Allahabad High Court
Rama Shanker And Another vs State Of U.P. on 8 April, 2022
Bench: Manoj Misra, Sameer Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Court No. - 45
Case :- CRIMINAL APPEAL No. - 1248 of 2010
Appellant :- Rama Shanker And Another
Respondent :- State of U.P.
Counsel for Appellant :- Lav Srivastava, Akhilesh Kumar Ojha, Amrendra Pratap Singh, Jitendra Prasad, Mahesh Kumar, Niraj Tiwari, V.P. Srivastava, Vinay Dubey, Kuldee Bajpal
Counsel for Respondent :- Govt. Advocate,Rajeev Upadhyay
Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered by Manoj Misra, j)
1. This appeal is against judgment and order of conviction and sentence, dated 23.02.2010 and 24.02.2010, respectively, passed by the Additional Sessions Judge, Court No.5, Azamgarh in connected Sessions Trial Nos. 618 of 2002 and 619 of 2002 whereby, both the appellants, namely, Ram Shanker and Rajesh Pandey, have been convicted under Section 302/34 I.P.C. in Sessions Trial No.618 of 2002; and in Sessions Trial No.619 of 2002 the appellant Rajesh Pandey has also been convicted under Section 25 Arms Act. For their conviction under section 302/34 IPC both the appellants have been sentenced to imprisonment for life with fine of Rs. 5,000/- each and a default sentence of six months R.I.; whereas, for his conviction under section 25 Arms Act, the appellant Rajesh Pandey has been sentenced to one year R.I. with fine of Rs.1,000/- and a default sentence of one month. However, in Sessions Trial No. 618 of 2002, both the appellants were acquitted of the charge of offence punishable under Section 504/34 I.P.C.
INTRODUCTORY FACTS
2. The prosecution story, in brief, as could be elicited from the written report (Exb. Ka-1) lodged by PW-1, is that the deceased - Munnar Mali (informant's father), had a long standing civil litigation with Ramjeet Pandey (the father of accused Rajesh), giving rise to strong enmity between them. Prior to the incident, on 05.08.2002, in the evening, at about 4 pm, while the deceased was working at the door of his house, Ramjeet, his son Rajesh and Onkar, came, abused and tried to assault informant's father, however, informant's father managed to escape and hide himself in the house. Thereafter, on 07.08.2002, at about 7.15 am, when the informant (PW-1) and his father (the deceased) were returning from Budhanpur Bazaar, after purchasing betel leaves, near Amari village, Rama Shankar son of Kamla Prasad (appellant no.1), Onkar son of Rama Shankar (non-appellant), and Rajesh son of Ramjeet (appellant no.2) came on a motorcycle from behind and, by exhorting each other, fired three shots at the deceased, as a result whereof, the deceased fell on the road and died and his blood, stained informant's shirt. In the FIR it is also alleged that the accused had threatened and chased the informant, who escaped to the adjoining village Amari to hide himself, whereas the accused while threatening the witnesses and brandishing their weapons escaped on their motorcycle, via Bhatti Chatti towards Atrait, and were spotted, inter alia, by Sherai (PW-2) and Gulab Seth (not examined), who all had witnessed the incident. It is also alleged that seeing the entire incident, people in the area were terrified and public order was breached. By stating all that has been narrated above and claiming that informant's father's body and cycle is lying at the spot, written report (Exb. Ka-1) was given at P.S. Atrauliya, District Azamgarh, which was registered as Case Crime No. 257 of 2002, on 07.08.2002, at 8.30 hours, of which Chik FIR (Exb. Ka-3) was prepared by PW-4, vide GD entry no. 15 (Exb. Ka-4).
3. Inquest was conducted at the spot on 07.08.2002 at 10.30 hours of which inquest report (Exb. Ka-7) was prepared by S.I. Lallan Mishra (not examined), which was proved by I.O.(PW-6). PW-1 (Rajaram-informant) and PW-2 (Sherai), inter alia, were witnesses of the inquest. The condition in which the body was noticed at the time of inquest is reported as follows:-
"n'kk 'ko & 'ko e`rd eqUuj ekyh cw ksyk yVdk] ihNs iku dh Vksdjh ca/khA
diMk& e`rd ds cnu ij diMk /kksrh] yaxksV] caMh] dqrkZA
pksV & e`rd eqUuj ekyh ds 'ko dks myV iyV dj ns[kk x;k rks blds cnu ij fuEufyf[kr pksVs ikbZ x;hA "
4. Autopsy was conducted on 07.08.2002, at about 4.15 pm., by Dr. Nand Lal Yadav - PW-3, who prepared autopsy report (Exb. Ka-2). The Autopsy report notices:
External examination:
Average body built, eyes closed, mouth closed, Rigor mortis present in all limbs. No sign of decomposition.
Ante-mortem injury:
(i) Firearm wound of entry 2 cm x 2 cm x brain cavity deep on right side of head 10 cm above right ear. Blackening and tattooing present (sic) singed. On opening, underlying parietal bone fractured into pieces. Membrane and brain matter lacerated. One metallic bullet recovered from wound.
(ii) Firearm wound of entry 2 cm x 2 cm brain cavity deep on back of head, occipital region above root of neck. On opening underlying occipital bone fractured, brain and membrane lacerated. One metallic bullet recovered from wound.
(iii) Firearm wound of entry 2 cm x 2 cm x chest deep on left side of back. Lateral from cavity of back; and 7 cm below left scapula. One metallic bullet recovered along with (sic).
Internal Examination:
Stomach empty, small and large intestine and rectum unloaded. Note: Three metallic bullets were recovered from the body.
Cause of death:
Death due to coma as a result of ante-mortem firearm injury on head.
Estimated Time of Death:
About half a day before.
5. During the course of investigation, the investigating officer (I.O.) recovered blood stained shirt of the informant of which recovery memo (Exb. Ka-2) was prepared. The I.O. also recovered blood stained earth and plain earth of which recovery memo (Exb. Ka-19) was prepared. The bicycle and the basket of betel leaves kept on its carrier, recovered from the spot, was handed over to the informant of which custody memo (Exb. Ka-3) was prepared by the I.O. On 25.08.2002, the I.O. allegedly recovered a country made pistol on the pointing out of Rajesh (appellant no.2) after he was arrested of which a recovery memo (Exb. Ka-15) was prepared and, pursuant thereto, a separate FIR, under Section 25 of the Arms Act, was lodged at P.S. Atrauliya, District Azamgarh, as Case Crime No. 280 of 2002, on 25.08.2002 at 8.35 hours of which Chik FIR (Exb. Ka-5) was prepared by PW-5. Investigation of Case Crime No.257 of 2002 was completed by V.B. Singh (PW-6), but charge sheet (Ex. Ka-20) was submitted by S.I. Chandra Shekhar, whose signatures were proved by PW-8. Charge-sheet (Exb. Ka-20) was submitted against Ram Shanker (appellant no.1); Onkar; and Rajesh (appellant no.2) under section 302/ 504/ 34 IPC; whereas, investigation of Case Crime No. 280 of 2002 was completed by PW-7, who submitted charge-sheet (Ex. Ka-17) against Rajesh Pandey (appellant no.2) under section 25 Arms Act. After taking cognisance on the two charge-sheets, both the cases were committed to the Court of Session and were connected with each other. Arising from Case Crime No. 257 of 2002, Sessions Trial No. 618 of 2002 was instituted against all the three accused, namely, Rama Shankar, Onkar and Rajesh; whereas in respect of Case Crime No. 280 of 2002, Sessions Trial No. 619 of 2002 was instituted.
6. In Sessions Trial No. 618 of 2002, on 02.08.2004, Rama Shankar, Onkar and Rajesh were charged for offences punishable under Sections 302/34 and 504/34 I.P.C. All of them pleaded not guilty and claimed to be tried. In Sessions Trial No. 619 of 2002, the appellant-Rajesh was charged under Section 25 Arms Act. He pleaded not guilty and claimed to be tried. Later, in S.T. No.618 of 2002, co-accused-Onkar was declared a juvenile therefore, his trial was separated. Thus, Sessions Trial No. 618 of 2002 proceeded against Rama Shanker (appellant no.1) and Rajesh (appellant no.2) only, whereas, Sessions Trial No. 619 of 2002 proceeded against Rajesh (appellant no.2) alone.
7. As both the trials were connected, a common set of evidence was led. During the course of the trials, the trial court examined eight prosecution witnesses: PW-1-Raja Ram - the informant and son of the deceased - the eye-witness of the incident; PW-2 - Sherai Mishra also an eye-witness of the incident; PW-3- Dr. Nand Lal Yadav - autopsy surgeon; PW-4 - Brijnath Dubey - the constable who prepared Chik FIR and GD entry of Case Crime No. 257 of 2002; PW-5 - Ram Bachan Ram - the constable who prepared Chik Report and GD entry of Case Crime No. 280 of 2002; PW-6 - Vijay Bahadur Singh - the investigating officer of Case Crime No. 257 of 2002. He proved the various stages of investigation including collection of blood stained earth, plain earth, blood stained shirt, which the informant was wearing at the time of incident, preparation of inquest report, photo nash, challan nash, site plan etc. He also proved the Supurdaginama (custody memo) of the cycle and the Pan Basket recovered from the spot and handed over to the informant. He also proved the various other steps of investigation including the arrest of the accused and recovery of country made pistol at the instance of accused-Rajesh. He produced the material exhibits such as plain earth, blood stained earth and blood stained shirt etc; PW-7 - Janardan Yadav -. the investigating officer of Case Crime No. 280 of 2002 He proved the submission of charge-sheet against Rajesh Pandey in Case Crime No. 280 of 2002 and proved the sanction accorded by the District Administration for prosecution of Rajesh Pandey. The sanction letter dated 04.10.2002 was exhibited as Exb Ka-18; and PW-8, Head Constable - Mukteshwar Singh proved the signature of Chandra Shekher Lal on charge-sheet relating to case crime no.257 of 2002, paper no. 3 Ka-1, which was exhibited as Exhibit Ka - 20.
8. The incriminating circumstances appearing in the prosecution evidence were put to Rama Shanker and his statement, under section 313 CrPC, was recorded on 26.08.2009. He stated that he has been falsely implicated; that there is land dispute between the informant and his family; that a false report has been lodged in collusion with the police; that the incident has been incorrectly described; that PW-2 made false statement because he is a friend of the deceased and was a co-accused of the deceased in a trial wherein he was convicted; that the FIR had been ante-timed; that the investigating officer is in collusion with the informant; that the informant on account of land dispute is inimical and has falsely implicated him in collusion with witness Sherai, who is a friend of the informant. Rama Shanker also stated that the deceased had criminal antecedents and that the deceased as well as Sherai were both convicted and sentenced; that the deceased had enmity with various other persons and that he was killed and his body was thrown by unknown persons but, out of enmity, the informant made a false report against him. Identical explanation was offered by Rajesh (appellant no.2) in Sessions Trial No. 618 of 2002. In Sessions Trial No. 619 of 2002, apart from denying other incriminating circumstances, Rajesh (appellant no.2) claimed that the recovery of country made pistol is false and bogus.
9. After their statements under Section 313 Cr.P.C. were recorded, the accused - appellants examined three defence witnesses, namely, Dilip Kumar Singh (DW-1); Chandra Jeet Verma (DW-2); and Mohd. Irshad Khan (DW-3).
10. DW-1 is the scribe of the FIR of Case Crime No. 257 of 2002. He stated that while he was going to bazaar he saw a large crowd at the police station and at the gate of the police station he saw a body lying. There he saw the investigating officer and constable. The investigation officer V.B. Singh was known to DW-1 therefore, he called DW-1 to scribe the report. DW-1 stated that the I.O. gave him a paper and a pen and dictated the report to him. He stated that at that time it must have been 11 am or 12 noon. He stated that he wrote the Ex. Ka-1 on the dictation of I.O.
In his cross-examination, DW-1 stated that he did not know Munnar Mali and that he does not know the accused. He stated that he has appeared as a witness on service of summons on him by the police. He stated that his house is about 200 mtrs away from the police station. He stated that he did not see the body as it was wrapped in a cloth. He stated that Raja Ram (PW-1) must have met him between 11 and 12 hours though he does not exactly remember the date but it must have been the month of August, 2002. DW-1 denied the suggestion that the I.O. had not dictated the report scribed by him. He also denied that he is telling lies.
11. DW-2 - Chandra Jeet Verma. He is the person who had put his signature on the memorandum of recovery of blood stained earth and plain earth. He stated that when he was going to Budhanpur, police personnel stopped him and requested him to sign on certain papers and when he asked them as to what they relate to, they stated that it relates to recovery of blood stained soil and, on their request, he signed those papers and when he signed those papers, at that spot there was no body; and that the blood stained earth was not picked up in his presence. He stated that similarly signature of Jai Ram was obtained. DW-2 upon seeing Exhibit Ka-14 stated that it carries his signature. He also stated that at the time when his signatures were obtained it must have been 11 or 11.30 hours.
In his cross-examination, he described the place where he was requested to sign the papers by stating that towards north there was Chauraha; towards South there was culvert; and east as well as west there were fields. He stated that he is M.A and B.Ed pass; that the paper which he signed had 2-3 lines mentioning certain sections; that, normally, he does not sign without reading the paper. He admitted that the paper Exhibit Ka-19 carries his signature.
12. DW-3 - Mohd. Irshad Khan. He is a villager of Amari village. His statement was recorded in the month of September, 2009. He stated that about seven years back when he heard noise in the village, he went to the spot and saw that on the 'Med' of a Paddy field, a body was lying; by the time he reached the spot, the Sun had not come out though there was light and there were several people and within half an hour thereafter, the police arrived in a Jeep and took away the body. There was nobody to recognise the body there. When police took away the body, he left for home.
In his cross-examination, he could not disclose the number of the field in Amari Gaon where body was found; he stated: that when the investigating officer had reached the spot, he was there but the I.O. did not inquire from him; that he never disclosed anything to the investigating officer; that though the police had arrived at the spot before sunrise but he does not remember the time when the investigation officer had arrived; that he saw blood on the spot though the body was not bleeding. He denied the suggestion that he was not there at the spot and that he is making a false statement under the influence of the accused.
13. The trial court found the prosecution evidence reliable and the defence evidence unreliable, accordingly, it convicted the appellants, as above, against which, the appellants are in appeal.
14. We have heard Sri Niraj Tiwari for the appellants; Sri H.M.B. Sinha, learned A.G.A., for the State; and have perused the record.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS
15. Sri Niraj Tiwari, learned counsel for the appellants, submitted as follows:-
(a) that PW-1 is not a reliable witness and his presence at the spot is doubtful for the following reasons:-
(i) If the manner in which the incident occurred is to be accepted, keeping in mind that PW-1 was allegedly given a chase by the assailants with a view to kill him, PW-1 would not have escaped injuries, particularly when the assailants were fully armed and had bullets to spare;
(ii) According to the prosecution case, PW-1 and the deceased on separate bicycles had gone to the Bazaar to purchase goods for the Betel shop run by PW-1. If the goods were for the Betel shop either the journey was to get over before the shop had to open which, according to PW-1, use to open at 6 am, or only one of them would have gone. In either case, the story set up by the prosecution that PW-1 accompanied the deceased to the Bazaar and on their way return, the incident occurred at 7 am does not inspire confidence. Further, from the evidence, it appears, the deceased was carrying the Pan Basket on his bicycle. If the deceased were to carry the merchandise, there was no reason for PW-1 to accompany the deceased to the Bazaar on a separate bicycle. More so, when PW-1 had to sit in the betel shop by 6 am. To address this anomaly in the prosecution story, explanation offered was that there were other goods also, which were purchased by PW-1 for his shop and carried by him on his bicycle. But, interestingly, the police neither noticed such articles nor made recovery of the other bicycle. Further, if the goods were to be used in that Betel shop which had to open by 6 am, the possibility of incident occurring in the wee hours of the morning gains strength and is corroborated by autopsy report wherein stomach, small intestine and large intestine were all found empty. All of this raises a serious doubt about the truthfulness of the prosecution story as also with regard to the presence of PW-1 at the time of incident.
(iii) DW-1, who scribed the FIR, as per the prosecution case, gave a statement that he scribed the FIR at the police station at about 11 am on the dictation of the I.O.; therefore, it appears to be a case where the body of the deceased was first picked up by the police, brought to the police station, where it was identified by PW-1 and, thereafter, on the basis of enmity, a false FIR was got lodged by getting it ante-timed.
(b) PW-1 is not consistent and makes improvement during his deposition; whereas, PW-2 is a chance witness whose explanation for his presence there does not at all inspire confidence. Therefore, as both the eye witnesses fall in the category of interested and partisan witnesses, keeping in mind that their testimony does not inspire confidence and no independent witness of the village has been examined to support the prosecution case, benefit of doubt is to be extended to the appellants.
(c) According to the prosecution case, the assailants were armed with country made pistol. Rajesh fired two shots, whereas Rama Shankar fired single shot. If two shots were fired by one person from a country made pistol, the weapon would have to be re-loaded. But, no empty cartridge was found. Absence of an empty cartridge at the spot suggests that the incident occurred in some other manner than alleged by the prosecution;
(d) The presence of blood on the shirt of PW-1, seized by the police, is no guarantee for the presence of PW-1 at the spot because PW-1 stated that blood stain on his shirt appeared at the time when he lifted his father's body. Father's body could have been lifted later also, than at the time of the incident;
(e) The deceased had a criminal record and, therefore, would have had multiple enemies. Thus, merely because there was litigation between the accused (including his family) and the informant party, it was not the accused party alone who held motive for the crime;
(f) The weapon recovered at the pointing out of the appellant Rajesh (appellant no.2) was not sent for ballistic report to connect it with the bullets found in the body of the deceased therefore, the prosecution is guilty of hiding the truth; and
(g) The weapon was recovered from an open place, accessible to all, therefore, it cannot be said that the appellant-Rajesh was in possession of the weapon. Consequently, his conviction under Section 25 Arms Act is not at all justified.
16. In a nutshell, the submission of the appellant is that the case at hand appears to be a case where the incident occurred in the wee hours of the morning, not witnessed by anyone, later, when the body was found and identified, the prosecution story was developed on the basis of past enmity and suspicion.
SUBMISSIONS ON BEHALF OF THE STATE
17. Per contra, the learned A.G.A., submitted that the motive for the crime was duly proved; that place of occurrence is proved without doubt as there is no suggestion that the incident occurred at any other place; that the distance between place of residence of PW-1, or the place where PW-1's shop is, and the place of occurrence is about 4 km therefore, if PW-1 had to be called, or to come, from his residence to the spot, the FIR could not have been lodged with that promptitude, as it has been. Hence, there appears no reason to doubt the presence of PW-1 at the spot. Further, the defence had not made suggestion to the investigating officer, or any member of his team, of having any ill motive to falsely implicate the accused therefore, there is no occasion to accept the submission that the FIR has been ante-timed, particularly, when the record and the GD entry proves prompt lodging of the FIR. Further, as there is no specific suggestion to the prosecution witnesses that the incident occurred at some other spot, merely because DW-2 made a statement that he was made to sign papers regarding recovery of plain earth and blood stained earth by the police whilst there was no body on spot, would not render the place of occurrence doubtful. In respect of presence of PW-1 at the spot, no suggestion has been given to PW-1 that at the time of the incident he was at the betel shop therefore could not have witnessed the incident. Thus, the defence cannot take a plea that because the betel shop opens at 6 am, the presence of PW- 1 is doubtful at the spot. Moreover, PW-1 has given a graphic description of the incident which finds corroboration in the medical evidence as also the position in which the body was noticed at the time of inquest proceeding. It was urged that absence of ballistic report would not make a material difference as this is a case based on ocular account and since the ocular account has a ring of truth about it, absence of ballistic report would not make a material difference. It was urged that conviction under Section 25 of the Arms Act is sustainable because though the place from where weapon was recovered might be accessible to others but it was hidden in a hay-stack (Sarpat), hence, it was under the control of the appellant-Rajesh. The learned A.G.A. accordingly prayed to dismiss the appeal.
PROSECUTION EVIDENCE
20. Before we proceed to weigh the respective submissions, it would be apposite to notice the testimony of prosecution witnesses in some detail. The testimony of prosecution witnesses is as below:
20 (i). PW-1-Rajaram - Informant - son of the deceased. He stated that Ram Shanker, Onkar and Rajesh are of his village; informant side had civil litigation with the family of the accused in respect of Abadi land; the litigation had been there for the last 25 years and had generated strong enmity between the two sides. In that background, on 05.08.2002, at about 4 pm, when informant's father Munnar Mali (the deceased) was at the door of his house, Munnar Mali was attacked by Ramjeet Pandey, his son Rajesh (the appellant no.2) and Onkar (the co-accused) as a consequence whereof, his father had to run and hide himself in the house. PW-1 stated that on 07.08.2002, while the deceased and PW-1 were returning from Budhanpur Bazaar after purchasing Pan etc. for PW-1's betel shop, at about 7.15 am, when they crossed Rokha Pul (culvert) near Amari village, the accused, namely, Rama Shanker, Rajesh and Onkar came on Hero Honda motorcycle, driven by Onkar, from behind, crossed the bicycle of his father, stopped their motorcycle in front of the bicycle of his father and, on exhortation of Onkar to finish off the deceased so that all litigation could come to an end, Rajesh (appellant no.2) fired from his country made pistol at the deceased, which hit the deceased on his head, as a result whereof, the deceased fell on the ground. Seeing the deceased falling, PW-1 came running to hold the deceased; whereafter PW-1 pleaded that his father be spared but the accused threatened PW-1 to run away or he too will be killed; immediately thereafter, Rajesh fired a second shot which hit the deceased at the back of his head; following that, Rama Shanker fired a third shot, which hit the deceased on his back. Thereafter, the accused chased PW-1 to finish him off too, but PW-1 ran away towards Amari village to save himself, whereas, the accused, brandishing their weapons, escaped towards north. At that time, PW-2 (Sherai Mishra) and Gulab Seth, amongst others, were there on the road to witness the incident. PW-1 stated that after the accused had left, he returned back to find his father dead. Thereafter, PW-1 gave his bicycle to a person to give information at home and found one Dilip Kumar (DW-1) at the spot, who wrote the first information report on PW-1's dictation, after which, the written report was lodged as a first information report. PW-1 proved the written report, which was marked as Exb. Ka-1. PW-1 stated that police had arrived at the spot and had taken his statement. PW-1 also stated that when he was lifting his father, his shirt got blood-stained and the police took possession of the shirt of which memorandum was prepared. PW-1 stated that the police had prepared a memorandum in respect of handing over custody of deceased's bicycle and Pan ki Tokri (basket of betel leaves). He proved the seizure memo of the shirt, which was marked as Exb. Ka-2, and Supurdaginama (custody memo) of the bicycle, which was marked as Exb. Ka-3. He stated that after punchnama (inquest), the body was taken to Azamgarh for post-mortem. After post-mortem, the body was handed over to him and he cremated the body.
20 (ia). In his cross-examination, he was confronted with two cases, namely, (a) Case No. 454 of 1995 (State v. Rajaram and others), in respect of which, PW-1 feigned ignorance; and (b) a judgment dated 13.12.1967 in S.T. No. 229 of 1966 (State v. Shivmurat and others) in which PW-1's father (the deceased) and Sherai Mishra (PW-2) were co-accused, in respect of which, again, PW-2 feigned ignorance and denied the suggestion that he is deliberately feigning ignorance. PW-1 also denied the suggestion that his father was a 'Tantrik' and a man with bad character. PW-1 stated that the deceased used to sell flowers. In respect of the alleged incident dated 05.08.2002, PW-1 stated that he has no knowledge whether it was reported by his father or not. He stated that at the time when that incident occurred, only PW-1 and his father were present. He denied the suggestion that he has framed a false case on account of land dispute with the accused. PW-2, however, admitted that he has a betel shop at a distance of about half a kilometer from his house where he sits from 6 am in the morning, after taking a bath. He stated that Budhanpur Bazaar is about 8-9 kms. away from his shop. There are two rasta to go to Budhanpur. One is a Kachha (non-paved) rasta (route) of about 5 kms. and the other is Pakka (paved) rasta of about 9 km. From the place of incident, PS. Atrauliya is about 4-5 kms and from the place of incident Budhanpur is about 1 km. On further examination, he stated that to reach the place of incident from Budhanpur, they took about 5 minutes. PW-1 and his father (the deceased) had left Kasturipur (name of village where they resided) at 4.30 hours to go to Budhanpur for purchasing Betel leaves, etc. By the time, they reached Budhanpur, it was about sun rise time. They stayed at Budhanpur bazaar for about one and a half to two hours and in the meantime purchased Pan, Biscuits, Toffee, Tobacco etc. His father carried the Pan Basket whereas the carton of Biscuit was kept on the cycle of the informant and the toffees were kept in a bag. Neither he nor his father ate anything at the bazaar. Between the bazaar and the spot of the incident, except the accused, nobody else of the village was present. PW-1 added that he and his father were on two separate cycles. Onkar had stopped the motorcycle about two feet in front of his father's cycle. PW-1's cycle was about three feet away from Onkar's motorcycle. He stated that he had shown to the police the spot where the incident had occurred. He reiterated that he had caught his father when he was hit by gun shot but when he caught his father he himself could not stand and had to sit. PW-1 stated that the accused fired shots at the deceased from separate spots. First shot was fired by Rajesh at the deceased from a distance of two feet; thereafter, the second shot was fired from a distance of two and a half feet; and the third shot was fired by Rama Shanker from a distance of about two feet. He stated that he does not remember whether the police collected the empty cartridge from the spot or not. He stated that except three gunshot injuries, he did not notice any other injury on the body of his father. PW-1 stated that when the accused extended threat, he ran towards west. Accused gave him a chase for some distance. He stated that the rasta which he took to escape was shown by him to the investigating officer. PW-1 stated that the distance of Amari village abadi from the place of incident is about 1 km. He took about 10 to 15 minutes to reach village abadi. PW-1, however, could not tell the name of the person in whose house he hid himself in village Abadi though, he could disclose that the door of that house opened towards North. He stated that he informed the villagers of Amari gaon about his father's murder. He stated that he stayed in the village Amari for about 4-5 minutes and thereafter, about 25-30 persons of the village Amari arrived with him at the spot. He stated that he arrived at the spot from village Amari within 20-25 minutes though he could not remember the name of the villagers of village Amari who accompanied him to the spot. He admitted that statement with regard to arrival of 20-25 persons with him at the spot is being made for the first time in Court. He denied the suggestion that he was not present at the time of the incident and that he had not seen the incident. He denied that his father was a characterless person and that he lodge the report after deliberation on account of enmity.
20 (ib). In his cross-examination on 21.09.2004, he stated that Pan ki Tokri (Betel leaves basket) was on the cycle of his father whereas the remaining goods, namely, Biscuits, toffee were on his cycle. He admitted that seizure memo of the blood stained shirt carried signature of one Chunnilal, who is a person of his village, and the other witness is Phool Chand Gaur, who is having a medical consultancy business near his shop at a place owned by him. He denied the suggestion that he was not present at the spot and that he smeared blood on the shirt to develop a false story. He stated that memo of custody of the bicycle and seizure memo of the shirt was prepared at the spot. He stated that he went to the police station alone; that he accompanied the body to the police station and the from there, the body had gone to the hospital. The body was handed over to him at about 4.30 pm in the evening. He admitted that he had not stated in the FIR that he had sent information to his house about the incident. He stated that he had disclosed that Rama Shanker, Rajesh and Onkar had come on Hero Honda motorcycle and had stopped the motorcycle in front of his father's (the deceased) cycle but if the the same was not mentioned in the report, he cannot tell its reason. He also stated that he had mentioned in his report that the accused alighted from their motorcycle, Onkar exhorted to finish off the deceased and Rajesh had fired at the deceased, as a result whereof, the deceased stumbled and fell but if it was not written in the report he does not know the reason for the same. He also stated that he had mentioned in the report that seeing his father falling, he ran to support him and begged the accused to spare him upon which, the accused threatened him and, soon thereafter, the second shot was fired by Rajesh and the third was fired by Rama Shanker, but if all this has not been written in the report, he does not know the reason for the same. He also stated that he had dictated in his report that while lifting his father, his shirt got blood stained but if that was not written in the report, he does not know the reason for it. He was also confronted by his statement under Section 161 Cr.P.C. in respect of which he stated that he had given statement to the investigating officer that after the second shot was fired, he got scared and ran towards Bhatahi Chatti where he noticed Sherai (PW-2) and Gulab Sheth, who also witnessed the incident. He stated that Bhatahi Chatti is at a distance of about one furlong towards North of the place of incident. He stated that his statement in the Court that he ran towards the West is correct. He denied the suggestion that first information report was not lodged at 8.30 am but later, he also denied the suggestion that the body was found unattended at Sherwa Pul (culvert) and that the police was informed and later the body was got identified. He denied the suggestion that the accused has been falsely implicated on account of enmity. He also denied the suggestion that he lodged the first information report after consultation and deliberation.
20 (ii). P.W.-2 - Sherai Mishra. He is a chance witness, who stated that at the time of the incident he was going from his house to Budhanpur Bazaar as on that day there was a Bhandara (feast) arranged by him in connection with which he had to purchase vegetables, etc. According to him, when he was on his way, as he crossed Bhatahi Chauraha, he heard gunshot and screams of Rajaram Mali. Then he saw Munnar Mali (the deceased) on the ground and accused Rajesh and Rama Shanker firing at him from their country made pistols and Onkar was exhorting them, whereas Raja Ram (PW-1) was begging to spare his father. PW-2 stated that this incident was witnessed by Gulab and 10 - 20 others. After the incident, the accused, brandishing their weapons, escaped on a motorcycle. He stated that the investigating officer had arrived and had prepared papers and had enquired from him; thereafter, 6-7 days later, he was called by a constable for interrogation.
20 (iia). In his cross-examination, he stated that he knew the accused from before. He stated that he signed the inquest report at the police station. Immediately thereafter, he asked as to what an inquest report is. When the inquest report was shown to him and was explained to him, PW-2 stated that he signed the same at around 3.30 pm. He proved his signature on the inquest report. He stated that he did not see Shayamacharan, Kalicharan and Rajaram (PW-1) at the police station and after signing the inquest report he had come back. He stated that he is not aware whether any recovery memo of blood stained clothes was prepared by the police. He admitted that he was a co-accused with Munnar Mali (deceased) in S.T. No. 229 of 1966 but stated that in that case he was later acquitted. He added that except that sessions trial, he was not an accused with the deceased (Munnar) in any other case. PW-2 in respect of the reason for his presence at the spot stated that whenever he is in need to purchase goods, he goes to Budhanpur, which is about 7 kms from his house. In respect of the route adopted to reach Budhanpur, he stated that while going to Budhanpur, first Padumpur bazaar and, thereafter, Atrait bazaar would come and near that, there is Bhatahi Chauraha. He stated that Rajesultanpur bazaar, which may be big or small, is on the other side of his house, at a distance of about 3 km from his house. PW-2 admitted that the son of the deceased was present in the court room behind him, but stated that he had come to the Court on his own and that the son of the deceased had not paid for his conveyance. He stated that he had also come on last four occasions to give his statement but his statement was not recorded.
20 (iib). In his cross-examination on 30.11.2004, he denied being an accused in a dacoity case. He stated that Balai Mishra is not his relative though, being a fellow villager, he refers to him as his uncle. He stated that he heard about the murder of Balai Mishra but is not aware whether Ram Shabd is an accused in his murder. PW-2 denied having knowledge about Ram Shabd's wife being real sister of accused Rajesh's wife. He denied the suggestion that he is trying to hide his relationship and also denied that in the murder of Balai, on behalf of Ram Shabd, Rajesh (appellant no.2) and his family were doing pairvi. He denied the suggestion that because of this animosity, he is telling lies. He also denied the suggestion that his father was convicted in a theft case. He stated that the investigating officer had himself inspected the spot and that he had not shown him the spot, though, the I.O. had called him 6-7 days later for interrogation, but had not brought him to the place of occurrence. He stated that the house of witness Gulab is about 200 Katta (one Katta equals to 7-8 feet) away from his house. He stated that though he had gone to the police but Gulab did not come. He waited at the police station for about 30-45 minutes. The I.O. had asked him few things and thereafter had released him. He stated that he had told the investigating officer that on the date of the incident he was going to Budhanpur to purchase vegetables etc. but if that was not written he cannot give its reason. He also stated that he had informed the I.O. that Rajaram had pleaded the accused to spare his father but if the I.O. had not written that, he cannot tell the reason for it. He stated that when he first heard the noise, he was 50 Katta South of Bhatahi Chatti. He was on a bicycle and so was Gulab with him. Their cycles were separated from each other by five paces. He was ahead whereas Gulab was following him. He stated that on a turn towards West from Bhatahi Chatti, there is a bazaar having shops. People from Bhatahi Chatti had not arrived at the time of the incident. PW-2 stated that 10-20 persons had seen the occurrence but, he cannot tell their names, except that of Gulab. PW-2 stated that Rajaram (PW-1) was 5-7 Kattha away towards north of the spot where the body of the deceased fell. Rajaram (PW-1) had left his cycle to run towards the deceased and had pleaded the accused to spare the deceased. When PW-1 (Rajaram) pleaded with folded hands, PW-1 was about five paces North of the deceased. PW-2 stated that the spot where Rajaram left his cycle was at a distance of 4-5 Katta towards North of the location of PW-2. PW-2 stated that the motorcycle was 3-4 hands away towards west of the body. Onkar kept sitting on the motorcycle. Motorcycle was going towards North. The first shot was fired from a close range immediately upon arrival on the motorcycle and, thereafter, each of the two accused, fired a shot each from a close range. After firing at the deceased, the accused escaped towards North. PW-2 stated that he stayed at the spot for about half an hour and thereafter came to Budhanpur bazaar but he did not go to the hospital with the body. PW-2 stated that he had neither noticed the motorcycle number nor could notice its colour. He stated that towards north of Bhatahi Chatti, there is Atrait Bazaar but he does not know which village falls towards North of it. PW-2 stated that he did not say anything to the accused at the spot. He could not tell as to how long Rajaram (PW-1) stayed at the spot but Rajaram was there till PW-2 was there at the spot. He denied the suggestions: that he did not witness the incident; that some unknown persons had killed Munnar at some unknown place and unknown time; that because of being a friend of the deceased and having enmity with the accused, he is telling lies; that the son of the deceased had brought him to give statement. Rather, PW-2 claimed that he had paid Rs. 56/- for travelling and on earlier occasions also he had paid for the conveyance. He stated that when he was there at the spot, 2-3 constables had arrived but the investigating officer had not arrived.
20 (iii). PW-3 - Dr. Nand Lal Yadav. He conducted the autopsy and proved the autopsy report (Exb. Ka-2), the details of which have already been noticed above. PW-3 accepted the possibility of death having occurred at or about 7:15 am on 07.08.2002.
20 (iii a). In his cross-examination, he accepted the possibility of death having occurred in the wee hours of the morning say at 4 or 4.30 am. He also accepted the possibility of the three injuries found on the body being caused from different distances. He stated that injury no.1 could have been caused from a distance of 2 - 3 feet whereas injury no. 2 -3 could also be from a distance of 2-3 feet and then clarified that injuries no. 2 and 3 could be from a distance of 10 to 12 feet. He stated that the accused must have had attended nature's call in the morning as the Rectum was found unloaded. He stated that injuries 2 and 3 were on the back side of the body and it is possible that these injuries might have been caused from back. He stated that police papers for autopsy were received by him at 4 pm.
20 (iv) PW-4 - Brij Nath Dubey, the Head Moharir, at P.S. Atrauli, who made GD entry of Case Crime No. 257 of 2002 on 07.08.2002 vide GD report no. 15 at 8.30 hours. He proved the GD entry of the written report as well as Chik FIR. They were marked as Exhibit Ka-3 and Ka-4.
20 (iv a) In his cross-examination, he stated that on 07.08.2002, the instant case was the first cognizable case to be registered that day and there was no other cognizable case registered. He stated that the Chik FIR was prepared on the basis of the written report submitted by the informant. He denied the suggestion that the informant had signed the report at the police station. He also denied the suggestion that the Chik FIR was not registered at 8.30 hours but later. He stated that Chik FIR was sent to C.O. on 08.08.2002 but he is not aware of the day as to when it was sent to the Magistrate's court. He further stated that vide GD Report No. 21 at 19:15 hours on 07.06.2002, section 7 Criminal Law Amendment Act was added in the case. He denied the suggestion that the FIR was ante-timed.
20 (v) PW-5 - Constable Ram Bachan Ram. The constable clerk at PS. Atrauli, who registered Case Crime No. 280 of 2002 on 25.08.2004. He proved the registration of the case, the making of the Chik FIR as well as the GD entry in respect thereof.
20 (v a) In his cross-examination, he admitted that he served under the I.O. V.B. Singh and that the accused was taken from locker for Baramadgi. He denied the suggestion that under pressure he registered a false case.
20 (vi) PW-6 - V.B. Singh (Investigation Officer). He stated that on 07.08.2002, he was posted at P.S. Atrauli as Station Officer. On that day, Case Crime No. 257 of 2002 was registered. After obtaining copy of Chik FIR and making entry in the case diary, he recorded the statement of Rajaram Mali (PW-1), and went to the spot with S.I. Lallan Mishra and other police personnel. First he examined the body of the deceased and directed for inquest. He recorded the statement of the informant, inspected the spot and prepared the site plan (Exb. Ka-6). The inquest report was prepared by S.I. Lallan Mishra. He proved Lallan Mishra's signature on the inquest report. He proved the letter written to the C.M.O., photo nash, challan nash, etc - they were marked Exhibit 7 to 13. He stated that the body was sealed and handed over to constable Ram Pujan Yadav and Arvind Yadav for post-mortem at Sadar, Hospital. He proved lifting of blood stained earth and plain earth from the spot. He also proved taking custody of blood stained shirt from the informant. The custody memo was exhibited. He also stated that the bicycle of the deceased with a Pan Basket in its carrier was found at the spot; the custody of the cycle and Pan Basket was given to the informant of which custody memo (Exb. Ka-3) was prepared. He stated that he recorded the statement of other witnesses including Rajaram (PW-1) and thereafter went in search of the accused but the accused could not be found on that day. Again, on 08.08.2002, he searched for the accused but they were not found. On 10.08.2002, he arrested the accused Onkar and produced him before the Magistrate. On 12.08.2002, he took steps to initiate proceedings under Sections 82-83 Cr.P.C. against the accused but the accused surrendered in Court. On 16.08.2002, he applied for police custody remand and, on 24.08.2002, he obtained the order for police custody of accused Rajesh. On 24.08.2002, he got custody of Rajesh, who was in District Jail, and kept him in the police lock up; thereafter, on 25.08.2002, he took Rajesh from the police lock-up and got him to the spot. There, on the indication given by the accused-Rajesh, recovery of country made pistol from a haystack was made. He proved the recovery memo, which was marked as Exhibit Ka-15. He produced blood stained earth and plain earth seized by him during investigation and same were marked as material exhibit -1 and material exhibit-2. He also produced the blood stained shirt, seized from the informant and the same was marked as material Exhibit-3. He also produced the country made pistol recovered at the instance of Rajesh which was marked as material Exhibit Ka-4. He stated that during the course of investigation, he was transferred.
20 (vi a) In his cross-examination, he stated that as he had been transferred, he could not send the recovered country made pistol for ballistic report. He admitted that in exhibit Ka-14, only section 302 I.P.C. is mentioned and other sections 504 and 506 I.P.C. are not mentioned. He denied the suggestion that papers were prepared before registration of the FIR. He stated that the blood stained earth and plain earth were not sent to the Serologist by him as he was transferred on 25.08.2002. He stated that he collected blood stained shirt from the informant at the spot and had also sealed the same. He admitted that the witnesses of shirt seizure, namely, Phool Chand and Chunni Lal, were residents of Rajasultanpur, District Ambedkar Nagar, which is at the border of Thana. PW-6, however, clarified that they had arrived at the spot on getting information. He admitted that these two witnesses reside 3.50 to 4 kms away from the place of occurrence. He stated that as those witnesses were available at the spot, they were made witnesses.
20 (vi b) On further cross-examination, he stated that the weapon of assault was recovered from a haystack, which was in a jungle type of a place having no abadi; and that place must have been about a furlong away from the place of occurrence. He added that though at the time of recovery of weapon, there were few bystanders but, despite request, they did not volunteer to be a witness. When PW-6 was asked about their names, he could not disclose their names. He stated that the place from where the weapon of assault was recovered must have been 50 paces away from Kharanja (road paved out of bricks laid vertically). He denied the suggestion that the weapon of assault was shown recovered not because there was a disclosure statement of the accused but to lend credence to an otherwise false prosecution case. He denied the suggestion that, at the spot, neither the informant was present nor he gave a blood stained shirt and that such seizure was to add colour to the prosecution case. He admitted that from the spot no empty cartridge was recovered. He stated that informant had come on his own cycle and he wanted his father's cycle to be given in his custody therefore, he did not make a seizure memo but prepared a custody memo of that cycle and the cycle was given in PW-1's custody along with the Pan Basket. He stated that the cycle must have been given to PW-1 by or about evening time.
20 (vi c) On 27.02.2007, he was again cross-examined. He stated that from the spot he had recovered only one cycle, which was of the deceased. He had not noted its number, colour or the brand name of that cycle; and that the place from where he recovered the cycle was not shown in the site plan due to inadvertence. He stated that he had not noticed any carton of biscuits on the cycle. He stated that he had not noticed any blood on the cycle. When confronted with the recital in the inquest report that the cycle, having a bag on its handle, was lying beneath the body of the deceased, with a pan basket on its carrier, PW-6 stated that he did notice the pan basket on its carrier. He denied the suggestion that at the spot there was neither cycle nor pan basket. He also denied the suggestion that the incident did not occur in the manner stated. He denied the suggestion that the custody memo of the cycle was bogus and fictitious. On being confronted with the difference in the distance mentioned in the Chik report with that mentioned in the inquest report, he stated that the difference can only be explained by the person who has written the same. PW-6 stated that the informant had not shown him the place where the accused had parked their motorcycle; rather, he stated that the shot was fired while the motorcycle was moving.
20 (vi d) On further cross-examination, on 13.09.2007, PW-6 stated that he had not mentioned the spot from where the witnesses had seen the incident. This must be an inadvertent mistake. He denied the suggestion that there was no witness at the spot and therefore the location of the witnesses was not shown in the site plan. He further added that the informant had not given him the description of the Hero Honda motorcycle. He, therefore, did not take any step to determine the owner of that Hero Honda motorcycle. He denied the suggestion that he did not properly investigate the matter. On being confronted with the entry in the challan nash regarding the time of death as four hours before, he stated that the explanation for that can only be given by S.I. Lallan Mishra, who prepared the challan-nash. He stated that the statement of Sherai Mishra (PW-2) could be recorded only on 16.08.2002 as he was not available though he was witness of the inquest report. He denied the suggestion that the FIR was lodged after the inquest. He stated that the body is sent first to the police line and thereafter it is sent for post-mortem. He denied the suggestion that the body is sent for post-mortem straightaway and papers are prepared later to show that the body has been sent to police line. He stated that the body is sent for post-mortem against the number provided at the police line and this number is mentioned in the post-mortem report. When confronted that at the police line the number assigned was 521 / 2002 whereas in post-mortem report it is 522/ 2002, he stated that only the doctor can tell about the same. He however denied that this entry was made on imagination. He also denied the suggestion that all of this discloses that the first information report is ante-timed.
20 (vii) PW-7-Janardan Yadav. He is the investigating officer of Case Crime No. 280 of 2002. He stated that investigation of the case was given to him on 25.08.2002. He proved the various stages of the investigation of that case such as recording the statement relating to recovery and preparation of site plan of the place from where the recovery of country made pistol was made. He also proved submission of the charge-sheet as well as sanction accorded by the District Administration for prosecution under Section 25 Arms Act.
20 (vii a) In his cross-examination, he stated that country made pistol recovered was not sent for forensic examination; that the place from where the country made pistol was recovered was an open place near a Khadanja rasta. He denied the suggestion that he submitted a false charge-sheet under pressure of the Inspector in-charge.
20 (viii) PW-8 - Head Constable - Mukteshwar Singh. He proved submission of the charge-sheet by the subsequent investigating officer of Case Crime No. 257 of 2002.
20 (viii a) In his cross-examination, he admitted that he has no knowledge with regard to the mode and the manner in which the investigation of that case was conducted.
ANALYSIS
21. Having noticed the entire prosecution evidence and the submissions made before us, we find that there is no issue with regard to long standing animosity between the informant and the accused side. Admittedly, the family of the accused and the family of the deceased had been in a long standing civil litigation for last more than two decades. However, what needs to be examined is whether there existed any precipitating factor for the crime, because the civil litigation was there for the past two decades. In this regard, the prosecution set up an incident that allegedly occurred on 5.8.2002, 2 days prior to the incident. As per the allegations, in this incident, the deceased was attacked by the accused party comprising Rajesh (appellant no.2), Ramjeet Pandey and Onkar; the deceased could, however, escape that attack by hiding himself in his house. But the alleged incident dated 5.8.2002 was neither reported nor there is record of any injury sustained by the deceased in that incident; and, there is no independent witness of any such incident. Thus, though, long standing enmity is proven, but existence of a precipitating factor for the crime could not be proved beyond reasonable doubt. But, as motive is not of much importance when there is ocular account of the incident, we do not propose to dwell more on this aspect though, we would have to bear in mind that this long standing animosity between the parties render the eye witnesses interested in the implication and conviction of the accused therefore, we will have to weigh and scrutinise the prosecution evidence carefully.
22. As to how the testimony of an interested witness is to be appreciated and weighed, the law has been settled by a three-judge Bench decision of the Supreme Court in Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 where, in paragraph 13 of the judgment, it was observed as follows:
".............. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."
Emphasis Supplied
Similarly, in Jalpat Rai v. State of Haryana, (2011) 14 SCC 208, after reiterating the general principles as noticed above, in paragraph 41 of the judgment, the apex court in the context of interested witnesses testimony observed: "to find out the intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record." The apex court also observed: "it is a reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime." The law is thus settled that the testimony of an interested witness is not necessarily unreliable and there is no invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. What is required is that testimony of such a witness should be subjected to careful scrutiny. If, on such scrutiny, the testimony is found to be intrinsically reliable or inherently probable, it may, in the facts and circumstances of a case, form the basis of conviction. Though, no hard and fast rule can be laid down for appreciation of evidence but, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful, as a first step, to determine whether the presence of the witness at the scene of crime at the material time was probable. If so, whether the substratum of the story narrated by him is consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case and is such that it would appear convincing to a prudent person. If the answer to these questions can be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any source.
23. Bearing in mind the legal principles relating to evaluation of testimony of an interested witness, we shall now proceed to evaluate the evidence and analyse it in the context of the rival submissions. But, before that, it would be useful to summarise the defence submissions. In a nutshell, the submissions of the learned counsel for the appellants is that the FIR is ante-timed; that it was not lodged at 8.30 hours on 07.08.2002; rather, it was lodged after 11 am as is proved from the testimony of DW-1; that there are various other circumstances also to suggest that the FIR is ante-timed; that presence of both PW-1 and PW-2 is doubtful at the spot; that their testimony does not inspire confidence; that it appears to be a case where the incident occurred in the wee hours of the morning when the deceased was alone, returning from the bazaar, while his son PW-1 was at his shop; that nobody witnessed the incident; and, subsequently, the prosecution story was developed on guess-work and suspicion, which is apparent from the various improvements made later in the prosecution case. Per contra, on behalf of the State, the submission is that the FIR is not ante-timed; that being a prompt FIR, there is no scope to treat the prosecution story contrived; that the presence of PW-1 with the deceased is natural; that the ocular account is corroborated by medical evidence and, therefore, there is no good reason to disbelieve the prosecution story.
24. First, we shall proceed to test whether the FIR is ante-timed. According to the appellant's counsel, there are various circumstances which suggest that the FIR is ante-timed. These circumstances include delayed post-mortem; discrepancy in the the entries made in inquest report, challan nash, etc with the Chik report and, above all, the statement of DW-1, the scribe of the FIR. We shall notice the submissions in detail on these aspects, one by one, below. In respect of the delay in autopsy, according to appellant's counsel, the autopsy of the body was conducted late at around 4 pm. According to appellant's counsel, there was no occasion for that kind of a delay if the inquest had been over by 10.30 and the body was sealed and papers were prepared for autopsy. This delay, according to him, suggests that the police papers were not ready by noon. In addition to that, DW-1, scribe of the FIR, stated that he wrote the FIR at the police station on the dictation of the I.O. at 11 am, which, according to appellant's counsel, means that the FIR was not lodged at 8.30 am as alleged. Appellant's counsel also pointed out that the post mortem number mentioned in the register maintained at the district police head quarters is different from that mentioned in the post mortem report suggesting that the body reached for autopsy before the papers could. It was pointed out that as per the testimony of PW-6, post mortem number is assigned at the police lines (district police head quarters) and the post-mortem report must reflect that number. But, in the instant case, the post-mortem report mentions number 522 of 2002 when, in the register maintained at police lines, the number is 521 of 2002, which suggests that the body was sent directly to the hospital for autopsy and the papers relating to autopsy were filled later. It was also argued that testimony of DW-1 that he scribed the FIR at 11 am was unjustifiably discarded by observing that if the FIR had been written at 11 am, the body could not have reached police lines by 2.10 pm as that place was 48 km away from the police station. It has been argued that this reasoning is perverse because to cover a distance of 48 km in a vehicle one would, at the maximum, take one hour and thirty minutes. Therefore, even if the body is dispatched from the police station at 12.30 hrs it can easily reach police lines by 2.10 pm or 14.10 hrs. Another aspect highlighted to demonstrate that the first information report is ante-timed and prepared after the inquest report is, that, though, as per record, inquest is stated to have been completed at the spot by 10.30 am, but, PW-2, who is a witness of the inquest and is a signatory to the report, stated that his signature was obtained on the report at the police station at about 3.30 pm (15.30 hrs.). It was also pointed out that, in the inquest report, the distance of the place of occurrence from the police station is 8 km, whereas in the Chik FIR the same is mentioned as 6 km and, similarly, in the papers relating to autopsy i.e. challan nash, etc except section 302 IPC, the other charging section i.e. 506 IPC, which finds mention in the Chik FIR, is not there; therefore, it is clear that at the time when the inquest report was prepared, the Chik FIR was not with the person who prepared the inquest report or papers for autopsy.
25. Having noticed the submissions of the learned counsel for the appellant on the issue whether the FIR is ante-timed, we may, at the out set, observe that there are no cut and dried formulae or tests to determine whether an FIR is ante-timed or not. An inference with regard to the FIR being ante-timed is to be drawn only after careful scrutiny of the evidence and material on record. The most common test adopted for the purpose is to find out from the evidence and material on record whether the existence of case details, such as case crime number, etc, that arise on registration of FIR, are reflected in police papers prepared subsequent to the registration of the FIR as also as to when special report or report under section 157 CrPC was forwarded. Delayed dispatch of the body for autopsy, where autopsy is required, is also a circumstance, in the facts of a case, if unexplained, and it may create a doubt with regard to the existence of the FIR at the time specified. In the instant case, two aspects highlighted by the appellant's counsel that raise a doubt about the existence of the FIR at the specified time need be noticed. One is the statement of the scribe (DW-1) that he scribed the FIR at the police station at 11 am; and the other is the statement of inquest witness (PW-2), who states that he signed the inquest report at the police station at 3.30 am. Upon a careful perusal of the record, we find in the statement of PW-2, who is an inquest witness, that his signature on the inquest report was obtained at the police station at 3.30 pm (15.30 hrs). Whereas, the inquest report states that inquest was over at the spot by 10.30 hrs. We also find that the distance of the place of occurrence from the police station mentioned in the Chik FIR is different from that mentioned in the inquest report. We also find that in the challan nash (Exb. Ka-13), amongst charging sections, other than section 302 IPC, section 506 IPC is not mentioned and, as per the entry in the challan-nash, the body was received at police lines, Azamgarh at 14.10 hours to which, post mortem number 521 of 2002 was assigned whereas, the post-mortem number reflected in the autopsy report is 522 of 2002. But the challan-nash as well as the inquest report discloses the case crime number of the case (i.e. 527 of 2002). The challan-nash also discloses the time of dispatch of the body to the Police Head Quarters (i.e. Police Lines) for autopsy, as 10.30 hours. Ordinarily, when inquest and post-mortem related papers are filled after the FIR has come into existence, entries in those subsequent papers are expected to be in sync with the entries in the Chik FIR inasmuch as the I.O. or the police team is expected to carry a carbon copy or copy of the report for reference. But there is no such rule that where the entries are at variance with the Chik FIR, it would be presumed that the FIR was not in existence, particularly, when the entries reflect the case details i.e. the case crime number. No doubt, the post-mortem report recites post mortem number 522 of 2002 instead of 521 of 2002, but this entry is made by the doctor, or the staff subordinate to the doctor, to whom no question has been put with regard to the discrepancy. Under these circumstances, PW-6's explanation that if there is any such discrepancy it is for the doctor to explain, is acceptable. But since no question was put to the doctor with regard to the said discrepancy, it would not be appropriate on our part to accept the suggestion that the body was sent directly to the hospital for post-mortem and the papers were prepared thereafter. Similarly, the discrepancy in the distance mentioned in the inquest report with that mentioned in the Chik FIR, could best be explained by S.I. Lallan Mishra who, according to PW-6, prepared the inquest report. But, importantly, he has not been examined therefore, the defence cannot be blamed for not putting questions to him. In so far as non-filling of all the charging sections are concerned, that, by itself, in our view, is not sufficient to raise a presumption with regard to non-existence of the FIR at the time specified, particularly, when there is a recital of the case crime number in those papers relating to autopsy. However, there is another aspect of the matter, which is, that filling up of case details in subsequent papers is not conclusive of the FIR having come into existence because, it is possible that, upon noticing a crime or an incident, the police may reserve a number for that case, particularly, if, on that day, there is no other cognizable case reported and the records of the police station, being not digitised/ computerised, admit of filling data, later. Notably, in this case, the Constable Clerk at the police station, namely, PW-4, was questioned in this regard, upon which, he stated that no other cognizable report, except the case at hand, was reported at that police station on that date. But, as we find that no suggestion has been put either to the investigating officer, or the Head Moharir, who made GD entry of the written report, with regard to they bearing any ill motive as against the accused or being under any kind of influence of the complainant party to manipulate the records, the above mentioned circumstances, by itself, are not sufficient to enable us to record a finding that the FIR is ante-timed. But, the deposition of DW-1 that the FIR was scribed by him at 11.00 am at the police station is a very important circumstance which we will have to address to rule out the possibility of the FIR being ante-timed. In this context, we would like to notice the discrepancy in between the statement of PW-1 and DW-1 as to the place where the FIR was scribed. PW-1 states that the FIR was scribed by DW-1 at the spot i.e. the place of occurrence. DW-1 says that he scribed the FIR at the police station at about 11 am. What is important is that DW-1 is not a resident of the village where the spot i.e. place of occurrence is located. From DW-1's statement it appears he resides at a distance of about 200 meters from the police station where the report was lodged. This circumstance lends credence to the testimony of DW-1 that the FIR was scribed at the police station. Once, that is the position, the possibility of the FIR being scribed at the police station and at the time suggested by the defence increases manifold, particularly, when nothing could be elicited from DW-1 as to him being in cahoots with the accused. To discard the testimony of DW-1, the trial court took the view that since, for autopsy, the body reached the district police head quarters, 48 km away, by 14.10 hrs, if the FIR had been lodged at 11.00 am that would not have been possible. We disagree with the above reasoning of the trial court because, in times of vehicular transport, covering a distance of 48 km is very much possible within an hour and thirty minutes. Therefore, in our view, even if the FIR or papers related to autopsy were prepared by noon or so, the body could have easily reached the district police head quarters by 14.10 hrs.
26. The upshot of the above discussion is that although the defence might not have been able to establish with certitude that the FIR is ante-timed but has succeeded in creating a serious doubt as to it being ante-timed. Once that is the position, the ocular account of the incident would have to be tested thoroughly on all material particulars before acceptance.
27. In this backdrop, we would have to carefully scrutinise the prosecution evidence, bearing in mind the well settled legal principle that the burden is on the prosecution to prove its case by leading evidence, reliable and trustworthy. There are two eye witnesses, namely, PW-1 and PW-2. PW-1 is the son of the informant and there is no dispute with regard to long standing animosity between the family PW-1 and the accused on account of decades old civil litigation pending inter se. In so far as PW-2 is concerned, the defence could demonstrate that the deceased and PW-2 were co-accused in a sessions trial. Further, the defence could also demonstrate that PW-2 is related to one Balai Mishra who was murdered, and in whose murder, Ram Shabd was an accused, who is husband of Rajesh's (appellant no.2's) wife's real sister, and for whom the appellant no.2 was doing pairvi. Not only that, the defence has sought to discredit PW-2 by terming him a chance witness as his presence otherwise, was not natural at the spot. Notably, to explain his presence at the spot, PW-2 stated that on the date of the incident there was a feast (Bhandara) arranged by him and to purchase vegetables, etc. for that feast, he had left early morning to go to Budhanpur when, on way, he witnessed the incident. The defence has cross-examined him in detail to elucidate that from PW-2's place of residence, much before Budhanpur bazaar, there are several big markets from where he could have made those purchases, if it was so required, therefore, there was no good reason for him to go to Budhanpur bazaar. Thus, according to the defence, the explanation offered by PW-2 for his presence at the spot is flimsy and is a ruse to create a witness when otherwise there was none. In the above context, we are of the view that PW-2 is not only a chance witness but is also an interested witness as he has an interest in the conviction of at least one of the accused persons, namely, Rajesh (appellant no.2).
28. We shall now proceed to evaluate the testimony of PW-1. To enable a deeper analysis of PW-1's account, we propose to extract relevant portions of his testimony in respect of various aspects such as:
(i) In respect of the time, place and the manner in which the accused arrived at the scene of the crime - PW-1 stated as follows:-
^^ fn0 07-8-2002 dks lqcg lok lkr cts eSa o esjs firk eqUuj c (ii) In respect of the manner in which the incident occurred and as to who witnessed the incident - PW-1 stated as under:-
^^ xkMh ls mrj dj vksadkj us yydkjk fd ekj Mkyks lkys dks eqdnek [kRe gks tk,A rc rd jkts'k us vius gkFk esa fy, gq, dV~Vs ls esjs firk ij tku ekjus dh uh;r ls Qk;j dj fn;k xksyh esjs firk th ds lj esa yxh vkSj esjs firk th ogha ij yM+[kM+k dj fxj iM+s eSa vius firk dks fxjrs ns[k dj nkSM+dj mUgsa idM+ fy;k vkSj eqfYteku ls gkFk iSj tksM+us yxk fd esjs cki dks er ekfj, rc eqfYteku dgs fd lkys Hkkx tkvks ugha rks rqEgkjk Hkh tku ekj MkysaxsA iqu% jkts'k us nwljk Qk;j esjs firk th ds Åij dj fn;k tks esjs firk ds lj ds IkhNs yxhA fQj jkek'kadj us esjs firk ds Åij rhljk Qk;j fd;k ftldh pksV mudh ihB esa yxhA rc eqfYteku eq>s Hkh ekjus ds fy, nkSM+k fy,A eS vekjh xkao esa Hkkx dj viuh tku dks cpk;k vkSj eqfYteku dV~Vk ygjkrs gq, mRrj Hkkx x,A bl ?kVuk dks xokgku 'ksjbZ feJ] xqykc lsB rFkk lMd ij reke vkrs tkrs yksxks us ns[kkA^^
(iii) In respect of post incident conduct of PW-1 - PW-1 stated as under:-
^^ tc eqfYteku pys x, rks eSa vius firk th ds ikl vk;k rks ns[kk fd esjs firk th ej x, gSaA rc eSaus ,d O;fDr dks lkbZfdy fn;k fd esjs ?kj [kcj dj nhft, vkSj ogha ij eSa fnyhi dqekj ls ?kVuk ds ckcr cksydj nj[kkLr fy[kk;k vkSj nj[kkLr ys tkdj Fkkus ij fn;kA^^
(iv) In respect of blood stains on his shirt - PW-1 stated as under:-
^^ ?kVuk ds le; tc eSa firk th dks mBk jgk Fkk rks mudk [kwu esjh 'kVZ ij yx x;k FkkA^^
(v) In respect of custody of his father's cycle and Pan Basket - PW-1 stated as follows:
^^ ftl lkbZfdy ls esjs firk th tk jgs Fks ml lkbfdy ds dSfj;j ij iku dh Vksdjh ftlesa iku ds iRrs Fks ca/kh Fkh lkbZfdy dks esjh lqiqnZxh esa fn, Fks o iku dh Vksdjh dks Hkh njksxk th us lqiqnZxhukek fy[kok;k FkkA dkxt ua0 [email protected] ij izn'kZ d & 2 Mkyk x;kA^^
(vi) In respect of the place where PW-1's betel shop was located and the timing of its opening - PW-1 stated as follows:-
^^ esjs ?kj ls esjh iku dh nwdku djhc vk/kk fdeh nwj gSA lqcg eS ugk /kksdj N% cts viuh nwdku ij igqaps dj nqdku [kksy ysrk gwaA cw (vii) In respect of PW-1's visit to Budhanpur along with his father (the deceased) to purchase, Pan, etc. as also the manner in which they carried the merchandise including the time they took to reach the place of occurrence from Budhanpur - PW-1 stated as follows:-
^^ cw ksysa esa VkQh vkfn j[kh FkhA eSus o esjs firk th us cktkj es dqN Hkh ugh [kk;kA cktkj ls fudyus ij ?kVukLFky rd igqapus rd eqyfteku gkftj vnkyr ds vykok xkao dk dksbZ vkSj O;fDr ugh feyk FkkA eSa o esjs firk ?kVukLFky ij lkbZfdy ls mRrj fn'kk dh rjQ tk jgs FksA^^
29. After stating as above, PW-1 stated that Onkar stopped his motorcycle about two feet in front of his father's bicycle; at that time, PW-1's bicycle was a foot behind. PW-1 stated that he had shown to the I.O. the spot where the motorcycle of Onkar had stopped. He also stated that he had pointed out to the I.O. the spot from where Rajesh had fired at the deceased and had also pointed out the place from where Onkar exhorted and Rama Shanker fired at the deceased. But, when we see the site plan (Exb. Ka-6) prepared by the I.O. (P W-6), there are just arrows disclosing the direction in which the deceased and the accused were moving including the place where the deceased was killed. The place where the motorcycle stopped, the place from where the accused Rajesh and Rama Shanker fired at the deceased and the place from where the witnesses witnessed the incident have not been disclosed in the site plan (Ex. Ka-6). Interestingly, when PW-6 (I.O.) was cross-examined on this aspect, on 27.07.2007, he stated as follows:-
^oknh eqdnek us eq>s LFkku ugh fn[kk;k FkkA eksVj lkbfdy [kMh djus dk dksbZ LFkku (sic) esa ugh crk;k gS cfYd xkM+h pyrs gkyr esa xksyh ekjuk crk;k gSA^^
29. The above statement of the I.O. suggests that at the time when the site plan was prepared the information about the incident was not complete. But that, by itself, is not sufficient to discard the ocular account of PW-1 though it puts us on guard to carefully scrutinise the evidence on all material aspects so as to rule out the possibility of prosecution story being contrived on account of enmity. The first step in that regard would be to test whether at the time of the incident PW-1 was present with his father or he arrived later, on receipt of information about the incident. For a better evaluation of PW-1's deposition, we propose to divide it into parts, along with brief comment, to enable a proper analysis. These parts are as follows:-
(a) At 4.30 am the deceased and PW-1, on separate bicycles, left their home to go to Budhanpur bazaar, which is 8 to 9 km away, for purchase of Betel leaves, etc for the shop of PW-1;
(b) Before leaving they ate nothing (Note: empty stomach, empty small and large intestine corroborate this part);
(c) At Budhanpur bazaar, they stayed for one hour and thirty minutes, made purchases of various other articles such as biscuits, toffee, tobacco pouches, etc, apart from betel leaves (Note: no shop keeper of Budhanpur Bazaar was interrogated/ examined to test whether both father (deceased) and son (PW-1) had visited Budhanpur bazaar on that fateful day. Further, according to the statement of PW-1, basket of Betel leaves was on the bicycle of the deceased, whereas carton of biscuits etc were on the bicycle of PW-1 but neither PW-1's bicycle nor carton of biscuit etc was noticed nor seized or custody memo prepared during investigation);
(c) On their way return from Budhanpur bazaar, at about 7.15 am, by the time they could cover 1 km distance, which they did in about 5 minutes, the accused (three in number including the appellants) arrived on a Hero Honda motorcycle (Note: number and colour, or description, of the motorcycle is not disclosed);
(d) The accused Onkar (declared juvenile), who was driving the motorcycle, stopped the motor cycle in front of the bicycle of the deceased and exhorted other accused persons (the appellants) to finish off the deceased (Note: driving of motorcycle by Onkar and stopping his motor cycle, followed by exhortation is not disclosed in the FIR. Further, PW-1 states that Onkar and all alighted from the motorcycle whereas PW-2 stated that Onkar kept sitting);
(e) After that, Rajesh (appellant no.2) fired one shot on the side of the head of the deceased from a close range, as a result, the deceased fell; seeing the deceased falling, PW-1 left his bicycle rushed towards the deceased to hold him; thereafter, he pleaded the accused to spare the deceased (PW-1's father) (Note: all of this is not disclosed in the FIR);
(f) The accused threatened PW-1 and asked him to leave, or he would meet the same fate, and, immediately thereafter, Rajesh (appellant no.2) fired a second shot from close range, which hit the deceased on the back of his head, thereafter, a third shot was fired by Rama Shanker (appellant no.1), which hit the deceased on his back (Note: all of this not disclosed in the FIR);
(g) After witnessing all that, PW-1, to save himself, ran towards the abadi of village Amari (1 km away from the spot); and was given a chase by the accused for some distance;
(h) At village Amari, PW-1 hid himself for about 5 minutes (note: details of the place where he hid himself not disclosed) and, thereafter, with 25-30 villagers (note: names not disclosed) he returned back to the spot within 20-25 minutes. There, at the spot, PW-1 met Dilip (DW-1) (Note: DW-1 states that he resides 200 mt from the police station and that he scribed the report at 11 am at the police station itself) who wrote the FIR at PW-1's dictation and thereafter left to lodge the report. (Note: It was lodged at 8.30 hrs at a police station which is 6 km away from the spot). In the meantime, he gave his bicycle to a villager (note: name not disclosed) to inform his family about the incident.
(i) Thereafter, the police arrived at the spot and took various steps to carry the investigation forward and also prepared Supurdaginama (custody memo) of Pan Basket /cycle as well as the inquest report .
At this stage, it would be useful to notice that according to PW-1 he had also purchased biscuits, toffee, tobacco pouches, etc. therefore, it took them time at Budhanpur bazaar. In his cross-examination, PW-1 stated that the basket kept on the carrier of the bicycle of the deceased carried betel leaves whereas, in the Gatta (carton) there were biscuits; and toffee, etc were in a bag. In his cross-examination, on 21.09.2004, PW-1 stated:-
^^ iku dh Vksdjh esjs firk us viuh lkbfdy ij j[kh FkhA ckdh lkeku fcLdwV o VkQh vkfn esjh lkbfdy ij FkkA^^
But interestingly the cycle and the goods which PW-1 was carrying were neither noticed by the I.O. nor a custody memo in respect thereof was prepared. Non-preparation of custody memo may not be too relevant because, according to PW-1, he had given his bicycle to a villager to inform persons of his village. But, what is relevant is that a bag, in which there could be toffees, at the time of inquest, was noticed hanging on the bicycle of the deceased lying below the body of the deceased. As to what was there in that bag the prosecution has not come out with it. The defence case is that this bag contained toffees etc which, to show his presence, PW-1 claims to be carrying on his bicycle. The relevant portion of the inquest report has already been extracted by us above. Importantly, on this count, the I.O., PW-6 was specifically cross-examined by the defence counsel. In response to which, PW-6 stated as follows:-
^^;g iapk;rukek yYyu feJk }kjk Hkjk x;k gS bl ij esjk Hkh gLrk{kj gSA ysfdu mUgksus ;g ckr fd ^^lkbZfdy e`rd ds uhps nch ftlesa (sic) >ksyk yVdk ihNs iku dh isM dh iRrh^^ iapk;rukek ds ist 2 (sic) ds vfUre ykbZu es lgh fy[kk gS vFkok xyr fy[kk gS eS ugh crk ldrk lkbfdy dh lqiqnZxh oknh dks fnukad 7-8-2002 dks fn;k gSA^^
It be noted that prior to the above extracted statement, PW-6 had stated that when he had recovered the bicycle he had not seen the bag and he had also not seen the carton or biscuits; and that whatever he had seen, he prepared a seizure memo of that. In that context, to contradict PW-6, that portion of the inquest report was put to him. All of this would suggest that the prosecution deliberately tried to hide the presence of bag on the bicycle of the deceased so as to provide a reason for the presence of PW-1 with the deceased i.e. to carry other articles for the betel shop. But if the bag hanging on deceased's bicycle contained toffees etc there was no reason for PW-1 to accompany the deceased.
30. In that backdrop, the question that now crops up is whether the deceased had gone alone to purchase goods for the betel shop or he went with PW-1. Notably, according to PW-1, his shop, on a daily basis, use to open at 6 am. It is a matter of common knowledge that Betel (Pan) leaves are perishable and, therefore, its purchase for commercial use would be an every day affair. Therefore, in normal course of events if the shop had to open by 6 am why would PW-1, who used to sit in that shop, be away to the Bazaar to purchase goods for the shop when those goods can be purchased by his father (the deceased). The other aspect of it is, that if PW-1 had to accompany his father, there would be an effort to return before 6 am i.e. the usual time of opening the shop. In these circumstances, apart from the story set up by the prosecution, two other possibilities arise: (i) that the incident occurred much earlier than put by the prosecution but to explain the delay in contriving the story, the time of the incident was delayed, or (ii) that, at the time of the incident, PW-1 was not accompanying the deceased but was at his shop which had to open by 6 am. In this context, we may notice a decision of the Supreme Court in the case of State of UP V. Madan Mohan and others, (1989) 3 SCC 390, where there were chance witnesses set up by the prosecution. One of the chance witness, namely, PW-1, had a shop. To prove his presence at the spot, the chance witness (PW-1 of that case) disclosed that he had shut his shop a bit early on the date of the incident. In that contextual matrix, while disbelieving the witness, the high court opined that he was an interested witness being the brother of deceased and his claim that he closed his shop early and was, therefore, at the scene of occurrence when the incident occurred was difficult to accept. Affirming the judgment of the high court, the apex court observed: "the story of PW-1 that he closed the shop earlier than usual is difficult to believe because he does not assign reason for so doing". Reverting to the facts of the instant case, here also, PW-1 had a shop, the opening time of which, as per own statement of PW-1, was 6 am where, after taking a bath, PW-1 used to sit from 6 am onwards. In these circumstances, the presence of PW-1 with deceased at the scene of occurrence, which was several kilometres away from his shop, needed a believable explanation. The explanation offered was that PW-1 had accompanied the deceased to the Bazaar to purchase merchandise. There is no difficulty with that explanation per se, provided they were to return by the opening time of the shop. But, here, they were at a far away place well past the opening time of the shop. In that background, in absence of a cogent explanation there arises a serious doubt with regard to the presence of PW-1 with the deceased at the time of occurrence. This doubt gets amplified when we find that in the FIR, PW-1 does not disclose in detail the manner in which the incident unfolded. The FIR only discloses that the assailants (all the three accused) came on a motorcycle and by exhorting each other fired three shots at the deceased, as a result the deceased fell dead on the road and his blood splattered on the shirt of the informant, which was witnessed by the informant, Sherai and Gulab. The FIR does not specifically disclose that two shots were fired by Rajesh and one was fired by Rama Shanker. It is also does not disclose that when the first shot was fired at the deceased, the deceased fell and the informant came to hold the deceased and beg for his life. Further, though the informant disclosed that his shirt got blood stained but he did not disclose that his shirt got blood stained while lifting the body of the deceased. We are conscious of the law that a first information report need not be an encyclopaedia and therefore absence of all the details with regard to the manner in which the incident occurred is not fatal to the prosecution but, some aspects of which, particularly, how many shots were fired and by whom, and who exhorted, could have been disclosed, if there had been awareness about it. Therefore, taking the testimony of PW-1 as an improvement from the report, the informant (PW-1) was confronted with the report which was bereft of all the details deposed during trial. However, what is most important in the FIR as well in the testimony of PW-1 is that the accused also chased PW-1 with an intention to kill him but he could some how manage to escape.
31. The defence counsel urged that if the ocular account as rendered by PW-1 is to be believed then before his father could fall on the ground, PW-1 held his father yet, at the spot, as per the recital in the inquest report, of which PW-1 is a witness, his father (the deceased) was noticed lying on the cycle at the spot. Meaning thereby, that PW-1 was not there to hold his father when he was first shot. The defence argument also is that the first information report is deliberately silent in respect of the manner in which the incident occurred. Perhaps, because, PW-1, on advise, wanted to fill in the details after receipt of the autopsy report so that his ocular account is consistent with the medical evidence. Notably, there were three shots fired at the deceased. One on the head, from the side; the other on the back of the head; and the third, on the back. When the first short must have been fired, the deceased must have fallen; the second and third shot must have been fired when he had already fallen but even then such sequence was not disclosed in the FIR because the incident was not at all witnessed.
32. When we notice the position in which the body was lying over the cycle, as noticed at the time of the inquest, it appears to us that the deceased must have fallen after the first shot. However, in our view, the statement of PW-1 need not be understood as saying that PW-1 actually prevented the deceased from falling after he was hit. PW-1's statement is to be understood as saying that he tried to stop his father from falling when he was hit by the first shot. But, whether in such a scenario there was any scope for PW-1 to beg for the life of his father and, thereafter, escape injuries, despite assailants desiring to finish him off too, with bullets to spare, is an issue that needs to be examined to find out whether there is a ring of truth about PW-1's deposition.
33. In our view, the testimony of PW-1 that he begged for the life of his father and, thereafter, could manage to escape from the scene of crime, without any injury, does not inspire our confidence. When the assailants had come well prepared, fully armed and had the capacity to fire three shots at the deceased, from two weapon, all at vital parts, and each of the three shots was sufficient in itself to kill, if the assailants had a desire to finish off PW-1, as is the deposition of PW-1, with whom the assailants had very strong enmity, why would the assailants let off such a soft target, as was PW-1. This raises a serious doubt regarding the presence of PW-1 at the spot, which the prosecution needed to dispel by production of an independent witness such as a resident of the village Amari where, according to PW-1, PW-1 escaped to hide himself from the wrath of the assailants. But here, neither such a witness was produced nor his identity disclosed. Importantly, PW-1 was questioned during cross-examination as to where he hid himself in the village. To which, PW-1 replied by saying that he does not know. Thereafter, he tried to give an evasive answer by saying that that house had a door opening towards north. Interestingly, PW-1 stated that he returned to the spot from the village with several persons of that village yet, the I.O. did not verify this position during the course of investigation. In that background, when we notice that the betel shop of PW-1, son of the deceased, had to open on a daily basis by 6 am, as is the statement of PW-1, the possibility of the occurrence in the wee hours of the morning becomes probable. This possibility is fortified by the fact that the deceased was empty stomach, empty intestine and empty rectum at the time of the autopsy. It suggests that the deceased, who had left early morning at 4.30 am to purchase Pan (betel leaves) for the shop of PW-1 had to return back to provide Pan to PW-1 for his betel shop which had to open by 6 am. In that context, staying at Budhanpur bazaar for an hour and a half and having nothing to eat, not even tea or biscuit, appears a bit improbable, if not impossible. This doubt could have been cleared if any person from Budhanpur bazaar had been examined to demonstrate that the deceased was accompanied by PW-1 for purchase of Pan, etc. This doubt could also have been cleared if the bicycle of PW-1 with carton and bag in respect of other goods allegedly purchased from Budhanpur Bazaar had been noticed by the investigating officer. But, here, a bag was noticed hanging on the cycle of the deceased, as is clear from the inquest report of which PW-1 is a witness. This creates a doubt whether, PW-1 to show his presence with the deceased has cooked up a story of his going with the deceased to Budhanpur Bazaar to purchase goods for the betel shop. When we take into account all these circumstances as a whole in conjunction with the manner in which the incident is stated to have occurred, while keeping in mind that PW-1 has not suffered a single injury, we find that the presence of PW-1 at the spot at the time of occurrence appears extremely doubtful.
34. The above doubt gets amplified when we notice the FIR bereft of all details with regard to the manner in which the shots were fired at the deceased and by whom. No doubt, a first information report need not be an encyclopaedia of all the facts but in the FIR lodged by PW-1 there is not even a statement that the accused fired after stopping the motorcycle. There is also no statement in the first information report that after the accused had stopped the motorcycle, Onkar alighted from the motorcycle and on his exhortation two shots were fired by Rajesh and one by Rama Shanker. Further, in the first information report there is no averment that when the first shot was fired at the deceased, PW-1 had jumped off his bicycle to hold the deceased and beg for his life. The narration in the FIR is reflective of an incident that occurred in a split second, where shots were fired from a moving motor cycle and the blood splattered on the shirt of the informant, who, crying for help and to save his life, ran towards Bhatahi Chatti where he saw Sherai Mishra (PW-2) and Gulab coming from Atrait side. But, interestingly, in the statement made during the course of trial, the blood stains on the shirt were explained as to be on account of smearing of blood while lifting the body of the deceased. The lack of details in the first information report, in ordinary circumstances, would not have been material. But, here, the informant comes from a litigious family, which is in litigation for two decades with the accused side. In that context, lack of details would suggest that at the time of lodging the report, complete information with regard to the manner in which the incident occurred was not available. This possibility gains support from another circumstance, which is, that the site plan prepared by the I.O. does not disclose as to - where the motorcycle stopped; from where the assailants fired at the deceased; from where the witnesses witnessed the incident and as to in which direction PW-1 ran. No doubt, during his deposition in court, PW-1 gives a graphic description of the incident but this could be developed on advise, particularly, when a person comes from a litigious family.
35. There are few other aspects in the ocular account of PW-1, which make it highly improbable. First, if the informant had to effect escape from the spot why, at the first place, he would go and come in the firing range of the accused to plead for the life of the deceased after he was already shot in the head. Second, what was the occasion for the assailants, who were well armed and well prepared, not to kill the informant at the spot rather than waste a bullet on his father who had already been hit twice on the head. In these circumstances, lack of injury on the body of the informant makes the prosecution story, as narrated during trial, improbable and unnatural. Had it been a case where the informant straight away effected his escape seeing the assailants, informant's story might have been acceptable and believable. But PW-1's deposition is that he begged the assailants to spare his father, when his father was already shot in the head. Not only that, according to PW-1, the assailants, thereafter, shot twice at his father and then turned towards him, whereafter, he ran to escape. All of this renders the story highly unnatural. Interestingly, the site plan does not disclose the direction in which PW-1 ran to save his life and it also does not disclose the spot from where gun shots were fired and by whom. In such a scenario, the presence of PW-1 at the spot at the time of the incident becomes highly doubtful. No doubt, the ocular account may be consistent with medical evidence in so far as injuries found on the body of the deceased is concerned but we must not lose sight of the fact that the FIR is completely bereft of how, by whom, and on which part of the body, the deceased was shot. In that context, merely because the ocular account is corroborated by medical evidence, as to the site of the injuries are concerned, it is not a guarantee for it being trustworthy and reliable because oral deposition can always be improved and polished on legal advise after receipt of autopsy report.
36. In so far as PW-2 is concerned, he is a chance witness and is a relative of Balai Mishra in whose murder, Ram Shabd (the husband of appellant no.2's wife's sister) is an accused and for whom, Rajesh (appellant no.2) was doing pairvi. Therefore, PW-2, too, is a witness having an interest in the conviction of the accused. Further, PW-2's explanation for his presence at the spot is flimsy. He, as already noticed above, states that he was going to Budhanpur bazaar, which is 7 km away from his residence, to buy vegetables for a feast arranged by him. This explanation for his presence does not inspire our confidence because it was admitted by him in his cross-examination that there were multiple bazaars closer to his residence than the one he proposed to visit for the merchandise. Moreover, this explanation was not there in his statement under section 161 CrPC. That apart, in his deposition he has not disclosed that PW-1 escaped from the spot. Thus, in our view he is not a reliable witness.
37. The summary of our analysis is that the deceased had gone to the Bazaar early morning to buy betel leaves for the shop of PW-1; the shop of PW-1 use to open on a daily basis at 6 am; therefore, it is most likely that either the incident occurred earlier than the time put by the prosecution, which possibility is not ruled out by medical evidence, or PW-1 was at his shop and not with the deceased at the time of the incident; further, if PW-1 had been present at the time of the incident, and the same had occurred in the manner alleged, he would not have been spared. Thus, the presence of PW-1 at the spot at the time of occurrence is highly doubtful. Further, the testimony of PW-1 does not inspire our confidence as he makes a huge improvement in his deposition in court than what he stated in the FIR with regard to the mode and manner in which the incident occurred and by whom injuries were caused to the deceased. That PW-2 is a chance witness whose explanation with regard to his presence at the spot is flimsy and not confidence inspiring and he is also interested in the conviction of Rajesh (appellant no.2) for reasons disclosed above, therefore, his testimony does not inspire our confidence; more so, because he states that he signed the inquest report at the police station at 3.30 pm. Further PW-2's deposition is at variance with PW-1 in so far as he does not disclose about PW-1 escaping from the spot towards village Amari. That, except PW-1 and PW-2, who are highly interested witnesses, no independent witness has been examined; and no effort has been made to connect the weapon recovered at the instance of the appellant no.2 with the bullet recovered from the body of the deceased. Last but not the least, from the statement of DW-1 i.e. the scribe of the FIR as well as other circumstances noticed above including the statement of PW-2 that he signed inquest report at 3.30 pm, there arises a strong possibility of the FIR being ante-timed. The sum and total of our analysis is that the prosecution evidence is not trustworthy and fails to inspire our confidence to sustain the conviction of the appellants. Consequently, the benefit of doubt would have to be extended to the accused appellants.
38. In so far as conviction of the appellant-Rajesh under Section 25 Arms Act is concerned, we notice that, firstly, recovery of the country made pistol is not evidenced by any member of the public even though it is not a chance recovery but is alleged to be on a disclosure made by accused while in police custody; secondly, the weapon recovered has not been forensically connected with the bullets recovered from the body of the deceased; and, thirdly, the alleged recovery is from an open place not under the control or in possession of the appellant no.2 therefore, weapon cannot be said to be in possession of the appellant-Rajesh so as to justify his conviction under Section 25 of the Arms Act. Consequently, the conviction of the appellant-Rajesh under Section 25 Arms Act is also liable to be set aside.
39. For all the foregoing reasons, the appeal succeeds and is, accordingly, allowed. The impugned judgment and order of the trial court in the two connected trials is hereby set aside. The appellants are acquitted of the charge for which they have been tried and convicted by the court below. The appellants, if in jail, shall be set at liberty forthwith, unless wanted in any other case, subject to compliance of section 437 A Cr.P.C. to the satisfaction of the court below.
40. Let a copy of this order and the lower court record be sent to the trial court for information and compliance.
Order Date :- 08.4.2022
Sunil Kr Tiwari
