Dilip Kumar @ Tanne vs State Of U.P.
2017 Latest Caselaw 887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                     AFR
 
							Reserved on:  25.4.2017
 
		 					Delivered on: 19.5.2017
 

 
Case :- CRIMINAL APPEAL No. - 2380 of 2011
 
Appellant :- Dilip Kumar @ Tanne
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv Gupta,Ambrish Kumar,Dileep Kumar,Govind Saran Hajela,Phool Singh,Rajrshi Gupta,Rajul Bhargava
 
Counsel for Respondent :- Govt. Advocate,Amit Kumar Singh
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Umesh Chandra Srivastava,J.

(Delivered by Hon'ble U.C. Srivastava, J.)

1. This appeal has been filed against the judgment and order dated 08.04.2011 passed by learned Additional Sessions Judge, Court No. 6, Etawah in Sessions Trial Nos. 113 of 2007 and 114 of 2007: State Vs. Dilip Kumar alias Tanne whereby the appellant has been convicted under Section 302 IPC and Section 25 Arms Act and has been sentenced to undergo life imprisonment with fine Rs.5,000/- and in default to undergo one year rigorous imprisonment for the first count and to undergo one year rigorous imprisonment with fine Rs.1,000/- and in default to undergo three months rigorous imprisonment for the second count.

2. Brief facts of the case are that deceased Girish Chandra Yadav was the resident of Village-Sujipura, P.S.-Bharthana, District-Etawah. The appellant-Dilip Kumar alias Tanne is also the resident of the same village and is the first cousin (uncle's son) of the deceased. The houses of the deceased and the appellant are adjoined with each other and house of the appellant is in the south of the deceased's house.

3. As per prosecution story, deceased Girish Chandra Yadav along with his wife Smt. Suman Devi, children, mother Smt. Sona Devi and brother Awadhesh Kumar, who is a police constable, was present at his ancestral house in the night of 25.12.2006. It is stated that appellant Dilip Kumar alias Tanne was hurling abuses to the deceased and his family members in the night and when at about 2.00 p.m. the deceased along with his wife, mother and brother went to the roof of his house through staircase and stopped appellant from hurling abuses, appellant came to the staircase of his house with a rifle in his hand and opened fire which hit him in his left eye on account of which he fell down on the roof and died. It is further stated that when after this incident, the wife, mother and brother of the deceased chased appellant to catch him, he fled away from the scene towards south while opening firearm over them. Awashesh Kumar scribed the report of the incident at the dictation of the deceased's wife and took the same to police station Bharthana, District Etawah same night and handed over there on the basis of which an FIR under Section 302 IPC was registered against the appellant at 4.30 p.m. The written report and chik FIR are Ex. Ka-1 and Ex. Ka-3.

4. Inspector Ram Nath Singh Yadav, the then S.H.O. of Police Station Bharthana, District Etawah took the investigation of this case in his hand and immediately proceeded to the place of occurrence. He inspected the place of occurrence including the place from where the deceased was shot at and recovered a 8 mm brass empty cartridge from the stair case of the appellant and got the site plan and memo of recovery prepared i.e. Ex. Ka-5 and Ex. Ka-12. He also completed the proceedings of inquest on the dead body of the deceased and got its report prepared i.e. Ex. Ka-6 and thereafter sent the dead body to the district hospital for postmortem where postmortem was done at 12.00 O' clock in the noon by P.W. 2 Dr. R.K.S. Bhadoria and following ante mortem injury was found on the dead body of the deceased.

1. Fire arm wound of entrance 1.5 x 1 cm on medial side of left orbit region passing through bone of brain back ward and outer ward through brain matter with fire arm wound of exit about 15 cm x 5 cm on back of right side of head, 5 cm behind right ear pinna with fracture of right parietal and occipital bone, brain material coming out through wound of exit was found on the body of deceased.

The post mortem report of the deceased is Ex. Ka-2.

5. The appellant was arrested on 09.1.2007 and on his personal search a country made pistol of .315 bore along with a live cartridge of same bore was recovered from him of which he had no licence. The appellant stated that he caused the death of the deceased with the same firearm. The arrest of the appellant was made by Inspector Ram Nath Singh Yadav in presence of S.I. Dhyan Singh, who prepared the memo of arrest and recovery on the spot and on the basis of the said recovery a separate case under Section 25 Arms Act was also registered against the appellant on the same day which was investigated upon by P.W.7-S.I. Gorakhnath Shukla. The memo of arrest and recovery is Ex. Ka-14.

6. After investigation, separate charge sheets were filed against the appellant for the offences under Section 302 IPC and Section 25 Arms Act and both the offences being connected together were committed to the court of sessions from where they were transferred to the court of Additional Sessions Judge, Court No. 6, Etawah, who framed the charges against the appellant under Section 302 IPC and Section 25 Arms Act which the appellant denied and claimed to be tried. Both cases were tried together.

7. Prosecution examined as many as 8 witnesses to prove the charges framed against the appellant, who are P.W.1-Suman Devi, the informant and eye witness of the incident, P.W. 2-Dr. R.K.S. Bhadauria, who conducted postmortem on the dead body of the deceased, P.W.3-Awadhesh Kumar, the elder brother of the deceased and eye witness of the incident, P.W.4-Constable Lakhan Singh, who proved the chick FIR and G.D. under Section 302 IPC, P.W.5- Inspector Ram Nath Singh Yadav, the Investigating Officer who investigated the case against appellant under Section 302 IPC, P.W.6- S.I. Dhyan Singh who proved the site plan, memos of recovery of empty cartridge recovered from the stair case of the appellant and the country made pistol along with live cartridge recovered from the possession of the appellant, P.W. 7- S.I. Gorakhnath Shukla, who proved the site plan of the place of recovery of firearm from the possession of the appellant and charge sheet etc. under Section 25 Arms Act and P.W.8- Constable Ram Shanker who proved the chik FIR and G.D. under Section 25 Arms Act.

8. The learned Additional Sessions Judge after hearing learned counsel of both sides and having considered the evidence brought on record came to the conclusion that both the charges under Section 302 IPC and Section 25 Arms Act, were proved against the appellant beyond doubt and thus he held him guilty for the aforesaid offences and sentenced him to undergo life imprisonment with fine Rs.5,000/- and in default to undergo one year rigorous imprisonment under Section 302 IPC and one year rigorous imprisonment with fine Rs.1,000/- and in default three months rigorous imprisonment under Section 25 Arms Act respectively against which this appeal has been filed.

9. We have heard Sri Ambrish Kumar, learned counsel for the appellant and Sri Ashish Pandey, learned A.G.A., assisted by Sri Gaurav Pratap Singh, Advocate, for the State and perused the materials brought on the record.

10. Before entering into merit of the submissions advanced by learned counsel of both sides, we would like to mention in brief what the prosecution witnesses have said in their statements in support of prosecution story.

11. P.W.1-Smt. Suman Devi, the wife of the deceased and informant of the incident has stated that her husband Girish Chandra has two brothers namely Mahesh and Awadhesh Kumar who are in police force and elder to him. They have their own house in Qasba Bharthana, District Etawah. She has further stated that her father-in-law Deep Chand, who was alive at the time of the incident had some ailment and was staying at the house of his eldest son Mahesh in Qasba Bharthana before the incident. She has also stated that appellant Dilip Kumar alias Tanne is the first cousin of the deceased. She has also stated that ancestral house of her husband is situated in village Sujipur, P.S. Bharthana, District Etawah and is surrounded with the house of Ravindra Yadav in north, dilapidated house of Jai Raj in the west and with the house of appellant Dilip Kumar alias Tanne in the south and there is a Veranda in front of her ancestral house as well as the house of appellant in front of which there is chabutara and the roofs of both houses are adjoined with each other with a wall of separation. She has also stated that deceased lived in his ancestral house along with his, wife, children and parents and was involved in farming.

12. She has stated that in the night of the incident i.e. 25/26.12.2006, she was present at the ancestral house of her husband along with her husband, children, mother-in-law Smt. Sona Devi and brother-in-law Awadhesh Kumar who is in police force and had come home taking a month leave. She has further stated that in the fateful night at about 2.00 p.m. appellant started hurling abuses to deceased and his family members from his house and when he did not stop from hurling abuses for a long time even after being stopped, her husband went to the roof of the house along with her, his mother Smt. Sona Devi and brother Awadhesh and stopped the appellant from abusing on which appellant came to the roof of his house with a rifle in his hand and while threatening his life he opened fire from the riffle which hit her husband in his left eye and he fell down on the roof and died. She has further stated that after the incident when she along with her mother-in-law and brother-in-law raised noise and chased appellant to catch him, the appellant run away from the scene while opening fire over them. She has stated that her husband was not a criminal though he had been lodged in jail twice or thrice in the incidents of marpeet.

13. She has further stated that when appellant was hurling abuses from his house, her husband was present in the room and no one of the locality came and stopped appellant from hurling abuses and even no one came when the appellant came to his staircase and fired on her husband. She has stated that appellant fired only one shot on the roof which hit the deceased and he had fired four to six shots in the lane when she was chasing appellant after the incident to catch him along with her mother-in-law and brother-in-law. She has further stated that incident night was a dark night. She has further stated that deceased was bleeding from the gun shot wound and when after the incident she took him in her lap her both hands and clothes contained blood and hands and clothes of her mother-in-law and brother-in-law also contained blood.

14. She has also stated that there was sufficient light over the roof as there is a lamp pole on the platform in front of her house and a bulb was lightened on that lamp post at the time of the incident.

15. P.W. 2- Dr. R.K.S. Bhadauria had conducted postmortem on the dead body of the deceased in district hospital, Etawah on 26.12.2006 at 12.00 noon. He has proved the post mortem report Ex Ka-2 and has stated that a fire arm wound of entrance 1.5 x 1 cm on medial side of left orbit region passing through bone of brain back ward and outer ward through brain matter with fire arm wound of exit about 15 cm x 5 cm on back of right side of head, 5 cm behind right ear pinna with fracture of right parietal and occipital bone, brain material coming out through wound of exit was found on the body of deceased. He has further stated that deceased had died of the antemortem injury and his death was caused about 2.00 a.m. in the night.

16. P.W. 3-Awadhesh Kumar is the elder brother of the deceased and he is in the police force. He has stated that he was on leave for a month for constructing his house in Qasba Bharthana and on the fateful night he was present at his ancestral house along with his brother, sister-in-law and their children and his mother Smt. Sona Devi. He has stated almost the same facts which P.W. 1 has said in her statements with a little variation such as appellant was hurling abuses from his house from 10-10.30 p.m. and when he did not stop hurling abuses for a long time he went to the house of the appellant along with Ravindra Singh, Mithilesh and others and stopped him from abusing but he did not stop. He has also stated that when appellant continued abusing even after being stopped he went to the roof of his house along with his brother, mother and sister-in-law at about 2.00 a.m. and his brother stopped appellant from abusing whereupon appellant came to the staircase of his house and opened fire which hit his brother in his left eye and he died. He has also stated that when after the incident, he chased the appellant along with his mother and sister-in-law, appellant opened fire at him which he escaped. He has specifically stated that besides these two shots, he did not hear the sound of any other shot. He has also stated that his father was five brothers and his uncle Ahibaran Singh was issue less and his land was cultivated by Suresh and appellant's father Ramesh, who were also his uncle. He has also stated that hands and clothes of his and his mother and sister-in-law contained blood when they took deceased to their lap after the incident and that they did not give those blood stained clothes to the Investigating Officer because he did not ask them to give. He has denied his absence at his ancestral house at the fateful night and also that deceased was done to death by firing shot from a rifle by some unknown assailant, and subsequently when his dead body was found in the morning by him, he lodged a false report against the appellant.

17. P.W.4- Constable Lakhan Singh has proved the chik FIR Ex. Ka-3 and G.D. Ex. Ka-4 and has stated that he had registered the FIR on the basis of written report handed over to him by P.W.3 Awadhesh Kumar.

18. P.W. 5- Inspector, Ram Nath Singh Yadav has stated that he had proceeded to the place of occurrence after the lodging of the FIR and visited the place of occurrence at the instance of complainant Smt. Suman. He has stated that he had completed the inquest proceedings and prepared its report and sent the dead body of the deceased to the district hospital Etawah for postmortem. He has also stated that he had recovered a single 8 mm empty cartridge of brass from the stair case of the appellant's house at the time of inspection and also got its memo prepared. He has further stated that he had arrested appellant on 9.1.2007 and had recovered a country made pistol of .315 bore along with a live cartridge of the same bore from his possession and had lodged a separate FIR against appellant under Section 25 Arms Act in respect of the said recovery. He has also proved the charge sheet submitted against the appellant under Section 302 IPC.

19. P.W.6- Dhyan Singh has proved the site plan, inquest report and other papers/reports and has also proved the memo of arrest and recovery dated 9.1.2007 and the empty cartridge recovered from the staircase of the appellant.

20. P.W.7- S.I. Gorakhnath Shukla had investigated the case under Section 25 Arms Act registered against the appellant. He has proved the site plan, charge sheet and sanction of prosecution under Section 25 Arms Act. P.W. 8-Constable Ram Shanker had scribed the chik FIR under Section 25 Arms Act and has proved the same.

21. Learned counsel for the appellant has submitted that the trial court has heavily believed the testimony of P.W. 1 Smt. Suman Devi and P.W.3 Awadhesh Kumar for recording conviction of the appellant and while doing so it has neglected the material contradictions cropped up in their statements while the same make their presence on the spot doubtful at the time of occurrence. He has drawn our attention to the statements of P.W. 1 and P.W. 3 in which they have said that they were present at the ancestral house in the intervening night of 25th and 26th December, 2006 and appellant was hurling abuses to the deceased and his family members in that night from his house and when he continued abusing for a long time and deceased went to the roof of his house along with his wife, mother and brother and stopped him from abusing, he came to the staircase of his house and opened fire which hit deceased in his left eye and he died on the spot. Learned counsel for the appellant has further stated that there is variation regarding the time of hurling abuses to the deceased and his family members. He has stated that the first information report which is said to have been lodged by P.W.1 Smt. Suman Devi, is totally silent on this point as it is not mentioned in the said report that when appellant started abusing. However, P.W.1- Smt. Suman Devi has stated that appellant started hurling abuses to the deceased and his family members from his house from 2.00 a.m. and when he did not stop abusing even after being asked in this regard then her husband went to the roof of his house along with his wife, mother and brother and stopped him from hurling abuses on which he came to the roof of his house and opened fire which hit him in his left eye.

22. Learned counsel for the appellant has submitted that P.W.3-Awadhesh Kumar has, however, differently stated and has said that appellant was hurling abuses from his house from 10-10.30 p.m. and when he did not stop abusing for a long time, he went to his house along with Ravindra Singh, Mithilesh and others of the locality and asked him not to abuse but he did not listen to them and continued hurling abuses till 2.00 a.m. in the night. He has submitted that variation in the timing of abusing in the statements of P.W.1-Smt. Suman Devi and P.W.3-Awadhesh Kumar is not a minor discrepancy which may be ignored. But, this being the genesis of the incident, it goes to the root of the case and makes the presence of the fact witnesses doubtful on the spot. He has submitted that had fact witnesses been present on the spot and seen the occurrence then they would never state differently about the time of abusing.

23. He has further submitted that there is variation in the statements of fact witnesses on other points too and one of them is regarding number of shots fired by the appellant. He has submitted that as per statement of P.W.1-Smt. Suman Devi, appellant fired only one shot from the roof of his house which hit the deceased in his left eye and he also fired 4-6 shots in the lane when she chased the appellant along with her mother-in-law and brother-in-law. However, P.W.3-Awadhesh Kumar has stated differently that appellant fired two shots, one at the deceased when he stopped him from hurling abuses and the other at him when he tried to catch him after the incident. He has submitted that P.W. 3 has stated that besides two shots, he did not hear the sound of any other shot which means appellant did not fire any shot in the lane as said by P.W. 1. He has further submitted that however, recovery of only one empty cartridge of 8 mm, tells an other story that only one shot was fired in the incident and it makes the presence of both eye witnesses on the spot at the time of incident false and there appears force in the submission of learned appellant's counsel that deceased was shot by some unknown assailant and on finding his dead body in the morning by his brother, he lodged a false report against the appellant on account of property dispute. He has submitted that learned court below overlooked this material aspect while it goes to the root of the case and belies the prosecution story that appellant fired a rifle shot on deceased resulting his death.

24. He has further submitted that it is established from the evidence of this witness that he had taken the leave of one month for constructing his house. He has submitted that when the house of the witness was under construction and he had taken leave for the said purpose, and the house was being constructed in Qasba Bharthana which is 5 km. away from the village in which the incident is said to have taken place, presence of this witness at his ancestral house at the time of occurrence becomes doubtful. He has further submitted that it is also established from the statement of this witness that his father was alive by that time and was having some ailment for which was being treated and he was staying at the house of his eldest son Mahesh in Qasba Bharthana in connection with the treatment. He has submitted that when the father of Awadhesh Kumar was not staying at the ancestral house rather he was staying in Qasba Bhartana at the house of his eldest son regarding his treatment, in the normal course, his wife and the second eldest son who was coincidentally constructing his house in the same Qasba Bhartana would also prefer to stay with him instead of staying at ancestral house in the village. He has thus submitted that presence of P.W. 2 and his mother Smt. Sona Devi at the ancestral house in the village appears to be doubtful and in that case the evidence of witness Awadhesh Kumar can not be blindly relied upon and the appellant can not be held guilty for the offence of committing murder of the deceased unless the same is supported by any independent witness, and since prosecution has failed to examine any independent witness in support of prosecution story, the finding of conviction recorded by the learned trial court against the appellant is not sustainable rather it is liable to be set aside.

25. Learned counsel for the appellant has further submitted that evidence of P.W. 1-Smt. Suman Devi and P.W. 3-Awadhesh Kumar is not supported with the ballistic report Ex. Ka-20 also in which it is said that the empty cartridge which was recovered from the staircase of the appellant was not fired from the country made pistol which is said to have been recovered from the possession of the appellant at the time of his arrest. He has submitted that when prosecution has come up with a specific case that the country made pistol recovered from the possession of the appellant was used in the commission of the offence, however, ballistic report does not support that 8 mm cartridge recovered from the staircase of house of the appellant was fired from the said country made pistol, the involvement of appellant in the case becomes false. He has further submitted that this is also a circumstance which goes against prosecution and it establishes that P.W.1 Smt. Suman and P.W.3-Awadhesh Kumar were not present on the scene when the occurrence took place rather they were somewhere else and they came to know about the incident only in the morning after seeing the dead body of the deceased, and P.W. 3-Awadhesh Kumar who is employed in the police force falsely implicated the appellant in the incident due to property dispute.

26. He has also submitted that prosecution has not assigned any reason behind committing the murder of the appellant as FIR is totally silent on this point and P.W.1-Smt. Suman has also not said a single word in this regard. He has also submitted that P.W.1 Smt. Suman is silent why the appellant was hurling abuses in the fateful night. P.W.3-Awadhesh Kumar has simply said in this regard that appellant had committed the murder of one Lakhan Singh and he wanted help of deceased in that matter but the deceased did not extend any help to him and he also oftenly demanded money but his demands were not fulfilled, and being annoyed with the same he caused the incident. He has submitted that though the reason assigned by P.W. 2 is not acceptable as no evidence has been led in this regard, but if the same be believed true for a little while, no one could commit the offence of murder for those reasons. He has submitted that P.W. 3 has not clarified as to what help appellant wanted from the deceased in the incident of murder of Lakhan Singh and how he could oftenly demand money from the deceased when he was not his family member and relations between the two families were not good rather it were strained as appellant's family and Suresh, were cultivating the land of Ahibaran Singh (one of the four real uncles of deceased). He has submitted that strained relations between two families over the land of Ahibaran Singh could be a reason for false implication, but it could not be a reason for committing the incident.

27. Learned counsel for the appellant has further submitted that it is established from the evidence of P.W. 1-Smt. Suman that it was a dark night when the incident took place. He has also submitted that no source of light has been mentioned in the FIR and the prosecution in order to overcome this weakness has developed a new case in the statement of P.W.1-Suman and P.W.3-Awadhesh Kumar that a lamp pole was standing in the chabutara of their house and a bulb was lightened on that lamp pole having sufficient light over the roof of their house. He has also submitted that this development was purposely made in the statement of P.W.1 and P.W. 3 so that identity of appellant in the dark night could be established. However, it is apparent from the site plan prepared by the Investigating Officer that lamp pole is situated not in front of house of the deceased but it is situated in front of house of the appellant and the distance between the lamp pole and the place where dead body of deceased was found being more than 70 paces, it is doubtful that there could be sufficient light on the roof of the deceased at the time of occurrence and eye witnesses could identify the appellant in that light. He has also submitted that distance between pole and the place of finding of dead body of deceased being more than 70 paces, this Court can take a judicial notice of the fact that there was no sufficient light on the roof of the deceased and in that event it could not be possible to the fact witnesses to identify the assailant.

28. Per contra, learned Additional Government Advocate has submitted that it is true that both eye witnesses namely P.W.1-Smt. Suman Devi and P.W.3-Awadhesh Kumar, who have been examined by the prosecution to prove the charges framed against appellant, being related with the deceased are related witnesses. However, their testimonies cannot be disbelieved merely on that reason. He has further submitted that related witness does not mean interested witness. He has also submitted that it is not a case in which it could be said that fact witnesses examined by the prosecution to prove the charges against appellant had any reason for false implication of the appellant in the incident while leaving the real culprit and, therefore, merely on the reason that they are related with the deceased, being wife and brother of the deceased, neither they can be called interested witness nor their testimony can be disbelieved. He has also submitted that presence of fact witnesses on the spot at the time of occurrence is not doubtful because it is not disputed that deceased was residing at his ancestral house along with his wife, children and parents. The brother of the deceased namely Awadhesh Kumar is though employed in police force, but it is also evident from the evidence that he had taken leave of a month for constructing his house and the place where the house was being constructed is at a distance of 5 k.m. Therefore, his presence at the ancestral house in the night is also not doubtful.

29. Thus, he has submitted that contention of learned counsel for the appellant that since the house of Awadhesh Kumar was being constructed in Qashba Bharthana, District Etawah and he had taken leave for a month for that purpose, he could not be present at his ancestral house in the night of the incident is not believable. He has further submitted that it has come in the evidence of this witness that he had taken leave for constructing his house which was being constructed in Kashba Bharthana, District Etawah since 16.12.2006. He has also stated that in the night of the incident he was present at the ancestral house along with his brother, sister-in-law, and their children. It is also established from the chick report that distance between police station Bharthana and place of occurrence is 5 km. Looking to the distance between the place where house of this witness was constructed and the place his ancestral house is situated, if the witness has said that he was present at the site of his house under construction during the day time and had come to his ancestral house in evening and remained present at his ancestral house in fateful night then there is nothing unusual in it so that his presence on the spot at the time of occurrence could be doubted or disbelieved. He has also stated that this plea of learned counsel for the appellant is also not sustainable that father of the deceased being not well at the time of the incident and being stayed at the house of his eldest son regarding his treatment, the mother of the deceased and P.W. 1 could not be present at their ancestral house on the fateful night has no force so that the same may be believed.

30. Learned A.G.A. has further submitted that testimonies of P.W. 1-Smt. Suman and P.W. 3-Awadhesh Kumar could not be held unreliable on account of alleged discrepancies. He has submitted that testimonies of the fact witnesses could be disbelieved only when discrepancies are not minor but they are material affecting the credibility of the witnesses. He has further submitted that if the discrepancies cropped up in the statements of witnesses are minor and they do not go to the root of the case, the eye witnesses would be believed. He has also submitted that none of the fact witnesses has said that appellant fired more than one shot at the deceased, rather clear case of prosecution in this regard is that appellant fired only one shot which hit the deceased in his left eye as a result he fell down and died on the spot. Though it has come in the evidence of P.W.1 that appellant had also opened 4-6 shots upon her and her mother-in-law and brother-in-law when they chased him and P.W. 3 has said that appellant had fired only two shots, one at the deceased which hit him in his left eye and he died and other at him when he tried to catch the appellant and except these two, he did not hear the sound of any other shot, however, this discrepancy is not so material so that presence of eye witnesses at the time of occurrence may be doubted and on account of their testimonies could be disbelieved.

31. Learned A.G.A. has further submitted that testimonies of eye witnesses could not be disbelieved on this reason also that it is not mentioned in the FIR that since which time appellant was hurling abuses from his house and contention of PW-1 in this regard is that appellant started hurling abuses from 2.00 a.m., whereas P.W. 3 has said that he was hurling abuses from 10.00 to 10.30 p.m. and continued up to 2.00 p.m. when deceased went to the roof of his house along with his wife, mother and brother and stopped him from hurling abuses, whereupon appellant came to his staircase with riffle and fired shot which hit the deceased in his left eye. He has submitted that what is established from the testimonies of the fact witness is that appellant was hurling abuses to deceased and his family members in the night of the incident and when he continued abusing for a long time, deceased went to the roof of his house along with his family members and stopped him from hurling abuses whereupon appellant came to stair case of his house and fired shot which hit the deceased and he died on the spot.

32. Learned A.G.A. has also submitted that eye witness account of P.W. 1 and P.W. 3 cannot be disbelieved on this reason also that no independent witness has supported it. He has submitted that if it is proved that P.W. 1 and P.W. 3, have given a true account of the incident that deceased was killed by the appellant by opening firing upon him, finding of conviction recorded by the trial court against appellant would be maintained. He has also submitted that despite lengthy cross examination being made from both eye witnesses, nothing has come out in their cross examination so that their presence on the spot could be doubted and their testimonies could be disbelieved. So, even if the eye witness account of fact witnesses, who are related with the deceased, has not been supported by any independent witness, this would not make any difference nor the testimonies of eye witnesses would be disbelieved for want of support from independent witness.

33. He has also submitted in a case where there is direct evidence of the incident, prosecution story would not be disbelieved on the reason that prosecution has not set up any motive against the accused for committing the crime. He has also submitted that it is not necessary that there would always be a motive behind a crime. Though normally motive remains behind a crime. The issue of motive is very complex as it is not always necessary that a person against whom any crime has been committed be aware of the reason why he was subjected to crime. It is very difficult for a third person to know what was moving in the head of a criminal when he committed the crime. So, if the case is of such nature where direct evidence is available and the said evidence is in the form of eye witness account, the motive loses its significance and in that case, if the prosecution has not set up any motive against the accused who committed the offence, the accused would not be given any benefit of this, rather evidence that has come against him would be looked into, and if it is proved from the evidence that it is accused who committed the crime, he would be convicted despite the fact that prosecution has not set up any motive.

34. Learned A.G.A. has further submitted that though it has been suggested from the side of the appellant that family members of the deceased had reason to falsely implicate the appellant in the incident of murder of the deceased because one of the deceased's uncle was issue less and his share in land was being cultivated by his two uncles including the father of the appellant. But this does not appeal to logic that brother of deceased would falsely implicate appellant in the offence of murder of his brother for that reason leaving the real culprit.

35. As regards source of light, learned A.G.A. has submitted that it is proved from the site plan Ex. Ka-5 that there is a lamp pole standing over the platform in front of house of the appellant and it has also come in the statements of both eye witnesses that a bulb was lightened on that lamp pole when the incident is said to have taken place. He has submitted that when a lamp pole is situated in front of house of the appellant which is adjoined to the house of the deceased in the south and a bulb was lightened on that pole at the time of occurrence and appellant being the first cousin of the deceased, both witnesses were familiar about his physique and his way of movement and that is why they could easily identify him even in night and it has come in the statements of eye witnesses that there was sufficient light on the roof of the deceased at the time of occurrence, there does not appear any reason to believe that eye witnesses could not identify the appellant. Appellant being close relative of the deceased, eye witnesses could identify him even in the absence of light, and in view of that, if the eye witnesses have said that there was sufficient light on the roof when the incident took place, and they had seen appellant having shot at deceased, the plea taken by the defence that prosecution has developed a new case by saying that a bulb was lightened on the pole situated in front of house of the deceased so that they may establish the identity of appellant is not tenable.

36. Learned A.G.A. has also submitted that it is not the case of prosecution that appellant caused the incident from the same country made pistol which is said to have been recovered from him on 9.1.2007. He has submitted that it has been the case of the prosecution from the very beginning that the deceased was shot at by a rifle. The gun shot wound sustained by the deceased also indicates that it was caused by a rifle shot and not by a country made pistol. Though, it is true that the firearm used in the offence has not been recovered from the appellant rather a country made pistol of .315 bore has been recovered from him for which he has been prosecuted under Section 25, Arms Act. He has further submitted that it is the appellant who at the time of his arrest stated that he had used the same firearm in the offence which has been recovered from him. It has never been the case of the prosecution that the firearm which has been recovered from the possession of the appellant is the same firearm which was used in committing the murder of the deceased. So, if the appellant has stated incorrectly by saying that he committed the incident with the same firearm which has been recovered from him while empty cartridge recovered from his staircase has not been found to be fired from the said firearm, the defence cannot be given any benefit of it as it has never been a case of prosecution that recovered firearm is the same which was used in committing the murder of the deceased.

37. After having heard the respective submissions of learned counsel of both sides, the undisputed factual position that has been so emerging is that both the deceased and appellant are the resident of village Sujipur, Police Station Bhartana, district Etawah and they are cousin brothers and their house in the village are adjoining to each other and the house of appellant is in the south to the house of deceased. The roofs of both houses are adjoined with each other. It is also not disputed that deceased was done to death in the intervening night of 25/26 December,2006 on the roof of his house by a gun shot injury. The existence of a lamp post on the platform infront of house of appellant near Kharanja is also not disputed.

38. In the site plan Ex.Ka.-5, the place shown by 'A' is point, where from the dead body of the deceased was recovered and 'B' is the point from where the deceased is said to have been shot at by the appellant. The distance between these two points is 17 paces. According to prosecution, appellant fired a rifle shot at the deceased from 'B' point which hit the deceased in his left eye while he was stopping appellant from abusing from 'A' point. After having received gun shot wound, deceased is said to have fallen down on the roof and died then and there. Looking to distance between point 'A' and point 'B' which is 17 paces, it appears that if a rifle shot is fired from 'B' point a person standing at 'A' point may receive the same as there is no hurdle between these two points. The nature of gun shot received by the deceased also reveals that it was a rifle shot which caused injury to deceased resulting to his death as the dimension of exit wound is wider than entry wound which is the characteristic of a rifle shot.

39. The medical evidence reveals that deceased had received a single gun shot wound and it was probably of a rifle shot and death of deceased was caused due to shock and hemorrhage as a result of gun shot wound. It also reveals that gun shot wound received by the deceased was sufficient to cause his death. The medical evidence also reveals that death of deceased was caused at about 2 a.m.in the intervening night of 25/26.12.2006 and deceased had taken dinner six hours prior to his death as pasty food was found present in the intestine at the time of post mortem examination. Thus, it is established that death of deceased was caused by a single gun shot wound received by him.

40. Both eye witnesses of the incident who have supported the prosecution story are the wife and real elder brother of deceased. They have given statements that appellant was hurling abuses to deceased and his family from his house in the intervening night of 25/26 December, 2006, and when he did not stop hurling abuses for a long time, deceased went to the roof of his house along with his mother, brother and wife and stopped appellant from hurling abuse whereupon he came to the staircase of his house with a rifle in his hand and shot at deceased which hit the deceased in his left eye on account of which he fell down on the roof and died.

41. We have gone through the entire evidence of PW-1 Smt. Suman and PW-3 Awdesh Kumar and except minor discrepancies having occurred in their statements nothing has elicited in their examination so that their evidence may be dis-believed. It is true that they being wife and elder brother of deceased are related witness, however, their testimony cannot be discarded merely on that reason because related witness is not equivalent to interest witness. The Apex Court in the case of State of Rajasthan v. Smt. Kalki and another reported (1982) 2 SCC 752 has held that a witness may be called interested witness only when he or she derives some benefit from the result of a litigation in a decree in a civil case or in seeing an accused person punished. The Apex Court has further held that if a witness is a natural one and is the only possible eyewitness in the circumstances of a case, he cannot be said to be the interested.

42. Regarding discrepancies occurring in the depositions of the witnesses , the Apex Court has held that in the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. It has further held that discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time , due to mental disposition such as shock and horror at the time of occurrence, and the like.

43. Regarding credibility of related witness, the Apex Court in the case of Kapildeo Mandal and others v. State of Bihar reported in AIR 2008 SC 533, has held that it is settled by series of decisions that while appreciating the evidence of the witnesses related to the deceased, having strained relations with the accused party, their evidence cannot be discarded solely on that basis but the Court is required to carefully scrutinize and find out if there is scope of taking view whereby the court can reach to the conclusion that it is a case of false implication. The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence and, particularly so, when it is corroborated by the evidence of independent and injured witnesses. Paragraph 8 of the said judgment is material, which is reproduced herein below:-

"8. From the evidence of the witnesses examined by the prosecution., it is clear that there was animosity between the side of the complainant and the accused persons. There was a litigation between the parties and they did not have good relations. The witnesses Mahesh Mandal (PW-5), Brahmadeo Mandal (PW-6), Bimla Devi (PW-7) (wife of the informant) and the informant Ramanand Mandal (PW-9), are closely related to the deceased. At the same time, their presence in the house where the incident took place at 11.00 o'clock at night cannot be doubted. Other witnesses who were examined by the prosecution had reached the spot after the incident had already taken place and they were not the eye-witnesses to the incident. Now it is well settled by series of decisions of this Court that while appreciating the evidence of the witnesses related to the deceased, having strained relations with the accused party, their evidence cannot be discarded solely on that basis, but the court is required to carefully scrutinize it and find out if there is scope for taking view whereby the court can reach to the conclusion that it is a case of false implication. The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence and, particularly so, when it is corroborated by the evidence of independent and i8njured witnesses. Speaking for a 5-Judge Bench in a celebrated judgment, viz., Masalti and Ors. v. The State of Uttar Praadesh, AIR 1965 SC 202 (in para 14), P.B.Gajendragadkar, C.J. Said :

"...There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interest, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are the matters which must be taken into account. But it would, we think be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interest witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is a partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

In Nallabothu Venkaiash v. State of A.P., (2002) 7 SCC 117 (in para 13), this Court held:

"The test, in such circumstances , as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double-edged sword and it can cut both sides. It can also be a ground for assault...."

In Ramanand Yadav v. Prabhunath Jha and Ors., (2003) 12 SCC 606 (in para 15), this Court held:-

"...But at the same time if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence, with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence is biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid..."

In State of Himachal Pradesh v. Mast Ram, AIR 2004 SC 5056 (in para 11)., this Court said :-

"...The law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not the requirement of Law. ...."

44. Regarding credibility of witness, the Apex Court in a recent case of Bhagwan Jagannath Markad and others v. State of Maharashtra reported in (2016) 10 SCC 537, has held that while appreciating the evidence of a witness the court has to assess whether read as a whole , it is truthful. In doing so, the court has to keep in mind , the deficiencies, drawbacks and infirmities, to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. In the said case the Apex Court has further held that a witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to asses whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

45. We have examined the depositions of PW-1 Smt. Suman and PW-3 Awdesh Kumar in the light of the aforesaid decisions of the Apex Court and we find that except minor discrepancies there is nothing in their depositions so that the evidence may be out-rightly rejected. It is not disputed that deceased lived along with his wife, children and parents at his ancestral house. If the deceased lived along with wife and children at his ancestral house and the incident took place on the roof of that house, the presence of wife of deceased on the spot at the time of occurrence is natural. Similarly, the presence of brother of the deceased at the ancestral house in the night of the incident is also not improbable because it is established from the evidence that he had taken leave for a month for constructing his house which was being constructed in Qasba Bhartana which is hardly at a distance of 5 k.m. From his ancestral house. The presence of eye witnesses at the place of occurrence at the time of occurrence cannot be doubted on the reason that the house of eldest brother of deceased is situated in Qasba Bhartana where father of deceased was staying in connection with treatment of his ailment. It is established from the evidence of eye witnesses that wife and children of Mahesh, the eldest brother of deceased, were living in the house of Mahesh in Qasba Bhartana and were taking care of father of the deceased and in that case it is not necessary that each and every member of the family would remain there for attending and looking after the ailing father of the deceased. Thus, so far the presence of eye witness Awdesh Kumar on the spot at the time of incident is concerned, it not only appears to be probable but natural too.

46. The eye witness account of fact witnesses cannot be discarded on the basis of alleged discrepancies occurred in their statements. There is consistency in their depositions that in the night of incident appellant was hurling abuses to the deceased and family members from his house and when he did not stop abusing for a long time, deceased went to the roof of his house along with wife, mother and elder brother and stopped him for hurling abuses whereupon appellant came to the staircase of his house with a rifle in his hand and opened fire which hit the deceased on the left eye as a result of which he fell down on the roof and died. Though there is discrepancy regarding time of abusing since when the appellant was hurling abuses, as according to PW-1 Smt. Suman appellant was hurling abuses from 2 a.m. when the incident is said to have taken place while PW-3 Awdesh Kumar has said that he was hurling abuses from 10-10.30 p.m. and there is also discrepancy regarding number of shots fired by the appellant. But both eye witnesses have categorically said that deceased received a single gun shot wound fired by the appellant from his stair case and it is supported with the recovery of a live cartridge from the stair case of the appellant also. Since there is no inconsistency in the depositions of eye witnesses regarding number of gun shot injury sustained by the appellant and it is supported with medical evidence also in which it is said that appellant had a single gun shot wound and also that the gun shot wound was sufficient to cause death of deceased, we find that minor discrepancies which have come in the depositions of the eye witnesses stated above are not so material so that the eye witness account may be discarded.

47. The eye witness account of PW-1 Smt. Suman and PW-3 Awdesh Kumar cannot be discarded on this reason also that it is not supported by any independent witness. It is a common practice that people normally avoid being a witness in a criminal case, so, if in the present case despite incident having taken place on the roof of deceased in the mid of village and house of deceased being surrounded from the houses of others from three sides, if no person of the locality has been named as witness by the prosecution, this could not be made basis for discarding the testimonies of the wife and elder brother of deceased who have categorically said that they were present on the spot when the incident took place and it was appellant who caused the gun shot wound to deceased resulting his death.

48. The Apex Court in the case of Brahm Swaroop and Another v. State of Uttar Praadesh reported in (2011) 2 SCC (Cri) 923, has held that merely because witnesses are closely related to deceased victims, their testimonies cannot be discarded. Their relationship with one of the parties is not a factor that affects credibility of a witness. More so, a relation would not conceal actual culprit and make allegations against innocent person. The party has to lay factual foundation and prove false implication by leading impeccable evidence in respect of his false implication. Further, in such cases the court has to adopt a careful approach and analyse evidence, to find out whether it is cogent and credible evidence.

49. It is true that FIR is silent about the source of light. However, it has come in the evidence of eye witnesses that a lamp post is situated near the place of occurrence and a bulb was lightened at that lamp post at the time of occurrence. The defence has not denied the existence of lamp post rather its contention in this regard is that the said lamp post is situated not in front of house of the deceased but it is situated in-front of house of appellant near Kharanja and the distance between the lamp post and the place where the deceased was shot at is more than 70 paces. This is not the case of defence that there was no supply of electricity in the village at the time of occurrence. The lamp post has been shown in the site plan and it has been shown to be situated over the platform in front of house of the appellant near Kharanja. However, taking a note of the fact that a lamp post was existed near the place of occurrence and a bulb was lightened on the said lamp post and the place where deceased is said to have done to death is not far away from the said lamp post, the presence of light on the spot at the time of occurrence cannot be denied. Moreover, appellant being first cousin of deceased, he was very well known and familiar to witnesses not only by his physique but also by his way of movement of body etc., and in that situation his identity could be established by the eye witnesses even in absence of light. Therefore, the defence cannot be allowed any benefit of the plea that no source of light has been mentioned in the FIR and the incident being of dark hours in the night, it was not possible for the eye witness to identify the assailant.

50. It is also true that no reason has been assigned in the FIR behind appellant committing the offence. It has come in the evidence of PW-3 Awdesh that one of the uncles of the deceased, namely, Ahibaran Singh was issue less and his land was cultivated by his two uncles namely Ramesh and Suresh, one of the father of the appellant. Though it has been argued from the side of defence that since the land of Ahibaran was being cultivated by the father of the appellant, deceased and his family had animosity of that with the appellant and for that reason appellant has been falsely implicated in the offence. This plea of defence is not acceptable as it is the settled principle law that in a case of direct evidence motive loses its significance. The present case is not based on circumstantial evidence so that it could be said that it was necessary on the part of the prosecution to plead and prove the motive. There being direct evidence of the incident and both eye witnesses having categorically stated that incident in question had taken place in their presence, and nothing has elicited in their cross examination so that their presence on the spot can be doubted from any corner, even if the prosecution has not assigned any reason in FIR behind committing the offence, it would not be possible to hold from any corner that eye witnesses account could not be accepted for want of motive.

51. The eye witness account of PW-1 Smt. Suman and PW-3 Awdesh Kumar cannot be dis-believed on this reason also that it is not supported with ballistic report Ex.Ka-20 in which it is said that empty cartridge recovered from the stair case of the house of the appellant was not fired with the country made pistol which was recovered from the appellant on 9.1.2007. This is not the case of prosecution that country made pistol which has been recovered from the possession of the appellant on 9.1.2007 is the same fire arm which was used in the commission of murder of deceased. To the contrary, from the very beginning the case of the prosecution is that the shot was fired from a rifle by the appellant which hit the deceased on his left eye and he died. When it has been the case of eye witnesses that appellant had shot at deceased with a rifle and it has never been their case that the firearm which has been recovered from the appellant on 9.1.2007 is the same firearm from which the shot was fired on the deceased, the appellant cannot be given any benefit of ballistic report which says that the empty cartridge recovered from the house of the appellant's stair case was not fired from the same firearm which has been recovered from the possession of the appellant. The prosecution case is that when appellant was arrested on 9.1.2007, on his personal search a country made pistol of .315 bore along with a live cartridge of the same bore was recovered from him. It is appellant who when arrested stated that it was the same firearm which he used in committing the murder of the deceased. However, this being not the case of prosecution, it it has come in the ballistic report that empty cartridge recovered from the stair case of the appellant was not fired from the same firearm which has been recovered from the possession of the appellant, this will not affect the prosecution case. The prosecution case will not be affected on this reason also that the rifle used in the commission of offence has not been recovered. If the Investigating Officer has failed in making recovery of rifle used in the offence, this is failure on his part for which he may be criticized, but prosecution case cannot be allowed to suffer for that failure of the Investigating Officer. The plea of the appellant that the deceased was done to death by some unknown assailant in the night and on finding his dead body in the morning by his brother PW-3 Awdesh Kumar, who is in Police force, he lodged a false FIR against the appellant due to dispute of property is not acceptable as appellant has not adduced any evidence in this regard.

52. Learned counsel for the appellant has also argued that alleged recovery of .315 bore country made pistol along with a live cartridge of the same same bore from the possession of the appellant on 9.1.2007 being not made in presence of any public witness, the said recovery cannot be said to be proved on the basis of testimonies of police officials only, and in view thereof, the finding of conviction recorded by the learned court below under section 25 Arms Act cannot be upheld.

53. We do not find any merit in the aforesaid submission also as testimonies of police officials cannot be discarded merely on the reason that alleged recovery has not been made in presence of any public witness. The memo of arrest and recovery shows that the police officials had made attempt to make recovery in presence of public witnesses, but no one agreed to this, and that is why the recovery could not be made in presence of any public witness. PW-5 Inspector Ram Nath Singh Yadav and PW-6 S.I. Dhyan Singh have proved the recovery. They have said that appellant was arrested on 9.1.2007 and on his personal search a .315 bore country made pistol alongwith a live cartridge of the same bore was recovered from him for which he had no license. There is no discrepancy in their depositions regarding the alleged recovery as nothing has come in their cross examination so that the recovery may be doubted, Therefore, if the alleged recovery has not been made in presence of any public witness, the said recovery being made from the appellant and being proved by the police officials, it shall be believed and if the learned court below on account of that recovery has held appellant guilty for the offence under section 25, Arms Act, there is nothing wrong in it so that the finding of conviction may be set aside.

54. In view of the aforesaid discussions, we find that learned court below has not committed any illegality in recording the finding of conviction against appellant under section 302 IPC for committing the murder of deceased and under 25 Arms Act for the appellant having illegal firearm. The finding recorded by the learned court below being in accordance with the evidence on record and law is liable to sustain and appeal is liable to be dismissed.

55. Accordingly, appeal is dismissed and the judgment and order dated 08.04.2011 passed by the learned Additional Sessions Judge, Court No. 6, Etawah in Sessions Trial Nos. 113 of 2007 and 114 of 2007 (State Vs. Dilip Kumar alias Tanne), whereby the appellant has been convicted under Section 302 IPC and Section 25 Arms Act and has been sentenced to undergo life imprisonment with fine Rs.5,000/- and in default to undergo one year rigorous imprisonment for the first count for committing the murder of deceased and to undergo one year rigorous imprisonment with fine Rs.1,000/- and in default to undergo three months rigorous imprisonment for the second count for having illegal arm are confirmed.

56. Appellant is in jail and he shall remain therein to serve out the punishment awarded to him.

57. Let a certified copy of this judgment be sent to the court concerned for ensuring compliance of the order.

                    (Umesh Chandra Srivastava, J.)        (Ramesh Sinha, J.) 
 
Order Date :- 19.5.2017
 
RCT/-SSM/-