Laxman vs State Of U.P.
2019 Latest Caselaw 2878 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
	
 
Judgement Reserved on 25.03.2019
 
Judgement Delivered on 12.04.2019
 
Court No. - 1
 

 
Case :- JAIL APPEAL No. - 323 of 2018
 

 
Appellant :- Laxman
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Sameer Jain(Amicus Curie)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. This Jail Appeal has been preferred by the appellant, Laxman from jail against judgement and order dated 22.10.2016 passed by Additional Sessions Judge, Court No.2, Meerut in Sessions Trial No. 237 of 2014, State Vs. Laxman whereby the appellant has been convicted under Section 302 and 504 I.P.C. and has been sentenced with life imprisonment and fine of Rs. 50,000/- and in default of fine, two years simple imprisonment under Section 302 I.P.C. and two years' R.I. with fine of Rs. 5,000/- and in default of payment of fine, six months simple imprisonment under Section 504 I.P.C. and it is further directed that both the sentences shall run concurrently.

2. In brief, the prosecution case is that informant, Om Veer, P.W.1 gave a written report, Exhibit Ka-1 at P.S. Kakarkheda, District Meerut stating therein that he and his brother, Laxman S/o Aasrey R/o Village Bawli Khas, P.S. Kakarkheda, District Meerut had 40 square yards land in partnership near his house in which informant used to keep his uphley and cow-dung etc. and at the time of occurrence, he had sown barsi on the said land. His brother, Laxman used to abuse him off and on and used to threaten him pertaining to the said land. On 26.10.2013, he along with his son, Brijesh @ Monu were sitting in their house, at about 4:30 p.m., in the meantime Laxman came there and started abusing him and asked him as to by whose permission, he had sown barsi on the said land and that he would be set right today. At this his son, Brijesh @ Monu uttered as to why he was abusing his father and thereafter, Laxman took out the pistol and made fire upon Brijesh @ Monu and getting hit by the same, Brijesh @ Monu fell down. After hearing the sound of fire, many residents of the mohalla reached there, seeing them, Laxman fled from there. As a result of the said injury, his son died and therefore report was lodged.

3. Upon receipt of the said written report, Case Crime No. 898 of 2013 was registered at the said P.S. under Sections 302 and 504 I.P.C. against accused Laxman.

4. The investigation was assigned to S.I., Mahavir Singh (P.W.5) who after having assumed investigation on 26.10.2013, copied the F.I.R., G.D. and recorded statement of informant, chik writer and at the instance of informant, prepared the site-plan which is Exhibit Ka-8. He also prepared memo of plain-soil and blood-stained soil collected from the place of occurrence and on information received from informer, arrested the accused, Laxman and recovered from his possession the weapon used in commission of offence i.e. one country made pistol of 315 bore along with an empty cartridge and in regard to that, a separate case was registered against him under Section 25 of Arms Act. He also recorded statement of the accused the same day. On 26.10.2013, he along with his companion, Constable Som Pal Singh, Constable, Pramod Kumar, Constable Rakshak Singh and Constable Ashok Kumar departed from the police station by official jeep vide report no. 46 time 17:10 p.m. for search of wanted criminals and vide report no. 58 time 21:20 hours, summoned constable Ranpal Singh and when they all reached near Bansal Engineering, information was received from informer that the accused suspected to be involved in murder which took place in the evening at Pawli Ghas was about to proceed from there towards railway gate and was out to flee. After receiving this information, he tried to obtain public witnesses but none became ready, thereafter, after having taken search of each-other, the police party together with informer reached the place which was pointed out by him and after being shown the said person at a distance of 100 paces form there, the accused, Laxman was arrested by them near the temple and upon his search, one country made pistol of 315 bore along with an empty cartridge which was stuck in the said country-made pistol were recovered from him and about it, he stated that by the said pistol, he had murdered his nephew, Brijesh. Upon making such confessional statement, he was taken into police custody on the spot itself, this witness got the recovery memo prepared by head-constable, Ram Pal Singh at the said place and the said articles were sealed on the spot. This witness has proved the recovery which is Exhibit Ka-9. The accused along with recovered weapon was brought to the police station and case was registered. On 1.11.2013, he copied panchayatnama and post-mortem report in C.D., parcha no.2. On 7.11.2013, he recorded statement of panchas i.e. Omveer, Kiran Pal, Rajendra, Raheesuddin and Udai Veer in C.D., parcha no.3. In C.D. parcha no. 4 dated 16.11.2013, he recorded statement of Smt. Usha W/o Omvir, Smt. Mamta W/o Yogesh, Smt. Guddi W/o deceased, Brijesh. On 29.11.2013 in C.D. parcha no. 5, he recorded statement of doctor Dinesh Kumar and Home-Guard, Baleshwar. On 12.12.2013 in C.D. parcha no.6, he recorded statement of Constable, Bharat Giri, Head-Constable, Ranpal Singh, Constable Pramod Kumar, Constable Gagan Singh and Constable Ashok Kumar. In C.D. parcha no. 7 dated 20.12.2013, he recorded statement of Som Pal Singh and after having inspected the place of incident, prepared the site-plan which is Exhibit Ka-10. On 22.12.2013 in parcha no. 8, he recorded the depositing of the recovered country-made pistol and cartridge at F.S.L. On 25.12.2013 in parcha no. 9 of C.D., he after having concluded the investigation against the accused, Laxman, filed charge-sheet no. 703 of 2013 which is Exhibit Ka-11 in his hand writing. The case property pertaining to Crime No. 498 of 2013 and 900 of 2013 was brought before court in sealed condition by pairokar which was opened and out of the said cloth, 315 bore country-made pistol and one empty cartridge of 315 bore and two empty cartridges of 315 bore (tested) were presented before court, the empty cartridge which was taken out from the barrel of country-made pistol was marked as E.C. (I) and two other empty cartridges, T.C. (I) and T.C. (II) were there. The country-made pistol was marked as material Exhibit 1. Real empty cartridge was marked as material Exhibit Ka-2 and cloth was marked as material Exhibit 3. The tested cartridges were marked as material Exhibits 4 and 5. This witness has identified the said country-made pistol and the cartridges to be the same which were recovered from the accused person in court thereafter, the charge was framed against the accused appellant on 8.07.2014 under Sections 302 and 504 I.P.C. to which he pleaded not guilty and claimed to be tried.

5. In order to prove its case beyond reasonable doubt form the side of prosecution, Om Vir, father of the deceased as P.W.1, Usha, mother of the deceased as P.W.2, S.I. Udai Vir Singh who has proved the panchayatnama and other relevant papers relating to the post-mortem as P.W.3, Dr. D.K. Sharma who conducted the post-mortem of the deceased as P.W.4 and Mahavir Singh, I.O. as P.W.5 have been examined by way of oral evidence. Thereafter the prosecution evidence was closed and the statement of accused was recorded under Section 313 Cr.P.C. in which entire evidence which has been gathered by the prosecution against him has been stated to be false and it has been stated by him that dispute between him and his brother Om Vir was settled in year 2006 by Raj Kumar Prajapati, Pradhan. He had Rs.20,000/- due upon Omvir in lieu of which one biswa land was given to him which was situated near his house. On the date of incident, the deceased Monu had caught hold of him from behind and Omvir had made a fire upon him with an intention to kill which actually hit the deceased, Monu whereby he died on the spot.

6. After having considered the entire evidence and having heard both the learned counsel for the parties, learned trial court has convicted the accused appellant under afore-mentioned sections and, therefore in the present appeal, we have to see as to whether in the light of arguments made by learned Amicus Curiae, the appreciation of evidence has been correctly made by the trial court or not or whether impugned judgement deserves to be set-aside.

7. Before proceeding to form opinion in this regard, we have to go through the evidence which has been brought on record from the side of prosecution.

8. P.W. 1, informant, Om Vir has stated in examination-in-chief that the accused present in court, Laxman is his real brother while the deceased Brijendra @ Monu is his son. Prior to this incident, he had a dispute with the accused pertaining to land because accused often used to give life threats. On 26.10.2013, he along with his son, Brijesh (deceased) was sitting at about 4:30 p.m. at his house, in the meantime, Laxman (appellant) came there and started abusing him saying as to by whose permission, he had sown the crop of barsi on the said land and that he would teach him lesson today. Thereafter his son told the accused (his tau) as to why he was abusing his father thereafter the accused took out pistol and made fire upon Brijesh @ Monu in front of him, by which he fell down. After hearing the sound of fire, many persons of the vicinity came there seeing whom accused, Laxman fled from the spot. His son had died soon after getting hit by the bullet. He had dictated the report about this occurrence to Rahimuddin of his village which was given by him at the police station, whatever was stated by him, the same was written therein as after having written the same, he had read over the same to him and had got his thumb impression affixed upon it. This witness after having seen paper no. 5 a/1 identified the said document to be the same report which he had dictated to Rahimuddin which is marked as Exhibit Ka-1. He has further stated that the same day, the Daroga Ji had come at the place of incident for preparing panchayatnama in which he was also made a panch and this witness identified his thumb impression on paper no. 10 a/2 and also stated that at the time of incident, his wife Usha, his son's wife Mamta and Smt. Guddi who is wife of deceased, Brijesh @ Monu were present and other villagers were also present there.

9. In cross-examination this witness has stated that the incident happened on 26.10.2013 at about 4-4:30 p.m. in front of his house on road. The dispute between them related to land, half of which was that of Laxman, accused and half belonged to him which was ancestral property. Laxman had fired upon his son Brijesh @ Monu. The possession on the said land was that of the informant and in their portion of the land, crop of barsi was sown. Laxman after reaching there, started abusing and opened fire upon Brijesh which hit his left hand and in the side and as soon as it hit him, he died. At the time when fire was made, he (P.W.1) was standing there in front. After the fire was made and when alarm was made, Laxman fled from there. At the time of occurrence, his wife, Usha, his sons, wife, Mamta wife of deceased, Guddi were also present there and all of them had seen this incident. At the time of occurrence, there was no other persons present except his family members and subsequently many villagers had also arrived there which included Rajendra, Moni, Kiran Pal, Dhire and others. About 5:00 p.m., police had also come and had taken away the dead body with it and thereafter, panchayatnama was also done. They had brought the dead body after post-mortem having been conducted, the next day, he does not recollect. He had dictated the report to Rahimuddin which is Exhibit Ka-1 which bears his thumb impression and denied that the accused, Laxman had not made fire and also denied that he was not on the spot and that he had falsely implicated Laxman with a view to usurping his land.

10. P.W.2, Smt. Usha, wife of Om Vir has stated in examination-in-chief that about a quarter to two years ago at about 4:00 p.m., she, her son, Brijesh @ Monu, her husband and children were present in their house, the accused present in court i.e. Laxman Kumar had started abusing them and when his son, Brijesh asked him not to abuse, he (accused) opened fire upon him by which his son who died on the spot. The land in question was being used by her for the purposes of making cakes of cow-dung (Kanda) and because of this reason, she used to have quarrel with her jeth (accused) who used to indulge in marpeet also. About this occurrence, the report was lodged by her husband, Om Vir at the police station. The Inspector had come to her house in order to investigate the case and had recorded her statement and she had narrated the entire incident to him.

11. In cross-examination this witness has stated that the distance between the place of incident and her house is 5-6 paces; the incident happened at about 4:30 p.m. and at that time, she was few paces away from the spot where incident happened. She had snatched the country-made pistol from the hands of accused, Laxman. He was trying to fill cartridges in the same. At that time she, her husband, Om Vir and her daughter-in-law, Guddi and Mamta were also present there. The fire was made by right hand. In her neighbourhood, Dhiraj Pal and Dharam Vir etc. were living. She had also gone to the police station along with her both daughter-in-laws and husband. The police had arrived at about 5:00 p.m. and had taken away the deceased but she does not recollect whether any writing work was done in respect of dead body but again stated that her statement was recorded by police the next day at her house in village. She was in a non-plussed condition and was crying. She does not know as to who others were crying. He son was lying at a distance from her equivalent to verandah. She does not know as to who all had come there, though she had reached there within two minutes and there, her son had died. There was stampede like situation but she could not tell as to how many persons had rushed to that place. She also does not know as to where her husband was at that time although near the dead body, one Brij Pal of the said mohalla was taking liquor. After the Brijesh had received injury, they had taken him to doctor, they had gone to two hospitals. She had taken the dead-body in the tempo but she does not know the name of Modipuram hospital. The said tempo belonged to Kumhar (potter) which belonged to son of Rajendra. When both her sons reached hospital, she had become unconscious. The names of her sons are Neeraj and Sonu, her husband had reached hospital subsequently. Both the hospitals had refused admission to Brijesh saying that he was not alive.

12. Further she had stated that she had dispute going on with Laxman pertaining to partition of land although she was in possession of her part of the land and Laxman was in possession of his part of land. The entire land was about two bighas. She had showed barsi in half portion. The occurrence had taken place near diwali but she could not tell the year. At the time of occurrence, she was in the vicinity of the place of occurrence. The fire was made by Laxman after taking out pistol from his 'anti'. Her son was fired upon at his both hands. The field and the house are situated close to each-other. His son is known as Monu @ Brijesh. At the time of occurrence, she was at the distance of five paces from him. Her sons had received injury in left hand and in the side. Her daughter-in-law, Mamta and her husband, Om Vir were on the spot. As soon as her son received injury, he fell down and died. She had not gone to the police station nor could she tell as to who else had gone to the P.S. She does not know whether the body was taken to the P.S. or somewhere else. The dead body was brought next day after the post-mortem. The field regarding which there is dispute is located in front of house of both the sides i.e. informant and accused but does not know as to at how many metres distance would the same be. She has no awareness about the directions. The field in which barsi was kept was in her name. The threat was being given of taking forcible possession of the said land. Prior to this occurrence, she had gone to the police station to complain against the accused, Laxman in respect of usurping her land and showing high-handedness but she does not know when the said application was given at the P.S. but no action was taken by police on her application. Quarrel with respect to land had happened several times and the villagers also knew about the said dispute between them. She has denied that on 26.10.2013, she had called Laxman and she has also stated it to be wrong that she, her husband, Omvir, after calling Laxman had done marpeet with him and she also denied that her husband had fired upon Laxman which by mistake had hit her own son and that she and her husband had falsely implicated the accused in this false case.

13. P.W.3, Udai Vir Singh has stated that on 26.10.2013, he was posted as S.I. at P.S. Kakarkheda and on that date, the proceeding of panchayatnama of the deceased, Brijesh @ Monu was completed in village Pauli Ghat. This witness after having perused paper no. 10 a/1, panchayatnama, 10a/3 R.I. Report, 10a/4, C.M.O. report, 10a/5 form no. 13, 10 a/6 photo lash, 10 a/10 sample seal stated that they were in his hand-writing and signature which were marked as Exhibits Ka-2, Ka-3, Ka-4, Ka-5, Ka-6, Ka-7 respectively.

14. In cross-examination, this witness has stated that he was posted at P.S., Kakarkheda for about two years and had visited the place of occurrence with S.O. at about 5:10 p.m. but does not know as to who had given information of this occurrence at the police station. There is open place in front of the house where incident happened. He had started proceedings at 5:35 p.m. and by the time it was closed, it must have taken two hours and five minutes and the proceedings were closed at 7:40 p.m. S.O. Sahab was present on the spot. It had become dark on the place of occurrence although there was provision of light and there only the proceedings were completed but could not tell as to who five persons were made witnesses of panchayatnama and whether they were of the village or of outside. He could not tell their names and has refused the suggestion that the entire proceedings was done by him sitting at the P.S.

15. Dr. Dinesh Kumar Sharma has been examined as PW4 who has stated in examination in chief that on 27.10.2013 the dead body of Brijesh @ Monu son of Omvir aged about 20 years resident of village Pawli Khas, P.S. Kankerkhara, District Meerut was brought for postmortem which was identified by his elder brother Neeraj and younger brother Yogesh. His body was brought in a sealed condition by Constable Bharat Giri, Home Guard, Baleshwar of P.S. Kankerkhera and found the following ante-mortem injuries on his body.

i) Gun shot wound of entry, size: 3cm x 3cm x track moving to left side of chest cavity - right side of chest cavity - subcutaneous tissue of right axilla - Muscle of right shoulder outer aspect in deltoid r.g. Margins of wound inverted; no singeing, no scorching present. Wound of entry is 7 cm above and upto left nipple at 10 'O clock position.

ii)    Tattooing over outer aspect of left shoulder, left arm in area of 20cm x 10 cm, both side of face except forehead, in mid position of back of left forearm in area of 6cm x 4cm and just below the wound of entry in outer aspect of left chest in areas 6cm x 4cm.
 
iii)    Ribs of left chest wall 3rd and 4th ribs fractured and on right side of chest 2nd and 3rd ribs are fractured. 
 

 
16.	The cause of death has been recorded to be shock and haemorrhage as a result of gun shot injury. The time of death is recorded as about one day. No sign of decomposition was seen, rigor mortis was found present all over body. Mucous secretion from both nostils only. Heart empty both chambers.
 
17.	One mettalic bullet was found by this witness which was handed over to the police in a sealed condition. Further this witness has stated that the death would have happened on 26.10.2013 between 4.30 p.m. to 5.00 p.m and has proved his report Exhibit Ka-8.
 
18.	In cross-examination, this witness has stated that the postmortem of the deceased was started at 1.40 pm. and was finished by 2.00 p.m. and that his death might have happened one day prior to conducting the postmortem but it was not possible for him to say as after how much time of getting the said injury, he would have died. The fire arm injuries were caused to him on his chest on the left side and there was no other marks of injury except that of fire arm injury and he has denied that he was giving the statement under pressure from the informant and had not conducted the post mortem in proper manner. 
 

19. Sri Mahavir Singh, PW5 who is Investigating Officer has stated in cross-examination that after registration of the case and having recorded the statement of the informant which would have consumed about 45 minutes, his departure was made from police station at 17.10 hours. The investigation of case pertaining to section 302 IPC was assigned to him and he had reached the place of occurrence along with force and had inspected the place of incident, conducted Panchayatnama, collected blood stained soil and plain soil from the place of incident and gathered information about the accused Laxman. After conclusion of Panchayatnama, the dead body of the deceased was despatched to mortuary for postmortem and prepared site plan. He remained at the place of incident for about 2-2.30 hours and after leaving behind the Sub Inspector there, he went out in search of the accused and at about 9.45 A.M. he reached near Bansal Engineering College. Prior to that HCP Rampal was called and informer also met them there, who had informed that the said place would be about 4 kms. away on the route which goes to railway station. He denied that he did not ask the passers-by to be a witness of arrest of the accused. The informant had indicated about the accused Laxman although at the time of arrest of the accused, informer was not with him. The accused Laxman was arrested at 22.10 hours and his personal search was made. He had not recorded the statement of the accused Laxman on the spot. After getting the investigation, he did not record the time when he assumed the investigation in case diary although departure for investigation and time of the same was endorsed in G.D. He had recorded the statement of informant Omvir. While deposing before the court, the informant Omvir during his cross-examination in respect of paper no. 8Ka/3 has stated that "Tamancha Apne Ghar Par Dalkar Gaya Tha". It is wrong to say that it was recovered from the accused Laxman from the place of incident. This witness has further stated that PW2 Smt. Usha has stated in cross-examination that "Maine Laxman Key Hath Se Katta Chhena Tha" (she had snatched the country made pistol from the hand of Laxman). This witness has further stated that he had recovered the country made pistol, cartridges stuck in it from the possession of accused Laxman from the place of its recovery. He has further stated that he had recorded statement of the doctor in hospital but does not recollect as to in which G.D., he had made its endorsement. He denied that he had not gone to the place of incident and completed the entire investigation sitting at the police station itself. Further, he had stated that he had tried to collect information from the residents of the locality where the place of incident was located but he had not recorded the statement of any such person and had only recorded the statement of eye witnesses. He also does not know that there was enmity between Laxman and Omvir pertaining to land and further stated that it was wrong to say that Omvir had told accused Laxman as to why he had sown 'Barsheem' on his land and because of that Maar-Peet took place between them and then Brijesh @ Monu (deceased) caught hold of accused Laxman and then Omvir made fire upon Laxman the same hit Brijesh instead of Laxman. He also denied that he had picked up Laxman from his home and has falsely implicated him in a case under section 25 of the Arms Act.

20. Learned counsel for the appellant has vehemently argued that in the present case compliance of section 157 Cr.P.C. has not been made which mandated that a copy of FIR must be sent to the Magistrate concerned having jurisdiction forthwith/at the earliest. It is further argued that in the present case only written report has been got proved and neither chik FIR nor G.D. of registration of case have been brought on record nor they have been proved which casts serious doubt on the prosecution case and this infirmity in the prosecution by itself shows that the FIR is ante-timed and whole prosecution case stands clouded with mystery. He has relied upon the judgment of Supreme Court in the case of Arjun Marik and others vs. State of Bihar, 1994 Supp. (2) SCC 372 wherein it is held that the object of sending FIR to the Magistrate concerned forthwith is that there was no opportunity for the prosecution side to make any kind of improvement in the prosecution case and also that would enable the Magistrate concerned to have an eye over the course of investigation. The relevant paragraph no. 24 of the said judgement is reproduced herein-below.

"24.The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, CrPC thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 CrPC envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation."

21. The other case relied upon by the learned counsel for the appellant is Shiv Lal and others vs. State of Chhatisgarh (2011) 9 SCC 561 in which it is laid-down that to check that FIR is not ante-timed and ante-dated, Magistrate must be immediately informed of every serious offence so that he may be in a position to act under section 159 Cr.P.C, if so required. Every delay in sending the report to Magistrate would not necessarily lead to inference that FIR has not been lodged at the time stated or investigation is not fair and forthright. There may be an explanation for delay. In spite of the fact that any lapses on part of Investigating Officer, such as non-sending of FIR report to the Magistrate, would not confer any benefit on accused but prosecution case may be seen with certain suspension when FIR report has not been sent, when examined with other contemporaneous circumstances involved in the case.

22. From the above position of law it is apparent that there is no quarrel with the established position of law that soon after a case is registered at a police station in respect of serious offence, it is bounden duty of the police to immediately transmit a copy of the chik FIR to the Magistrate concerned having jurisdiction and that if there appears to be some delay in sending the same, its justification may be provided by the prosecution. But it is also evident from the above position of law that simply because of non-sending of the chik FIR, the entire prosecution case would not stand thwarted but would certainly be viewed with suspension depending upon attending circumstances which will depend upon case to case. This solitary lapse of non-sending of chik FIR to the Magistrate concerned would by itself not confer any benefit to the accused.

23. Now in the light of above position of law, we have to evaluate facts of the present case in the light of the evidence on record. According to prosecution, as per FIR, informant Omvir (PW1) had gone to the police Station Kankarkhera, District Meerut with a written report, which was got written by him by one Rahim Uddin son of Nizam Uddin dated 26.10.2013 mentioning therein that on the said date i.e. 26.11.2013 he and his son Brijesh @ Monu were sitting at home, in the meantime at about 4.30 p.m. accused Laxman came to his house and started abusing us as to by whose permission he had sown 'Barseem' in the land, which was about 40 sq. yards and was in partnership between the accused and complainant side and also threatened that he would teach him a lesson today, on this, his son Brijesh @ Monu told the accused Laxman 'Tau mere papa ko gali kyun de raho ho" ( Why he was abusing his father) and upon so being stated, the accused Laxman took out pistol from his 'anti' (waist) and fired at the deceased Brijesh @ Monu by which he fell down and hearing the sound of fire many persons of the Mohalla reached there and after seeing them, the accused Laxman fled from there.

24. It is apparent from the above statement that PW1 had gone to the police station to lodge the report on 26.10.2013 with respect to which Investigating Officer (PW5) Mahavir Singh has stated that on 26.10.2013 the investigation of case crime no. 898 of 1993 under section 302 and 504 IPC was given to him and on that date he had prepared Parcha no. 1 of the C.D. in which he copied FIR, G.D. and also took statement of informant as well as scribe of FIR and also made inspection of the place of incident and prepared site plan (Exhibit Ka-8). From the above statement, it is apparent that he had received copy of FIR as well as G.D., but for them having been received by him he could not have copied them in the C.D. Parcha no.1 on the said date, therefore, it is apparent that in the case in hand chik FIR was prepared and G.D. was also prepared but no cross-examination has been made from the side of defence on the point as to why these documents were not brought on record from the side of prosecution. It has also not come on record in cross-examination of this witness that any question was put to him with regard to the fact that no chik FIR was written and G.D. of initiation of case was prepared. Therefore, it cannot be held by this Court at the belated stage that those documents did not come in existence and were not sent to Magistrate concerned within the prescribed time and although we are of the view that this is a lacuna left by the prosecution in this case, not to prove the chik FIR and G.D. by examining the constable concerned who would have registered chik FIR at the police station as well as would have made entry of the said case in G.D., but the benefit of this lacuna left on the part of Investigating Officer/police of the concerned police station, would not be allowed to go to the accused and it, at the most would be treated by us to be irregularity, which would be taken as one of the grounds of suspicion but whether this accompanied with other factors/piece of evidence on record would bring any benefit to the accused, would be seen only after evaluation of the evidence which has been produced from the side of prosecution. Therefore, the case-laws which have been relied upon by the learned counsel for the appellant do not appear to confer any benefit of this lapse upon the accused.

25. The next important argument made by the learned counsel for the appellant is that the place of occurrence has been shifted and therefore, the same could not be held proved as the Investigating Officer has shown the place of occurrence to be the open place belonging to the accused Laxman which is shown by 'A' in site plan, Exhibit Ka-8 which is quite away from the house of the deceased while according to the informant, the occurrence took place in the house of the deceased and in this regard reliance has been placed by him upon Syed Ibrahim vs. State of Andhra Pradesh, JT 2006 (6) SC 597 in which it has been held that though FIR is not a substantive evidence, yet the same can be used to test the veracity of the evidence. The evidence of PW1 suffered from inconsistencies and therefore did not inspire confidence and High Court erred in brushing aside the inconsistencies. There was variation even with regard to the place of the occurrence. PW1and his wife having been separated for nearly two decades, it was doubtful if he could have witnessed the incident stated to have taken place at the place of his estranged wife. Since the place of occurrence itself had not been established it would not be proper to accept the prosecution case and therefore the appellant was directed to be set at liberty.

26. The facts of the above case are very different from the facts of the present case because in the above referred case four different places were stated to be the place of occurrence and therefore it was found that the place of occurrence could not be established by the prosecution. While in the case in hand according to the testimony of informant, PW1 it is evident that the occurrence took place when he was sitting at home. Similarly the PW2 wife of informant has also stated in examination in chief that the incident happened at about 4.30 P.M. on the date of occurrence when she, her son Brijesh @ Munna (deceased), her children and husband were present at home and it was then that the accused Laxman had come there and had given effect to the occurrence. It is also worth-mentioning here that both the witnesses are eye witnesses, being father and mother of the deceased and were present at the place of occurrence, cannot be doubted as it is very natural that they would have been sitting in the evening at about 4.30 p.m. on the date of incident along with their children when this occurrence happened. The Investigating Officer, Mahavir Singh though has stated in examiantion in Chief that after having inspected the place of incident at the instance of informant, he had prepared site plan which is Exhibit Ka-8 and we find that Exhibit Ka-8, the place of occurrence, has been shown by 'A' where deceased was fired upon and blood was found spread there; by 'X' is shown the place from where the accused was stated to have fired upon the deceased and the distance between 'A' and 'X' is mentioned to be 7 paces; by 'B' is shown the place where informant and the deceased had sown crop of 'Barseem' and upon this only, dispute has arisen between both the sides; by arrow is shown the direction where the accused after having made fire upon the deceased, fled towards eastern side. This site plan does not show the occurrence to have taken place at the house of deceased which is little away from the place shown by 'A'. There is no distance shown by the Investigating Officer between the place shown by 'A' and the house of the deceased.

27. We find that no cross-examination appears to have been made from the side of defence to seek clarification as to why the Investigating Officer had shown the place of incident to be at place 'A' which was upon the land of accused Laxman instead of house of the deceased, which was actually place of occurrence and has been stated so by the informant and the PW2. It is settled position of law that the statement of eye witnesses would prevail over what has been disclosed in this regard by the Investigating Officer and we at most would treat this to be a lacuna committed on the part of the Investigating Officer. As we have already held that the testimonies of PW1 and PW2 who are parents of the deceased, do not appear to be doubtful and their presence is established at the place of occurrence at the date and time of the occurrence, therefore, we are of the opinion that the defence would not get any benefit on account of this error which appears to have been committed by the Investigating Officer. It may also be emphasized here, much stress was laid by the learned counsel for the appellant that the charge framed by the trial court is also erroneous as in the said charge the place of incident is mentioned to be the house of the informant as it was the case of prosecution that the accused made shot upon the deceased after entering the house of the informant/deceased, while in the statement of PW1 and PW2 it is stated that the occurrence took place in the deceased's house, nowhere has it been got clarified by these witnesses whether the said incident took place inside the house or outside the house of the informant. Therefore, we would not hold it to be a discrepancy that in the charge the place of incident was referred as inside the house while in the statement made by PW1 and PW2, the same is said at the house. Therefore, we also hold that merely because in the charge the place of incident has been referred to be inside the house, would not cause any prejudice to the accused.

28. We find in the light of the evidence which has come on record that the incident took place at the house of the informant and not at the place shown in the site plan because the same is proved in the light of the statements of PW1 and PW2.

29. The next most important argument which has been made by the learned counsel for the appellant is that the testimonies of PW1 and PW2 did not find support/corroboration by the postmortem report as the doctor who conducted the postmortem, has stated that the deceased had received one gun shot wound of entry on the right side of the chest and tattooing was found over outer aspect of the left shoulder of left arm and ribs of left chest wall was found fractured, while PW 1 has stated in cross-examination that the accused fired at the deceased by his country made pistol which hit him on left hand and on the side and as soon as he got hit by the same, he died and PW2 has stated in cross-examination that the fire hit her son on the left hand and on the side and after getting hit by the same, her son had died. The statements are not in consonance with the seat of injury shown in the postmortem report which is found to be right side of chest and also tattooing was found to be there which was not possible to be there because the distance shown in the site plan from where the said fire is stated to have been made is 7 paces. For tattooing to be there, the said fire ought to have been made from close range. We would like to mention here that we have already come to the conclusion that the Investigating Officer has failed to show the correct place of incident in the site plan as he has not shown it to be house of the deceased, rather has shown it to be the open place belonging to the accused, therefore, the distance from where the fire was made, as is shown to be 7 paces would, also not be held proved and we find that the said fire was made by the accused from a close range at the house of the deceased by which he had died. The shot of injury, though has been shown in the postmortem to be right side of the chest as regards injury no. 1 and left shoulder as regards injury no. 2 and fracture of ribs of left side chest as injury no. 3, we find that all these injuries were possible to have been caused by making fire at the deceased by the accused from a close range. PW1 and PW2 are of village background and are not highly educated, hence their testimonies, if they had stated that their son was shot at by the accused by fire arm weapon, that would be enough as the same finds corroborated by the injuries shown in the postmortem report. We cannot expect the rustic people to give very accurate version about seat of injury.

30. As regards the testimony of PW2 who is mother of the deceased, there are lot of discrepancies and as such statement which appeared to be not in conformity with the prosecution case such as her stating that when this occurrence happened, she was weeping and could not tell as to who all were present there and that stampede like situation had occurred; that she had fainted when she reached hospital; she does not have correct sense of direction. All these statements appear to have been made by this lady being rustic witness and therefore, we do not find that these statements would have any adverse impact on the credibility of testimony of this witness to the extent that she had seen her son being assaulted with a country made pistol by the accused and the same has been corroborated by PW1 who is father of the deceased and their testimonies stand corroborated by the medical examination report.

31. Learned counsel for the appellant has relied upon the judgment of Mohan Lal vs. State of Punjab, AIR 2018 SC 3853 in which in a case of NDPS Act it was held that the case of prosecution could not be allowed to rest on preponderance of probabilities and that burden of proof from very inception of prosecution does not shift to accused, without prosecution having to establish or prove anything. It is also held that informant and Investigating Officer cannot be the same person especially in laws carrying reverse burden of proof. It is also held that delay of nine days in sending sample for chemical analysis and also informant and Investigating Officer being the same person, the investigation would stand vitiated for want of fair trial. The above matter relates to NDPS Act having different facts and we do not find that the same would be applicable in the present case.

32. The other case relied upon by the learned counsel for the appellant is Mhavir Singh vs. Stae of Madhya Pradesh, (2016) 10 SCC 220. It was held in this case that the duty of Investigating Officer dealing with a case is that he would be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution case. On the basis of this, it is argued by the learned counsel for the appellant that in the present case also the Investigating Officer was not fair in conducting the investigation as he committed gross error in preparing the site plan which is totally against the statement made by eye witnesses in respect of the place of occurrence and hence the benefit must go to the accused of this error. We are not inclined to accept the argument because the facts of the case are totally different from the facts of the present case and the reasons why we have believed the testimonies of PW1 and PW2 vis-a-vis the statement of Investigating Officer pertaining to the place of occurrence, have already been mentioned above.

33. Learned counsel for the appellant has also placed reliance upon the case of Krishnegowda and others vs State of Karnataka, (2017) 13 SCC 98 in which it is held that there was clear contradiction between the medical and ocular evidence coupled with severe contradictions in oral evidence, clear lapses in investigation, therefore, benefit of doubt has to go to accused and hence conviction of appellant-accused by High Court was set aside and the order of acquittal passed by trial court was restored.

34. It appears that learned counsel for the appellant wants to hammer that in view of contradictions in the testimonies of PW1 and PW2, he wants us to disbelieve their statements and give benefit of doubt to the accused coupled with the fact of lapses on the part of the Investigating Officer but we are not inclined to accept the said argument because we have already given our opinion as to why we believed the testimonies of PW1 and PW2 despite the contradictions for which sufficient explanation has been given by us.

35. In view of the above analysis, we come to the conclusion that the prosecution case as narrated above, has been conclusively proved and we find that there is no infirmity in the impugned judgment which deserves to be upheld and appeal deserves to be dismissed and it is accordingly dismissed. The appellant shall remain in jail and shall serve out the sentence as has been awarded by the trial court.

36. Sri Sameer Jain, Amicus Curiae shall be paid Rs.8,000/- for assisting the court ably in deciding this appeal.

37. Let a copy of this judgment with lower court record be transmitted to the trial court for immediate compliance.

(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.)

Order Date:- 12.04.2019

A. Mandhani/ A.U.