Pullan Yadav vs State Of U.P.
2019 Latest Caselaw 5287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 16				         Reserved on 22.05.2019.
 
						         Delivered on 31.05.2019.
 
A.F.R.
 
Case :- CRIMINAL APPEAL No. - 1877 of 2009
 
Appellant :- Pullan Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nandita Bharti,Alok Kumar Upadhyaya,Amicus Curiae,Manoj Kr. Tiwari,Ranjan Shukla,Sandeep Chandra,Satendra Singh Rana
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ritu Raj Awasthi, J.

Hon'ble Virendra Kumar-II, J.

(Delivered by Hon'ble Virendra Kumar-II, J.)

1. Heard Mr. Sandeep Chandra, learned Amicus Curiae for the appellant as well as Mr. Vishwas Shukla, learned A.G.A. for the State.

2. The appellant has preferred this appeal assailing the impugned judgment and order dated 25.07.2009 delivered by learned Additional Sessions Judge/ Special Judge, E.C. Act, Gonda in Session Trial No. 287 of 2006, State Vs. Pullan Yadav, arising out of Crime No. 22 of 2006, under Section 302 I.P.C., Police Station Paraspur, District Gonda. The learned trial court has convicted the appellant for the offence punishable under Section 302 I.P.C. and sentenced to undergo imprisonment for life and fine amounting to Rs.5,000/- has also been imposed with default stipulation to serve out additional imprisonment for six months.

3. As per the prosecution version, the complainant Rajesh Kumar (P.W.1) submitted written report (Ex.Ka.-1) at Police Station Paraspur, District Gonda on 18.03.2006. On the basis of written report submitted by the complainant, Check F.I.R. (Ex.Ka.-7) was registered on 18.03.2006 at 10:30 a.m. and the aforesaid crime was registered. G.D. (Ex.Ka.-8) of registration of crime was also prepared by the concerned police personnel.

4. The complainant has narrated in his written report that on 18.03.2006, he, his elder uncle, Shiv Prasad and his father, Radhey Shyam @ Munna went in the morning for personal work to meet Village Head Shri Sidhnath Nishad at his house situated in their Village Indrapal Purwa. The witness Aniruddha Kumar Pandey (P.W.4), resident of Mauza Badepurwa of his village was also present at the house of Shri Sidhnath Nishad. They were returning back home and reached near the house of accused Pullan Yadav at 8:00 a.m. The accused, Pullan Yadav, came outside of his house and fired shot on the deceased, Radhey Shyam, from country made pistol. He turned round and fled away. His father fell down near Dhabli owned by Ram Bahadur, S/o Ayodhya. They tried to caught hold Pullan Yadav, chased him but he fled away through agricultural fields. They laid the deceased on cot and arranged to take him for treatment but the deceased expired on the spot. It is mentioned in the written report by the complainant that the dead body of his father and his cycle were lying on the place of occurrence. It is also mentioned that the accused Pullan Yadav was having enmity on the basis of dispute of fair price shop.

5. The Investigating Officer recorded statements of witnesses, inspected the place of occurrence and prepared site plan (Ex.Ka.-9). He took the cycle of the deceased, Radhey Shyam in his possession in presence of witnesses Aniruddha Kumar Pandey and Siddhnath Nishad. This cycle was given in custody of P.W.1-Rajesh Kumar, S/o Radhey Shyam. The Investigating Officer prepared recovery memo (Ex.Ka.-2). He also prepared inquest report (Ex.Ka.-3) of the dead body of the deceased. He collected blood stained and plain soils from the place of occurrence in presence of the aforesaid witnesses and prepared recovery memo (Ex.Ka.-5). He also prepared documents, police form-13 (Ex.Ka.-10), photograph of the dead body of the deceased (Ex.Ka.-11), report sent to R.I. (Ex.Ka.-12), report sent to C.M.O. (Ex.Ka.-13) and sample of seal (Ex.Ka.-14), for autopsy of the dead body of the deceased. The postmortem report (Ex.Ka.-6) was prepared by the concerned doctor.

6. The Investigating Officer (P.W.7) and his police party, during the course of investigation were present on 20.03.2006 at Bhauriganj Bazar in search of appellant. The informer gave a tipoff regarding the appellant, Pullan Yadav, that he was present at "Jambodeep Teerth Sthan", which was situated on the bank of river. The appellant was arrested by the police party at 10:15 a.m., who apprised the police party on inquiry that he committed murder of the deceased, Radhey Shyam @ Munna Lodh on 18.03.2006 and he had hidden country made pistol. He threw country made pistol in bushes, from where, he would discover the aforesaid country made pistol and empty cartridge. The appellant discovered the country made pistol from bushes of Sarpat, which were situated in the vicinity of Village Pure Ajab/ Purey Lambardar Purwa. The police party has mentioned in recovery memo that this discovery was made on the pointing out of the appellant in presence of witnesses, Chhutkau and Maniram (P.W.3). The appellant picked up the country made pistol from the bushes of Sarpat by crossing dry Sotia Nullah. One empty cartridge of 12 bore was stuck in the barrel of country made pistol. The complainant was also present on 11:30 a.m. at the point of time of the aforesaid discovery. The police party of P.W.7 prepared recovery memo (Ex.Ka.-4) and sealed this country made pistol and empty cartridge on the place of occurrence. There was smell of gun powder in the barrel of country made pistol used by the appellant.

7. The Investigating Officer, after conclusion of investigation, has submitted charge sheet (Ex.Ka.-15) against the accused appellant for the offence punishable under Section 302 I.P.C.

8. The court of Chief Judicial Magistrate, Gonda took cognizance on the charge sheet submitted by the Investigating Officer and committed this case to the Court of sessions on 31.08.2006.

9. The learned trial court of Special Judge, E.C. Act, Gonda framed charge against the appellant on 07.12.2006 for the offence punishable under Section 302 I.P.C. He pleaded not guilty and claimed to be tried.

10. The learned trial court has recorded statements of witnesses, P.W.1-Rajesh Kumar (complainant), P.W.2-Shiv Prasad, P.W.3-Maniram, P.W.4-Aniruddha Kumar Pandey, P.W.5-Dr. Vinay Kumar Srivastava, P.W.6-S.I., Bechu Prasad Yadav and P.W.7-Chandrashekhar Singh (Investigating Officer).

11. The learned trial court has recorded statement of appellant under Section 313 Cr.P.C. He has stated that he has falsely been implicated due to enmity and partibandi of village. He opposed Ex. Village Head Aniruddha Kumar Pandey (P.W.4) and F.I.R. of this case was lodged by the complainant on the behest of Aniruddha Kumar Pandey. He has also stated that no incriminating article was discovered on his pointing out. The recovery of country made pistol and empty cartridge is false and fabricated.

12. The witnesses, D.W.1-Ram Bhawan Yadav and D.W.2-Surya Nath Srivastava were produced on behalf of appellant. D.W.2-Surya Nath Srivastava, Clerk of Collectrate, District Gonda has proved special report (Ex.Kha-1) sent by the Police Station Paraspur to the District Magistrate, Gonda.

13. The learned trial court, after appreciation and evaluation of evidence of witnesses has convicted the appellant and awarded the aforesaid punishment to him.

14. We have perused the record of Session Trial No. 287 of 2006, State Vs. Pullan Yadav, and the statements of witnesses of fact, P.W.1-Rajesh Kumar (complainant), P.W.2-Shiv Prasad, P.W.3-Maniram and P.W.4-Aniruddha Kumar Pandey.

15. The learned Amicus Curiae has argued that there was no reason or purpose for the deceased and witnesses, P.W.1, P.W.2 and P.W.4 to visit the house of Village Head Shri Siddhnath Nishad on the date of occurrence. Moreover, Shri Siddhnath Nishad has been discharged on behalf of prosecution and was not examined to prove this fact that for what purpose, these witnesses visited his house on the date of occurrence.

16. P.W.1-Rajesh Kumar (complainant) has stated in his examination-in-chief that he, his father, the deceased and his elder uncle went for some work at the house of Village Head, where witness Aniruddha Kumar Pandey met them. They went at the house of Village Head by cycle and they were returning back home at about 8:00 a.m. and reached in front of house of appellant Pullan Yadav, where the appellant shot fire on the back of his father.

17. P.W.1 in his cross-examination has stated that on the date of occurrence at 6:00 a.m. they went to visit house of Village Head. He and his father were riding on separate Hero Cycles, which were having carriers. When his father was going to visit the house of Village Head, then he asked his father to accompany him. He has also stated that his elder uncle had also visited the house of Village Head for his personal work. They took tea after attending natural call, before proceeding from their house. He has specifically stated in his cross-examination that the Village Head met them at his house. His father went to obtain slip for quota and his elder uncle went to obtain new ration card. They stayed there for two hours. The ration card of his father and elder uncle were prepared and slip of quota was kept by his father in his pocket. He was quietly sitting at this point of time. He had no conversation with anybody.

18. P.W.1 has further clarified that he and the witness Aniruddha Kumar Pandey were riding on cycle ahead of the deceased and Aniruddha Kumar Pandey was sitting on his cycle. The house of Aniruddha Kumar Pandey was situated at a distance of two kilometers and the house of Village Head was situated in northern side at a distance of one kilometer. He has mentioned that they could not reach at their house and on the way his father was murdered by the appellant on the place of occurrence. His father had crossed them, because he and Aniruddha Kumar Pandey took Pan Masala from the shop of Ram Dheeraj and ate it for 5-6 minutes. He has specifically stated that Dhabli of Ram Bahadur was situated at a distance of 4-5 paces from the shop of Ram Dheeraj. They stayed along with his elder uncle to eat Pan Masala. This place was at a distance of 15 paces from the deceased.

19. P.W.1 has further stated that they heard noise of fire and he saw towards his father. His father was riding on cycle, when fire shot by the appellant stuck on his back. He has further mentioned that his father fell down on northern side of his shop and this place was at a distance of 14-15 paces from his shop. He, his uncle Ram Dheeraj, witness Aniruddha Kumar Pandey, his mother and sister rushed towards the place of occurrence. He has further stated in his cross-examination that on hearing noise Village Head, Shri Siddhnath Nishad also reached at the place of occurrence and 50-100 persons gathered at the place of occurrence.

20. The learned Amicus Curiae has also argued that P.W.1 in his cross-examination has accepted this fact that he saw his father in injured state near the Dhabli of Ram Bahadur and the trees were standing adjacent to Dhabli, therefore, it was not possible for P.W.1 to saw the appellant, when he fired shot on the deceased.

21. On perusal of site plan (Ex.Ka.-9) it reveal that Chhappar of Ram Dheeraj was situated in northern side of place of occurrence, which was marked by 'A' and the alleged trees were on the western side of the way on which place of occurrence, marked 'A' was situated. No specific question was put to P.W.1 that there was any hindrance in visibility of place of occurrence from Chhappar of Ram Dheeraj. On the other hand, trees of guava and mango were shown by the Investigating Officer(P.W.7) in the site plan, which were standing near other Chhappar of Ram Dheeraj, S/o Ram Manokhar and open land was situated in northern side of house of appellant. Considering the nature of trees of mango and guava and other trees it reveal that there was no hindrance in visibility of the place of occurrence from the shop of Ram Dheeraj, where P.W.1 and P.W.2 were present, while appellant shot fire on the deceased.

22. P.W.1 in his cross-examination dated 07.09.2007 has specifically stated that Shri Siddhnath Nishad and Aniruddha Kumar Pandey were present along with him at the place of occurrence. They went at police station by their motorcycles. They also met on the place of occurrence after return from the police station. He has clarified this fact that he does not know, for which purpose, Aniruddha Kumar Pandey visited the house of Shri Siddhnath Nishad, Village Head. He did not ask Aniruddha Kumar Pandey in this regard.

23. There is no substance in the argument of learned Amicus Curiae that presence of P.W.4-Aniruddha Kumar Pandey is doubtful at the house of Shri Siddhnath Nishad, Village Head and at the place of occurrence or there was no occasion for him to accompany P.W.1 from the house of Shri Siddhnath Nishad up to the place of occurrence.

24. P.W.1, the complainant-Rajesh Kumar has specifically stated that Aniruddha Kumar Pandey was on his foot and he sat on his cycle when he returned home from the house of Shri Siddhnath Nishad. He has stated that village of witness Aniruddha Kumar Pandey is only two kilometers from his village and the way for both the villages was the same. There is no reason to doubt about the presence of Aniruddha Kumar Pandey at the house of Shri Siddhnath Nishad.

25. P.W.1 in his cross-examination has stated that fair price shop of food grains was owned by his family prior to the date of incident and still his family owned this shop. The appellant, Pullan Yadav, opposed persistently and made complaint also for cancellation of quota of this shop. He does not know, whether appellant was interested to obtain quota of fair price shop or not. He has mentioned that the District Supply Officer made an inquiry on the basis of complaint sent by the appellant. He has no knowledge about any dispute of money with the appellant. He has also no knowledge whether any Panchayat was held regarding complaint made by the appellant or not.

26. P.W.1 has refuted the suggestion put forth by learned defence counsel that he was not present on the date and place of occurrence and he did not visit the house of Village Head, Shri Siddhnath Nishad along with his father, the deceased. He has also refuted this suggestion that he lodged false F.I.R. with consultation and deliberation of Ex. Village Head, Aniruddh Kumar Pandey and his father was murdered in night on the basis of partibandi or enmity of quota.

27. On perusal of examination-in-chief and cross-examination of P.W.1, his presence along with his father and elder uncle, P.W.2-Shiv Prasad and P.W.4-Aniruddha Kumar Pandey at the house of Village Head, Shri Siddhnath Nishad and place of occurrence is established and his presence at both the places cannot be doubted. He has proved the facts and circumstances, in which, the appellant fired shot on the date and time of occurrence, as narrated in the written report (Ex.Ka.-1) lodged by him. He has clarified topography of the house of appellant, place of occurrence and the place, from where, he saw the appellant, while he committed murder of his father.

28. P.W.2-Shiv Prasad has corroborated the statement of P.W.1 and stated that on the date of occurrence he along with the complainant, Rajesh Kumar, who is his nephew and the deceased visited the house of Village Head, Shri Siddhnath Nishad. They met him and Aniruddha Kumar Pandey. They four persons in all, returned by there cycles. Aniruddha Kumar Pandey sat on cycle of complainant, Rajesh Kumar. The deceased, Radhey Shyam was riding on separate cycle and P.W.2 was riding on his cycle. P.W.4 has also stated, corroborating the statement of P.W.1 and P.W.2 that he visited the house of Village Head, Shri Siddhnath Nishad, on the date of occurrence and he met the deceased Radhey Shyam, Shiv Prasad (P.W.2) and Rajesh Kumar (P.W.1). They had a conversation with the Village Head for preparation of card. He has mentioned that he sat on the cycle of Rajesh, because he had to go towards the house of the deceased, Radhey Shyam.

29. P.W.2 and P.W.4, witnesses, have also stated that they reached near the house of the appellant, Pullan Yadav, at 8:00 a.m. Radhey Shyam reached in front of house of appellant, when appellant fired shot on him by country made pistol. P.W.4 has also corroborated the statement of P.W.1 that they stayed at the shop to eat Gutkha (Pan Masala) and in the meanwhile, appellant shot fire on the back of deceased, Radhey Shyam.

30. P.W.2 and P.W.4 have also stated that they chased the appellant, but they could not caught hold him and he fled away. The deceased fell down near Dhabli of Ram Bahadur. P.W.4 has specifically stated that when they chased appellant Pullan Yadav, he was brandishing his country made pistol also. P.W.1 and P.W.4 have mentioned that they laid the deceased Radhey Shyam in injured state on cot and they were arranging for his treatment, in the meanwhile, he expired.

31. P.W.2 has clarified this fact in his examination-in-chief that the deceased, Radhey Shyam, was doing work of fair price shop. The appellant, Pullan Yadav assisted him for this work. The deceased expelled him from this work, because the appellant became dishonest. He was having animosity on this count and fired shot on the deceased.

32. P.W.2 in his cross-examination dated 01.10.2007 has mentioned that they were four brothers, out of them two have died. They were residing separately from 22-25 years ago. He has also stated that they went at the house of Village Head for preparation of card. The Village Head himself called them. They stayed for half an hour. They and the deceased Radhey Shyam reached at the house of Village Head earlier. Aniruddha Kumar Pandey came there afterward. P.W.2 has specifically stated that the Secretary of Village Head did not come at his house (of Village Head), therefore, card could not be prepared, even form could not be filled. He reached at 8:00 a.m. at the place of occurrence from the house of Village Head.

33. P.W.2 in his cross-examination has stated that the deceased Radhey Shyam was ten paces ahead of him, Rajesh Kumar and Aniruddha Kumar Pandey. They were riding on cycles. The deceased sustained gun shot injury while he was riding on his cycle. The incident occurred in the vicinity of Lamberdar Purwa. P.W.2 has specifically stated that he saw the appellant while he shot fire on the deceased, when he (the deceased) was riding on his cycle. They alighted from cycle immediately and chased the appellant on the western side. He has also stated in his cross-examination that they saw the appellant, while he shot fire on the deceased, when they were standing and eating Gutkha (Pan Masala).

34. P.W.2 has mentioned that he was present on the place of occurrence, from where, he saw the incident. This place was at a distance of 15 yards from the shop of Ram Dheeraj and his house was situated at a distance of 100 yards. The house of appellant was situated at one pace and dead body of the deceased, Radhey Shyam, was lying at a distance of ten paces.

35. P.W.2 has refuted this suggestion that he heard about the fact that Radhey Shyam sustained gun shot injury and then he reached at the place of occurrence. He has further stated that when he saw the deceased in injured state, he was alive. Blood oozed from his body and also fell down on the ground. Rajesh Kumar and he lifted Radhey Shyam in injured state, then they laid Radhey Shyam on cot. The cot and clothes of Rajesh Kumar had soaked with the blood of the deceased.

36. P.W.2 has also stated in his cross-examination that there was no dispute of land or litigation with the appellant, but there was a dispute about quota of fair price shop. He has specifically stated that quota was not issued in favour of appellant. This quota was issued in favour of wife of the deceased. This dispute was going on prior to the date of incident from one and half months ago. He has refuted this suggestion that "there was dispute of quota with the appellant and the appellant made a complaint regarding quota issued in favour of wife of the deceased, Radhey Shyam for its cancellation. Therefore, on the behest of wife of the deceased and Village Head, false report was lodged against him".

37. P.W.2 has also refuted this suggestion that he was not present at the place of occurrence and he did not witness any incident and he was adducing his evidence being brother of the deceased. P.W.2 has specifically stated that Shri Siddhnath Nishad and Ramlal contested the election of Village Head. He had not supported any of them.

38. Therefore, on perusal of examination-in-chief and cross-examination of P.W.2, the purpose for which, he visited the house of Village Head, Shri Siddhnath Nishad, is established. They met with the Village Head along with the deceased for preparation of card and Village Head, Shri Siddhnath Nishad, called them for this purpose. It is also proved by P.W.1 and P.W.2 that there was a dispute regarding issue of quota in the name of wife of deceased. The appellant also worked with the deceased on his quota shop and when he conducted dishonestly then he was expelled by the deceased.

39. Since P.W.1 was not having personal knowledge about the reason/ purpose of visit at the house of Village Head, therefore, minor contradictions appeared in his cross-examination regarding preparation of card on the date of occurrence. P.W.2, Shiv Prasadh his uncle and the deceased Radhey Shyam, his father, was having personal knowledge regarding this fact, which was clarified by P.W.2 in his cross-examination that due to absence of the Secretary of Village Head, card could not be prepared or applied for.

40. Therefore, there is no substance in the argument of learned Amicus Curiae regarding purpose of visit of deceased, P.W.1, P.W.2 and P.W.4 at the house of Village Head, Shri Siddhnath Nishad. The presence of P.W.4, Aniruddha Kumar Pandey has been proved by P.W.1 and P.W.2 at the house of Village Head, Shri Siddhnath Nishad and he accompanied them up to the place of occurrence.

41. P.W.4-Aniruddha Kumar Pandey has proved this fact that he visited the the village of Shri Siddhnath Nishad for calling labourers. He saw that Rajesh Kumar (P.W.1), Shiv Prasad (P.W.2) and the deceased Radhy Shyam were talking with Shri Siddhnath Nishad, Village Head at his house for prepration of their cards. He has further stated that he accompanied the deceased, P.W.1 and P.W.2, witnesses, on return for his house and sat on cycle of complainant, Rajesh Kumar. He has also proved this fact that he is scribe of written report submitted by the complainant, Rajesh Kumar, who dictated him and he wrote written report (Ex.Ka.-1). The complainant, Rajesh Kumar, after listening it, appended his signature on it. He went with Rajesh Kumar (P.W.1) by his motorcycle at police station and returned back on the place of occurrence. The Sub Inspector met him on the place of occurrence, who collected blood stained and plain soil from the place of occurrence and rope of cot in his presence. He sealed these articles and prepared recovery memo (Ex.Ka.-5) in his presence also.

42. P.W.4 has stated in his cross-examination that he remained Village Head of Purey Ajab during period from 1995 up to 2000 and in the year 2000 this seat was declared as a reserve seat. Smt. Sunita Devi was elected Village head in this election. He had not contested election of Village Head in the year 2005. Shri Siddhnath Nishad won this election. He has no knowledge that appellant Pullan Yadav, Ram Dheeraj and Ram Lal contested this election, or not.

43. Therefore, P.W.4 had not contested election against Shri Siddhnath Nishad or the appellant Pullan Yadav. He has refuted this suggestion that he proposed name of Ram Lal in this election. The appellant contested election of Village head against Shri Siddhnath Nishad. He has proved facts for collection of blood stained and plain soil from the place of occurrence. He met the Sub Inspector, who conducted these proceedings at 12:00 to 1:00 p.m. on the date of occurrence. No material contradiction was elicited during his cross-examination in this regard. He has stated that inquest proceedings were conducted in his presence, but he has not signed the inquest report.

44. The learned Amicus Curiae has argued that on perusal of inquest report (Ex.Ka.-3), it reveal that on digit of time 12:45 and 13:50, there is overwriting on digit '12' and '13' respectively. Therefore, there is contradiction in statement of P.W.1 and P.W.4 that at which time and in which circumstances the Investigating Officer conducted inquest proceedings on the place of occurrence. P.W.4, in order to meet out the overwriting on time of start of inquest proceedings and time of conclusion of this proceedings, has stated in his cross-examination that he met the Sub Inspector at 12:00-1:00 p.m., whereas, P.W.1 has stated in his cross-examination that police personnel brought dead body of his father at about 9:30 a.m.

45. It is pertinent to mention here that the appellant murdered Radhey Shyam, the deceased, who was father of P.W.1-Rajesh Kumar, in his presence, therefore, his mental state might have been affected on the basis of death of his father. The statement of P.W.1 was recorded on 27.08.2007 and remaining cross-examination was recorded on 07.09.2007, therefore, some minor contradictions may appear on the basis of loss of memory also.

46. On the other hand, it is relevant to mention here that Check F.I.R.(Ex.Ka.-7) has been proved by P.W.6-S.I., Bechu Prasad Yadav and stated that written report was submitted by P.W.1-Rajesh Kumar at 10:30 a.m. and he prepared Check F.I.R. (Ex.Ka.-7) and G.D. of registration of crime (Ex.Ka.-8). P.W.6 in his cross-examination has specifically stated that Aniruddha Kumar Pandey and the complainant reached at the police station on the date of occurrence, 18.03.2006, at 10:30 a.m. He did not ask the complainant that where written report was prepared by Aniruddha Kumar Pandey.

47. P.W.6 has proved this fact that the Collectorate of District Gonda was situated at a distance of 27 kilometers from the police station and office of Circle Officer was situated at a distance of 14 kilometers. The Investigating Officer/ Station House Officer (P.W.7), Shri Chandrashekhar Singh proceeded for place of occurrence after registration of crime. No other material contradiction was elicited during cross-examination of P.W.6. He has refuted this suggestion that Aniruddha Kumar Singh, wrote written report on behalf of complainant with consultation and deliberation of Station House Officer and then he prepared Check F.I.R. and G.D. of registration of crime ante timed, as G.D. was not started on this point of time and no other crime was registered at the police station. He has also refuted this suggestion that special report of this crime was sent by him on the next day.

48. The Investigating Officer, Shri Chandrashekhar Singh(P.W.7), has also proved this fact that he was posted as Station House Officer on 18.03.2006 at Police Station Paraspur. This crime was registered on the basis of written report submitted by complainant Rajesh Kumar, S/o Radhey Shyam. On the same day he conducted inquest proceedings of the dead body of the deceased, recorded statement of complainant, collected blood stained and plain soil from the place of occurrence and took cycle of the deceased in his possession. He also prepared site plan (Ex.Ka.-9) on the pointing out of complainant, Rajesh Kumar.

49. P.W.7 has corroborated statement of P.W.6, the then Head Moharrir therefore, P.W.1 has stated in his cross-examination regarding time of these proceedings incorrectly due to his disturbed mental state after murder of his father. Therefore, his statement that dead body of his father was brought by police personnel at 9:30 a.m. is apparently incorrect, because he lodged the F.I.R. himself at 10:30 a.m. on 18.03.2006. This contradiction appeared in cross-examination of P.W.1 does not extend any benefit to the appellant and the argument of learned Amicus Curiae in this regard is of no avail.

50. Moreover, P.W.7, the Investigating Officer, in his cross-examination has specifically stated that he reached at the place of occurrence after receiving information of this incident along with the complainant and Aniruddha Kumar Pandey. Shri Siddhnath Nishad also reached there. He conducted proceedings for four hours. The dead body of the deceased was sent for autopsy by private jeep at 2:00 p.m. The scribe of Panchayatnama amended the facts, which were omitted by him regarding clothes of the deceased, injuries sustained by him and opinion of witnesses of inquest proceedings and documents, Challan lash (of dead body), letters and other papers were prepared, therefore, overwriting occurred at the time of start of inquest proceedings and its conclusion.

51. Learned Amicus Curiae has vehemently argued that there is also overwriting on police form-13 of the dead body regarding the fact of lodging of F.I.R., therefore, it may be inferred that these overwriting on inquest report, time of start and conclusion of inquest proceedings and lodging of F.I.R. were intentionally made to meet out the time consumed in deliberations and consultation of Station House Officer with Aniruddha Kumar Pandey and complainant, P.W.1.

52. P.W.7 has stated in reply of specific question during his cross-examination that in police form-13 of dead body, the incorrect date 18.02.2006 was written inadvertently by the scribe. On perusal of police form-13 (Ex.Ka.-10) of dead body, it reveal that dead body of the deceased was sent on 18.03.2006 and P.W.7 has signed this document and appended the date 18.03.2006. Therefore, the statement of P.W.7 regarding this fact is correct that date 18.02.2006 of lodging of F.I.R. was written by the scribe of this document incorrectly. On perusal of the other documents prepared by Sub Inspector Shri Jeeram Gyan Singh it reveal that there is no other discrepancy appeared. It is pertinent to mention here that in inquest report (Ex.Ka.-3) date and time of lodging of F.I.R. is mentioned 18.03.2006 at 10:30 a.m., hence, explanation given by P.W.7 that it was omission of scribe of inquest report and police form-13 that he committed some omissions, while he wrote these documents and which were corrected by him resulting overwriting on the time of start of inquest proceedings and its conclusion.

53. Therefore, the argument of learned Amicus Curiae in this regard that F.I.R. was lodged with consultation and deliberations of P.W.7, the then S.H.O. or on the behest of P.W.4, Aniruddha Kumar Pandey, is of no avail. There is no material contradiction in statements of P.W.4 and P.W.7 in this regard.

54. P.W.4, Aniruddha Kumar Pandey is not the witness of inquest proceedings, therefore, his statement that the deceased was wearing Kurta Paijama is of no avail. This statement was given by him in his cross-examination. P.W.7 has proved inquest report (Ex.Ka.-3), in which, it is mentioned that deceased was wearing white vest, underwear, Kurta and Tahmand. Shri Siddhnath Nishad, Ram Dheeraj, Babadeen, Dwarika and Maniram (P.W.3) are mentioned as witnesses of inquest proceedings. Therefore, statement of P.W.4 regarding clothes of deceased, Radhey Shyam cannot be termed as material contradiction.

55. The argument of learned Amicus Curiae is also of no avail that deceased worn Tahmand, unusual dress, while he went to visit house of Village Head Shri Siddhnath Nishad. It was outlook of the deceased, in which circumstances, he worn Tahmand. He could wear it, if he was comfortable and it was his choice to wear Tahmand, while he visited house of Village head. It cannot be said that a person could not wear Tahmand, while he go outside of his house/ village to visit a place. It was outlook of the deceased that why he worn the clothes found on his dead body.

56. P.W.4 has refuted this suggestion that he was unable to disclose clothes worn by the deceased, because he did not meet the deceased on the date of occurrence nor he saw the dead body of the deceased.

57. P.W.4 in his cross-examination has disclosed the distance of place of occurrence from the house of Shri Siddhnath Nishad, where he met the deceased and P.W.1 and P.W.2. He has also specifically stated that he went on foot at the house of Village Head to bring labourers Ekadashi and Pooranmasi for cutting of sugarcane crop. He was not having motorcycle or cycle or four wheelers at this point of time. He denied this fact that he went with the complainant Rajesh Kumar by his own motorcycle. He has mentioned that he saw the dead body of the deceased at a distance of 60-70 meters on northern side of shop of complainant. The shop of complainant is situated in opposite side of Dhabli of Ram Bahadur. He has also stated that he was present with Rajesh Kumar at the shop of Ram Dheeraj, from where, he heard noise of fire on southern side. He saw the appellant from a distance of ten paces, when the appellant was fleeing away towards western direction.

58. P.W.4 in his cross examination dated 29.07.2008 has clarified this fact that he stayed at the house of Village Head, Shri Siddhnath Nishad, only for five minutes on the date of occurrence. He had no conversation with the Village Head. The house of Shri Siddhnath Nishad was on the way from the place, where he went to call labourers. Therefore, he stayed at his house. His village is situated at a distance of one kilometer on southern side from the house of Village Head.

59. P.W.4 has specifically stated that he went along with the complainant Rajesh Kumar at Police Station by his motorcycle and stayed there for half an hour. It may be possible that Shri Siddhnath Nishad could not come at the place of occurrence in his presence, therefore, he stated as such that Shri Siddhnath Nishad had not reached at the place of occurrence in his presence. The witness, P.W.4 has further stated in his cross-examination that they proceeded at 10:30 a.m. from police station to return back at the place of occurrence by motorcycle of complainant. He had not accompanied the police personnel, when they brought dead body of the deceased from the place of occurrence.

60. P.W.4 has refuted this suggestion that he along with the complainant Rajesh Kumar and Shiv Prasad went at the police station and consulted and deliberated to lodge the F.I.R. He also refuted this suggestion that he neither went at the house of Shri Siddhnath Nishad, Village Head, nor he accompanied the complainant on return at the place of occurrence. He has also further refuted this suggestion that he is adducing evidence against the appellant,because he belongs to party of the deceased and he did not see the incident and he was not present at the place of occurrence.

61. On the basis of examination-in-chief and cross-examination of P.W.4, his presence at the house of Shri Siddhnath Nishad, Village Head, and at the place of occurrence is established. He has proved this fact that he went in Village of Shri Siddhnath Nishad to call labourers for cutting sugarcane crop, in the meanwhile, he stayed for a while at the house of Shri Siddhnath Nishad. The complainant, Rajesh Kumar (P.W.1) and Shiv Prasad (P.W.2) met him there. Since he was on foot therefore he sat on cycle of Rajesh Kumar to return and reached at the place of occurrence. His presence cannot be doubted as argued by learned Amicus Curiae.

62. P.W.1, P.W.2 and P.W.4 have got support from the site plan (Ex.Ka.-9) prepared by the Investigating Officer (P.W.7). The dead body of the deceased was found at the place marked by 'B'. The blood oozed from the dead body of the deceased was found at this place by P.W.7. The dead body of the deceased Radhey Shyam was laid on cot at the place marked 'D'. The place 'B' and 'D' are situated in front of Dhabli of Ram Bahadur. The shop of Ram Achal has been shown by place marked 'E'. The place marked 'A' is the place of occurrence situated in front of house of appellant, where the appellant shot fire on the deceased, while he was returning riding on his cycle from house of Shri Siddhnath Nishad, Village Head. P.W.7, the Investigating Officer has proved site plan (Ex.Ka.-9). He has also shown the way by mark of arrow, by which, the deceased came at the place of occurrence and appellant fled away after committing murder of the deceased.

63. P.W.5, Dr. Vinay Kumar Srivastava has conducted autopsy of the dead body of the deceased, Radhey Shyam @ Munna Lodh on 19.03.2006 at 3:40 p.m. He found rigour mortis in both legs of the deceased and it was passing through both the hands. P.W.5 has found the following ante mortem injuries:

(i) Ante mortem firearm injury. Wound of entry on right side of chest of the deceased present on post wall of right side chest, 2.5 c.m. below right scapula and 11.0 c.m. from spine, of size 3.0 c.m. x 3.0 c.m. cavity deep with lacerated margin. Blackening and tattooing was present all around wound. Underlying/ underneath this injury sixth rib of right side chest was found fractured, directed anteriorly and slightly upward and towards left side causing laceration of right side of pleure and right side lung.

Membrane of right lung was lacerated and three pellets were present. Pleure cavity on right side was filled with blood. Wad of cartridge and 37 pellets were recovered from right pleure cavity.

P.W.5 also found 28 pellets from right lung and it was lacerated.

Cause of death was due to shock and hemorrhage as a result of ante mortem firearm injury.

64. P.W.5 has proved postmortem report (Ex.Ka.-6). The learned defence counsel has not cross-examined P.W.5 even then opportunity was given to him. The blackening and tattooing found around the firearm wound of entry indicates that appellant shot fire on the deceased from short range, while he reached in front of house of appellant riding on his cycle and after sustaining firearm injury he fell down on the place 'B' shown by P.W.7 in the site plan.

65. P.W.7 has also found cycle of the deceased on the place of occurrence. he took cycle in his possession and prepared recovery memo (Ex.Ka.-2) and collected rope of cot on which dead body of the deceased was lying on the place of occurrence. He also took blood stained and plain soil in his possession from the place of occurrence and prepared recovery memo (Ex.Ka.-5). Therefore, statements of P.W.1, P.W.2 and P.W.4 have been corroborated by medical evidence adduced by the doctor, P.W.5.

66. As far as, learned Amicus Curiae has pointed out the discrepancies/ omissions committed by scribe of inquest report the following expositions of law for conducting inquest proceedings are relevant:

A Division Bench of Hon'ble Supreme Court in the case of George Vs. State of Kerala, (1998) 4 SCC 605 in the following paragraphs has held as under:

30. ..... It must, therefore, be said that the approach of the trial court in dealing with the FIR was legally impermissible. We are also surprised to find that the trial court disbelieved PWs 3 and 4, relying upon the statements contained in the inquest report (Ext. P-8). Statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 CrPC.

31. The whole purpose of preparing an inquest report under Section 174(1) CrPC is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. In dealing with Section 174 CrPC in Pedda Narayana v. State of A.P. [(1975) 4 SCC 153 : 1975 SCC (Cri) 427] this Court held that the object of the proceedings thereunder is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. According to this Court the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings. With the above observation this Court held that the High Court was right (in that case) that the omissions in the inquest report were not sufficient to put the prosecution out of court. In Eqbal Baig v.State of A.P. [(1986) 2 SCC 476 : 1986 SCC (Cri) 232] this Court observed, while dealing with a similar question, that the inquest report was not the statement of any person wherein all the names of the persons accused were to be mentioned. On this ground also the finding of the trial court based on the inquest report cannot be sustained.

A Division Bench of Hon'ble Supreme Court in the case of Sk. Ayub Vs. State of Maharashtra, (1998) 9 SCC 521 : 1998 SCC (Cri) 1055 at page 523 in para-5 of its judgment has held as under:

5. ....There is no substance in this contention also. There is no requirement of law or any rule that an inquest panchnama should contain name of the accused. An inquest panchnama is a report required to be made by the Investigating Officer with respect to the apparent cause of death. It is to be prepared in the presence of two or more respectable inhabitants of the neighbourhood and has to describe the wounds, fractures, bruises and other marks of injuries as are found on the dead body and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. Therefore, from the absence of the name of accused in the panchnamas it cannot be inferred that his name was not disclosed as the murderer till they were completed.

A Division Bench of this Court in the case of Budhish Chandra Vs. State of U.P., 1990 SCC OnLine All 705 : 1991 All LJ 308 : 1991 Cri LJ 808 at page 313 has observed as under:

26. P.W. 8 Laxmi Singh S.I. who made the inquest reached the spot from the out post Shastri Nagar P.S. Swarup Nagar on getting the telephonic message from Sri R.S. Kulshrestha, the Investigating Officer in this case. Sri Laxmi Singh conceded that he noted the crime number subsequently in the inquest report and Naksha Lash and that he omitted to note it in the Challan Lash and also omitted to note the timing in the inquest report. He statedthat hecould notnotethe crimenumber while preparing these documents because the papers were with the Investigating Officer who had gone downstairs for investigation purposes and that he noted the crime number at the spot before despatch of the dead body, it has come in the statement that he has started the inquest at 6.00 a.m. and concluded it by 8.00 a.m. The dead body along with the papers was received at 11.10 a.m. on 7th July, 1977 at the police head quarter which is clear from the entry made in the Challan Lash Ex. Ka, 13. Constable Harbansh Singh who had taken the dead body from the spot for post-mortem examination along with the necessary papers, has filed an affidavit to this effect which Ex. Ka. 16, S. 174 of the Criminal Procedure Code under which the inquest report was prepared simply requires that the police officer in the presence of two or more respectable inhabitants of the neighbourhood, shall make investigation and draw up a report of the apparent cause of death, describing such wounds etc. as may be found on the body stating in what manner or by what weapon or instrument such marks appear to have been inflicted. The Hon'ble Supreme Court in the case of Podda Narayana v. State of Andhra Pradesh reported in (1975) 4 SCC 153 : AIR 1975 SC 1252: (1975 Cri LJ 1062), has laid down that the proceedings-under S. 174 Cr. P.C. have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death". All these requirements have been complied with while preparing the inquest report. The form prescribed by the Police Regulation no doubt contains the column relating to the crime number name of the complainant, time of commencement and time of conclusion of the report. They appear to have been prescribed in the form for the purpose of having check on the movement and conduct of the police officials It cannot give a handle to spoil the prosecution case by merely omitting to mention them in the prescribed form of the inquest report and related papers. Similarly the complete entries without committing any omission or lapse in preparing the inquest report form, can give any premium to the prosecution case. It has to be judged in each case as to what is the effect of such lapses. It is settled law that taking singly such lapses cannot be sufficient to lead to the conclusion that the investigation was tained or unfair. In the present case these lapses lead up to nowhere. We have shown above that the evidence of the prosecution witness. Yograj, Jagmohan Lal, R.C. Mitra and Ahamad Hasan are convincing on the point of arrest of the appellant in the night along with the pistol and cartridges. The appellant was handed over to the police at the police station. Swarup Nagar at 4.00 a.m. along with the recovered pistol and cartridges. In the case of Shyam Charan v. State (reported in 1984 All LJ 1303) cited by the learned counsel for the appellant, the prosecution witnesses were not independent and were chance witnesses and the prosecution version of murder was unnatural and artifical. Further in that case the impression of the Panches appeared to have been obtained earlier on the inquest report and the writing was done later on. The case of Shayam Charan (supra) is, therefore, of no help to the appellant.

A Division Bench of Hon'ble Supreme Court in the case of Pedda Narayana Vs. State of A.P., (1975) 4 SCC 153 : 1975 SCC (Cri) 427 at page 157 has held as under:

11. A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows:

"The learned Sessions Judge had also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witnesses now found recorded under Section 161 CrPC could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11(a) shows that A-1 to A-3, A-4 and A-5 with 3 strangers came in the jeep driven by A4, got down from the jeep, stabbed the deceased with daggers and knives, pushed PW 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section 174 CrPC is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt acts and the statements now produced are those of the witnesses which were taken later."

The High Court has thus rightly explained that the omissions in the inquest report are not sufficient to put the prosecution out of court and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged infirmity.

The Three Judges Bench of Hon'ble Supreme Court in the case of Suresh Rai Vs. State of Bihar, (2000) 4 SCC 84 : 2000 SCC (Cri) 764 at page 89 has observed as under:

15. Learned counsel for the appellants, Mr U.R. Lalit contended that the presence of the three eyewitnesses, namely, Sheo Deo Rai (PW 10), Shatrughan Rai (PW 16) and Ram Narain Rai (PW 17), at the spot, is doubtful for the reason also that though two of them, namely, Shatrughan Rai (PW 16) and Ram Narain Rai (PW 17), are the witnesses of inquest, they did not state the names of the assailants while describing the cause of death in the inquest report. This argument cannot be accepted. Under Section 174 read with Section 178 of the Code of Criminal Procedure, inquest report is prepared by the investigating officer to find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also the possible cause of death. In Pedda Narayana v. State of A.P. [(1975) 4 SCC 153 : 1975 SCC (Cri) 427 : AIR 1975 SC 1252 : 1975 Supp SCR 84] it was held by this Court that the identity of the accused is outside the scope of the inquest report prepared under Section 174 CrPC. In George v. State of Kerala [(1998) 4 SCC 605 : 1998 SCC (Cri) 1232 : AIR 1998 SC 1376] it has been held that the investigating officer is not obliged to investigate, at the stage of inquest, or to ascertain as to who were the assailants. This Court has consistently held that the inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest. (See:Rameshwar Dayal v. State of U.P. [(1978) 2 SCC 518 : 1978 SCC (Cri) 311 : AIR 1978 SC 1558 : (1978) 3 SCR 59] , Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853 : (1991) 3 SCR 1] and Kuldip Singh v. State of Punjab [1992 Supp (3) SCC 1 : 1992 SCC (Cri) 946 : 1992 Cri LJ 3592 : AIR 1992 SC 1944] .)

A Division Bench of this Court in the case of Pahelwan Singh Vs. State, 2002 SCC OnLine All 1615 : 2003 All LJ 144 : (2003) 46 ACC 242 : 2003 Cri LJ 1102 at page 146 has observed as under:

8. Referring to Ex. Ka. 5, Challan of the dead body, it has been argued for the accused appellants that the time of the F.I.R. has not been noted therein in the relevant column. It has been urged that the time of lodging of the F.I.R. was omitted by the scribe of this document as he was not certain about the time to be scribed therein, meaning thereby that the F.I.R. had not been lodged by the time this document had been prepared. This argument would not detain us for long. The learned trial Judge has rightly observed that inquest report, sketch of dead body and Challan of dead only are prepared at one and same time. True, the time of F.I.R. had not been noted in the Challan of dead body, but we find it properly mentioned in the Inquest report Ex. Ka. 3. It leads us to infer that it was simply owing to the carelessness that the time of lodging of the F.I.R. was omitted from being mentioned in the Challan of the dead body by the scribe thereof (Investigating Officer). It cannot be interpreted to be more than a little careless-- ness on his part which does not go to the root of the matter. It does not affect the merits of the case. We do not find any force in the argument that the F.I.R. was ante timed on the ground that the time of F.I.R. was not mentioned in the Challan of the dead body.

A Division Bench of Hon'ble Supreme Court in the case of Munshi Prasad Vs. State of Bihar, (2002) 1 SCC 351 : 2002 SCC (Cri) 175 at page 358 has observed as under:

6. Let us, however, examine the omissions in either of the documents as produced before the court and consider for ourselves as to whether there is any material difference which would otherwise affect the trial by reason of a doubt as regards the reliability of the prosecution case. Items 4 and 5 in the inquest report are the two basic items, which are said to be missing in the post-mortem report, as such the contention of existence of suspicious nature of prosecution. We, however, cannot lend our concurrence thereto. There may or may not be injuries on the left or the right foot but the fact remains that there is no mention of the same in the post-mortem report -- does it otherwise affect the credibility of the prosecution case? Post-mortem report is prepared by the doctor who held the post-mortem examination on the body of the deceased Indrasan Prasad and his findings have been recorded therein. The document by itself is not a substantive evidence but it is the doctor's statement in court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box. In this context reference may be made to a decision of the Madras High Court in Ramaswami, Re [AIR 1938 Mad 336 : 1938 MWN 36] . In a similar vein the inquest report also cannot be termed to be a basic or substantive evidence being prepared by the police personnel being a non-medical man and at the earliest stage of the proceeding. In the wake of the aforesaid, a mere omission of a particular injury or indication therein of an additional one cannot, however, invalidate the prosecution case. The evidential value of inquest report cannot be placed at a level as has been so placed by the appellant. Preparation of an inquest report is a part of the investigation within the meaning of the Criminal Procedure Code and as noticed above, neither the inquest report nor the post-mortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. On the factual score, Mr Venkataramani relied heavily on the evidence of PW 7, being the Jagdishpur Police Camp-in-charge. In his evidence, PW 7 stated that the inquest report was prepared on the basis of the information contained in Sanah No. 306 and since the sanah has not been produced, it has been contended that sanah being the basic information sheet, non-production thereof would entail the consequences of adverse presumption as regards the involvement of the accused persons. Obviously, thus it has been contended that nobody had any clue as to how the incident had occurred. Eloquent as always, Mr Venkataramani has, in our view, overemphasised the issue. Non-production of a substantive piece of evidence can under certain circumstances bring forth an adverse inference, but not in the present context. Technicality ought not to outweigh the course of justice on the face of trustworthy credible evidence on record and more so when the failure to produce does not go to the root of the prosecution case. Situations, obviously would entail such consequences but in the present context, one cannot possibly stretch it that far.

A Division Bench of Hon'ble Supreme Court in the case of State of U.P. Vs. Abdul, (1997) 10 SCC 135 : 1997 SCC (Cri) 804 at page 138 has observed as follows:

9. While disbelieving the correctness and reliability of the FIR, the High Court heavily placed reliance upon the contents of the inquest panchnama (panchayatnama) prepared under Section 174 of the Criminal Procedure Code and contrasted with the recitals in the FIR. The High Court held that in the inquest panchnama, it was recorded that Shanker Lal was shot dead by firearm but it did not make any reference to the fact that Shanker Lal was also assaulted by banka. The investigating officer had failed to record any injury on the person of Shanker Lal having been caused by banka. The High Court then observed as under:

"The primary purpose of holding an inquest is to ascertain the cause of death and to find out whether it is homicidal, suicidal or accidental. The law therefore, requires a police officer to make an investigation and prepare a report describing the wounds and indicating by what weapon such wounds appear to have been caused. The inquest report, though a document of limited scope and nature, can nevertheless be utilised under Section 145 of the Evidence Act.

As pointed out earlier, in the instant case, the inquest report is silent as to the use of banka. Why has the use of banka not been mentioned in the ''panchayatnama' is a question which immediately crops up for consideration in view of the recitals in the FIR mentioning in unambiguous words that the deceased was also assaulted by banka which was wielded by Ramanuj. What is the answer of the above question is the next question?"

The High Court then went on to observe:

"Once it had come to the knowledge of the investigating officer that the deceased had also been assaulted by banka which was allegedly used by one of the appellants, there was no occasion for him not to mention the use of banka in the inquest report unless it can be attributed to him that he, from the very beginning of the investigation attempted to screen out or shield Ramanuj, but, according to the allegations in the FIR was armed with ''banka'."

10. The interpretation of Section 174 of the Criminal Procedure Code sought to be given by the High Court is apparently contrary to the law laid down by this Court in Pedda Narayana v. State of A.P. [(1975) 4 SCC 153 : 1975 SCC (Cri) 427 : 1975 Supp SCR 84] We may usefully reproduce the relevant observations which are as under: (SCC p. 157, para 10)

"Another point taken by the learned Additional Sessions Judge was that in the inquest report details of the overt acts committed by the various accused have not been mentioned in the relevant column. The learned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eyewitnesses did not mention the overt acts in their statements before the police. To begin with it seems to us that the learned Additional Sessions Judge's approach is legally erroneous. A statement recorded by the police during the investigation is not at all admissible and the proper procedure is to confront the witnesses with the contradictions when they are examined and then ask the investigating officer regarding those contradictions. This does not appear to have been done in this case. Furthermore, proceedings for inquest under Section 174 of the Code of Criminal Procedure have a very limited scope."

It was then observed: (SCC pp. 157-58, para 11)

"A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report."

11. In view of this settled position of law, in our considered opinion, the very foundation of the judgment of the High Court is rendered unsustainable. The High Court disbelieved the evidence of Mangal (PW 1) and Chhote Lal (PW 2) on the ground that their evidence is inconsistent with the recitals in the inquest panchnama. The observations of the High Court in this behalf are as under:

"It may be contended that according to the recitals in the FIR, the deceased had caught hold of the banka and, therefore, there was no injury caused on the person of the deceased which could be attributed to the use of banka. Banka, which is a heavy sharp-cutting weapon, was in the hand of Ramanuj and he had attempted to give a blow on the person of the deceased. Since the intention was to commit the murder, it can be reasonably inferred that the banka was used with considerable force. If in that situation it was caught hold of by the deceased, serious wounds would have been caused on the hand of the deceased. Such an injury has not been noticed by the investigating officer on the person of the deceased which also would indicate that Ramanuj was sought to be screened out from the scene of occurrence."

67. Therefore, on the basis of above mentioned expositions of law propounded by Division Bench of this Court and Hon'ble Supreme Court, there is no substance in the arguments of learned Amicus Curiae regarding discrepancy/ omission committed by the scribe of inquest report and police form-13.

68. The learned Amicus Curiae has further argued that the learned trial court on the basis of statement of P.W.3-Maniram has recorded specific finding that the police party of P.W.7 (Investigating Officer) brought country made pistol from elsewhere and prepared recovery memo, etc., in the market, therefore, recovery of country made pistol and empty cartridge was held doubtful by the learned trial court. On the other hand no charge for offence punishable under Section 25 Arms Act was framed against the appellant. Since recovery of country made pistol and empty cartridge was doubtful, therefore, it may be safely inferred that the accused has falsely been implicated in this crime.

69. It is also mentioned by the learned Amicus Curiae that D.W.1-Ram Bhawan Yadav has proved the circumstances in which the dead body of the deceased, Radhey Shyam was found in front of his shop at 6:00 a.m. It is further submitted that D.W.2-Suryanath Srivastava has proved special report was reached at the office of District Magistrate with delay at 6:30 p.m., therefore, concerned police personnel manipulated to prepare documents ante timed.

70. We have perused the statement of D.W.1-Ram Bhawan Yadav. His statement was recorded on 28.03.2009 before the trial court. He has stated that his shop is situated in southern side of house of Pullan Yadav. On the date of occurrence occurred three years ago he opened his shop at 6:00 a.m. as usually. He has further stated that he heard noise and he came out of his shop and saw Radhey Shyam, when he was alive. He was screaming. He saw the deceased lying on the place of occurrence in injured state. He has accepted this fact that Rajesh Kumar, his brother and wife of the deceased reached at the place of occurrence and brought jeep. He has also accepted the presence of Aniruddha Kumar Pandey, Ex. Village Head and new Village Head, Shri Siddhnath Nishad.

71. D.W.1 has mentioned that Radhey Shyam expired on the place of occurrence. In his examination-in-chief he has accepted that Ram Achal is his real brother. The shop of Ram Achal has been shown by the Investigating Officer in the site plan. D.W.1 in his cross-examination has accepted that Radhy Shyam was lying on the place which was at a distance of 35-40 paces from his shop. Shop of Radhey Shyam was situated on northern side of Chak Road and Chhappar of appellant is situated on western side of shop of the deceased. He has accepted in his cross-examination that he heard screams of Radhey Shyam, when he fell down in front of his shop. He has specifically stated that when he was present on the place of occurrence prior to that police personnel had reached on the place of occurrence. He has refuted this suggestion given by the A.D.G.C. that he is relative of appellant and is adducing false evidence due to this reason under the influence of appellant.

72. The Investigating Officer (P.W.7) has disclosed this fact that on 16.04.2006 he recorded statements of Shiv Prasad (P.W.2), Aniruddha Kumar Pandey (P.W.4), witnesses Jagdish, Ram Bhawan (D.W.1), Siddhnath Nishad, Ram Dheeraj, Babadeen, Maniram (P.W.3) and Dwarika.

73. On perusal of case diary it reveal that D.W.1-Ram Bhawan Yadav has apprised the Investigating Officer that "on 18.03.2006 at 8:00 a.m. appellant, Pullan Yadav fired shot. He heard noise of fire and came out of his shop and saw that Radhey Shyam @ Munna Lodh, the deceased fell down in front of Dhabli of Ram Bahadur. He reached at the place of occurrence, then the deceased, Radhey Shyam, apprised him that Pullan Yadav fired shot on him. He also saw him, when he was fleeing away brandishing his country made pistol". He has also stated that "Rajesh Kumar (P.W.1) along with Aniruddha Kumar Pandey(P.W.4) went at police station to lodge the F.I.R. The deceased was laid on the cot and he expired on the place of occurrence".

74. Therefore, statement of D.W.1 given in his cross-examination that Radhey Shyam fell down on the place of occurrence at 6:00 a.m. is incorrect and he is concealing real facts stated by him in his statement recorded under Section 161 Cr.P.C. He has adduced his evidence half heartedly. He had a conversation with the deceased, Radhey Shyam, in his injured state before he expired. The deceased apprised him specifically that appellant, Pullan Yadav, shot fired on him. Therefore, evidence of D.W.1 does not extend any benefit to the appellant and it was rightly discarded by the trial court. Moreover, it has supported prosecution version to some extent.

75. As far as, learned Amicus Curiae has relied upon the evidence of D.W.2-Surya Nath Srivastava, who has proved this fact that special report of this crime was reached on 18.03.2006 at 6:30 a.m. in Camp Office of District Magistrate, Gonda, D.W.2 has corroborated the statements of P.W.6-S.I., Bechu Prasad Yadav in this regard that he sent special report of this crime at 12:15 p.m. Considering the distance of 27 kilometers in between the police station and Camp Office of the District Magistrate, Gonda, there was no considerable delay in sending the special report of this crime to the District Magistrate Office. It is pertinent to take note of the statement of P.W.5 in this regard also that C.O. Office is also situated at a distance of 14 kilometers from the Police Station Paraspur, Gonda.

76. Therefore, the argument of learned Amicus Curiae has no substance that cause of delay in sending the special report to the District Magistrate Office was that the police personnel including P.W.6 and P.W.7 manipulated the documents and prepared them ante timed. It is also pertinent to mention here that witness, Siddhnath Nishad was discharged on behalf of prosecution on the basis of application No. 19/17 of complainant, Rajesh Kumar on 13.02.2008. It is mentioned in this discharge application that he was won over by the appellant and he was not prepared to adduce evidence and state correct facts.

77. As far as, learned Amicus Curiae has pointed out the findings of learned trial court regarding discovery of country made pistol and empty cartridge allegedly made on the pointing out of appellant, we have perused the statement of P.W.3 and P.W.7 and also perused the record.

78. P.W.7 has stated in his examination-in-chief that he reached on the possible places in search of appellant on 19.03.2006. He was arrested on 20.03.2006. He confessed before the team of Investigating Officer (P.W.7) and gave information of the place, where he had hidden country made pistol after commission of this crime. He has further stated that on the basis of information given by the appellant he went with the appellant along with the witnesses, Maniram (P.W.3) and Chhutkau for discovery of country made pistol and empty cartridge. The appellant had pointed out the place which was situated in bushes of Sarpat, from where, he picked up country made pistol, in the barrel of which, empty cartridge was stuck. The recovery memo, Ex.Ka.-4 was prepared by S.I., Jeeram Gyan Singh on the dictation of P.W.7, which was signed by the witnesses and appellant and copy of recovery memo was handed over to the appellant.

79. P.W.7 has also proved this fact that he collected blood stained and plain soil from the place of occurrence and blood stained rope of cot, on which, the deceased was lying on the place of occurrence. These articles were proved by P.W.7 has material exhibits-1,2 & 3. P.W.7 has also proved country made pistol and empty cartridge as material exhibits-5 & 6.

80. P.W.7 has sent country made pistol and empty cartridge to the Forensic Science Laboratory. The dead body of Radhey Shyam was found in front of Dhabli of Ram Bahadur. P.W.7 recorded statement of Ram Bahadur on 18.03.2006. He has specifically stated that Ram Bahadur was not the eye witness. It may be fault of Investigating Officer that he has not inquired from Ram Dheeraj, Ram Achal and Sukhram. The Investigating Officer has also inquired from Aniruddha Kumar Pandey, why he visited village of Radhey Shyam, then he apprised P.W.7 that he had some work in this village.

81. P.W.7 has stated in his cross-examination dated 07.03.2009 that blood stained soil and weapon were sent by him to Forensic Science Laboratory on 15.04.2006 and report of forensic expert was not received by him until he submitted charge sheet against the appellant. On the fault committed by P.W.7 that he had not obtained forensic/ ballistic expert's report before submitting charge sheet against the appellant, cannot affect prosecution adversely.

82. P.W.7 in his examination-in-chief has stated that he sent blood stained and plain soil and blood stained rope of cot to Forensic Science Laboratory on 27.04.2006 and country made pistol and empty cartridge for comparison by ballistic expert on 15.04.2006.

83. P.W.7 in his cross-examination has further stated by corroborating the recovery memo (Ex.Ka.-4) regarding discovery that accused was arrested on 20.03.2006. Constable Chhotey Lal, Constable Jitendra Verma, Constable Sudharshan Singh and Government Driver Amarnath Upadhyaya were his team member. They acted upon tipoff given by the informer during search of appellant. He has disclosed this fact that place of discovery was situated at a distance of one kilometer from the place of occurrence in western side and from the place of arrest of appellant it was at a distance of 7-8 kilometers. The place of discovery was situated in the vicinity of Lamberdar Purwa. This place of discovery was situated between the bushes of Ber (Plum) and Babool (Acacia) near dry Sotia Nallah. The witnesses, Maniram and Chhutkau had met him in Shahapur Market. These witnesses accompanied the police team.

84. P.W.7 has refuted this suggestion that Ramdeen, Babadeen, Dwarika, Maniram and Chhutkau were brought from the place of occurrence at the police station. P.W.7 in his cross-examination has refuted this suggestion also that he conducted all the proceedings at the police station and submitted charge sheet without any basis. He has specifically stated that recovery memo (Ex.Ka.-4) was prepared near Nullah by sitting on the ground. He has refuted this suggestion that recovery memo was prepared at Shahapur Chowki and country made pistol and cartridge was planted on the appellant to create seriousness of crime and discovery is false and fabricated.

85. P.W.3-Maniram is also the witness of inquest proceedings. He has proved inquest report (Ex.Ka.-3). He has further stated that the Sub Inspector met him in the market, when he came by jeep, in which, Pullan Yadav was sitting. Sub Inspector also directed him and Chhutkau to sit in the jeep, then they reached at the place of occurrence in the vicinity of Lamberdar Purwa. The appellant, Pullan Yadav, directed to stop the jeep and he pointed out the place after crossing Sotia Nullah, which was situated between the bushes of Ber (Plum) and Babool (Acacia). He searched country made pistol from this place and discovered it. He has specifically stated that Sub Inspector prepared recovery memo (Ex.Ka.-4) on the place of discovery itself. He appended his thumb impression on it after its preparation.

86. P.W.3-Maniram has accepted that the deceased was his brother-in-law (Sala). He got information of this incident after one and half an hour. He reached at the place of occurrence after 10-15 minutes, where police personnel reached at 9/9:30-9:45 a.m. This statement was given by P.W.3 in his cross-examination carelessly on the basis of loss of memory, which is not material, because F.I.R. of this case was lodged by P.W.1 at 10:30 a.m. and this time of information of crime is mentioned in the inquest report.

87. P.W.3 in his cross-examination has specifically stated that police personnel stayed at the place of occurrence for one hour. He has also stated that the dead body of the deceased was sealed at the place of occurrence. He, Babadeen, Dwarika, Ram Dheeraj and Siddhnath Nishad went at the police station. He did not see Aniruddha Kumar Pandey at the police station. He has accepted this fact that he appended his thumb impression of inquest report of the dead body of the deceased and other witnesses also signed it.

88. Although P.W.3 has stated that police personnel prepared inquest report at police station and he appended his thumb impression on it, but he has stated in his examination-in-chief specifically that inquest report (Ex.Ka.-3) was prepared on the place, where the dead body of Radhey Shyam, deceased, was sealed and he appended his thumb impression on it. Considering this fact that examination-in-chief and cross-examination of P.W.3 discloses this fact that P.W.7 got prepared inquest report (Ex.Ka.-3) in his presence, therefore, the aforesaid statement of P.W.3 given in his cross-examination does not affect the prosecution adversely, nor it extends any benefit to the appellant.

89. The learned Amicus Curiae has relied upon the statement given in cross-examination of P.W.3-Maniram that recovery memo (Ex.Ka.-4) was written at 12:00 noon at Chowki Sahaspur. He has further stated that police personnel met him at 10:00 a.m. or 11:00 a.m. Learned Amicus Curiae has also pointed out that P.W.3 has stated that "accused was arrested one day before of this recovery, when police personnel brought him in Sahaspur Market. He has accepted this fact that police personnel brought country made pistol in Sahaspur Market and recovery memo was prepared there at Sahaspur Police Chowki. He and Chhutkau appended their thumb impression at Sahaspur Police Chowki also". He has submitted further that learned trial court has rightly disbelieved this discovery proved by P.W.7.

90. P.W.3 in his cross-examination dated 18.01.2008 has refuted this suggestion that he is adducing his evidence due to being relative of the deceased and country made pistol was not discovered in his presence. Although P.W.3 has stated in his cross-examination that country made pistol was brought at Police Chowki Sahaspur Market and recovery memo (Ex.Ka.-4) was prepared by police personnel at Police Chowki. This statement is not material, because if we read examination-in-chief and cross-examination of P.W.3 conjointly, he has stated aforesaid fact in contradiction to his statement given by him in his examination-in-chief that Sub Inspector prepared recovery memo (Ex.Ka.-4) on the place of discovery.

91. P.W.3 stated the aforesaid fact in his cross-examination that recovery memo was written at Police Chowki Sahaspur Market either under influence of appellant or carelessly. On the other hand, statement given by P.W.3 in his examination-in-chief corroborates statement of the Investigating Officer (P.W.7) that discovery of country made pistol and empty cartridge was made by him in presence of P.W.3 and recovery memo (Ex.Ka.-4) was prepared at the place of discovery itself. On perusal of statement given by P.W.3 given in his cross-examination it reveals only that after discovery of country made pistol and empty cartridge from its barrel, in his presence at the place of discovery by P.W.7 and his team, this country made pistol was brought at Police Chowki Sahaspur Market and then after preparation of recovery memo he appended his thumb impression. Even then this statement given by P.W.3 in cross-examination is accepted, as it may be, the prosecution is not adversely affected on the basis of this statement of P.W.3 given in his cross-examination.

92. It is pertinent to mention here that the Investigating Officer (P.W.7 ) sent this country made pistol and cartridge to Forensic Science Laboratory. The Director, Forensic Science Laboratory, Mahanagar, Lucknow has provided its report dated 18.05.2006. The clothes, Kurta, underwear, Banyan, Lungi, Bandi, watch, Kalava, blood stained and plain soil and rope of cot were chemically examined. Blood on article-6, watch, and article-8, blood stained soil was disintegrated, therefore, its origin could not be determined. But the chemical examiner has mentioned in his report that human blood was found on clothes of the deceased, article-1 to 5, article-7, Kalava and article-9, rope of cot.

93. Likewise, comparison report dated 21.09.2006 of weapon country made pistol and empty cartridge was provided by the Joint Director and empty cartridge and country made pistol, material exhibits-5 & 6 were compared with T.C.1 and T.C.2 cartridges in the Forensic Science Laboratory and the mark of firing on it were found the same.

94. The reports of Forensic Science Laboratory, Mahanagar, Lucknow were not challenged during the course of trial on behalf of appellant. The Forensic Science Laboratory, Mahanagar, Lucknow is a laboratory of State of U.P., therefore, these reports are admissible under Section 293 Cr.P.C. There is no substance in the argument of learned Amicus Curiae that separate F.I.R. was not lodged against the appellant for offence punishable under Section 25 Arms Act or the learned trial court has not framed separate charge for this offence.

95. The following expositions of law propounded by Hon'ble Supreme Court are relevant regarding discovery of weapon under Section 27 of Indian Evidence Act:

In the case of State of Maharashtra Vs. Bharat Fakira Dhiwar, reported in 2002 SCC (Cr) 217, the Hon'ble Supreme court relying on exposition of law in the case of State of H.P. Vs. Jeet Singh:(1999) 4 SCC 370 has quoted paras. 26 and 27 and these paras have been quoted by Hon'ble Supreme Court regarding discovery of incriminating article/substance from open place, which are as follows :

"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ''open or accessible to others'. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.

27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 1 Cri LJ 8] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] , Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430 : 1995 SCC (Cri) 753] , State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675 : 1997 SCC (Cri) 1032] ."

In the case of State (NCT of Delhi) Vs. Navjot Sandhu :2005 Cri.L.J. 3950, with State (N.C.T. of Delhi), Vs. Syed Abdul Rehman Gilani, with Shaukat Hussain Guru s. State (N.C.T. of Delhi) and Mohd. Afzal Vs. State (N.C.T. of Delhi), the Hon'ble Apex Court has observed in para 13 and 14 as under:

13. ..........It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.

........We are of the view that Kotayya's case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.

........It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect'.

......................As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. the concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. ......................What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. ...........

...........Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)"

............................. The statement of law in Kotayya that the fact discovered "embraces the place from which the object is produced and the knowledge of the accused as to it and the information given must relate distinctly to this fact" was reiterated without any gloss or qualification.

............... There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.

14.......... In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficultiesin placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel. .....................

In the case of State Govt. of NCT of Delhi Vs. Sunil: (2001) 1 SCC 652 in paras-19, 20, 21 and 22 the Hon'ble Apex Court has observed as under:

19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person "and signed by such witnesses". It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabad v. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p. 254, para 8)

"Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself."

20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer I s either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

22. In this case, the mere absence of independent witness when PW 17 recorded the statement of A-2 Ramesh and the knickers were recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.

In the case of Sanjay Vs. State(NCT of Delhi): (2001) 3 SCC 190 in paras-17, 18, 20 and 27 the Hon'ble Apex Court has observed as under:

17. Section 25 mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.

18. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27.

20. In State of U.P. Vs Deoman Upadhyaya: [AIR 1960 SC 1125] this Court held that Sections 25 and 26 were manifestly intended to hit an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case the High Court had acquitted the accused on the ground that his statement which led to the recovery of gandasa, the weapon of offence, was inadmissible. The accused Deoman had made a statement to hand over the gandasa which he had stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that Section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending Article 14 of the Constitution, was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of the State of U.P., the High Court granted a certificate to file the appeal in this Court. This Court did not agree with the position of law settled by the High Court and decided to proceed to review the evidence in the light of that statement, insofar as it distinctly related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed:

"The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable insofar as it distinctly relates to the fact thereby discovered: and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court."

27. Raising objections to the words "after commission of the offence" appearing in the disclosure statement of Vinod and "looted property" in the statement of Nawabuddin, the learned counsel for the appellants submitted that the whole of the statement was hit by Sections 24 to 26 of the Evidence Act and Section 162 of the Code of Criminal Procedure. We are not inclined to accept such a general statement. Even if the objectionable words (bracketed above) are deleted, the appellants cannot be conferred with any benefit which would entitle them to acquittal. It is not disputed that consequent upon the disclosure statements made, the articles mentioned therein were actually recovered at their instance from the place where such articles had been hidden by them. The mere use of the words "looted property" in relation to the articles seized which were found to have been taken away after the commission of the crime of murder and robbery would not change the nature of the statement. The words do not implicate the accused with the commission of the crime but refer only to the nature of the property hidden by them which were ultimately recovered consequent upon their disclosure statements. Hypertechnical approach, as projected by the defence counsel, would defeat the ends of justice and have disastrous effect. The property recovered consequent upon the making of the disclosure statements has been proved to be the property of the deceased, stolen after the commission of the offence of robbery and murder.

The Hon'ble Supreme Court in the case of State of M.P. Vs. Paltan Mallah, (2005) 3 SCC 169 : 2005 SCC (Cri.) 674 in the following paras has held as under:

28. In India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not. In Radhakishan v. State of U.P. [1963 Supp (1) SCR 408 : AIR 1963 SC 822 : (1963) 1 Cri LJ 809] speaking for a three-Judge Bench, Justice Mudholkar held: (SCR pp. 411-12)

"So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues."

31. The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law-enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Code of Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious difficulty in the matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above have settled the position and we have followed the English decisions in this regard. In the Privy Council decision in Kuruma v. R. [1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 WLR 223 (PC)] Lord Goddard, C.J. was of the firm view that in a criminal case the Judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused. The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to the accused, such evidence may be excluded.

32. It may also be noticed that the Law Commission of India in the 94th Report suggested the incorporation of a provision in Chapter 10 of the Indian Evidence Act, 1872. The suggestion was to the effect that in a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained, its admission would tend to bring the administration of justice into disrepute. The Commission also quoted the various circumstances surrounding the proceedings that may entail the exclusion of such evidence but the suggestion of the Law Commission was not accepted and no legislation was effected in line with the recommendations of the 94th Report of the Law Commission and the position continues to be that the evidence obtained under illegal search could still be admitted in evidence provided there is no express statutory violation or violation of the constitutional provisions. For example, if certain specific enactments are made and the search or seizure is to be effected in accordance with the provisions of such enactment, the authorities shall comply with such provisions. The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it.

33. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected.

96. The following expositions of law propounded by Hon'ble Supreme Court are relevant regarding fault of investigation regarding seizure of weapon:

In the case of Chand Khan Vs. State of U.P., (1995) 5 SCC 448:1995 SCC (Cri) 915, Hon'ble Apex Court in para 23 has observed as follows:

23. There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of PW 1's house fits in with the evidence of the eyewitnesses and the nature of injuries sustained by Shah Alam. From the evidence of Sm. Naeema Parveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she, her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside. There Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharif Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of PW 5 stands substantially corroborated by the other three eyewitnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the FIR which was lodged by Keramat Ali (PW 1) on the basis of what he heard from PW 5. In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in PW 1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.

97. The learned trial court has not considered aforesaid reports provided by Forensic Science Laboratory. The statements/ evidence of P.W.3-Maniram and P.W.7, the Investigating Officer, have not been appreciated and analyzed in correct perspective by the trial court on the basis of reports sent by Forensic Science Laboratory. Therefore, the findings of the trial court regarding discovery of country made pistol and empty cartridge from its barrel on the pointing out of appellant is liable to be set aside. It is held that the prosecution is able to prove discovery of country made pistol and empty cartridge on the pointing out of appellant as proved by P.W.3 and P.W.7. This country made pistol and empty cartridge was used by the appellant for committing murder of the deceased, Radhey Shyam.

98. Learned Amicus Curiae has lastly argued that only related and interested witnesses, P.W.1-Rajesh Kumar (complainant) and P.W.2-Shiv Prasad have been produced on behalf of prosecution during the course of trial. P.W.4-Aniruddha Kumar Pandey is chance witness. No independent witness has been produced on behalf of prosecution. Likewise, Chhutkau, another witness of discovery has not been produced by the prosecution, therefore, prosecution was not able to prove charge of heinous offence of murder against the appellant on the basis of credible and reliable evidence.

99. On appreciation of evidence of P.W.1, P.W.2, P.W.3 and P.W.4, we have found that their evidence is trustworthy, wholly reliable, credible and acceptable. The evidence of P.W.1, P.W.2 and P.W.4 is supported by medical evidence adduced by P.W.5-Dr. Vinay Kumar Srivastava. P.W.3 and P.W.7 have proved discovery of country made pistol and empty cartridge on the pointing out of the appellant, which was used by the appellant to commit murder of the deceased, Radhey Shyam. No material contradiction was elicited during the cross-examination of these witnesses. Ballistic expert has also corroborated and supported the evidence of P.W.3 and P.W.7. The appellant was not able to prove the fact and circumstances as suggested to P.W.1 in his cross-examination that unknown persons caused death of the deceased elsewhere.

100. The quality of evidence and not quantity of evidence is required to prove any fact. Section 134 of Indian Evidence Act provides as follows:

134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact.

101. Regarding evidence of related/ interested witness and independent witness, following expositions of law are relevant:

In the case of Rupinder Singh Sandhu v. State of Punjab, (2018) 16 SCC 475 Hon'ble Apex Court in paragraph no. 50 regarding related witness has held as under:-

50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits. [ See Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, p. 667, para 6 : 2003 SCC (Cri) 664"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."Also see, Dalip Singhv.State of Punjab, AIR 1953 SC 364, p. 366, para 26 : 1953 Cri LJ 1465"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."]

In the case of State of U.P. v. Sheo Sanehi, reported in (2004) 12 SCC 347 Hon'ble Apex Court in paragraph nos. 17, 18 and 21 regarding related witness has held as under:-

17. Coming to the ocular version of the occurrence, the prosecution has relied upon the evidence of three eyewitnesses viz. PWs 1, 3 and 4. PW 1 has supported the prosecution case in all material particulars which is consistent with his subsequent statement made before the police. The ground of attack to his evidence was that he was a resident of a village which is situated at a distance of 40 kilometres from the place of occurrence and he had no occasion to be present at the place of occurrence. He stated that his mother was adopted by one Smt Mahadei of Village Siromanpur where the occurrence had taken place, he was born in Village Siromanpur and was residing in the said village with his mother Smt Bishandei since his childhood inasmuch as he was looking after cultivation of her lands. The fact that his mother was adopted by Smt Mahadei would be apparent from the registered Will dated 11-8-1977 (Ext. Ka-52) executed by Smt Mahadei in favour of his mother showing that she was her adopted daughter and was residing with her. Ext. Ka-50 and Ext. Ka-51 are the extracts of khatauni and khasra in which name of Bishandei, mother of this witness, is recorded along with Smt Mahadei in relation to the agricultural lands. That apart, Exts. 13, 14 and 15 are transfer certificates, high school certificate and marksheet in relation to this witness which show that he had passed out from a school situated in Village Siromanpur. Apart from the aforesaid documents, invitation card Ext. 16 has been filed to show that the sacred thread ceremony of PW 1 as well as his younger brother Subhendu Kumar was held in the year 1975 in Village Siromanpur. Besides that, letters Exts. 17 to 20 have been filed to show that he had received the same at his address in Village Siromanpur. Ext. Ka-47 is gun licence in the name of PW 1 in which he was shown to be a resident of Village Siromanpur. These facts clearly show that PW 1 was resident of Village Siromanpur, as such his presence at the place of occurrence and time of occurrence cannot be doubted.

18. So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased Devi Din whereas PW 4 is widow of the said deceased, as such they are natural witnesses and their presence at the alleged place of occurrence cannot be doubted. The names of these two witnesses were disclosed in the first information report itself and they supported the prosecution case in all material particulars in their statements made before the police as well as in court and no infirmity could be pointed out in their evidence, excepting that they were related to the deceased persons and inimical to the accused. It is well settled that merely because a witness is related to the prosecution party and inimical to the accused persons, his evidence cannot be discarded if the same is otherwise trustworthy. In the case on hand, we do not find any infirmity whatsoever in the evidence of PWs 1, 3 and 4, as such it is not possible to disbelieve them, especially in view of the fact that their evidence is supported by medical evidence as well as objective findings of the investigating officer, but the High Court has committed a serious error in discarding their testimonies on this score.

Hon'ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005) 9 SCC 725 has observed as under:-

.....With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 & 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.

In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.

Hon'ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-

8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "interested witnesses". The only premise for dubbing them as "interested witnesses" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954]1SCR145, Guli Chand v. State of Rajasthan MANU/ SC/ 0107 /1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].

15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Hon'ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-

The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.

In Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192, Hon'ble Apex Court has held as under:-

...Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his "Sala" and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, "there is not a scintilla of evidence" that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother's son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.

The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.

In the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261, Hon'ble Apex Court has held as under:-

"...Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.

Hon'ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-

"16. ...... The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected."

102. Learned A.G.A. has also relied upon the exposition of law given by Hon'ble Apex Court in para-5 of the case Babu Ram and another Vs. State of U.P. and others, 2002 (2) JIC 649 (SC), which is being reproduced as under:

The ocular evidence adduced on behalf of the prosecution proves beyond reasonable doubt the prosecution story including the role assigned to each of the accused persons excepting Dularey who has been acquitted by the High Court and there is no challenge laid to Dularey's acquittal before us. Shri Krishna, PW1 is the brother of the deceased. His testimony has been criticized by the learned senior counsel for the appellants on two counts mainly. Firstly, it is submitted that Shri Krishna is the brother of the deceased and therefore a witness interested' in prosecution and at the same time there is a background of strained relationship available between the accused and the deceased. Secondly, it is submitted that according to Shri Krishna his brother Mangali, the deceased and he had taken the breakfast which consisted of Dal-Roti but according to post-mortem report the semi digested food in the intestine of the deceased consisted of rice and that shows that Shri Krishna, PW1 was not with the deceased . We have noted this submission but we cannot go that far as the learned counsel for the appellants proposes us to carry inasmuch as we are of the opinion that none of the grounds can be enough for discarding over board the testimony of Shri Krishna. His being a relation of the deceased and having strained relationship with the accused persons since before the incident can persuade the Court of facts to be on its guard and be cautious while evaluating the worth of his testimony. So far as the other submission is concerned that has only to be rejected. The post-mortem report states the contents in the stomach of the deceases to be semi-digested food and pieces of rice. The post-mortem report does not say that the contents consisted exclusively of rice only. The doctor conducting the autopsy was not asked any question in this regard by the defence. According to Shri Krishna, PW1 the breakfast consisted of Dal-roti but he has not specifically denied any rice having been served as a part of the breakfast in the morning. It is common knowledge that in Central India rice install quantity is generally cooked and served along with Dal-roti and rice is not the principal meal or eaten exclusively. We could have appreciated and assigned some weight to the submission of the learned counsel for the appellant if the doctor conducting the autopsy would have been emphatic in saying that the stomach contents of the deceased were rice only while Shri Krishna, Pwl would have been specific in saying or admitting that the breakfast did not have any rice.

103. On the basis of above appreciation and evaluation of evidence of witnesses, P.W.1 to P.W.4 and witnesses of discovery, P.W.3 and P.W.7, their evidence cannot be discarded. P.W.4 cannot be termed as a chance witness, as his presence has been established on date and time of occurrence by the prosecution. The learned trial court has rightly relied upon their evidence in correct perspectives. The prosecution is not adversely affected by the fact that any other independent witness or Chhutkau was not produced on behalf of appellant during the course of trial. It may be fault of learned A.D.G.C. who conducted proceedings of trial on behalf of prosecution that he has not produced other witnesses.

104. The prosecution cannot be legally compelled to produce all the witnesses, of whom, the Investigating Officer has recorded statements under Section 161 Cr.P.C. The prosecution may examine those witnesses on which it relies.

105. P.W.6 has proved Check F.I.R. (Ex.Ka.-7) and G.D. of registration of crime (Ex.Ka.-8) and no material contradiction has been elicited in his cross-examination on behalf of appellant.

106. P.W.7 has proved recovery memo (Ex.Ka.-2) regarding the fact that he took cycle of the deceased in his possession from the place of occurrence. The recovery memo (Ex.Ka.-5) regarding collection of blood stained soil and rope of cot, site plan (Ex.Ka.-9), inquest report and documents (Ex.Ka.-10 to Ex.Ka.-14) prepared for autopsy of the dead body of the deceased and charge sheet (Ex.Ka.-15) submitted by him against the appellant. Therefore, P.W.7 has proved these documents and his evidence is of formal nature in this regard.

107. On the basis of above discussions, appreciation and evaluation of evidence, the impugned judgment and order dated 25.07.2009 cannot be termed as perverse or is against the evidence available on record. It is liable to be upheld and it is affirmed.

108. This appeal lacks merit and is liable to be dismissed.

109. Accordingly, the appeal is dismissed.

110. Copy of this judgment be sent to the learned trial court and the concerned Jail Superintendent for compliance.

111. Learned Amicus Curiae shall receive fee prescribed by the Government of State of U.P. immediately.

112. The record of the trial court be sent back.

Order Date :- 31.5.2019.

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