Dilshad vs State Of U.P.
2016 Latest Caselaw 6602 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40 
 

 
Case :- CRIMINAL APPEAL No. - 6364 of 2009 
 

 
Appellant:- Dilshad 
 
Respondent :- State Of U.P. 
 
Appellant Counsel :- Brijesh Sahai 
 
Respondent Counsel :- Govt. Advocate,J.S.Sengar  
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 6389 of 2009 
 

 
Appellant:- Farukh 
 
Respondent :- State Of U.P. 
 
Appellant Counsel :- Syed Farman Ahmad Naqvi 
 
Respondent Counsel :- Govt. Advocate,J.S.Sengar 
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 6500 of 2009 
 

 
Appellant :- Tassawar 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Shri Prakash Dwivedi,E.A.Khan,J.S. Sengar,Noor Mohd.,P.K. Mishra,Rajiv Kumar Misra,S.A. Gilani 
 
Counsel for Respondent :- Govt. Advocate,J.S.Sengar,Manish Tiwary 
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 6681 of 2009 
 

 
Appellant:- Yameen 
 
Respondent :- State Of U.P. 
 
Appellant Counsel :- Anay Kumar Srivastava,V.P.Srivastava 
 
Respondent Counsel :- Govt. Advocate,J.S.Sengar 
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Bala Krishna Narayana,J.)

1. Heard Sri Ram Babu Sharma assisted by Sri R.P. Dubey, learned counsel for the appellants and Sri Saghir Ahmad, Mrs. Manju Thakur, Kumari Meena and Sri J.K. Upadhyay, learned AGA in opposition.

2. These four criminal appeals have been preferred by the appellants Dilshad, Farukh, Tasawwar and Yameen against the judgment dated 14.10.2009 and order dated 15.10.2009 passed by Additional Session Judge Court No. 4, Ghaziabad in Session Trial No. 1098 of 2007 (State Vs. Yameen and others), under Sections 307, 302 read with Section 34 and 120B IPC arising out of Case Crime No. 270 of 2007 Police Station Masuri, District Ghazaibad, Session Trial No. 1099 of 2007 (State Vs. Farukh), under Section 25 of the Arms Act, arising out of Case Crime No. 271 of 2007 Police Station Masuri, District Ghazabad, Session Trial No. 1100 of 2007 (State Vs. Tasawwar), under Section 25 of the Arms Act, arising out of Case Crime No. 272 of 2007 Police Station Masuri, District Ghazabad, Session Trial No. 1102 of 2007 (State Vs. Yameen), under Section 25 of the Arms Act, arising out of Case Crime No. 280 of 2007 Police Station Masuri, District Ghazabad and Session Trial No. 1103 of 2007 (State Vs. Dilshad), under Section 25 of the Arms Act, arising out of Case Crime No. 281 of 2007 Police Station Masuri, District Ghazabad respectively by which all the four appellants have been convicted and sentenced to imprisonment for life and fine of Rs. 30,000/- each under Section 302 IPC, 10 years rigorous imprisonment and fine of Rs. 15,000/- each under Section 307 IPC and 2 years imprisonment and fine of Rs. 5000/- each under Section 25 of the Arms Act together with default clause. Learned Session Judge had directed that all the sentences shall run concurrently.

3. Briefly stated the facts of the case are that one Idrish PW1 (complainant) gave a written report at Police Station Masuri, District Ghaziabad on 28.6.2007 at about 10 AM, alleging therein that while he along with his brother Ilyas and Mehboob son of Sabir was going to the Panchayat Ghar on 28.6.2007 at about 9AM when they reached in front of the house of Islam son of Bundu he found that Yameen son of Mahmood, Farukh son of Mohammad Hasan, Tasawwar son of Munawwar all the residents of Village Nahal Police Station Masuri and Dilshad son of Ayyub resident of Village Dasna Police Station Masuri, District Ghaziabad were already waiting for them there and on seeing them they pulled out their country made pistols and on the exhortation of Yameen to finish of both the brothers as Idrish had escaped alive in the attempt made by them on his life earlier, all the accused started firing at them from their fire arms. Although the complainant was lucky to escape unhurt but his brother Ilyas received bullet injuries. On the hue and cry raised by the complainant and his brother Ilyas, large number of villagers reached the place of incident on which the four accused escaped from the place of incident firing with their fire arms and threatening to eliminate the complainant also. Considering the serious condition of injured Ilyas he was immediately taken to the Yashoda Hospital by his family members. Munawwar father of accused Yameen and Tasawwar in collusion with his accomplices had made an attempt on the life of the complainant earlier also but he had escaped and on account of commission of the aforesaid offence by them Munawwar and his friends were sent to jail and since the complainant was doing pairvi in the aforesaid case, Munawwar and his family members had become inimical towards him and his family members and wanted to murder them. On the basis of the written report of PW1 Idrish, Case Crime No. 270 of 2007, under Section 307 IPC was registered against the accused on 28.6.2007 at 10:15 AM, Chek FIR Ex. Ka8 was prepared by PW6 Balram Singh who also made the relevant GD entry. After the registration of the the FIR the investigation of the case was entrusted to PW8 Tirmal Singh who reached the place of incident and after inspecting the same prepared the site plan of the incident Ex. Ka24 and collected blood stained and plain earth and a slipper from the crime scene and prepared the recovery memo Ex. Ka25. After the death of injured Ilyas in Yashoda Hospital on 28.6.2007 at about 4 PM as a result of injuries received by him in the incident, the inquest of the dead body of the deceased Ilyas was conducted by PW8 Sub-Inspector Tirmal Singh on 28.6.2007 after appointing inquest witnesses. He prepared the inquest report Ex. Ka2 and other related documents namely, police form no. 13 Ex. Ka26, police form no. 379 Ex. Ka27, letter addressed to CMO Ex. Ka28 and specimen of seal Ex. Ka29 in his own handwriting and thereafter despatched the cadaver of the deceased for post mortem.

4. The post mortem of the dead body of the deceased Ilyas was conducted by PW4 Dr. PK Singh in the night of 28.6.2007 who found following ante mortem injuries on his dead body :

(a) Fire arm wound of entry of size 3 cm x 2 cm x bone deep situated on the right side of the skull, 8 cm behind and 6 cm above the right side ear. Blackening, tattooing and circle darkness present around the wound.

(b) Fire arm wound of entry of size 4 cm 3 cm x muscle deep on the left side of the left Thigh, in the upper 1/3 and Mid 1/3 region, 6 cm below the Ant. Sup. Iliac Spine - Blackening. tattooing and scorching present

(c) Stitched wound from epigastric extending downwards to the root of the pelvis of size 24 cms on the front of abdomen.

(d) Stitched wound of size 16 cm, just 3 cm outer to the injury no. 3 on the front of abdomen causing downwards up to the middle and below (2cm) the left inguinal ligament of the left thigh.

(e) Stitched wound of size 10 cm on the front and middle of the left thigh upper 1/3 and mid 1/3 region- stitching is vertical.

5. After conducting the post mortem PW4, Dr. PK Singh prepared the post mortem report of deceased Ilyas which is on record as Ex. Ka3 and handed over the clothes of the deceased in a sealed bundle to the concerned constable. According to the post mortem report the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. After the death of injured Ilyas Section 302 read with Section 34 IPC was added in Case Crime No. 270 of 2007 which was earlier registered under Section 307 IPC and necessary entry was made in the GD.

6. Upon addition of Section 302 IPC to Case Crime No. 270 of 2007, PW10 Parvez Khan SHO P.S. Masuri took over the investigation of the case and effected the recovery of the two 'tamanchas' (country made pistols) from a field near Darbari crossing allegedly used in the commission of murder of Ilyas on the alleged pointing out of the accused Farukh and Tasawwar on 29.6.2007 after taking them on police remand in the presence of Sub-Inspector Tirmal Singh and other police officials.

7. Similarly the crime weapons 'tamanchas' (country made pistols) allegedly used by co-accused Yameen and Dilshad in the occurrence were also got recovered by PW10 Parvez Khan, PW8 Tirmal Singh, Investigation Officer and other police officers on 5.7.2007 at about 6:15 PM from a place under the bushes near the Shrine of Peer Baba on the banks of "badi nahar" on their alleged pointing out. On the basis of the alleged recoveries of crime weapons on the pointing of the four accused Case Crime Nos. 271 of 2007, 272 of 2007, 280 of 2007 and 281 of 2007 under Section 25 of the Arms Act were registered against them at Police Station Masuri, District Ghaziabad. The 'tamanchas' (country made pistols) allegedly recovered on the pointing out of the accused were produced before the Court and marked as Material Exhibits. Ka2, Ka4, Ka7 and Ka9. The Investigating Officer of the case also prepared the site plan of the places from where the crime weapons were allegedly recovered on the pointing out of the appellants, Ex. Ka6 and Ex. Ka13. The sanction letters obtained by the Investigating Officer from the District Magistrate Ghaziabad for prosecuting the accused under Section 25 of the Arms Act were brought on record as Exs. Ka7, Ka10, Ka14 and Ka18. The Investigating Officer of the case PW8 Tirmal Singh after completing the investigation submitted charge sheet Ex. Ka36 against all the four accused in Case Crime No. 270 of 2007, under Sections 307, 302 read with Section 34 and 120B IPC and in Case Crime Nos. 271, 272, 280 and 281 of 2007, under Section 25 of the Arms Act before the CJM Ghaziabad who took cognizance on the same and summoned the accused. Since the offences enumerated in the charge sheet were triable exclusively by the Court of Session, CJM Ghaziabad vide order dated 11.9.2007 committed the aforesaid case along with cases under Section 25 of the Arms Act to the Court of Session for the trial of the accused whereupon the aforesaid cases were registered as Session Trial No. 1098 of 2007 (State Vs. Yameen and others), under Sections 307 and 302 read with Section 34 IPC, Session Trial No. 1099 of 2007 (State Vs. Farukh), under Section 25 of the Arms Act, Session Trial No. 1100 of 2007 (State Vs. Tasawwar), under Section 25 of the Arms Act, Session Trial No. 1102 of 2007 (State Vs. Yameen), under Section 25 of the Arms Act and Session Trial No. 1103 of 2007 (State Vs. Dilshad), under Section 25 of the Arms Act respectively. All the aforesaid Session trials were transferred for disposal to the Court of Additional District and Session Judge Court No. 4, Ghaziabad.

8. Charges were framed against all the accused under Section 25 of the Arms Act on 11.7.2007 and under Sections 302 read with Section 34 and 307 IPC on 19.7.2007 and 17.12.2007 respectively by learned Additional Session Judge, Court No. 4, Ghaziabad. The accused pleaded not guilty and claimed trial.

9. The prosecution in order to prove its case against the accused, examined PW1 Idrish (complainant) and PW2 Mehboob as eye-witnesses of the incident of firing by the accused on the deceased, PW3 Abdul Salam as witness of hatching of the conspiracy by Munawwar father of accused Yameen and Tasawwar with the accused to commit the murder of the deceased, PW4 Dr. PK Singh, PW5 Constable Samai Pal, PW6 Sub-Inspector Balram Singh, PW7 Head Constable Bheekam Singh, PW8 Sub-Inspector Tirmal Singh, PW9 Dr. RK Kol and PW10 Sub-Inspector Parvez Khan as formal witnesses.

10. The four accused in their statements recorded under Section 313 Cr.P.C., denied the prosecution case and filed documentary evidence which has been referred to in the judgment of the trial Court and which need not be reproduced herein.

11. After considering the submissions made by learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, the learned Additional Session Judge convicted all the accused and awarded them the aforesaid sentences.

12. The first ground on which the learned counsel for the appellant, Sri Ram Babu Sharma has challenged the impugned judgment and order is that the prosecution story as spelt out in the FIR appears to be extremely doubtful in view of the inordinate and unexplained delay on the part of the complainant in lodging the FIR of the incident although the distance between the place of incident and the police station is hardly 3 kms and the same is apparently ante-timed. In support of his aforesaid arguments, learned counsel for the appellant has invited our attention to the site plan of the incident Ex. Ka24 which was prepared after about one hour and thirty minutes of the incident i.e. at 10:30AM and submitted that if the FIR of the occurrence was actually registered at the police station at 10:15 AM, in that case in the Ex. Ka24 instead of Section 302 IPC, Section 307 IPC should have been mentioned, as initially the FIR in this case was registered under Section 307 IPC and was converted to one under Section 302 IPC after the injured Ilyas had died in Yashoda Hospital as a result of injuries received by him in the incident at about 4 PM on 28.6.2007 and at the time when the site plan of the place of incident was prepared by the Investigating Officer PW8 Tirmal Singh, the case had not been converted to one under Section 302 IPC and mention of Section 302 IPC in the site plan is an unequivocal pointer to the fact that the FIR in this case was actually registered much after the time recorded in the chek FIR and the general diary.

13. We have very carefully scrutinized the evidence available on record on the aforesaid aspect of the matter. PW1 in his examination-in-chief has categorically stated that he had gone to the police station with Haji Mian immediately after the incident and the FIR was scribed by Riyazuddin on his dictation. PW8 Sub-Inspector Tirmal Singh in his statement recorded before the trial Court has stated on oath that the FIR of the incident was registered by Constable Clerk Om Veer Singh on 28.6.2007 at 10:15 AM and the relevant GD entry was also made by Constable Clerk Om Veer Singh himself and thereafter he had gone to the place of incident with the complainant. Similarly PW10 Parvez Khan has deposed that mention of Section 302 IPC in the site plan Ex. Ka24 was a clerical error otherwise Section 307 would not have been mentioned in the recovery memo of recovery of blood stained and plain earth and slipper from the place of incident Ex. Ka25 which was prepared immediately after the occurrence by Sub-Inspector Tirmal Singh PW8.

14. Thus in our opinion, the FIR of the incident cannot be treated as ante-timed merely on account of mention of Section 302 IPC in the site plan Ex. Ka24 as the same appears to us to be a mere clerical error. As far as the submission made by the learned counsel for the appellant that the veracity of the prosecution case as spelt out in the FIR is rendered doubtful in view of the delay of about one hour and fifteen minutes on the part of the complainant in the lodging of the FIR is concerned, in our opinion is without any merit as delay of one hour and fifteen minutes in lodging the FIR by no stretch of imagination can be termed as inordinate, even if the distance between the place of incident and the police station was only 3 kms.

15. The second ground on which the learned counsel for the appellant has castigated the impugned judgment and order is that all the three witnesses of fact who have been examined by the prosecution are interested witnesses being members of the same family and closely related to the deceased and highly interested in the conviction of the appellants for the murder of Ilyas coupled with the fact that neither the complainant PW1 nor the other eye-witness PW2 had received any fire arm injury despite their having deposed that they were standing next to the deceased and the accused were firing at them indiscriminately which creates a doubt about their presence at the time of and place of incident and hence in the absence of corroboration of their evidence by any independent witness, the prosecution case cannot be treated to be trustworthy.

16. Sri Saghir Ahmad, learned AGA rebutting the aforesaid argument of the learned counsel for the appellant submitted that the three witnesses of fact who have been examined by the prosecution are reliable and trustworthy and their testimony cannot be discarded merely on account of their being relatives of the deceased and the members of the same family. He also submitted that since the evidence PW1 and PW2 stands fully corroborated from the medical evidence on record, their evidence is not liable to be disbelieved merely on account of the prosecution having failed to examine any independent witness. All the three witnesses of fact examined by the prosecution, PW1 Idrish who is the brother of the deceased PW2 Mehboob and PW3 Abdul Salam are the sons of the deceased's uncle have in their evidence recorded before the trial Court have acknowledged their relationship with the deceased. PW1 Idrish and PW2 Mehboob are the eye-witnesses of the firing on the deceased by the accused while PW3 Abdul Salam is the witness of the hatching of the conspiracy by Munawwar father of the accused, Tasawwar and Dilshad of committing the murder of the deceased in Civil Court. The question whether the evidence of witnesses is liable to be discarded merely on account of their being close relatives of the deceased is no longer res integra but has been set to rest by a catena of a judgments of the Apex Court.

17. Before proceeding to test the veracity of the facts stated by the two eye-witness and their credibility on the touch stone of the submissions made by the learned counsel for the appellants, we consider it proper to examine the law on the issue :

35. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo 2003 Crl LJ 844 (SC), observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

36. In Mst. Dalbir Kaur v. State of Punjab 1976 Cr LJ 418(SC) following observations were made:

Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.

(i)The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or the some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is very natural witness cannot be regarded as an interested witness.

38. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another v. State of U.P. 2012 (77) ACC 2009, has observed in paragraph No. 19 referring to the case of Namdeo v. State of Maharashtra 2007 (58) ACC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distance between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admission in accordance with law.

40. Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl. LJ 4827 has observed in paragraph No. 9 which reads as follows :

"In Balraje @ Trimbak v. State of Maharashtra 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32. this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears appears to be clear, cogent and credible, there is no reason to discard the same."

41. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. V. Naresh and others 2011 (75) ACC 215 (SC) = 2011 (106) AIC 76 (SC).

18. As regards interested witness the Hon'ble Apex Court in the case of Mst. Dalbir Kaur v. State of Punjab 1976 Cr. LJ 418 (SC) has held that relatives who are the natural witnesses are not interested witnesses and their testimony can be relied upon by the Apex Court and the same judgment observed that the term interested "postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other is convicted either because he had some animus with the accused or for some other reason".

Thus what follows from the reading of the aforesaid judgments is that mere fact that the witnesses are related to the deceased or are inimical towards the accused cannot be a ground to discard their evidence and the Court is required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused carefully and weigh the same pragmatically and if the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

19. Thus the evidnce of PW1, PW2 and PW3 examined by the prosecution to prove its case against the accused-appellants cannot be discarded merely on the ground of their being related to the deceased or their being interested witnesses.

20. The next ground on which the learned counsel for the appellant has challenged the appellants' conviction is that there are glaring contradictions in the testimonies of the two eye-witnesses, PW1 Idrish and PW2 Mehboob, examined on behalf of the prosecution for proving its case with regard to the place of incident and manner of assault which creates a doubt about their presence at the time of and at the place of occurrence hence it cannot be said that the prosecution case stands proved against the appellants on the basis of their testimonies. Sri Saghir Ahmad has submitted that there are no contradictions or inconsistencies in the statements of the two eye-witnesses and hence their evidence cannot be termed as unreliable.

21. Record of the case shows that PW1 in his evidence tendered before the trial Court has fully corroborated the prosecution case as spelt out by him in the FIR by deposing that on the date of the incident i.e. 28.6.2007 while he, his brother Ilyas and Mehboob were going to the Panchayat Ghar at about 9AM-9:15 AM and as soon as they had reached in front of the house of Islam they saw that accused Yameen, Dilshad, Farukh and Tasawwar were already present there armed with country made pistols waiting for them and they on seeing them on the exhortation of Yameen started firing at them and although in the firing complainant Idrish and Mehboob had escaped unhurt, but his brother Ilyas had received fire arm injuries and thereafter the accused had run away from the place of incident shouting loudly that at least one of the two was going to die and they would take care of other later. PW2 Mehboob in his evidence recorded before the trial Court has, apart from corroborating the evidence of PW1 on all material particulars further deposed that after the incident injured Ilyas was taken to the Yashoda Hospital, Ghaziabad by Tata 407 car where he had died during treatment. The credibility of the evidence PW2 and his claim regarding his presence at the place of incident and his having witnessed the firing by the accused on the deceased has been assailed by the learned counsel for the appellant on the ground that he has not been able to disclose from which direction the road on which he was going to the Panchayat Ghar along with the complainant and the deceased was coming and to which direction he was going.

22. In our opinion the entire evidence of the PW2 cannot be discarded merely for the aforesaid reason. It is noteworthy in his cross-examination he has described the typography the place of incident with precision. Both the eye-witnesses have stated in unison that the accused had started firing at the complainant, his brother deceased Ilyas and PW2 Mehboob as soon as they had reached in front of the house of Islam while on their way to Panchayat Ghar. The fact deposed by PW1 and PW2 that the incident had taken place in front of the house of Islam stands further corroborated from the place of incident mentioned in the site plan Ex. Ka24 which was prepared by the Investigating Officer of this case at the instance of PW1 Idrish. Both the eye-witnesses have further deposed that the accused had retreated from the place of incident firing in the air with their firearms and although PW1 and PW2 had escaped unhurt in the firing, Ilyas brother of PW1 had received gun shot injuries from the shots fired by the accused at them from a distance of 5-6 steps.

23. After having very carefully scrutinized the statements of PW1 and PW2 recorded before the trial Court on the aforesaid aspects of the matter, we do not find any material contradictions, inconsistencies, improvements or embellishments in their evidence so as to doubt the veracity of the facts stated by them in their evidence or which effect the core of the prosecution case rendering it to be unbelievable. There may be so many reasons for PW1 and PW2 having not received any injury in the occurrence including the possibility that the accused had planned to commit the murder of Ilyas alone and their presence at the time of the incident cannot be doubted on the aforesaid count alone.

24. The next round on which the learned counsel for the appellant has attacked the impugned judgment and order is that considering variance between the number of injuries mentioned in the injury report of the deceased and in his post mortem report, Ex. Ka38 and Ex. Ka3 it cannot be said that the injuries found on the dead body of the deceased were inflicted on him from the shots allegedly fired at him by the accused. Learned counsel for the appellant has also submitted that the injured Ilyas was examined by PW9 Dr. RK Kol immediately after the incident in Yashoda Hospital, Ghaziabad where he was admitted by his relatives immediately after the incident and who had also prepared his injury report which is on record as Ex. Ka24. According to Ex. Ka24, Dr. RK Kol PW9 had noted one fire arm injury on the lower abdomen and thigh of injured Ilyas and he had further upon local examination of the injured noticed a wound of 1 cm x 1 cm, suprapubic region with active bleeding 1inch x 1inch a punctured wound over right side of occiput, ½ cm x ½ cm lacerated wound on left parietal region with profuse bleeding. He further argued that the injury report of the deceased does not indicate presence of any blackening or tattooing or scorching around the fire arm wound found on his person although according to the post mortem report of the deceased Ex. Ka3 blackening, tattooing and scorching was present around the fire arm wounds found on the dead body of the deceased by PW4 Dr. PK Singh who had conducted the post mortem of the cadaver of the deceased.

25. It has also been argued by the learned counsel for the appellant that the presence of tattooing and blackening around the fire arm wounds found on the dead body of the deceased indicates that the shots which had inflicted fire arm wounds on the dead body of the deceased were contact shots meaning thereby that they were fired from a very close distance and in view of the above the prosecution case as testified by PW1 and PW2 that the accused had fired at them from a distance of 5-6 steps which comes to about 13 ½ feet - 15 feet stands totally falsified and further puts a big question mark on the truthfulness of the claim of the two eye-witnesses that they were present at the time of and at the place of incident and had witnessed the occurrence.

26. In order to appreciate the aforesaid argument of learned counsel for the appellant, we consider it appropriate to analyse and scrutinize the evidence available on record on the aforesaid aspect of the matter including the injury report and post mortem report of the deceased Ex. Ka38 and Ex. Ka3., statements of PW4 Dr. PK Singh who had conducted the post mortem of the dead body of the deceased and Dr. RK Kol PW9 who had treated the deceased in the emergency department of the Yashoda Hospital immediately after the occurrence.

27. The discrepancy with regard to the number of injuries found on the dead body of the deceased and those mentioned in his injury report Ex. Ka38 has been fully explained by PW9 Dr. RK Kol in his evidence recorded before the trial Court. PW9 Dr. RK Kol has deposed before the trial Court that the injury numbers 3, 4 and 5 which have been described in the post mortem as stitched wounds were infact the incisions made by him on the deceased's stomach's upper portion, left part of his groin and back portion of his left leg for the purpose of performing surgery for saving his life when he was admitted to the Yashoda Hospital immediately after the incident but before the surgery could be completed his condition started deteriorating rapidly which compelled him to stitch the incisions and transfer the injured to the Intensive Care Unit of the hospital.

28. Similarly PW4 Dr. PK Singh who had conducted the post mortem of the dead body of the deceased also deposed that out of five ante-mortem injuries found on the dead body of the deceased, injury number 1 and 2 were fire arm wounds while the remaining injuries mentioned by him in the post mortem report were the incisions made on his body during his treatment for operating him which had to be stitched before the operation could be completed considering his deteriorating condition. Thus, we do not find any discrepancy in the number of injuries mentioned in the injury report and his post mortem report Ex. Ka38 and Ex. Ka3 respectively.

29. Now coming to the submission made by the learned counsel for the appellant that in view of the contradictions between ocular testimony and the medical evidence on record which in the present case appears to be irreconcilable, the ocular evidence is liable to be discarded, we find that the aforesaid arguments of the learned counsel for the appellant is basically founded upon on the presence of blackening, tattooing and scorching around the fire arm wounds found on the dead body of the deceased which indicate that the same are contact wounds meaning thereby that the deceased was shot from a very close range and hence in view of the above the evidence of the two eye-witnesses that the accused had fired at the deceased and the two eye-witnesses from a distance of 5-6 steps, which comes to about 13 ½ feet - 15 feet stands totally falsified and further belies their presence at the place of incident. A perusal of the post mortem report of the deceased Ex. Ka3 denotes blackening, tattooing and scorching around the two fire arm wounds found on the dead body of the deceased.

30. Learned counsel for the appellant has argued that the presence of scorching around the fire arm wounds indicates that the shot was fired, in case of use of revolvers/pistols, from a distance of 2-3 inches and between 6-8 inches and 1-3 feet respectively in case of use of rifles and shot guns. He further submitted that the presence of phenomena of tattooing around the fire arm wounds denotes that the shot had been fired from a distance of 2 feet in case of use of hand gun, 2½ feet in case of use of rifles and 3-9 feet in the event of a shot gun being used for shooting. In the present case, according to the prosecution, the desi tamanachas were used by the appellants for shooting the deceased and same were produced during the trial and marked as Material Exhibits Ka2, Ka4, Ka7 and Ka9. If the argument of the learned counsel for the appellant is accepted by us to be correct, then the shots should have been fired by the accused from a distance of about 2-3 inches or at the most 2 feet. In the site plan of the incident distance between the point 'X' where the deceased was said to be standing at the time of the assault and from where plain and blood stained soil was collected by the Investigating Officer and the point denoted by letter 'A' from where the accused had allegedly fired at the deceased is stated to be about 8 steps and in case the accused had fired at the deceased from the point 'A' then there should have been no blackening, tattooing and scorching around the two fire arm wounds found on the dead body of the deceased. The moot question which arises for our consideration is that whether the entire prosecution evidence is liable to be discarded and the presence of the eye-witness on the place of the incident and their having witnessed the occurrence disbelieved merely on the aforesaid ground. Our reply to the aforesaid query is in the negative. The distance between the various points depicted in the site plan is merely estimated distance which the person at whose instance the site plan is prepared divulges to be Investigating Officer. No one who actually witnesses such a ghastly crime which normally occurs within a split of a second, can be expected to remember each and every detail pertaining to the incident with precision. In most of the cases when any such occurrence takes place the persons present at or near the place of incident are more likely to be shocked and horrified rather than taking note of details and manner of assault accurately and hence for the aforesaid reasons the prosecution story is not liable to be disbelieved merely on account of there being some discrepancy in the medical evidence vis-a-vis the ocular testimony. In fact broadly speaking the medical evidence on the record of this case corroborates the crux of the prosecution case that the deceased was shot by the accused from their firearms and he had died as a result of firearm wounds received by him in the incident.

31. After a close and careful analysis of the evidence on record, we find that the eye-witnesses have given truthful version of the prosecution story and their evidence stands substantially corroborated from the medical evidence. The incident had taken place in broad day light which enable eye-witnesses to see the incident.

32. The statements of the eye-witness corroborate to each other and suffer from no major contradictions. The presence of the eye-witnesses on the date, time and at the place of incident is established beyond doubt and being natural witnesses they were fully able to see the incident. The investigation in this case of murder was started promptly and the statements of the witnesses under Section 161 Cr.P.C., were also recorded without any delay. The First Information Report of the incident which had taken place at about 9AM was lodged on the same day on 10:15 AM i.e. within one hour and fifteen minutes of the incident in which the names of the accused and the weapons used were mentioned. Thus the First Information Report in this case was lodged without any consultation and deliberation and there is no chance of false implication of the appellants.

33. We had been taken through the entire record by the learned counsel for the parties. In view of the above, meticulous analysis of the whole evidence available on record, the appeals filed by the appellants lack merit and are accordingly dismissed.

34. There shall be however no order as to costs.

Order Date:- 21.10.2016/SA