Allahabad High Court
Sangram Pal vs State Of U.P. on 12 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 35 A.F.R./Reserved
1. Criminal Appeal No. 6237 of 2004
Sangram Pal s/o Dan Bahadur, r/o Belwababu Amkol, P.S. Chauri Chaura, District Gorakhpur
Vs.
State of U.P.
Counsel for the appellant: Sri Satyawan Sahi, Sri Brijesh Sahai
2. Criminal Appeal No. 5234 of 2004
Gyan Prakash @Guddu w/o Lakshmi Kant r/o Indira Nagar, P.S. Cantt, District Gorakhpur
Vs.
State of U.P.
Counsel for the Complt: Sri Dileep Kumar, Sri Dilip Kumar Keservani
and
3. Criminal Appeal No. 5979 of 2004
Bhola Singh s/o Mahipal Singh, r/o Village Khanimpur P.S. Sahjanwa, District Gorakhpur
Vs.
State of U.P.
Counsel for the appellant: Sri Radhey Shyam Dubey
(In all appeals)
Counsel for the respondent: Sri R. A.Mishra, AGA
Counsel for the Complt: Sri Dileep Kumar, Sri Dilip Kumar Keservani
Hon'ble Rakesh Tiwari,J.
Hon'ble Anil Kumar Sharma,J.
(By Justice Anil Kumar Sharma)
In all the aforesaid appeals, the appellants have challenged the judgment and order dated 06.10.2004 passed by Additional Sessions Judge, Court No.1, Gorakhpur in S.T. No. 297/2002, under sections 302/34 IPC (Crime No. 194/2002, P.S. Cantt. District Gorakhpur), whereby the appellants have been convicted for the offence punishable under section 302 read with section 34 IPC and each had been sentenced to undergo imprisonment for life and fine of Rs. 5,000/- with default stipulation.
2. Briefly stated the facts of the case are that deceased Dharmendra Singh s/o Prahlad Singh r/o Village Khanimpur P.S. Sahajanwa District Gorakhpur and all the accused-appellants were jointly working as contractors in construction and operation of Sulabh Shauchalaya in Gorakhpur. On 30.03.2002 at 2.30 P.M. accused Bhola Singh resident of village Khanimpur, P.S. Sahjanwa, District Gorakhpur along with Sangram Pal, resident of Aam Kol Belwa Babu, P.S. Chauri Chaura, District Gorakhpur came on Yamaha motorcycle of accused Guddu @ Gyam Prakash, resident of Indira Nagar, Gorakhpur at the residence of Dharmendra Singh and told him that he had been called by Gyan Prakash @ Guddu for accounting to Gorakhpur. Dharmendra Singh on his new Bullet motorcycle accompanied them to Gorakhpur but when he did not return till evening his elder brother Amar Singh (complainant) was worried and along with his relative Jitendra Singh, he left for Gorakhpur in search of his younger brother Dharmendra Singh. On reaching Sulabh Shauchalaya of Sadar Hospital they came to know that all of them have left short while ago for the house of Guddu @ Gyan Prakash. The complainant while going to the house of Guddu @ Gyan Prakash in Mohalla Indira Nagar at about 7.30 P.M. saw his brother Dharmendra Singh near Goplapur village coming on Bullet motorcycle from Indira Nagar side and Guddu @ Gyan Prakash, Bhola Singh and Sangram Pal riding on Yamaha motorcycle. Bhola Singh fired shot by his country made pistol on Dharmendra Singh from behind after stopping his Bullet motorcycle. Leaving the Bullet motorcycle Dharmendra Singh ran but fell down at some distance. Thereafter Sangram Pal fired shot from his country made pistol on his neck from close range. The complainant and his relative Jitendra Singh challenged them and on commotion all the three accused waving country made pistol in the air made their escape good on Yamaha motorcycle. The complainant chased them for some distance but returned back at the spot and found his brother Dhnarmendra Singh dead. Leaving the dead body and Bullet motorcycle at the spot complainant Amar Singh penned down the written report and submitted the same in P.S. Cantt. at 8.40 P.M. on 30.03.2002. On the basis of this report case crime no. 194/2002 was registered, investigation whereof was entrusted to S.I. Pawan Kumar Chaubey. After interrogating the complainant he reached at the spot at about 9.20 P.M. but on account of night the inquest proceedings were postponed. In the morning of 31.03.2002 the investigating officer reached at the spot, took samples of plain and blood stained earth and also the leather Chappal of the deceased and new Bullet motorcycle bearing chassis no. 2B-601883B and engine no. 2B-601883B through recovery memo. Blood stains were found on the seat and silencer of the motorcycle. The inquest on the cadaver of the deceased was performed and along with usual papers it was sent for post mortem examination in sealed cover. Dr. R. N. Shahi conducted autopsy on 31.03.2002 at 3.00 P.M. and he found that 25-years old deceased was having average built body, his eyes and mouth were closed, rigor mortis was present on all limbs. He found the following ante mortem injuries on his person:
1. Fire arm wound of entry 3.0 cm x 3.0 cm x bone deep on the upper part right side neck. 3.0 cm below the right mandible. Margin black and inverted on cervical vertebra C-3 (3rd), one long metallic bullet is recovered from vertebra.
2. Fire arm wound of entry 3.0 cm x 3.0 cm x through x through on left side chest. 5 cm above the left nipple at 3 O' clock position. Margins inverted and black.
3. Fire arm wound of exit size 3.5 cm x 3.5 cm x through x through related to injury no.2 on the left side back of the chest 6 cm below inferior angle of scapula margins averted. On opening the wound, left lung and heart are punctured through x through about 1.5 litre blood present in chest cavity. The third rib on left side fractured.
4. Abrasion 3 cm x 3 cm x 1 cm on the left leg of lower part 8 cm below the knee joint.
5. Abrasion 2 cm x 1 cm on front of right patella.
3. On internal examination the doctor found pleura, left lung, pericardium and heart punctured while buccal cavity was lacerated. In the opinion of the doctor the deceased suffered death about a day before due to hemorrhage and shock as a result of ante mortem injuries.
4. Ere that the Investigating Officer prepared site-plan and had taken out golden chain, spectacles, chain of Rudhraksh and Sphetic and four golden rings from the corpse of the deceased and were given in the supurdagi of his brother Amar Singh through memo Ex. Ka-4. Thereafter he interrogated the witnesses. On 31.3.2002 accused Gyan Prakash @ Guddu was arrested. On 5.4.2002 with the permission of the Court the investigating officer interrogated accused Bhola Singh and Sangram Pal inside the jail. He also took out the piece of blood stained rexine seat of the Bullet motorcycle through memo Ex. Ka-13. The Bajaj Super scooter of the complaint bearing registration no. UP-53C 4515 was taken in to possession by the investigating officer and given in supurdagi of the complainant. On 17.04.2002 he obtained police custody remand of accused Bhola Singh and Sangram Pal. On interrogation Bhola Singh assured to get the motorcycle UP 53D-5855 used in the crime recovered. It was recovered at the instance of accused Bhola Singh at 11.15 p. m. on 17.4.2002 which was hidden under the Pual. The recovery memo was prepared and its copy was furnished to the accused. On 18.4.2002 accused Sangram Pal after interrogation took the police on bye-pass road and by the side of new overhead water tank he took out the country made pistol 315 bore wrapped in a plastic and handed over to the police at 6.20 P.M. The recovery memo was prepared at the spot and its copy was furnished to the accused. The case property was sent to Forensic Science Laboratory and report of the Laboratory was obtained. The investigation of the case culminated in charge sheet against the accused.
5. After committal of the case to the Court of Session, charge for the offence punishable under section 302/34 IPC was framed against all the accused by the Additional Sessions Judge who pleaded not guilty and claimed trial.
6. In support of its case the prosecution has examined the complainant Amar Singh as PW-1, eye witness Jitendra Singh PW-2, S.I. Pawan Kumar Chaubey PW-3, Head Constable Keshari Nandan Sahai PW-4, Dr. R. N. Rai PW-5 and Prem Narayan PW-6.
7. In their separate statements under section 313 Cr.P.C. the accused persons have again denied the entire prosecution story and claimed false implication. Accused Gyan Prakash @ Guddu has stated that the complainant wanted to recover money from his Sulabh Shauchalaya and on his denial he has been falsely implicated in this case. Accused Sangram Pal has stated that prior to the incident the marriage of his sister-in-law was settled with the deceased and Rs. 80-90 thousands were given to the family of the deceased in advance. Thereafter his in-laws came to know that father of the deceased is suffering from leprosy, so they declined for marriage, however, the family of the deceased did not return the advance money. They have thought that he had been instrumental in break up of the marriage, so he has been falsely implicated. According to accused Bhola Singh, in the year-2000 the deceased had contested the Pradhan election against Indrasen Singh and he was the supporter of Indrasen Singh, who won the election and due to election rivalry he has been implicated in the case.
8. In defence the accused persons have examined Ramyagya, Junior Engineer, Urban Electricity Distribution Division-1, Gorakhpur as DW-1, Hari Shanker Dubey, Lineman of Nagar Nigam, Gorakhpur as DW-2 and Moti Lal Srivastava, Switch Man of Nagar Nigam Gorakhpur as DW-3 to show that there was no street light on electric pole near the place of occurrence at the time of incident.
9. The trial court after hearing the parties counsel has convicted and sentenced the accused-appellant as stated in paragraph 1 of the judgment.
10. We have heard learned counsel for the parties at length and perused the original record of the case carefully.
11. Learned counsel for the appellants assailing the judgment and order of the learned trial Court have argued:
I. that the FIR is ante-timed and presence of PW-1 and PW-2 at the alleged time of incident on the spot is highly doubtful;
II. that genesis of prosecution case is highly doubtful and there was no motive for the accused to eliminate the deceased who was of rowdy character;
III. that place of occurrence is not proved;
IV. that the prosecution could not prove the source of light on the spot at the time of alleged incident;
V. that PW-1 and PW-2 are interested and partisan witnesses and no independent witness had been examined by the prosecution;
VI. that the alleged ocular account of the incident does not corroborate the medical evidence;
VII. that the investigation is not wholly unfair but also ranked dishonest.
Learned counsel for the appellants have concluded that on account of the aforesaid reasons the prosecution could not make out any case against the appellants, so the learned trial Court has grossly erred in convicting and sentencing the appellants.
12. In oppugnation learned AGA and the learned counsel for the complainant have argued that the FIR of the incident was promptly lodged with the police and motive finds place therein; that FIR is not the encyclopedia of prosecution story and if source of light could not mentioned by the complainant in his written report it would not make any difference because the investigating officer has found electric light on pole when he reached at the spot soon after the registration of the case; that no doubt PW-1 and PW-2 are related with the deceased but this is no ground to reject their testimony as they would be the last person to leave the real culprit; and there is no variance in eye witness account of the incident with the medical evidence. It has been lastly contended that the prosecution has successfully proved its case against each appellant beyond all reasonable doubt and the learned trial Court has not at all erred in returning guilty verdict against the appellants and they have been appropriately sentenced through impugned judgment, which does not suffer from any factual or legal illegality.
13. The alleged incident took place at 7.30 P.M. on 30.3.2002 and its report was made to the police by complainant PW-1 the same evening at 8.40 P.M. in P.S. Cantt. The distance between the place of incident and the police station, as per check report Ex.Ka-25 is 2 Kilometers. The complainant and PW-2 are the alleged eye witness of the incident. Question has been raised about their claim of having seen the incident on the ground that PW-1 is resident of village Khanipur P.S. Sahajanwa and PW-2 resides in village and P.S. Bansgaon while the incident took place in the city of Groakhpur. It has come in evidence that the incident took place a day after Holi. The complainant is employed as Clerk in Avadh University, Faizabad and on the eve of Holi he had visited his native place. PW-2 is brother-in-law of complainant and according to him, he had come to meet his in-laws on the eve of Holi. His visit to the house of complainant cannot be termed as unusual. It is quite common in this part of the country that people used to visit their relatives on Holi festival. The case of the prosecution is that all the accused-appellants and the deceased being contractors were working together in construction and running Sulabh Shauchalaya in Gorakhpur. According to FIR on 30.3.2002 at about 2.30 P.M. accused Bhola Singh and Sangram Singh had come to the house of complainant and told Dharmendra Singh that he had been called by accused Gyan Prakash @ Guudu at Gorakhpur for accounting. It was the end of financial year, so the call of accused Gyan Prakash @ Guddu seems to be genuine as by 31st March the Contractors had to settle their bills and payments with the concerned Government agency. Deceased Dharmendra Singh accompanied them on his new Bullet motor cycle. PW-2 was to go with deceased for some work in the evening and when the deceased did not come PW-1 and PW-2 on scooter of PW-1 left the village in search of Dharmendra Singh and when they reached near the place of occurrence, they witnessed the incident. The authenticity of this story of the prosecution had been challenged by the defence on the ground that deceased was engaged in contractor business; PW-1 was not ordinarily residing in the village; that there was no fixed time of return of deceased to his house as he was bachelor; PW-1 was not knowing the places of visit of the deceased. However, it has come in evidence of both the material witnesses of the prosecution, that since deceased was to go with PW-2 some where, so he was expected to return soon and when he did not come back till evening PW-1 and PW-2 left the village in search of the deceased. They first reached the Sulabh Shauchalya of Sadar Hospital, from where they came to know that a short while ago the deceased and his companions (accused Bhola Singh and Sangram Pal) had gone to the house of Gyan Prakash in Indira Nagar and when the witnesses were proceeding to Indira Nagar, they had seen the incident. PW-2 has also corroborated this fact that he had to go with the deceased for some personal work and he had asked PW-1 to go in search of the deceased. At the time of incident PW-2 was residing in Bansgaon, which according to him is about 22-24 Kilometers from village Khanimpur, and he had to return back, therefore, it was not unnatural that he along with his brother-in-law PW-1 had left the village in search of the deceased. PW-1 has stated that after the incident he went to Paidley Ganj and from a stationery shop took pen and paper, prepared written report in his own hand writing and then submitted the same at P.S. Cantt. Thus, we find that there is no delay in reporting the crime to the police. The investigating officer had reached the spot at about 9.20 P.M., but on account of night he did not perform inquest upon the cadaver of the deceased, which was conducted in the morning of the following day. Dr. R. N. Sahi PW-5 had examined the corpse of the deceased on 31.3.2002 at about 3.00 p.m. and had opined that the deceased could have suffered death at about 7.30 P.M. on 30.3.2002 on account of fire-arm injuries. HC Kesari Nandan Shahi PW-4 has also testified about registration of the case in his deposition. He has proved the check report as Ex. Ka-25 on the basis of written report of the complainant and copy of GD report no. 37, time 20:40 hrs dated 30.3.2002 as Ex. Ka-24. He has admitted in cross-examination that on 30.3.2002 prior to this case a case u/s 457/380 IPC crime no. 193/02 was registered at 10 A.M. and after the instant case no other case whether cognizance or non-cognizable was registered at the police station. He has denied the suggestion that the report had been ante-timed. It is also important to note here that PW-1 has stated in his examination-in-chief itself that after registration of the case, the copy of FIR was given to him by the Diwanji. In cross-examination also he has reiterated this fact by saying that after getting copy of FIR he came back at the spot. The external checks available on record do not in any way give an impression that the report had been ante-timed by the police. The prompt reporting of the crime to the police assumes importance in criminal trial, as such report rules out possibility of any concoction, exaggeration or embellishment for any reason what so ever.
14. Learned counsel for the appellants have contended that there was no motive for the accused-appellants to eliminate the deceased. On behalf of Sangram Pal it has been argued that the marriage of the deceased was settled with his sister-in-law, but the family members of the bride broke the marriage settlement as the father of the deceased was suffering from leprosy. The complainant thought that Sangram Pal was instrumental in the break up, so he has been falsely implicated in the case. The consistent case of the prosecution is that all the three accused-appellants and the deceased were working together as contractor and there was some money dispute between them, which the deceased had spoken to his brother PW-1 prior to the incident. In his statement u/s 313 Cr.P.C. accused Gyan Prakash @ Guddu has stated that the complainant wanted to recover money from his Sulabh Shauchalaya and on his refusal he has been falsely implicated in the case. The complainant has no concern with Sulabh Shauachalya as he was employed in Awadh University, Faizabad and it was the deceased who was engaged in this business along with the accused-appellants. He was bachelor, so it may also be possible that the complainant may not be aware about real dispute of the deceased with the accused persons. One such dispute can be deciphered from the evidence on record, although it has come in statement of complainant recorded by the investigating officer that the deceased was having bad eye on the wife of Guddu, but it has not been elicited by the State counsel from the witness during his examination in the Court. PW-1 has stated that his deceased brother had purchased a new bullet motor cycle few days before the incident, which was with him and he has financially helped him in the purchase. However, after the incident it transpired that the said bullet motor cycle was in the name of wife of accused Gyan Prakash @ Guddu and it was released by the Court in her favour. Now two inferences can be drawn. Firstly, the bike was purchased by the deceased, but he obtained the receipt in the name of accused Guddu's wife, or the bike was purchased by Gyan Prakash @ Guddu in the name of his wife, but the later had given it to the deceased, which may not be liked by accused Guddu. However, accused Gyan Prakash @ Guddu has not stated a single word about it. The articles taken out from the dead body of the deceased further show his grand living standard. He was wearing branded chappals, golden chain, Rudraksh chain having golden guria, pistol licence and four golden rings. It has also come in evidence of PW-1 that the deceased some times used to stay at the house of accused Gyan Prakash @ Guddu. In cross-examination suggestion was given on behalf of defence to PW-1 that the pistol licence was obtained by the deceased at the address of accused Guddu. If the relations of the deceased were so close with accused Guddu, so it might be possible that he developed some intimacy with his wife, which may be not liked by him. However, it is only an inference from the evidence available on record and no direct evidence had been adduced by the prosecution.
15. It is noteworthy that 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."
In the instant case, the prosecution has adduced direct evidence of PW-1 and PW-2 for the commission of the crime, so motive has no such importance. However, whatever motive has been alleged by the prosecution that is quite probable. Ultimately the result of the case would depend upon the reliability of ocular evidence coupled with medical evidence and other surrounding circumstances appearing in the case.
16. Learned counsel for the appellants have vehemently argued that the prosecution has not been able to prove the place of occurrence, so the entire prosecution story is liable to be rejected. Elaborating their arguments, they have contended that in inquest report, the place of incident is written as 'Indira Nagar high-way', in the site plan it is 'Daoodpur' while in written report the complainant describes it as 'Goplapur'. Perusal of site plan Ex. Ka-10 shows that the place of incident is on national high way. In the heading of site-plan, the I.O. has described the place of incident as 'Daoodpur National Way'. On western side of this highway is Daoodpur, while in north-east it is Indira Nagar and in south-west is Goplapur. In the written report PW-1 has stated that the incident took place in front of village Gopalpur. In the inquest report the place where the dead body was found has been noted as 'Indira Nagar Rashtriya Marg'. Investigating officer PW-3 has testified about the site-plan Ex.Ka-10. In cross-examination he has stated that from the junction of main road with road leading to Indira Nagar, Goplapur and Daoodpur are situated at a distance of about 100-meters. The investigating officer had seized plain and blood stained earth as also the Liberty chappal, and new bullet motor cycle of the deceased from the spot. He found blood on the seat and silencer of the motor-cycle. This seizure had been proved by PW-3. Recovery of these articles fixes the place of occurrence. Thus, we find that there is no discrepancy about the place of occurrence.
17. It has also been contended by the learned counsel for the appellants that there was no source of light on the spot at the alleged time of incident, so there was no occasion for identification of assailants by the alleged eye witnesses. They have further submitted that the prosecution has introduced the source of light during investigation, which is an improvement and so no reliance should be placed on the prosecution story. It is true that in his written report, the complainant has not noted the source of light, in which they had witnessed the incident. Although he has stated that he told the investigating officer about the light at the spot, but the I.O. has stated that the witness had told him about light of scooter. However, non-mention of source of light in the FIR or naming different source of light by the complainant in his police statement is not significant in the case, because the I.O. has found street light and electric pole just five steps away from the place where the dead body of the deceased was found. The statement of the I.O. (PW-3) on this point is as under:
^^tc eSa ?kVukLFky ij igWqpk rks ?kVukLFky ij izdk'k Fkk jksM ykbV ty jgh FkhA eSa uD'kk utjh esa fctyh dk [kEHkk fn[kk;k gwW ;|fi ;g ugha fn[kk;k gwW fd ml [kEHks esa jksM ykbV ty jgh gSA ,slk ugha gS fd tks fctyh dk [kEHkk uD'kk utjh esa fn[kk;k gWw mlls dksbZ fctyh ykbu cjoDr ?kVuk ml iksy ls fctyh dh ykbu u rks f[kph x;h Fkh] u rks vkt Hkh gSA ,slk Hkh ugha gS fd cjoDr ?kVuk ml le; dksbZ fctyh dk cYc ugha tyrk FkkA
;g dguk xyr gksxk fd uD'kk utjh esa fn[kk;s x;s iksy ls fctyh dk rkj u tkus ds dkj.k ml ij fctyh dk cYc ugha fn[kk;kA^^
The incident had taken place at about 7.30 p.m. on 30.3.2002 on highway. PW-2 has stated that by that time it was not much dark. All the accused were known to both the witnesses of fact from before. Valiant effort was made by the defence to prove that on the date of incident, there was no street light on the electric poles at the spot. In this process Ramagaya DW-1, a Junior Engineer of Urban Electricity Distribution Division I, Gorakhpur had been examined. He has stated mohalla Indira Nagar and Goplapur are situated on east of national highway. Electric poles for 33000 KVA line had been affixed, but the electric line had not been drawn and below it is 11000 KVA electric line which is electrified. There was no electric supply on electric poles fixed on eastern side of the road. However, he has stated in his examination-in-chief itself that Nagar Nigam is responsible for street light. In cross-examination he has admitted that there is 440 Volt electric supply for mohalla Indira Nagar and Goplapur through PVC wire. Hari Shanker Dubey DW-2 is Line Man of Gorakhpur Nagar Nigam. He had made the things quite clear about street light on the spot. According to this witness there were electric poles on eastern patri of national hig-way and there is provision of street light on these poles and it was there on 30.3.2002. The case of the defence has been demolished by this witness. The statement of DW-2 was recorded before the trial Court on 14.5.2004 and more than four months thereafter Moti Lal Srivastava, Switch Man of Nagar Nigam, Gorakhpur was examined as DW-3 to say that neither today nor on 30.3.2002 there was street light on the eastern patri of national high-way situated on western side of Indira Nagar. However, he has stated in cross-examination that nowadays he is posted in Shahpur, but he could not tell since when he is posted in Shahpur. He could not state even his period of posting as Switch Man in Indira Nagar area. He has further admitted that he has not brought any official record and he is deposing on the basis of his memory. An official who cannot tell the period of his present posting or at the relevant time, how he can state the minute details of his work area and that too of more than two years before. It appears that he is a tutored witness and has been examined to dilute the statement of DW-2. On the basis of defence witnesses DW-1 and DW-3 the testimony of PW-1 to PW-3 and DW-2 cannot be ignored. Thus, from the defence evidence it cannot be held that at the time of incident, there was no street light at the spot.
18. The prosecution story has been criticized on the ground that only related witnesses have been examined by the prosecution and no independent witness had been produced in the Court. The incident had taken place on the highway outside the main city of Gorakhpur. Except PW-1 and PW-2, there was no one who knew any of the parties from before. Experience show that urban people are least concerned or interested with the incident which takes place on road or highways, unless they are some how affected with it. In this connection The Apex Court in the case of State of U. P. Vs. Anil Singh, AIR 1988 SC 1998, made weighty observations with regard to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. it observed as under :
"In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
It has come in evidence of PW-1 and PW-2 that the other people had collected at the spot after the accused made their escape good. The manner of incident shows that it did not take much time to cause fire arm injuries on the deceased. Only two shots were fired and on commotion of PW-1 and PW-2 the accused fled away waving country made pistols in the air. In these circumstances, it is not possible or probable that any other person except PW-1 and PW-2 could have witnessed the incident. Further, it is not the law that the testimony of related witnesses should be thrown on board only on this score. The related witness would be last to screen the real offender and falsely implicate other persons. In the instant case, the accused persons could not show any effective and valid reason as to why the complainant would falsely nominate the accused-appellants in his prompt report to the police, who were friends of his deceased brother and were engaged in business with him. However, it is quite true that testimony of related witness would be subjected to close scrutiny with care and caution.
19. As regards the alleged doubtful presence of PW-1 and PW-2 at the alleged time of incident on the spot, it has already been held by us in the discussion of 'ante-timed FIR' that the PW-1 and PW-2 are eye witnesses of the incident and their presence on the spot at the time of incident was probable, so this question stands answered in the negative.
20. Learned counsel for the appellants have next argued that the prosecution has improved its story to make it compatible with the medical evidence. The argument is that in his police statement PW-1 has stated that Bhola Singh fired shot on the back of the deceased, while entry gun shot wound had been found on the chest and in Court he has narrated that Bhola Singh getting down from behind fired shot from his country made pistol on the chest of the deceased. Similar is the statement of PW-2. Before we proceed to appreciate the testimony of eye witnesses, it would be useful to note the observations of the Apex Court in the case of Munshi Prasad And Ors. vs State Of Bihar AIR 2001 SC 3031, wherein the Court regarding appreciation of evidence of eye witnesses by appellate Court has observed:
"Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the Appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record."
In the written report, the complainant has stated that Bhola Singh had fired shot from behind on the deceased, who after leaving the bullet motor cycle ran for some distance and then fallen on the ground and thereafter accused Sangram Pal fired from his country made pistol on his neck from close range. In order to substantiate this argument, learned counsel for the appellants have drawn our attention to the post mortem report of the deceased, wherein the doctor has noted through n through fire arm entry wound (ante-mortem injury no. 2) on left side chest 5.0 cm above the left nipple at 3 O'clock position. Margins inverted and black. Exit injury of this entry wound has been found on left side back of chest 8.0 cm below the inferior angle of scapula. It is true that I.O. PW-3 has stated in his cross-examination that PW-1 on his interrogation had told him that Bhola Singh had fired shot on the back of the deceased. This statement of the IO does not inspire confidence, because in the written report the complainant has not stated so and he has denied his alleged statement recorded by PW-3. It has come in cross-examination of PW-1 that he had witnessed the incident from distance of about 35-40 steps. The incident had taken all of a sudden and the PW-1 and PW-2 were not anticipating it. PW-1 has stated in cross-examination that on first fire on the deceased he was astonished. The prosecution witnesses of fact have elaborated their statement with regard to manner of firing. The consistent case of the prosecution is that the motor cycle was being driven by accused Gyan Prakash @ Guddu, Sanagram Pal was sitting on pillion seat and behind him was Bhola Singh. After the accused overtook the deceased, Bhola Singh got down first from behind and fired shot on the deceased. He ran for a while and fell down and thereafter Sangram Pal fired shot on his neck from close range. Entry wound no. 2 had also blackening, so this distance of this fire was within 3 feet. In these circumstances, it cannot be held that there is any infirmity in the testimony of eye witnesses and it is inconsistent with medical evidence.
21. Learned counsel for the appellants has further argued that neither in the FIR nor in police statement PW-1 has stated that after sustaining fire arm injury at the hands of accused Bhola Singh, the deceased ran but he was caught by accused Gyan Prakash @ Guddu and he threw him on the ground. Similar is the statement of PW-2. This fact was not disclosed to the investigating officer by these witnesses. If for the sake of argument, it is accepted that it is an improvement in the prosecution story, even then the entire prosecution story cannot be rejected. It is trite law that in criminal trial 'Falsus in uno falsus in omnibus' principle is not applicable in our country. Further, accused Gyan Prakash @ Guddu cannot escape his liability because all the accused persons have come together on Yamha motor cycle, which was being driven by accused Gyan Prakash @ Guddu and after the incident they made their escape good on the same motorcycle waving country made pistols in the air. The common intention of all the accused was to kill the deceased by causing fire arm injuries and their mission was completed as the deceased suffered instantaneous death. The deceased has suffered two abrasions, one each on his legs, which according to Dr. Shahi PW-5 can be caused to the deceased, if he is thrown on the ground. It appears that in a zeal to explain this injury, the alleged improvement had been made. The Apex Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra (2010) 13 SCC 657, has summarized the law on material contradictions in evidence thus:
"Material contradictions
30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be jusitified in reviewing the same again without justificable reasons. (Vide State Vs. Saravanan AIR 2009 SC 152)
31. Whether the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also makes material improvements before the court in order to make th evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan Vs. Rajendra Singh AIR 1998 SC 2554).
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh Vs. State of U.P.)
33. In case, the complainant in the FIR or the witness in his statement u/s 161 CrPC has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State Vs. Sait AIR 2009 SC (Supp) 284).
34. In State of Rajasthan V. Kalki, (AIR 1981 SC 1390) while dealing with this issue, this Court observed as under : (Para 6 of AIR)
"8....In the depositions of witnesses there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See Syed Ibrahim Vs. State of A. P. AIR 2006 SC 2908) and Arumugam Vs. State (AIR 2009 SC 331).
36. In Bihari Nath Goswami V. Shiv Kumar Singh this Court examined the issue and held (SCC p. 192, para 9)
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited."
Applying the above proposition of law on the facts of the instant case we find that if this part of statement of PW-1 and PW-2 is excluded that accused Gyan Prakash @ Guddu had grappled with the deceased after he sustained 1st fire-arm injury at the hands of accused Bhola Singh, even then the testimony of the witnesses of fact with regard to actual shoot out at the deceased sharing common intention with accused Gyan Prakash @ Guddu by co-accused Bhola Singh and Sangram Pal remains intact, clear, cogent and reliable.
22. Learned counsel for the appellants have lastly argued that the investigation is not wholly unfair but also ranked dishonest. They have listed the following points in support of their contention:
i) that in the inquest report it has not been mentioned as to when the inquest was completed;
ii) that instead of place of recovery of dead body and its distance from police station, the names of accused persons have been noted in the inquest report;
iii) that in the inquest report place of enquiry had been mentioned to be Indira Nagar National Highway, while in site plan, it is mentioned as Daood Pur;
iv) that in the recovery memo place of recovery has not been mentioned;
v) that source of light on the spot at the time of incident had been introduced by the investigating officer;
vi) that the investigating officer has noted the reasons as to how the PW-1 and PW-2 were in village Khanipur;
vii) that PW-2 was not interrogated with promptitude;
viii) that in the site plan it has not been mentioned as to from which point firing was made by accused persons and its distance.
Refuting the above arguments, learned counsel for the complainant has submitted that in the inquest report the investigating officer has mentioned the names of all the accused, he has noted the time of reaching at the spot after registration of the case, but inquest could not be held on account of night and it was conducted following morning; and that if the investigating officer may be inadvertently or deliberately has committed mistake or lapses in investigation, the prosecution should not suffer, as its story is otherwise proved through testimony of eye witnesses, which finds full corroboration from medical evidence.
23. SI Pawan Kumar Chaubey PW-3 (the I.O.) has stated in his cross-examination that he reached at the spot at 9.30 p.m. and did not return that night to police station. He stayed at the spot for about an hour and performed inquest upon the cadaver of the deceased at about 7-7.30 a.m. the following day. Although not all, but some irregularities have been committed by the investigating officer in the investigation of the case, but they do not affect the core of the case against each accused-appellants. The object of the proceedings under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i. e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. In this connection reference may also be made to Full Bench case of this Court in Gopal and others vs. State of U.P. 1999 (39) ACC 92 (FB), wherein it has been held that weakness of investigation is no ground to reject the direct testimony of the prosecution witnesses. It was observed:
"At the very outset, we want to say that it is very easy to find fault with anything. Even accurate computers are prone to commit faults and mistakes. Not only this, human mind cannot be read. Sometimes it works in the direction that it becomes adamant to help one party and tries its level best to spoil the case. It is well known, at least by the police officers, who investigate the case, also know that they should take prompt action and should immediately record the statement of the witnesses. They should not make cuttings and over-writings etc. in the police papers so as to create suspicion about the sanctity of the papers. They should fairly prepare the inquest report and police papers and should write the case diary with accuracy and correctly. These propositions of law and facts cannot be doubted. But if the police officers deliberately sleep over the matter, try to spoil the case and do not record the evidence of the witnesses immediately, the poor dead persons who have been killed cannot come out to say why you are spoiling the case. The bereaved family and the witnesses have only to remain silent spectators to what the police officers do. If they intervene, a judicial notice of the fact can be taken that they are humiliated, even beaten and implicated in false cases. Fear of police atrocities keeps them mum. They are also ignorant of the fact that what shall be the effect of delay and discrepancy. Therefore, also, they have nothing to intervene with the investigation. In our view, investigation of the case, if faulty, even mischievous or collusive should not be a ground to reject the ocular testimony of the informant who lodged the F.I.R. promptly. If the FIR is recorded soon or is recorded after four or five hours, why should the prosecution or the persons who have died 'suffer'. Each and every case has to be decided on its intrinsic evidence. If the eye-witnesses are believable the mere weakness of the investigation should not be a ground to reject their testimonies."
In the case of Ambika Prasad and another vs. State (Delhi Administration) 2000 (40) ACC 462 (SC), Hon'ble Apex Court has held that negligence of investigating officer should not result in acquittal of the accused, when prosecution case is otherwise established. Thus, we are of the view that the alleged discrepancies pointed out by the learned counsel for the appellants falls short to reject the otherwise reliable prosecution story which is fully corroborated by the medical evidence.
24. In view of the above discussion, we find that the learned trial Court has rightly placed reliance on the testimony of eye witnesses and that the prosecution story stood fully proved beyond all reasonable doubt against each accused appellant. They have been rightly found guilty for the offence punishable u/s 302/34 IPC. Adequate sentence has also been passed against each of them. Thus, all the appeals lack merit and are accordingly dismissed. The conviction and sentence recorded by the learned Addl. Sessions Judge against all accused-appellants are hereby upheld. They are on bail. Their bail bonds are cancelled and sureties are discharged. Steps should be taken forthwith to take them into custody and sent to prison to serve out the sentence imposed against each of them.
25. Let copy of the judgment be sent to the Court concerned and the Chief Judicial Magistrate, Gorakhpur for ensuring compliance, which should be reported to this Court within 6-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
December 12, 2012
Imroz/-
