&15 feuV ckn vkl&ikl ds yksx ?kVukLFky ij vk x;sA vius xkao lans'k nsus ds fy;s eSa fdlh dks ugha Hkstk vkSj u eSa x;k eSa ogha :d x;kA fdl eqfYte us fdruk Qk;j fd;k eSa ugha crk ldrkA D;ksafd lHkh eqfYteku ,d lkFk Qk;j fd;sA fdlh eqfYteku dks uky rksM+ dj Qk;j djrsa gq;s eSa ugha ns[kk FkkA----------- csgQw ds 'kjhj ls dkQh [kwu cg jgk FkkA csgQw dh vkSjr] csgQw ds 'kjhj ij fxj dj jksbZ ugha cfYd [kM+h jgh ,d dne dh nwjh ijA eSa ?kVukLFky ij djhc nks ?k.Vk jgkA ?kVuk LFky ij esjh ekStwnxh esa gh iqfyl vk xbZ FkhA^^
20. Virendra Ram PW-4 has given almost similar statement with regard to manner of incident in his examination-in-chief. In cross-examination he has stated, that -
^^------- rhuks eqfYteku csgQw ij rhu pkj Qk;j dqy fd;sA fdl eqfYteku us nks Qk;j fd;k eSa ugha crk ldrkA izR;sd eqfYteku us ,d&,d Qk;j fd;s ;k ugha eSa ;g eSa ugha crk ldrkA Qk;j djus ds ckn tc xokgku bdB~Bk gksus yxs rc eqfYteku Hkkx x;sA tc csgQw ij Qk;j gqvk ml le; eSa csgQw ls 15 ehVj mRrj rjQ FkkA csgQw ij lHkh Qkk;j lVk dj fd;s x;sA csgQw ij dqN Qk;j [kM+s gq;s ij fd;k x;k dqN Qk;j fxjus ij fd;k x;kA csgQw ij ,d Qk;j [kM+s gkyr esa gqvk cfd;k rhu Qk;j fxjrs gq;s gkyr esa gqvkA tc eSa csgQw ds ikl igWqpk rks eqfYteku csgQw ls 20&25 ehVj rd Hkkx x;s FksA tc eSa csgQw ds ikl igWqpk rks csgQw ej pqds FksA csgQw ds 'kjhj ls [kwu cg jgk FkkA csgQw dh vkSjr csgQw ds 'kjhj ij fxj dj ugha jks jgh FksA csgQw tgkW fxjk Fkk mlls ,d nks QhV dh nwjh ij mldh vkSjr fxj dj jks jgh Fkh^^ Thus we find that from the testimony of these witnesses the presence of each on the spot at the time of incident is proved. They have given consistent statement about the place of occurrence, place from where the accused came out on the spot, their weapons and their roles as also the injuries sustained by the deceased and his instantaneous death. The investigation officer has also recovered samples of plain and blood stained earth from earth as also recovered three empties, one each of 315, 303 and 12 bore and two blood stained bullets on each of 315 and 303 bore. Human blood was found in blood-stained earth. PW-8 has proved recovery of these articles from the spot. Recovery of these articles from the spot fixes the place of occurrence.
21. Learned counsel for the appellants has raised a question about the presence of PW-2 on the spot because she had stated that she had wept by falling on the dead body of her husband but her clothes were not stained with his blood. Normally a Hindu lady seeing the dead body of her husband would cry and weep by laying on the corpse. The other two witnesses have not stated that PW-2 was crying over the cadaver of her husband. This is a discrepancy and normally one could raise doubt about the presence of PW-2 at the spot, but as we have already observed that presence of PW-2 had been established, so this discrepancy would not belie her otherwise testimony, which is corroborated by other two witnesses about the time, place and manner of incident. However, we cannot forget the mental condition of PW-2 after the incident and her status. If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eye witness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. For this proposition cases of Ashok Kumar Chaudhary vs. State of Bihar, 2008(61) ACC 972 (SC) and Dimple Gupta (minor) vs. Rajiv Gupta, AIR 2008 SC 239 are relevant. In view of this legal position, we find that there are no material contradictions and inconsistencies in the deposition of PW-2, PW-3 and PW-4. They are consistent with each other as also the prosecution story. Their testimony is clear, cogent and reliable.
22. Dr. Sanjiv Kumar Rai, PW-7 had found as many as 9-gun shot anti-mortem injuries on the person of the deceased. Out of these injuries, five were wounds of entry and remaining were exit gun shot injuries. Grease collar and collar abrasion had been found on injuries 2, 5, 8 and 9, while blackening and tattooing had been on injury no. 3 and blackening also on injury no. 5. Injury no. 1 and 2, 4 and 8, 5 and 7, and 6 and 9 were communicating each other. The doctor has opined blackening and tattooing can be caused in injuries from fires which are made within the distance of 1-foot. Thus, we find that the medical evidence available on record fully support the eye-witness account of the incident as stated by PW-2, PW-3 and PW-4 in their deposition before the Court.
CASES U/S 307 IPC AND ARMS ACT
23. Learned counsel for the appellants has submitted that the police in order to give colour to the case has fabricated the arrest of appellants and recovery of country made pistols and live cartridges from the possession of each appellant. He would submit that accused Manoj and Ashok were arrested by the police from the workshop of Ashok Kumar where he was repairing the scooter of Manoj, while accused Dev Muni Ram was arrested from his house. His contention is that no public witness had been procured before the recovery and there is deposition of only police officials, who for obvious reasons have supported the prosecution and no reliance should be place on their statement. On the other hand learned AGA has argued that all the three accused were arrested by the police the same day of incident at about 5.00 p.m. In an encounter and illicit arm and ammunition were recovered from their possession, for which cases u/s 25 Arms Act were registered against each of them. She further submitted that the arrest of accused and the recovery of weapons have been duly by PW-8 and PW-9 and the learned trial Court has rightly convicted the appellants for the offence punishable u/s 25 Arms Act. We have examined the testimonies of PW-8 and PW-9 and find. Perusal of Ex. Ka-24 shows that while the investigating officer PW-8 along with his colleagues was busy in search of accused persons, he came to know through informer that the accused persons for boarding training to go Varanasi are proceeding towards Railway station Jakhania on foot. On this information the police party proceeded near village Sofipur and arrested the accused persons, who in order to kill the police personnel fired shots. On personal search of each accused country made pistol and live cartridges were recovered. They allegedly confessed their guilt regarding murder of Dev Muni Ram the same day. It has also been noted that during arrest and recovery several people had collected but due to fear of miscreants none was ready to witness the recovery. The copy of recovery memo was also given to accused persons and their signatures were obtained in token of its receipt. PW-8 has been cross-examined by the defence counsel regarding cases u/s 307 IPC and 25 Arms Act, but nothing adverse could be elicited, which may create doubt about the authenticity of arrest of accused persons and recovery of illicit arms and ammunition from the possession of each of them. PW-9 has corroborated the statement of PW-8 on all material particulars. He has proved the place of arrest of accused persons as also the circumstances in which the public witness refused to witness the arrest and recovery. He has stated that they had returned back at the police station along with the accused and the recovered articles at 5 p. m., but it appears to be not correct, as this is the time of arrest of accused. But this small discrepancy is not sufficient to discard the entire prosecution story in this regard.
24. Learned counsel for the appellants has vehemently argued that in order to prove the charges u/s 307/34 IPC and 25 Arms, evidence of only police personnel is available and no public witness was procured, so it creates doubt about the manner of alleged arrest of accused persons. Per contra learned AGA has submitted that the defence could not make out any case of their animosity with the local people, so there is no reason to look at their deposition with suspicion. Why the testimony of a police officer/official be taken to be suspicious? Their duty is to collect evidence during investigation to the best of their capacity and capability. Unless specific case is taken by the defence to create doubt on the statement of a police witness, the testimony of police personnel should be treated in the same manner as testimony of any other witness. There appears to be no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good and cogent reasons. If any miscreant is arrested by a police officer or a thing or weapons etc. are recovered from his possession or at his instance may be u/s. 27 Evidence Act or otherwise only in the presence of police party and there is no public witness to such recovery or recovery memo, the testimony of the police personnel proving the arrest recovery and the recovery memo cannot be disbelieved merely because there was no witness to the recovery proceedings or recovery memo from the public particularly when no witness from public could be found by the police party despite their efforts at the time of recovery or the arrest, recovery etc. had been made in odd hours or at lonely place. Seizure memo need not be attested by any independent witness and the evidence of police officer regarding recovery from the person of accused or at his should ordinarily be believed unless specifically challenged for cogent and sufficient reasons by the defence. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises.
INVESTIGATION NOT FAIR
25. Learned counsel for the appellants has lastly argued that the investigating officer has deliberately committed patent irregularities in preparing inquest report etc., which show that they were not prepared at the time given by the investigating officer in his deposition. He pointed out that in inquest report, the time of giving information to the police and start of enquiry had been noted as 7.8.2003 11 a.m., but the investigating officer has stated in his cross-examination that he reached at the spot at 12 O'clock and further in challan lash police Form no.-33, there are cutting in dates at three places. The date had been re-written as 7.8.2003 after writing 8.8.2003. He further stated that the time of receiving information at police station and time of sending the corpse of deceased to the head quarter had been left blank. In this connection, PW-8 was cross-examined by the defence counsel and the relevant portion of his statement is as under-
^^iapk;rukek izkjEHk djus dk le; 11-00 cts vafdr fd;k x;k gSA iapk;rukek esa iapk;rukek lekIr djus dk le; vafdr ugha gSA iapk;rukek ij v0 la[;k vafdr gS ysfdu jkT; cuke eqfYteku vafdr ugha gSA fQj dgk fd iapk;rukek ds varZoLrq esa cuke nsoeqfu vkfn vafdr gSA iapk;rukek esa 'ko feyus ds LFkku xzke egkj ds vkxs fy[ks 'kCn ij vksoj jkbZfVax gSA iapk;rukek esa eSaus e`R;q dk dkj.k xksyh ekjdj gR;k djuk fy[kk gS] ijUrq fjiksVZ ds Lo:i ds fo"k; esa mlds vykok vU; dksbZ vadu ugha fd;k gSA ,slk ugha gS fd HkhM+HkkM+ o vkokxej vo:) gksus ds dkj.k rRdky yk ,aM vkMZj dk;e djus dh xjt ls eSa yk'k dks rqjUr mBkdj Fkkuk ys x;k vkSj Fkkuk ij gh iapk;rukek dh dk;Zokgh fd;kA izi= ua0 33 izn'kZ d&11 esa yk'k iksLV ekVZe ds fy;s Hkstus dh frfFk] lwpuk vkfn ds dkye esa frfFk ij vksojjkbZfVax dh xbZ gS rFkk 8 dks 7 cuk;k x;k gSA bu izi=ksa ij Fkk dh eksgj yxh gqbZA Fkkuk dh eqgj o iSM ysdj rQrh'k esa x;k FkkA ;g dguk xyr gS fd iapk;ruke o mlls lEcfU/kr dkxtkr Fkkuk ij rS;kj fd;k x;k blfy;s Fkkuk dh eqgu izi=ksa ij yxkbZ xbZA iksLV ekVZe gsrq 'ko fnukad 7-8-03 dks ckn iapk;rukek lqiqnZ dj fn;k ;kn ugha gSA-----
-----------
;g dguk xyr gS fd iapk;rukek eqjrc djrs le; rd izFke lwpuk fjiksVZ vafdr u jgh gksA^^
26. The perusal of the above statement of PW-8 goes to show that he has committed mistakes, which should not have been done. However, reading the inquest report and related papers as a whole it cannot be said that by the time inquest proceedings were held, the FIR was not in existence. The crime no., sections and name of accused Dev Muni and others have been noted in the contents of the inquest report. The over-writing in date on Form no.-33 is there at three places, but only from these irregularities, the entire prosecution story cannot blown. In the list of enclosures at the end of inquest at serial nos. 2 and 3, copy of FIR and copy of GD had been mentioned, which show that these documents were sent along with the inquest report together with the cadaver of the deceased when it was dispatched for post-mortem examination. In a plethora of cases the Apex Court as also this Court has observed that if the investigation is not fair or tainted, it will not be sufficient to reject the otherwise reliable prosecution story. In the cases of Acharaparambath Pradeepan vs. State of Kerala, 2007(57) ACC 293 (SC), State of Punjab vs. Hakam Singh, (2005) 7 SCC 408, and Dhanaj Singh vs. State of Punjab, (2004) 3 SCC 654, the Hon'ble Supreme Court has held that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent. Thus, the mistakes pointed out in the inquest report and Form no.-33 are fatal.
27. In view of what has been said and done above, we find that the learned trial Court has correctly appreciated the evidence on record and has not erred at all in convicting the accused-appellant u/s 302/34, 307/34 Indian Penal Code and u/s 25 Arms Act. The prosecution has successfully proved its case against the accused-appellants beyond all reasonable doubt. Thus, the appeals have no force and are accordingly dismissed. The accused are in jail and would serve out the remaining part of the sentence.
28. Let a certified copy of the judgment be sent to the Court concerned and CJM, Ghazipur for compliance, which should be reported to the Court in a month.
...........................Rakesh Tiwari, J .................Anil Kumar Sharma, J October 19 , 2012 Ak/