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Meera @ Ashmeer And 4 Ors. vs The State Of U.P. on 2 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on 22.07.2019

Delivered on 02.08.2019

A.F.R.

Court No. – 16

Case :- CRIMINAL APPEAL No. – 1739 of 2007

Appellant :- Meera @ Ashmeer And 4 Ors.

Respondent :- The State Of U.P.

Counsel for Appellant :- Nagendra Mohan,Mohd. Arif Khan,Nadeem Murtaza

Counsel for Respondent :- Govt.Advocate

Hon’ble Ritu Raj Awasthi,J.

Hon’ble Virendra Kumar-II,J.

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

1. Heard Sri Nadeem Murtaza, learned counsel for appellants as well as Mr. Pankaj Kumar Tiwari, learned Additional Government Advocate on behalf of the State and perused the lower court record.

2. This appeal has been preferred by the appellants, Meera @ Ashmeer, Mehndi Hasan, Muneem, Shamsuddin and Saneel @ Sanda, assailing the impugned judgment and order dated 19.07.2007 delivered by the court of learned Additional Sessions Judge/ Fast Track Court No. 3, Hardoi in Sessions Trial No. 758 of 2005 arising out of Case Crime No. 146 of 2005 and connected Sessions Trial Nos. 759 of 2005, 760 of 2005, 761 of 2005 and 762 of 2005, arising out of Crime Nos. 147 to 150 of 2005, for the offence punishable under Sections 147, 148, 302 read with Section 149 I.P.C. and 3/25 of Arms Act, of Police Station Manjhila, District Hardoi.

3. The learned trial court has convicted all the appellants for the offence punishable under Sections 147, 148, 302 read with Section 149 I.P.C. and sentenced them to undergo rigorous imprisonment for one year and amount of Rs.500/- has been imposed on each of the appellants for the offence punishable under Section 147 I.P.C.; for the offence punishable under Section 148 I.P.C. rigorous imprisonment for 1-1 year and fine of Rs.500-500/- has been imposed on each appellants. All the appellants have been convicted for the offence punishable under Section 302 I.P.C. read with Section 149 I.P.C. and sentenced them to undergo imprisonment for life and a fine of amount of Rs.5000-5,000/- has been imposed on each of the appellants.

4. Accoridng to default stipulation the appellant have to serve out additional sentence of three months for offence punishable under Section 147 I.P.C., additional sentence of three months for the offence punishable under Section 148 I.P.C. and for the offence punishable under Section 302 I.P.C. read with Section 149 I.P.C. additional sentence for one year. It is also directed that all the sentences shall run concurrently.

5. Learned trial court has convicted the appellant, Meera @ Ashmeer in Sessions Trial No. 759 of 2005 for the offence punishable under Section 25 of Arms Act, the appellant, Muneem in Session Trial No. 760 of 2005, the appellant, Shamsuddin in Session Trial No. 761 of 2005 and the appellant, Saneel @ Sanda in Session Trial No. 762 of 2005 for the same offence. All the appellants have to undergo rigorous imprisonment for two-two years and fine of Rs.500-500/- has been imposed on each appellants to serve out additional sentence of three-three months. It is further directed that all the sentences shall run concurrently.

6. The appellants have mentioned in grounds of appeal that the appellants have been convicted on the basis of evidence of highly interested and partisan witnesses. P.W.1, Nazir Ali, informant, is not the eye witness of the incident. Other witnesses, P.W.2, Ismile is his real nephew and P.W.3, Bhinnu is also his relative, who is resident of different village situated at a distance of 5 kilometres from the place of incident. The most material witness, namely, Ram Gopal has been withheld by the prosecution and no reasoning, what so ever has been given by the prosecution for not producing him during course of trial. P.W.2, Ismile has stated that he does not know the witness Bhinnu. P.W.3, Bhinnu has stated that he by chance was present at the place of incident. The statements of both the eye witnesses are contradictory to each other on every material point. The complainant has accepted this fact that first of all the police came on the spot and on dictation of Sub Inspector the F.I.R. was got written at the spot by the scribe and the complainant/ informant was asked to put his thumb impression over the same.

7. It is further mentioned in the grounds of appeal that the alleged discovery of firearm from the possession of appellants is fake and fabricated. No public witness was cited in the recovery memo regarding the alleged recovery. Therefore, the learned trial court should have not been believed the evidence of prosecution in this regard. It is also contended by the appellants that manner of assault has been described by both the eye witnesses in different way and on that score itself eye witness account should have been disbelieved. The F.I.R. is ante dated and ante timed and the tainted investigation of this case has been conducted by the Investigating Officer. The appellants are innocent and no offence is made out against them.

8. As per the prosecution version, the complainant, Nazir Ali submitted written report (Ex.Ka.-1) at Police Station Manjhila, District Hardoi. Check F.I.R. (Ex.Ka.-13) and G.D. (Ex.Ka.-14) of registration of crime were prepared by the concerned police personnel on the basis of written report submitted by the complainant.

9. The complainant has narrated in his written report that he is the resident of Village Rautapur, Majra Sahijna within limits of Police Station Manjhila, District Hardoi. His sons were doing business of milk and they were having buffaloes in locality of Badujai, Police Station Sadar Bazar, District Shahjahanpur.

10. It is further mentioned by him that on 09.06.2005 his son Shamin was going from Shahjahanpur at the house of his maternal uncle situated in village Alamnagar. The witness Ram Gopal, resident of Bisraat Rangmahla within limits of Police Station Ram Chandra Mission, Shahjahanpur and his nephew Ismile @ Guddu, resident of Rautapur Majra Sahijna were also going with him. The deceased along with Ram Gopal and Ismile reached at 11:00 a.m. at the culvert of Jhaver, The accused-appellants, Meera @ Ashmeer, S/o Shahzadey; Mehndi Hasan, S/o Munshi; Muneem, S/o Raseed; Shamsuddin, S/o Majeed Gaddi, residents of Village Rautapur and Sanil @ Sanda, S/o Afsar, resident of Bherhhaiya Majra Sahijna within the limits of Police Station Manjhila, District Hardoi, were already sitting on the culvert. They stopped the motorcycle of his son. His son, nephew Ismile and Ram Gopal tried to run away leaving their motorcycle. All the appellants were wielding firearms. They fired shots on his son, who expired on the spot. Ismile and Ram Gopal did not sustain any firearm injury. They went and informed him (complainant) in his village. It is also mentioned in the F.I.R. that Bhinnu S/o Pyarey Gaddi was going from Salia and reached at the place of occurrence and witnessed this incident.

11. It is further mentioned that a case was pending between the complainant and the appellants at the point of time of murder of his son and it was the reason/ motive for the appellants to commit this incident. The scribe of this written report (Ex.Ka.-1) was Mulayam Khan, S/o Shri Shakkar.

12. The Investigating Officer recorded statements of witnesses during the course of investigation. He inspected the place of occurrence, prepared site plan (Ex.Ka.-17). He took in his possession two empty shell of cartridges of 315 bore and three shell of cartridges of 12 bore and prepared recovery memo (Ex.Ka.-24). He also took in his possession cycles of appellants and prepared recovery memo (Ex.Ka.-25). He also collected plain and blood stained soil from the place of occurrence and prepared recovery memo (Ex.Ka.-26).

13. The Investigating Officer had also taken motorcycle of the deceased in his possession and prepared Supurdginama (Ex.Ka.-27). The Investigating Officer conducted inquest proceedings of the dead body of the deceased, Shamin and prepared inquest report (Ex.Ka.-18). He had also prepared police form-13, photograph of the dead body of the deceased, report to C.M.O., report to R.I., and sample of seal, for autopsy of dead body of the deceased. PW-4 Dr. Amar Jeet Singh conducted autopsy on corpse of the deceased.

14. The S.H.O. Subhash Chandra Tiwari and his police party on 16.4.2005 acted upon tip off given by informer. The witness Naseem son of Ramjani and Asmoon son of Munshi had associated them. The police party along with informer and witnesses reached at 4:30 p.m. at Sidh Baba Mazar. The appellant Meera alias Ashmeer, Muneem, Shamshuddin and Saneel alias Sanda were arrested. They were named in the present crime No. 146 of 2005 for offence punishable under Sections 147, 148, 149 and 302 IPC of the murder of deceased Shamin. All the four appellants were arrested by the police party. The aforesaid appellants confessed before the police party and apprised them the place, where they had hidden firearms used by them in the incident of present crime.

15. The police party and witnesses along with appellants went in the vicinity of village Rautapur, near under construction/semi constructed Mashjid, two Bithiya of dungs were situated, on southern side of village Rautapur. The leaves of sugarcane were put on these both Bithiya. The appellants Meera alias Ashmeer and Muneem took out plastic bag from aforesaid Bithiya. The appellant Meera alias Ashmeer picked up country-made pistol of .12 bore and two cartridge of .12 bore and appellant Muneem picked up one half country made (addhhi) pistol .315 bore and two cartridges .315 bore from inside of bag.

16. The appellants Shamshuddin and Saneel alias Sanda also took out plastic bag from Bathiya. The accused appellant Shamshuddin picked up a country-made pistol .12 bore and two cartridges of .12 bore and Saneel alias Sanda also picked up one country-made pistol .315 bore and two cartridges of .315 bore from inside of bag. The recovery memo Ex. Ka-3 was prepared by S.H.O. and signatures of accused appellants Muneem and thumb impression of other accused persons were obtained on this recovery memo Ex. Ka-4.

17. The Investigating Officer prepared site plan of these discoveries made on the pointing out of these four appellants. The check FIR Ex. Ka-15 was registered for crime no. 147 to 150 of 2005 for offence punishable under Section 3/25 of the Arms Act at Police Section Manzila, District Hardoi on the basis of recovery memo Ex. Ka-3. The G.D. Ex. Ka-16 was also prepared for registration of aforesaid crime.

18. The Investigating Officer after conclusion of the investigation, submitted charge sheet Ex. Ka-4 against all the appellants for offence punishable under Sections 147, 148, 149 and 302 IPC and separate charge sheets Ex. Ka-9 to Ex. Ka-12 against appellants Meera alias Ashmeer, Muneem son of Rashid, Shamshuddin son of Mazeed, Saneel alias Sanda son of Afsar, respectively, for offence punishable under Sections 3/25 of the Arms Act.

19. The court of learned C.J.M., Hardoi committed this case against all the appellants to the court of sessions vide order dated 16.9.2005 for offence punishable under Sections 147, 148, 149 and 302 IPC after taking cognizance on the charge sheet. The C.J.M. Hardoi committed cases under Section 3/25 of the Arms Act against all the appellants Meera alias Ashmeer, Shamshuddin, Muneem and Saneel alias Sanda on 16.9.2005 to the court of sessions for offence punishable under Section 3/25 of the Arms Act, after taking cognizance on these chargesheets submitted by the Investigating Officer.

20. Learned trial court of Additional Sessions Judge, Fast Track Court No. 3, Hardoi framed charges against all the appellants on 7.10.2005 for offence punishable under Sections 147, 148, 149 and 302 IPC.

21. Learned trial court also framed charges against all the aforesaid four appellants Ashmeer, Muneem, Shamshuddin and Saneel alias Sanda on 7.10.2005 for offence punishable under Section 3/25 of the Arms Act separately.

22. Learned trial court recorded statement of PW-1 complainant Nazir Ali, PW-2 Ismile, PW-3 Bhinnu, PW-4 Dr. Amar Jeet Singh, PW-5 S.I. Shubhash Chandra Tewari, PW-6 Constable Ram Kumar Pal, PW-7 S.I. Prem Shankar Katiya, PW-8 Head Constable Virendra Kumar Pandey and PW-9 S.I. Jai Prakash Shukla. These witnesses have proved the aforesaid exhibits/documents Ex. Ka-1 to Ex. Ka-28 relied upon by the prosecution.

23. Learned trial court has also recorded statement of all the appellants under Section 313 Cr.P.C. on 19.4.2007. The appellant Meera alias Ashmeer has denied this fact that he was having animosity on the basis of pendency of cases with PW-1 Nazir Ali, although he knows him. He has denied this fact that he committed murder of Shamin. He has also stated that the Investigating Officer had conducted tainted investigation and alleged discovery is false and fabricated. The witnesses have adduced their evidence, because they are relative of the complainant. He has further stated that complainant Nazir Ali and his son are accused persons in murder of his real brother and they have been convicted and sentenced to undergo imprisonment for life. They are detained in jail.

24. The other appellants have adopted statement of appellant Meera alias Ashmeer. Muneem has further stated that he lodged FIR against the complainant, his son and in that case, the appellants have been convicted and sentenced to undergo imprisonment for life.

25. The accused appellant Mehandi Hasan also adopted statement of other appellants Muneem and Meera alias Ashmeer and stated that he was scribe of written report lodged by Muneem regarding murder of his father. He wrote this written report in the month of February 1999. The complainant Nazir Ali, his son Shamin, Ali Tahir, Idrish were accused persons and they are in jail after their conviction and imprisonment for life, has been awarded against them.

26. The accused/appellant Shamshuddin also adopted the statement of aforesaid appellants and stated that he has falsely been implicated in this crime.

27. The appellant Saneel alias Sanda also adopted statement of other accused perosns and further stated that he has falsely been implicated in this crime due to Partibandi of the village. He was arrested from his house. The alleged discovery was made false and fabricated. He is innocent and wrongly challaned by the Investigating Officer. He has also stated that witnesses have adduced their evidence on the basis of partibandi on their village.

28. The appellants have produced DW-1 Head Constable Jai Karan Singh, who proved check FIR Ex. Kha-1 Crime No. 9 of 1999 under Sections 147, 148, 149, 302, 392, 504 and 452 IPC and stated that check FIR was prepared by Head Moharir Har Pal Singh and G.D. of registration of crime. He identified handwriting and signatures of Head Moharir Har Pal Singh. The appellants have filed photocopy of check FIR Ex. Kha-1. The certified copy of check FIR lodged by Siddiq son of Liyakat Crime No. 154 of 1999, under Sections 302, 504 and 506 IPC and certified copy of charge sheet of crime no. 154 of 1999 submitted by the concerned Investigating Officer.

29. The learned trial court has appreciated and evaluated the evidence of witnesses produced by the prosecution and defence evidence adduced by the appellants and convicted all the appellants vide impugned judgment and order dated 19.7.2007 and awarded the aforesaid punishment.

30. We have perused the record of aforesaid sessions trial, which were jointly tried by the trial court.

31. Learned counsel for appellants have argued that in the present case the prosecution has produced related witnesses PW-1 complainant Nazir Ali and PW-2 Ismile, who have deposed against the appellants inimically. They were having deep animosity. They have been convicted in the heinous offence of murder of real brother of appellant Meera alias Ashmeer to undergo imprisonment for file and they are detained in jail. Therefore, the evidence of both these witnesses PW-1 Nazir Ali and PW-2 Ismile have to be cautiously appreciated and analyzed. The evidence of interested witness cannot be treated as conclusive. The Investigating Officer has not seized firearm during alleged discovery made by him on pointing out of all the appellants Meera alias Ashmeer, Shamshuddin, Muneem and Saneel alias Sanda. This discovery is false and fabricated. The Investigating Officer has not obtained report of ballistic expert to connect the shells of cartridges found at the place of occurrence with the firearms discovery made by him. No ballistic expert report was proved during course of trial.

32. Learned counsel for appellants has further argued that Ram Gopal accompanied the deceased Shamin, and PW-2 Ismile as per prosecution version. This independent witness was not examined by the prosecution. The concerned doctor has not adduced clear opinion/medical evidence regarding injuries inflicted/caused to the deceased. The evidence of alleged eyewitness PW-2 Ismile and PW-3 Bhinnu are inconsistent and contradictory, whereas PW-1 Nazir Ali is not the eyewitness.

33. Learned counsel for appellants has also mentioned that witness PW-3 Bhinnu has proved the different version from version stated by PW-2 Ismile and there are material contradictions in statement of both the witnesses i.e., PW-2 Ismile and PW-3 Bhinnu. Moreover, PW-3 Bhinnu is a chance witness. His presence at the time of place is doubtful.

34. Learned counsel has further submitted that the witness, whose evidence, is essential to unfolding of the narrative should be called and cross-examined especially, if medical evidence contradicts prosecution story. The prosecution has not explained omissions to examine independent witness Ram Gopal. Therefore, it assumes significance and benefit of doubt must be accorded to the accused persons/appellants. The presence of PW-2 Ismile is also doubtful. His evidence creates serious doubt about his presence during the course of incident.

35. Learned counsel for appellants has relied upon the following case laws. :-

In the case of Mahavir Singh v. State of M.P., reported in (2016) 10 SCC 220 Hon’ble the Supreme Court in paragraph nos. 12, 13, and 16 to 27 has held as under:-

12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.

13. It is no doubt true that there cannot be any straitjacket formula as to under what circumstances the appellate court can interfere with the order of acquittal, but the same depends on the facts and circumstances of each case. In the case on hand, we have to examine the rationale behind the conclusion of the High Court in convicting the accused and the compelling reasons to deviate from the order of acquittal passed by the trial court.

16. It appears to us that the difference of opinion between the courts below in deciding whether or not the appellant has committed the offence with which he is charged, mainly revolves around the presence of alleged direct eyewitnesses at the spot, possibility of appellant’s inflicting firearm injury to the deceased in view of the positioning of the injury sustained by the deceased, the material infirmity, if any, and contradiction in the ocular and medical evidence. It is, however, clear that though, at the outset, the appellant-accused absolutely rejected the allegation and pleaded not guilty by taking the defence of alibi that, on the date of incident, he was irrigating his field, but his claim has not been supported by any evidence.

17. Undoubtedly, Gambhir Singh (PW 7, brother of the deceased) has accepted that certain criminal proceedings were pending between the accused and his family members. He also admits that one case had already been filed by the accused prior to the incident. Admittedly, Shanti Devi (PW 8, wife of the deceased) also has deposed that there was an altercation between her son Vijender and Dhullu, on which they killed her husband. Thus, the parties are admittedly in hostile terms and the incident in question occurred in broad daylight at the residence of the deceased by doing away with his precious life. The prosecution, in support of its version, has heavily relied upon the statements of eyewitnesses. Gambhir Singh (PW 7, complainant and also brother of the deceased), Shanti Devi (PW 8, wife of the deceased), Madho Singh (PW 9) and Bir Singh (PW 11, nephew of the deceased). The learned trial Judge disbelieved the presence of eyewitnesses on the spot in view of delayed recording of their statements by the investigating officer (PW 13) and also they remained unsuccessful in revealing exactly as to where the bullet had struck the deceased. We also find that nowhere in the first information report, the name or presence of eyewitness Shanti Devi (PW 8) was mentioned as a witness to the incident.

18. The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.

19. A contradicted testimony of an interested witness cannot be usually treated as conclusive. The said Madho Singh (PW 9) has admitted that he has been a witness in another case against the accused for the deceased. Here it is to be seen that the said Madho Singh (PW 9) has been acting as a pocket witness for the family. Further, the credibility of this independent witness can be challenged on the fact that the commotion was only heard by the said Madho Singh (PW 9) whereas the rest of the members of the locality did not come for help. As Madho Singh (PW 9) is a chance witness as well as an interested witness herein, causes suspicion and does not inspire confidence. This admission by Madho Singh (PW 9) not only forces us to doubt the veracity of his own deposition but also has created doubts on the version of Gambhir Singh (PW 7).

20. We have thoroughly examined the evidence of expert witnesses as well as other ocular witnesses. The evidence of Dr A.K. Upadhyay (PW 12) reveals that when the deceased sustained bullet injury, he might have been in a standing position and the bullet would have entered from left side and exited from right side of the body. This fact, however, corroborated with the evidence of PW 7 (Gambhir Singh) and PW 8 (Shanti Devi), but the statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do not support it. Similarly, there were contradictions between the statements of Dr Upadhyay (PW 12) and that of the eyewitnesses as to the distance and height of the assaulter while inflicting the grievous injury to the deceased and whether the deceased was standing on the platform (chhabutra) or came down from it while receiving the bullet injury. We find from the statement of Dr Upadhyay (PW 12) that he was not clear and definite to say exactly from what position and distance the assaulter could have fired the gun.

21. Going by the seizure memo (Ext. P-3) apparently one gun, 12 live and 9 empty cartridges were recovered from the appellant. The evidence of eyewitnesses support this fact and no question was put to the IO after the recovery of the gun and cartridges, that whether he himself shot from the seized gun to create evidence. The prosecution story is somewhat strengthened by the ballistic expert’s report (Ext. P-12) which affirms that the gun seized from the appellant was in perfect order, the empty cartridges bore the same impression on pin as seized from the accused and the live cartridges were actually fired by the gun seized from the appellant. But nowhere it was mentioned that the death of the victim occurred by the bullet released from the seized gun. Merely the seizure of gun and cartridges from the appellant, the ongoing enmity between the parties on account of various criminal litigations and the altercation and exchange of heated words between the rival groups on the morning of the same day, cannot establish the guilt of the accused beyond reasonable doubt.

22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (See Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , SCC p. 274, para 39.)

23. In view of contradictory statements by the prosecution witnesses coupled with the unmatched medical evidence, delay in recording of statements of witnesses by the IO, non-availability of proper site plan and in the absence of authenticated ballistic expert report that the bullet had been fired with the seized gun of the appellant, the trial court had to decide the case against the prosecution and discharge the appellant from the charges. The High Court, upon carrying the exercise of reappreciation of evidence, formed the view that the reasons for delay in recording the statements of witnesses have been properly explained; that as soon as the bullet struck on the abdomen of the deceased, he immediately fell down from the platform. It further observed that though the name of Shanti Devi (PW 8) was not mentioned in the FIR, there is positive evidence on record to establish her presence at the time of incident along with other eyewitnesses and this fact has been established by their corroborative statements and there is no reason to disbelieve their statements. Here it is worthwhile to mention that both the courts below formed a common opinion that the prosecution has failed to prove the charges under Sections 148 and 302/149 IPC against the co-accused and discharged them from those charges. The disagreement between the trial court and the High Court is only in respect of the charge under Section 302 IPC against the appellant.

24 [Ed.: Para 24 corrected vide Official Corrigendum No. F.3/Ed.B.J./67/2016 dated 13-2-2017.] . It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of statements. It is but natural for human beings to state variant statements due to time-gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements (see Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 : 1959 Cri LJ 1231]; Pudhu Raja v. State [Pudhu Raja v. State, (2012) 11 SCC 196 : (2013) 1 SCC (Cri) 430]; State of U.P. v. Naresh [State of U.P. v. Naresh, (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216] ). The case in hand is a fit case, wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased.

25. Normally, when a culprit perpetrates a heinous crime of murder and takes away the life of a human being, if appropriate punishment is not awarded to that offender, the court will be failing in its duty. Such crime, when indulged by a criminal blatantly, is not committed against an individual alone, but is committed against the society as well to which the criminal and victim are a part. It needs no emphasis from this Court that the punishment to be awarded for such a crime must be relevant and it should conform to and be consistent with the atrocity and brutality with which the crime has been carried out.

26. Here in the instant case, no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lacklustre manner. The approach of the investigating officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The investigating officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years of imprisonment and we feel that it is a fit case inviting interference by this Court.

27. Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the High Court is set aside. Consequently, the appellant shall be set at liberty forthwith if not required in any other case.

Hon’ble the Supreme Court in the case of Anjani Chaudhary v. State of Bihar Criminal Appeal No. 140 of 2004 has held in paragraph nos. 1 to 9 as under:

1. On 6th February, 1989 at about 2:45 p.m., the first informant Ram Pukar Chaudhary (PW-2), had gone to ease himself when he heard some sounds coming from outside his house. On returning, he saw his nephews Anjani Chaudhary armed with a pistol and a lathi, Bhimsen Chaudhary armed with a farsa and KinKin Chaudhary armed with a bhala assaulting his brother Prem Kumar Chaudhary, killing him on the spot. PW-2 raised an alarm, whereafter Satyadeo Chaudhary (PW-1), Madan Chaudhary (PW-5) and Ahsarfi Chaudhary (PW-4) also reached the site and saw part of the alleged occurrence. The motive for the murder was that the family property had been partitioned amongst the four brothers and their mother, and the mother had started living with the deceased Prem Kumar Chaudhary and had also executed a gift-deed in respect of her land in favour of PW-2’s wife on which PW-2’s brothers Mukti Chaudhary and Ram Pukar Chaudhary as well as the appellants had raised a dispute. On receiving information about the incident, a police party reached the village and recorded the statement of PW-2 and on that basis and after due investigation a charge-sheet was submitted against the appellants under Section 302/34 of the Indian Penal Code, to which they pleaded not guilty and were brought to trial.

2. The prosecution, in support of its case, examined inter alia:

PW-3 Ramadhaar Chaudhary who proved the F.I.R (Exhibit-2), CW-2 Sikan Shahani proved the gift deed dated 15th December, 1987 executed between Suhagwati in favour of Dharamsheela Devi and several other formal witnesses who proved the animosity and prolonged litigation between the warring brothers. PW-4-Ahsarfi Chaudhary and PW-5 Madan Chaudhary who had been named as eye-witnesses, however, turned hostile and did not support the prosecution. The prosecution, accordingly, fell back on the eye-witnesses; PW-1 Satyadeo Chaudhary, PW-2 Ram Pukar Prakash Chaudhary, PW-13-Ram Padarath Chaudhary and PW-14 Tarawati Devi, the wife of deceased.

3. The Trial Court held that the evidence of PW-14 could not be believed as her presence had not been noted in the FIR. The court then went into the eye-witness account of Satyadeo Chaudhary PW-1 and observed that though he belonged to a village at a distance of about eight miles from the place of incident, his presence was proved on record as the wife of the deceased was his sister and on the day in question he had been present to participate in a religious ceremony in her house. The court also found that as the statement of this witness had been recorded by the police at about 5:00 p.m. that is within half an hour of the recording of the F.I.R, his presence was proved on record for this additional reason. Likewise, the Trial court examined the evidence of PW-2 Ram Pukar Chaudhary, the brother of deceased, who deposed that as his mother had gifted her share of the land in favour of his wife, the other members of the family were annoyed on that account. He further stated that Bhimsen Chaudhary had been armed with a farsa, Kinkin Chaudhary with a Bhala and Anjani Chaudhary with a lathi and they had inflicted injuries to the deceased with their weapons. The court also found that the ocular evidence was corroborated by the medical evidence as there were thirteen (13) injuries on the deceased, out of which twelve (12) injuries were incised and injury No. 5 was a penetrating wound which could have been caused by a Bhala. It was, however, noted that there was no injury with a lathi on the deceased. The court further observed that there was absolutely no delay in the lodging of the FIR. The Trial Court accordingly convicted all the accused under Section 302 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for life and a fine of Rs. 15,000/- with a default sentence as well.

4. An appeal was, thereafter, taken to the High Court which has, by the impugned judgment, dismissed the appeal.

5. During the course of hearing, the learned counsel for the appellants has raised several arguments before us. It has been submitted that in the light of the fact that PW’s 4 and 5, who were alleged to be the eye-witnesses to the incident, had not supported the prosecution and that the High Court had found that the PW-14 was not an eye-witness as claimed by her, whereas PW-1 was a chance witness who belonged to a village situated at a distance of about 8 miles from the place of the incident, the entire prosecution story rested upon PW-2’s statement and as he admittedly had grave animosity with the appellants on account of the land dispute, his evidence could not be relied upon. It has also been submitted that the medical evidence did not support the presence of Anjani Chaudhary who is said to have been armed with a lathi and no injury with a lathi had been found on the deceased.

6. The learned counsel for the State of Bihar has, however, supported the judgment of the High Court and Trial Court. He has pointed out that in the light of the fact that the Trial Court and the High Court had given concurrent findings on the evidence, no interference was called for in this matter.

7. We have considered the arguments advanced by the learned counsel for the parties. This is a case of parricide. It is clear that the incident was sparked off by a dispute between brothers and their family members pertaining to the land which had been gifted by Suhagwati, mother of PW-2 to his wife Dharamsheela Devi which was resisted by the accused as they too had laid claim to the said land. This is apparent from the depositions of PW-1 and PW-2. PW-1 has also given a very cogent explanation for his presence at the time of the murder. In this view of the matter that PWs.-4 and 5, who were related to both the parties, had turned hostile is not surprising. We must however keep in sight that in a matter which involves close relatives belonging to farming families with deep set animosities some evidence beyond the ocular evidence should also be looked for. In this case the medical evidence corroborates the presence of Bhimsen Chaudhary and Kinkin Chaudhary as they were armed with a farsa and a bhala which could have caused the incised and penetrating wounds found on the dead body. The medical evidence, however, does not support the presence of Anjani Chaudhary as there was no injury with a pistol or a lathi on the body of the deceased.

8. It is also apparent from the record that Bhim Sen Chaudhary has not filed an appeal in this court. Criminal Appeal No. 140 of 2004 has been filed by Anjani Chaudhari and Criminal Appeal No. 1739 of 2010 (arising out of special leave to appeal (Crl.) No. 5187 of 2003) by Kinkin Chaudhary and both are being disposed of by this judgment.

9. In view of what has been stated above, we dismiss the appeal of Kinkin Chaudhary but allow Criminal Appeal No. 140 of 2004 filed by Anjani Chaudhary and order his acquittal. He shall be released forthwith if not required in any other case.

Hon’ble the Supreme Court in the case of Machindra v. Sajjan Galfa Rankhamb, reported in (2017) 13 SCC 491 has held in paragraph nos. 13 to 19 as under:-

13. We have noticed that there are contradictions in the depositions of PW 4 and PW 10 and none of them is eyewitness to the alleged incident. Furthermore, PW 20 has proved in his deposition that he medically examined Respondents 1 and 2 herein on 21-4-2007 and not on 22-4-2007 when they were arrested. It is a matter of surprise to us that the prosecution had not examined one Sanjay Jetithor in whose field the alleged incident occurred. Non-examination of this material witness, who could have unfolded the relevant facts of the case necessary for adjudication, makes the prosecution version doubtful. It is also pertinent to mention here that PW 3, who is an alleged eyewitness to the incident, had in his deposition admitted that he passed the information on phone to one Chandrakant Pandurang Gophane who was never examined by the trial court. After perusing the deposition of PW 3, we have noticed that this witness and the respondent-accused were not in cordial terms as their cattle used to enter the fields of one another and chapter case was filed against the wife of the accused on that count.

14. On perusal of the record, it has further been noticed by us that there was six days’ delay in lodging the FIR which remained unexplained throughout the trial and in the appeal before the High Court. One last fact which is imperative and crucial to be mentioned here is that the opinion on the cause of injuries was neither mentioned by the doctor PW 6 in his deposition, nor in post-mortem report. In criminal cases pertaining to offences against human body, medical evidence has a decisive role to play. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by this Court in Nagindra Bala Mitra v. Sunil Chandra Roy [Nagindra Bala Mitra v. Sunil Chandra Roy, (1960) 3 SCR 1 : AIR 1960 SC 706 : 1960 Cri LJ 1020] , as follows: (AIR p. 721, para 43)

“43. … the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. If a person is shot at a close range, the marks of tattooing found by the medical witness would draw that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim’s person.”

15. Further it was observed in State of U.P. v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] , in the following words: (SCC p. 313, para 24)

“24. It is trite that where the eyewitnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

16. But looking at the post-mortem report, cause of injuries was not stated nor was any opinion formed to create independent testimony. We would like to emphasise on the vital role played by the opinion of the expert which is simply a conclusion drawn from a set of facts coming to his knowledge and observation. Expert’s opinion should be demonstrative and should be supported by convincing reasons. The court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If the report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert then his opinion is of no value. Such opinions are often of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution. Therefore, we are of the considered opinion that the prosecution has failed to prove that death was caused due to the injuries inflicted by the recovered weapons.

17. Furthermore, looking at the facts and circumstances of this case, we have noticed that PW 3 the eyewitness to the incident has neither stated as to when the accused came with alleged weapons nor he extended any help to the deceased. Rather he fled away from the spot as per his deposition, and came to know about the death of the deceased in the evening. This peculiar fact of the case completely overrides the direct evidence rule, because ultimately probabilities creating doubts with respect to the cause and modus operandi of offence increase when alleged eyewitnesses flee away from the place of occurrence. Where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of the victim or the deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out. Such medical evidence is also very important in assessing the testimonies of the eyewitnesses and in determining whether the testimonies of eyewitnesses can be safely accepted. Moreover, it is settled law of criminal jurisprudence as has been recognised by this Court in State of U.P.v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] that: (SCC p. 313, para 25)

“25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.”

18. After meticulously scrutinising the facts and circumstances of the present case, and keeping in mind the proposition of law as observed in Yogesh Singh v. Mahabeer Singh[Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 : AIR 2016 SC 5160] , we are of the considered opinion that there are not only actual but substantial doubts as to the guilt of the respondents herein. We are, therefore, unable to find any evidence as to how the deceased was killed and by whom. The unfortunate man succumbed to the injuries but the substantial doubts, mentioned above, confer a right upon the respondent-accused to be held not guilty.

19. Thus, we see no reason to interfere with the findings of the High Court as, in our opinion, the High Court after correct appreciation of evidence has rightly acquitted the respondent-accused, giving them benefit of doubt. This appeal is devoid of any merit which is, accordingly, dismissed.

Hon’ble the Supreme Court in the case of Sukhwant Singh v. State of Punjab, reported in (1995) 3 SCC 367 has held in paragraph nos. 22 to 32 as under:-

5. Gurmej Singh, PW 3, is the elder brother of the deceased. He is the solitary eyewitness examined by the prosecution. The absence of his name from rukka Ex. P-5, sent by the doctor to the police station immediately after the arrival of the dead body in the hospital creates some doubt about the presence of Gurmej Singh at the place of occurrence at the time when the deceased was shot at. In the normal course of human conduct the real brother of the deceased would have accompanied the injured to the hospital. The identification of the deceased by Gurmej Singh and Major Singh PWs at the time of post-mortem examination of the deceased, which has been relied upon by learned counsel for the State, cannot cure the defect of the absence of the name of PW 3 from rukka Ex. P-5 because the post-mortem examination was conducted the next day on 12-7-1984 at 11.00 a.m. There is no explanation available on the record, nor has any been offered before us to explain the absence of the name of PW 3 from rukka Ex. P-5 in which it was recorded that Raghbir Singh and Major Singh had brought the deceased to the hospital.

6. That the deceased died as a result of firearm injuries is not disputed but what has been challenged is whether the occurrence took place in the manner described by Gurmej Singh PW 3 and whether Gurmej Singh PW 3 is an eyewitness. The first information report was recorded by Raghubir Singh PW 6 on the basis of the statement of Gurmej Singh, Ex. P-4 which was recorded at the hospital at about 11.45 p.m. on 11-7-1984. The possibility that Gurmej Singh PW 3 might have arrived at the hospital later on after learning about the removal of his deceased brother to the hospital by Raghbir Singh and Major Singh cannot be ruled out. Moreover, we find that the special report reached the Ilaqa Magistrate on the next day at 6.30 a.m. There is no explanation available on the record about the delay in the receipt of the special report by the Ilaqa Magistrate, when admittedly the court of the Ilaqa Magistrate and the police station are quite close to each other. The fact that at the time of post-mortem examination the stomach and the bladder were found empty, though suggestive of the position that contrary to what Gurmej Singh, PW 3 deposed, the deceased had answered the call of nature before he was shot at, but cannot be conclusive of it, as the possibility that the deceased might have defecated and urinated after the receipt of injuries and before his death cannot be ruled out.

21. There is yet another infirmity in this case. We find that whereas an empty had been recovered by PW 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and the seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.

22. From a critical analysis of the materials on the record, we find that it would not be safe to rely upon the sole testimony of PW 3 Gurmej Singh, the brother of the deceased, without independent corroboration in view of the infirmities pointed out by us above which render his testimony as not wholly reliable and since in the present case no such independent corroboration is available on the record, it would be unsafe to rely upon the testimony of PW 3 only to uphold the conviction of the appellant. The prosecution has not been able to establish the case against the appellant beyond a reasonable doubt. The trial court, therefore, fell in error in convicting and sentencing the appellant. His conviction and sentence cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside. The appellant is on bail. His bail bonds shall stand discharged.

In the case of State of U.P. and another v. Jaggo alias Jagdish and others, reported in (1971) 2 SCC 42 Hon’ble the Supreme Court has held in paragraph nos. 33 to 38 as under:-

14. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad v. State of Hyderabad [AIR 1954 SC 51 : 1954 SCR 475 : 1953 SCJ 678 : 1954 SCA 514] for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.

15. This Court in Habeeb Mohammad case referred to the observations of Jenkins, C.J., in Ram Ranjan Roy v. Emperor [ILR 42 Cal 422 : 19 CWN 28 : 27 IC 554] that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a Public Prosecutor is to represent the administration of justice so that the testimony of all the available eyewitnesses should be before the court. Lord Roche in Stephen Senivaratne v. King [AIR 1936 PC 289 : 39 Bom LR 1 : 164 IC 321] referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad case said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eyewitness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence.

16. The High Court was also correct in holding that it was significant that Sita Ram and Bhikari were not mentioned in the first information report but were called as witnesses who gave evidence of having been present at the time of occurrence. The High Court correctly said that it was a strange feature of the present case. Counsel on behalf of the State referred to the evidence of the Sub-Inspector who said that when he went to the place of occurrence he found Sita Ram and Bhikari. That would not prove that they were present at the time of the occurrence. Further if Sita Ram and Bhikari were really present at the time of the occurrence one would normally expect their names in the first information report. Sita Ram and Bhikari were not eyewitnesses but were introduced to shape the prosecution case.

17. The High Court referred to the medical evidence that the injuries meaning thereby incised wounds were caused with heavy sharp-edged weapons and that the lacerated wounds were caused by a blunt weapon like lathi. The doctor also said that the incised wounds were caused with a heavy sharp edged weapon like pharsa. The injuries were, according to the doctor, sufficient in the ordinary course of nature to cause death. It was also the medical evidence that some of the injuries could be caused by knife having 9 inch long blade. Both the doctors who were examined said that the deceased had no stab wound on his person. On this medical evidence the High Court correctly said that it was highly improbable that a number of persons attacking the victim with lathis, pharsas and knives would simultaneously attack the victim not even with the object of giving a stab wound, but only cause him minor incised wounds of the kind mentioned by the doctors.

18. Munna Lal, Sita Ram and Bhikari all said that Lalu was assaulted by those armed with knives after Lalu had fallen. Tara Chand did not mention that Lalu fell down. Sarwan stated that the assailants were standing while assaulting the deceased. The High Court rightly held that the evidence of Munna Lal, Sita Ram and Bhikari was not truthful that knife injuries were caused after the victim had fallen.

19. The medical evidence was that there were found injuries of abrasion. It could not be caused unless Lalu was dragged. The evidence was that Lalu was putting on a baniyan and tahmad at the time of the incident. The alleged eyewitnesses said that Lalu was not dragged at all but was assaulted. The medical evidence therefore showed that there was a false implication of several assailants including those alleged to be armed with knives. It could not be said without any reasonable doubt that the assailants who were there were armed with pharsas and lathis. The prosecution case was therefore not established beyond any reasonable doubt.

20. The High Court rightly acquitted the accused. The appeal is therefore dismissed. The accused are set at liberty.

Hon’ble the Supreme Court in the case of Hem Raj v. State of Haryana, reported in (2005) 10 SCC 614 has held in paragraph nos. 39 to 46 as under:-

7. The prosecution case rests on the evidence of PWs 4 and 5 who are related to the deceased and who happened to be chance witnesses. Before scrutinising this evidence and testing its credibility, we have to advert to certain features in the prosecution case which make a dent on the reliability of the prosecution version. They are discussed hereunder:

Two days after the incident i.e. on 5-4-1996, the investigation was entrusted to PW 10 Inspector, CIA at the instance of the Superintendent of Police, Jind. PW 10 stated in cross-examination that he inspected the place of occurrence and examined the persons staying near the place of occurrence and recorded the statements of such persons. The names of those five persons were given. Then he added that “from their statements, it was revealed that Hem Raj, Chunnilal and Omprakash were innocent”. He further stated that the investigation done by him was verified by DSP. Ultimately he filed the final report showing only Kala as the sole accused. However, as already noticed, all the four accused mentioned in the FIR were committed to Sessions and the Sessions Judge framed charge against all of them under Section 302. PW 10 did not choose to give all the relevant details of his investigation. However, the version of this investigating officer itself casts a cloud on the reliability of the prosecution case as unfolded by PWs 4 and 5 that four accused were involved.

8. The fact that no independent witness — though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW 5 at a sweet stall and both of them after hearing the cries joined PW 4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first IO, PW 9 went to the hospital. The evidence of the first IO reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The IO admitted that Kapur Singh was the eyewitness to the occurrence. In the FIR, he is referred to as the eyewitness along with PW 5. Kapur Singh was present in the court on 6-10-1997. The Additional Public Prosecutor “gave up” the examination of this witness stating that it was unnecessary. The trial court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to “proliferation” of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution’s omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of “proliferation” of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses PWs 4 and 5 by a known independent eyewitness could have strengthened the prosecution case, especially when the incident took place in a public place.

9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing[(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] : (SCC p. 155, para 19)

“[I]f already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.”

14. On a consideration of the evidence on record and the broad probabilities, we come to an irresistible inference that there is a reasonable possibility of some accused who were not involved in the attack having been convicted. It is difficult to sift the grain from the chaff. The High Court missed to notice certain crucial aspects adverted to above. It is a case in which benefit of doubt has to be accorded to the appellants. It is unnecessary to consider the question whether in the absence of charge under Section 34 IPC, the conviction can be sustained.

15. In the result, the appeals are allowed and the conviction and sentence of all the appellants is set aside.

36. Per contra, learned A.G.A. has argued that all the appellants used their firearms and fired shots on the deceased Shamin being member of unlawful assembly. Therefore, they have formed unlawful assembly with the common object to commit murder of the deceased. The appellants were not the curious on looker or by stander, therefore, these facts suggests their participation in furtherance of common object of the assembly. She has relied upon a decision of Hon’ble Supreme Court in the case of Kattukulangar Madhvanand and others Vs. Majeed and others reported in 2017 (5) SCC 568 and has held in paragraph no. 23 as under:-

23. In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfil the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly. For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused:

1. What was the point of time at which he discovered that the assembly intended to kill the victim?

2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object?

3. If he did, and failed, did he dissociate himself from the assembly by getting away?

The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory.

37. Learned A.G.A. has further, relying upon the decision of Hon’ble Supreme Court in the case of Yogesh Singh Vs. Mahabeer Singh reported in 2017 11 SCC 195 has argued that the evidence of eye-witness cannot be disbelieved merely on the ground that witnesses are related to each other. The minor inconsistencies, contradictions or insignificant embellishment do not affect the case of prosecution. The faulty investigation is not a ground for acquittal of the accused. The prosecution version cannot be discarded on the ground that independent witness was not produced by the prosecution during the course of investigation. Hon’ble the Supreme Court has held in para 28, 29, 30 , 50 and 51 as under :-

28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar [Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009], State of U.P. v. Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351], Bhagaloo Lodh v. State of U.P. [Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813], Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22], Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184], Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] )

Discrepancies in evidence

29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi v. State of M.P. [Rammi v. State of M.P., (1999) 8 SCC 649 : 2000 SCC (Cri) 26], Leela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222], Bihari Nath Goswami v. Shiv Kumar Singh [Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 : 2004 SCC (Cri) 1435], Vijay v. State of M.P. [Vijay v.State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639], Sampath Kumar v. Inspector of Police [Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 : (2012) 2 SCC (Cri) 42] ,Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] and Mritunjoy Biswas v. Pranab [Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796 : (2014) 4 SCC (Cri) 564] .)

Lapses in investigation

30. In C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] , this Court explained the law on this point in the following manner: (SCC p. 589, para 55)

“55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”

50. The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)

“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”

51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.

38. Learned A.G.A. has argued relying upon the decision of Hon’ble Supreme Court in the case of Prithvi (Minor) Vs. Mam Raj reported in 2004 13 SCC 279 that the testimony of eye witnesses cannot be disbelieved on the basis of omissions committed by the Investigating Officer regarding mentioning of facts in the site plan about the place, where the witness was standing when he saw the occurrence. The relevant paragraph-19 reads as under:-

19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.

39. Learned A.G.A. has further relied upon exposition of law in the case of State of U.P. Vs. Jagdeo and others reported in 2003 1 SCC 456 and submitted that if the eyewitnesses are family members or friends of deceased, their testimony should be examined cautiously but mere interestingness of the witness cannot be ground for rejecting their evidence. The relevant paragraph no. 7 reads as under:-

7. There are three eyewitnesses of the incident, that is, PW 1 Ramraj, son of the deceased Ram Lachhan, PW 2 Firangi and PW 4 Sudama, who is an injured witness and whose son Rajendra is the other deceased. The High Court doubted the evidence of these eyewitnesses merely on the ground that they had motive in supporting the prosecution case. Legally speaking, we are unable to accept this reasoning. Most of the times eyewitnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eyewitnesses have to be persons who have reason to be present on the scene of occurrence because they happen to be either friends or family members of the victim. The law is long settled that for the mere reason that an eyewitness can be said to be an interested witness, his/her testimony need not be rejected. For the interest which an eyewitness may have, the court can while considering his or her evidence exercise caution and give a reasonable discount, if required. But this surely cannot be reason to ignore the evidence of eyewitnesses. The High Court was clearly in error in not considering the evidence of eyewitnesses at all in the present case for the reason that they were interested witnesses. As seen earlier, one of the eyewitnesses is an injured person who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefrom he received the injuries, would be an obvious question. In fact, PW 4 is also the father of the deceased Rajendra. It is common in villages that male members of a family sleep together in the open during summer season. Sleeping near the tubewell is understandable because that would lend some coolness to the atmosphere. The High Court totally ignored the other aspect of the evidence of the eyewitnesses. That is, the evidence was consistent and the version of the witnesses tallied with each other. In our view, there was no reason to discard the evidence of the eyewitnesses. This evidence is clinching and it clearly implicates the accused persons. There is no reason to doubt the veracity of the evidence of at least PW 1 and PW 4 and that is sufficient to convict the accused persons.

40. Learned A.G.A. relying upon a decision of Hon’ble Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in (2015) 4 SCC 749 has argued that the value of medical evidence is only corroborative. The evidence of concerned doctor is opinion only and on the basis of opinion/medical evidence, the testimony of eyewitness cannot be discarded on the ground of alleged inconsistencies between the oral and medical evidence. Hon’ble Supreme Court in paragraph no. 15, has held as under:-

15. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which are to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”. Where the eyewitnesses’ account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. (See Solanki Chimanbhai Ukabhaiv. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379] (1983) 2 SCC 174 : 1983 SCC (Cri) 379, State of Haryana v. Ram Singh [(2002) 2 SCC 426 : 2002 SCC (Cri) 350] (2002) 2 SCC 426 : 2002 SCC (Cri) 350, Mohd. Zahid v. State of T.N. [(1999) 6 SCC 120 : 1999 SCC (Cri) 1066], State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] and Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )

41. Learned A.G.A. has vehemently argued that the prosecution has proved the charges framed against the appellants on the basis of cogent, credible and reliable evidence. The presence of PW-2 Ismile and PW-3 Bhinnu cannot be doubted on the basis of minor contradictions/inconsistencies appeared in their cross-examination.

42. We have perused the statements of witnesses, who have been produced by the prosecution during the course of trial.

43. PW-1 Nazir Ali is the complainant. PW-2 Ismile is the real cousin brother of deceased Shamin. PW-3 Bhinnu son of Pyare is the independent witness, who was allegedly present at the place of occurrence.

44. PW-1 Nazir Ali is the father of deceased, who has lodged FIR, on the basis of information given by PW-2 Ismile and witness Ram Gopal. PW-1 has specifically mentioned in the written report Ex. Ka-1 that at the point of time of trial of this crime, the case between complainant and appellants was pending and his son Shamin was murdered by the appellants due to this reason. The appellants have stated in their statement recorded under Section 313 Cr.P.C. and relied upon Ex. Kha-1. The appellant Muneem lodged FIR of Crime No. 9 of 1999 against PW-1 complainant Nazir Ali and his sons Ali Tahir and Shamin (deceased) and co-accused Idrish and Raees son of Jhalla for committing murder of real brother of appellant Meera alias Ashmeer. The alleged incident occurred on 15.2.1999 at 4:00 p.m. The photocopy of check FIR Ex. Kha-1 of this crime no. 9 of 1999 has been proved by DW-1 Constable Jai Karan Singh, Pairokar of Police Station Manjhila, District Hardoi. The appellant Muneem son of Rashid Ahmad lodged FIR on 16.2.1999.

45. PW-1 complainant Nazir Ali has proved his written report Ex. Ka-1 by stating that he dictated the FIR to one Mulayam Khan and after listening it appended thumb impression on it. PW-1 Nazir Ali in his cross-examination has accepted this fact that a case for offence punishable under Section 302 IPC was tried against him and his sons Shamin (deceased), Ali Tahir and Khandani co-accused Idrish and Raees. He has also accepted that he and other co-accused persons have been convicted in this crime by the trial court.

46. PW-4 has further stated in his cross-examination that he does not know whether Mehandi Hasan son of Munshi was the scribe and Muneem son of Rashid lodged an FIR and Mehandi Hasan son of Munshi and Meera alias Ashmeer son of Shahzade were the witnesses in this murder trial. He has also stated in his cross-examination that no other person namely, Ali Tahir son of Nazir Ali is residing in his village. The aforesaid family members have been convicted in case of murder of Rashid.

47. He has specifically stated that no case was pending between his family members and appellant Saneel alias Sanda.

48. PW-2 Ismile has also stated in his cross-examination that his uncle Nazir Ali has been convicted for offence punishable under Section 302 IPC and he is detained in District Jail, Pratapgarh. This murder trial was relating to the prior incident occurred long ago. He has further stated in his cross-examination that no case was pending between the appellant Saneel alias Sanda and family members of the complainant Nazir Ali.

49. On the basis of above facts and circumstances, it reveal that Rashid Ahmad was allegedly murdered on 15.2.1999. The appellants have not filed copy of the judgment delivered by the trial court in Sessions Trial of Crime No. 9 of 1999. It is clear from the evidence of PW-1 Nazir Ali and PW-2 Ismile that when their statements were recorded before the trial court on 4.2.2006 and 1.4.2006 respectively, this murder trial of Rashid had already been decided and the complainant and his son Ali Tahir were convicted by the trial court and they were detained in District Jail, Pratapgarh. The complainant Nazir Ali has specifically stated that due to murder of Rashid, his son Shamin was murdered by the appellants on the date of incident on 9.6.2005.

50. The appellants have further relied upon the check FIR lodged against Ali Tahir son of Nazir Ali by Siddiq son of Liyakat regarding incident dated 12.10.1999 occurred at 12:00 noon. Regarding murder Salar Mohammad, who was brother in law of Siddiq. Crime no. 154 of 1999 was investigated by the Investigating Officer and the charge sheet was submitted on 5.11.1999 by the Investigating Officer against Ali Tahir son of Nazir Ali. The result of crime no. 154 of 1999 has not be brought on record by the appellants.

51. The enmity is a double edge weapon. There is possibility of false implication of the appellants in this crime or it is also possible that appellants committed murder of deceased Shamin on the basis of prior incident dated 15.2.1999 in which Rashid Ahmad father of appellant Muneem was allegedly murdered.

52. On the basis of alleged criminal background of the complainant Nazir Ali, deceased Shamin or his brother Ali Tahir and enmity, the evidence of PW-1 Nazir Ali and PW-2 Ismile cannot be discarded outrightly. Their evidence have to be analyzed and appreciated cautiously only.

53. The following exposition of law regarding criminal history of witness is relevant in his regard:-

In the case of Anil Sharma Vs. State of Jharkhand reported in 2004 (5) SCC 679 Hon’ble the Apex Court in paragraph no. 13 has held as under:-

12. It is not that in every case where the witness who had given evidence before court wants to change his mind and is prepared to speak differently, that the court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case, accept it. It is not that the power is to be exercised in a routine or cavalier manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The court ultimately can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.

13. Non-production of documents which the appellants claim would have strengthened the claim of absence of PW 5 cannot in any way dilute the evidentiary value of the oral testimony. Even though the witnesses have been cross-examined at length, no material inconsistency has been elicited to discard the evidence of PWs 5 and 6. One of the pleas which was pressed into service is the alleged relationship of PWs 5 and 6 with the deceased and their criminal antecedents. As rightly noticed by the High Court, on the aforesaid basis the evidence which is found truthful and credible otherwise should not be discarded. The courts have to keep in view that in such matters deep scrutiny is necessary. After having kept these principles in view the trial court and the High Court have found that the evidence when carefully analysed on the whole was credible. After deep scrutiny the courts below have found that there is a ring of truth in the evidence of PWs 5 and 6.

In the case of Dhanraj alias Shera Vs. State of Punjab reported in 2004 (3) SCC 654 Hon’ble the Apex Court in paragraph no. 4 has held as under:-

4. In reply, learned counsel for the State submitted that faulty investigation cannot be a ground to affect the credibility of the eyewitnesses. It is a fairly settled position in law that when witnesses are branded as partisan or inimical, their evidence has to be analysed with care and scrutiny. That has been done in the present case and both the trial court and the High Court have found the evidence to be credible. Even if the investigation was faulty, both the trial court and the High Court have acted only in the permissible way i.e. to weigh the evidence carefully and come to an independent conclusion. As rightly noted by the High Court, the investigation seems to be slipshod. The highly improbable stand that the complainant and his relatives killed the deceased who was their close relative can hardly be accepted even with a pinch of salt. Though the deceased and the complainant had criminal track records, that per se will not affect the evidence of witnesses if it is otherwise credible and cogent. Both the trial court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to investigate the evidence is that of the police and when the police has given a clean chit, that should prima facie be accepted, is clearly without substance.

Hon’ble Supreme Court in Appeal (Crl.) 357-359 of 1998 Firozuddin Basheeruddin Ors vs State Of Kerala (Hon’ble Two Judges) decided on 20.08.2001 has observed as follows:

In para 136 onwards, the learned trial Judge discussed how the involvement of the accused persons other than those found guilty has not been established by the prosecution as beyond reasonable doubt. The learned trial Judge also discussed about the other charges of evidence other than those for which they have been guilty, as noted above, and held them not guilty of such offences. In para 160 of the judgment, the learned trial Judge held that the prosecution had not succeeded in establishing that the accused were guilty of the offences under Section 24 and 27 of the Arms Act.

Summing up his findings under point no.10, the learned trial Judge found A-3, A-4, A-5, A-7, A-9 and A-15 guilty of the offence under Section 120-B of the IPC; also found that A-3, A-4, A-5, A-7 guilty of offence under Section 302 r/w. Section 120-B and 34 IPC. He also found these accused persons guilty of the offence under Section 201 r/w. Section 120-B and 34 IPC. After hearing the accused persons regarding the punishment to be imposed, the learned trial Judge sentenced the accused persons guilty and to undergo imprisonment for life u/s.,120-B IPC; similar sentence under Section 302 r/w.Section 120- B and 34 IPC and to undergo RI for five years under Section 201 r/w.Section 120-B and Section 34 IPC.

The High Court, as appears from the discussions in the judgment, has given a fresh look at the entire case, discussed the case of the prosecution, the evidence of the material witnesses, the relevant documents, contents whereof corroborate the oral evidence in the case and has assessed the prosecution evidence on the touch-stone of the genesis of the case and broad probabilities. The High Court has considered at length how Hamza (deceased) and his associate Aboobacker (PW 8) used to handle the movement of smuggled gold in close association with A-1 and members of his gang. How differences arose between them, how the informations given by them about movement of smuggled gold to the authorities of the Directorate of Revenue Intelligence had led to seizure of the consignment of smuggled gold valued at more than Rs.6 crores; suspecting the deceased and PW-8 as betrayers and deciding to eliminate them. The High Court referred to the relevant evidence in this regard like PW-7 wife of the deceased, PW-44 a trader in Kanhangad, PW-76 an officer of the DRI and placed reliance on the documentary evidence like Exhibits P 26, 27, 43, 44, 45. On the discussions of the evidence on the point, the High Court recorded the finding : The plea of issue of estoppel was rightly repelled and we agree with the correctness of the findings and observations in this regard in paragraphs 53 to 56 of the judgment. We also agree that the court below was right in the light of circumstances and the evidence of PWs 7, 8, 44, 53 and 76 that the first accused Pakistan Abdul Rahiman was the owner of the gold that was seized from the two cars from Thalappady and that seizure was made possible as per the advance information, evidenced by Ext.P 27.

Thereafter the High Court has proceeded to consider in detail the evidence of PW 8 regarding the smuggling activities which the deceased and the witness had carried on jointly with accused no.1 and his associates; after seizure of the consignment of gold the threat to life given by A-1 to the deceased and the witness. In this regard the High Court referred to the evidence of PWs 7, 8, 11, 23 and 44 and has taken note of the part of the prosecution case that the deceased had been kept under a sort of surveillance by some people engaged by AI even in his house. The High Court particularly discussed the evidence of PW 23, a retired Junior Commissioned Officer of the Army, who ran a security agency at Bangalore; whose services were hired for a sum of Rs.40,000/- through accused no.15 for eliminating Hamza (deceased) and has also taken note of the said witness PW 23. However, at the last moment he decided not to shoot Hamza(deceased). The High Court has also discussed the evidence of PWs 7, 8, 99 to show the role played by A2 to 9 and 15 and the activities leading to the incident. …………….

In the aforesaid circumstances, Hon’ble Supreme Court held, which is as follows:

We have perused the judgments of both the Courts below and considered the entire case on the touch-stone of well recognised principles for judging a case of criminal conspiracy. The prosecution has been able to unfold the case relating to the criminal conspiracy to eliminate Hamza (deceased) by placing on record the chain of circumstances. We find that both the trial Court and the High Court discussed the relevant evidence on record taking care to exclude the portions not acceptable and /or tenable in law. The courts below have also been fair in discussing the contentions raised on behalf of the defence in some detail and have given cogent reasons for rejecting the same. We do not find that the judgments of the Courts below suffer from any illegality in the approach to the case or any perversity in appreciation of the evidence on record. We have no hesitation to hold that the judgment of the High Court confirming the judgment/order of the trial Court convicting and sentencing the appellants, does not call for any interference. Accordingly the appeals are dismissed.

54. We have perused aforesaid observations of Hon’ble Supreme Court made in this exposition of law and found that the deceased Hamza was having criminal antecedents. He was invloved in smuggling and was member of gang of smugglers and accused persons eliminated him by hatching conspiracy. The accused persons A-3, A-4, A-5, A-7, A-9 and A-15 were convicted by the trial Court and High Court dismissed the appeal of these accused persons. The criminal antecedent of the deceased were not considered material in case of this precedent.

55. The following exposition of law is also relevant regarding the evidence of inimical, related and interested witness:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the case of Yogesh Singh v. Mahabeer Singh : (2017) 11 SCC 195, Hon’ble Apex Court has observed as under:

Testimony of interested/inimical witnesses

24.On the issue of appreciation of evidence of interested witnesses,Dalip Singhv.State of Punjab[Dalip Singhv.State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26)

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

25.Similarly, inPiara Singhv.State of Punjab[Piara Singhv.State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4)

“4. … It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence.”

26.InHari Obula Reddyv.State of A.P.[Hari Obula Reddyv.State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13)

“13. … 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.”

27.Again, inRamashish Raiv.Jagdish Singh[Ramashish Raiv.Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7)

“7. … The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”

28.A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (SeeAnil Raiv.State of Bihar[Anil Raiv.State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] ,State of U.P.v.Jagdeo[State of U.P.v.Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] ,Bhagaloo Lodhv.State of U.P.[Bhagaloo Lodhv.State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] ,Dahariv.State of U.P.[Dahariv.State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] ,Rajuv.State of T.N.[Rajuv.State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] ,Gangabhavaniv.Rayapati Venkat Reddy[Gangabhavaniv.Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] andJodhanv.State of M.P.[Jodhanv.State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275]

INDEPENDENT WITNESS

50 – The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court inDarya Singhv.State of Punjab[Darya Singhv.State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)

“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”

51.Similarly, inRaghubir Singhv.State of U.P.[Raghubir Singhv.State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.

The Hon’ble Supreme Court in the case of Vijendra Singh v. State of U.P., :(2017) 11 SCC 129 has observed as follows:

30.It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.

31.In this regard reference to a passage fromHari Obula Reddyv.State of A.P.[Hari Obula Reddyv.State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)

“[it cannot] 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 the 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.”

It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court inKartik Malharv.State of Bihar[Kartik Malharv.State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

56. The following exposition of law is also relevant regarding a chance witness:-

In the case of Raju v. State of Maharashtra, reported in (1998) 1 SCC 169 : 1998 SCC (Cri) 296 at page 171 Hon’ble the Supreme Court has held in paragraph no. 6 as under:-

6. This being a statutory appeal we have gone through the entire evidence on record and the judgments of the learned courts below. Having done so we are constrained to say that the disinclination of the trial court to accept the evidence of the two eyewitnesses and, for that matter, the entire prosecution case was not proper. Raju Balwe (PW 4) testified that on the day in question he went to the shop of Gulab Ahuja (PW 12) on Station Road at or about 6 p.m. as he wanted to buy some earthen pots. Accompanied by him they proceeded on a scooter along Rashtrabhasha Road to go to Hind Nagar for the purpose. On the way they saw a number of people present near the Ganesh Temple. They alighted from the scooter and found A-2 beating Ramkrishna with a hockey stick; and after he fell down A-1 picking up a big stone from a nearby heap and dropping it on the leg of the victim. When Ramkrishna raised cries they brought a rickshaw and after putting him in it dragged the rickshaw up to some distance towards the Railway Station. The other eyewitness, namely PW 12, fully corroborated the above testimony of PW 4. Both these witnesses were cross-examined at length but nothing could be elicited in cross-examination to discredit their claim that they had seen the assault. As earlier noticed one of the principal reasons that weighed with the trial court for disbelieving the above two witnesses was their conduct in not disclosing the incident to anyone till they were examined by the Investigating Officer on the following day. In repelling the above criticism the High Court observed:

“All that they had seen was Ramkrishna being beaten in the market place and being removed in a rickshaw on the Station Road. There was no reason for them to apprehend that Ramkrishna must have been killed by Accused 1 and 2. In fact, Ramkrishna died at about 10 p.m., after he was removed to the hospital. The apathy of even the law-abiding citizens in reporting the outrages, to which they were witnesses, is too notorious to merit a mention, and merely because these witnesses had not reported the matter to the police, it would not follow that they were not telling the truth.”

In the absence of anything elicited in the cross-examination to indicate that these two witnesses were interested in the prosecution of the appellants we are in full agreement with the above-quoted observations of the High Court. The other criticism levelled by the trial court that they were chance witnesses is also wholly unmerited for in respect of an incident that takes place on a public road, the passers-by would be the best witnesses. We have, therefore, no hesitation in concluding that the claim of the above two witnesses that they had seen the incident cannot be disputed at all.

Hon’ble the Apex Court in the case of State of Punjab v. Surja Ram, reported in 1995 Supp (3) SCC 419 : 1995 SCC (Cri) 937 at page 424 has held in paragraph no. 13 as under:-

13. Coming now to the third finding it must be said that the High Court ought not to have brushed aside the evidence of Ram Swarup (PW 3) solely on the ground that being a resident of another village it was not expected of him to be present at the spot just at the right time for, there are, besides his own evidence and that of PW 2, other materials on record which confirms his presence at the time of the occurrence. Raja Ram (PW 12) stated in his evidence that Ram Swarup had come to his house in Village Sabuana on 18-4-1982, at or about 6.30 p.m. and gave a detailed version of the incident. He further stated that accompanied by Raja Ram he went to Village Puran Patti on a motor cycle. In cross-examination it was not even suggested to PW 12 that his above statements were incorrect. Another significant fact is that PW 3’s name finds place in the FIR as a witness to the occurrence. We do not, therefore, find any reason to leave the evidence of PW 3 out of our consideration on the ground that he was a chance witness.

57. On the basis of evidence of solitary witness, conviction of any accused can be made, if it is cogent, credible and reliable. The following exposition of law is relevant in this regard:-

In the case of Alagupandi v. State of T.N., (2012) 10 SCC 451 : Hon’ble Apex Court in paragraph nos. 22, 23 and 36 has held as under:-

22.In Govindarajuv.State [(2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533] this Court held as under: (SCC pp. 739-40, paras 23-27)

“23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).

24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand [(2003) 2 SCC 401 : 2003 SCC (Cri) 544] (SCC p. 405, para 10), this Court had classified the oral testimony of the witnesses into three categories:

(a) wholly reliable;

(b) wholly unreliable; and

(c) neither wholly reliable nor wholly unreliable.

In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.

25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.

26. Reference in this regard can be made to Joseph v. State of Kerala[(2003) 1 SCC 465 : 2003 SCC (Cri) 356] and Tika Ram v. State of M.P.[(2007) 15 SCC 760 : (2010) 4 SCC (Cri) 667] Even in Jhapsa Kabari v. State of Bihar[(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.

27. In Jhapsa Kabari [(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy.”

23. In view of the settled position of law, we find that the statement of PW 1 inspires confidence and is truthful and reliable. His statement does not suffer from any material contradictions. On the other hand, it gives a correct eye version of what this witness saw. If PW 1 intended to lie, nothing prevented him from saying that he was also an eyewitness to the scene of stabbing of the deceased by the accused. He only stated that this crime was witnessed by the two minor children of the deceased and he had merely seen the accused running out from the house of the deceased with a knife in his hand. Where a sole witness has stated exactly what he had actually seen and the said statement otherwise fits into the case of the prosecution and is trustworthy, the court normally would not be inclined to reject the statement of such sole witness.

36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (Dattu Ramrao Sakhare v.State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] and Panchhi v.State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] )

In the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150 Hon’ble Apex Court in paragraph nos. 14, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28 and 29 has held as under:-

14. The learned counsel for the appellant contended that the entire case of the prosecution is based on solitary testimony of eyewitness Sopan, son of the deceased. He is thus an “interested” witness. In absence of any corroboration, it would not be safe to place implicit reliance on his testimony who could not have seen the assailant in the dark night. It was further contended that though several persons had come at the place of offence, none was examined except Raju, PW 8, who was also not an eyewitness. It was submitted that oral dying declaration said to have been made by the deceased Ninaji either before PW 8 Raju or PW 7 Dr. Suresh Wagh cannot be relied upon in the light of the fact that the injured was in critical condition and died within a short time. It was finally submitted that even if the case of the prosecution is believed, only a single blow was given by the accused and the case would not be covered under Section 302 IPC but would fall under Section 304 Part II IPC and the order of conviction and sentence requires to be modified.

17.So far as legal position is concerned, it is found in the statutory provision in Section 134 of the Evidence Act, 1872, which reads:

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

18.Let us now consider few leading decisions on the point.

19.Before more than six decades, in Mohd. Sugal Esa Mamasan Rer Alalah v.R. [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] , one M together with his brother Ecaused murder of his half-brother A. The trial court convicted Mand sentenced him to death acquitting his brother E. The conviction was confirmed by the appellate court. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years. The trial court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was not administered. It was contended by the accused that no conviction could be recorded on a solitary witness and that too on an unsworn evidence of a tender aged girl of 10-11 years without corroboration. Considering the question raised before the Judicial Committee, leave was granted. Their Lordships considered the legal position in England and in India. It was held that such evidence is admissible under Indian law “whether corroborated or not”.

21.In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] referring to Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] this Court stated: (AIR pp. 618-19, para 10)

“On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes.”

22.Quoting Section 134 of the Evidence Act, Their Lordships stated (at AIR p. 619, para 11) that

“we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated”.

The Court proceeded to state: (AIR p. 619, para11)

“It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.

The Court also stated: (AIR p. 619, para 12)

“There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.”

23. In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] this Court held that even where a case hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration.

“It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” (SCC p. 807, para 19)

24. In Anil Phukan v. State of Assam [(1993) 3 SCC 282 : 1993 SCC (Cri) 810 : JT (1993) 2 SC 290] the Court observed: (SCC p. 285, para 3)

“Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.”

25. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] referring to several cases, this Court stated: (SCC pp. 619-20, para 7)

“7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.”

26. In Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 : 2003 SCC (Cri) 1377 : JT (2003) 7 SC 270] this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] and reiterating the law laid down therein, this Court stated: (SCC p. 400, para 7)

“The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Evidence Act, 1872 (in short ”the Evidence Act’). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.”(emphasis supplied)

27. Recently, in Bhimappa Chandappa Hosamani v. State of Karnataka [(2006) 11 SCC 323 : (2007) 1 SCC (Cri) 456] this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.

28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than onquantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.

58. On the basis of above exposition of law propounded by Hon’ble Supreme Court, we have examined the evidence of PW-1 Nazir Ali, PW-2 Ismile and PW-3 Bhinnu.

59. PW-1 complainant Nazir Ali is the father of deceased Shamin. He has stated that appellant Meera alias Ashmeer is real cousin brother of Mehandi Hasan. Muneem is nephew of appellant Meera alias Ashmeer. The appellant Shamshuddin is real cousin brother of Meera alias Ashmeer. The appellant Saneel alias Sanda is relative of appellant Meera alias Ashmeer. There was old enmity of PW-1 Nazir Ali with appellants on the basis of pending cases including murder trial of Rashid.

60. PW-1 Nazir Ali has narrated facts of incident dated 9.6.2005 in his written report Ex. Ka-1 on the basis of information given by PW-2 Ismile and witness Ram Gopal, who were companions of the deceased Shamin. They were going on 9.6.2005 at 11:00 A.M. with deceased Shamin riding on his motorcycle to house of his maternal uncle situated at Alamnagar from Shahjahanpur.

61. PW-1 Nazir Ali has stated in his examination-in-chief that witness Ram Gopal and his nephew Ismile alias Guddu were going with the deceased Shamin and reached at culvert of Jhavar, where all the appellants were sitting on the culvert. They stopped motorcycle of the deceased Shamin. His son Shamin, Ismile and Ram Gopal tried to flee away after leaving their motorcycle. In the meanwhile, all the appellants fired shots at the deceased. The deceased expired on the spot. He has further stated that Ram Gopal and his nephew also apprised him that PW-3 Bhinnu resident of Alamnagar was coming from village Salaiya towards place of occurrence and he also witnessed the incident of murder of Shamin. PW-1 complainant has written in his written report this fact also.

62. PW-1 in his cross-examination has disclosed this fact that his son Shamin was residing at Shahjahanpur and he was doing work of dairy. He was residing in the village on the date of occurrence. His in-laws are the resident of village Alamnagar. He has mentioned that his sons were doing work of dairy at Shahjahanpur separately. PW-1 Nazir Ali has also disclosed the topography of the place of occurrence and stated that Rarri Ka Jhavar is situated at a distance of four kilometer from his village Rautapur and Village Kuwarapur is situated at a distance of 7-8 kilometer in the eastern side of place of occurrence. Anyone can reach at the place of occurrence from village Kuwarapur en-route Village Daimai and Village Rarri. Another route for reaching the place of occurrence is from his Village en-route Salaiya, village Sunauva halt and Rarri. One has to cover this distance 10 kilometer for reaching place of occurrence.

Therefore, it reveal from the facts stated by PW-1 in his cross-examination that place of occurrence was situated at such a place, from where, locality of Village Kunwarapur was at a distance of 7-8 kilometer and place of occurrence was situated in vicinity of Village Rarri, which was at a distance of four kilometer from his village Rautapur.

63. PW-1 has also mentioned in his cross-examination that he is an illiterate person. He met the scribe Mulayam Khan at Shahabad and requested him to write his report. PW-1 Nazir Ali has also disclosed topography of Police Station Manjhila from the place of occurrence and stated that first of all one has to go en-route Rarri Alamnagar and Bajariya Bridge of Canal, then from canal by road one can reach at Police Station Manjhila. PW-1 does not know this fact that one can come from Shahjahanpur at Shahabad by Hardoi Road.

64. He has also clarified this fact that, when he was going to the police station, on the way, Mulayam Khan met him, then he along with him reached at the police station Manjhila. PW-1 has proved his written report dictated to scribe Mulayam Khan as Ex. Ka-1.

65. Learned counsel for appellants has argued that PW-1 Nazir Ali has developed this fact that after committing murder of his son Shamin, the appellants/accused persons came in the village and also fire shots again. In the meanwhile, his nephew approached him and apprised about the incident committed by the appellant. These facts were not mentioned in the written report Ex. Ka-1 by the scribe Mulayam Khan on dictation of PW-1 Nazir Ali.

It is relevant to mention here that PW-1 had not remembered that he apprised the Investigating Officer about the facts stated by him in his cross-examination that the appellants fired shots again in the village after committing murder of his son or he saw blood soaked on their hands. He has specifically stated in his cross-examination that he does not remember, whether he apprised the scribe Mulayam Khan about the fact that hands of accused persons/appellants were soaked with blood or not?

66. PW-1 Nazir Ali has stated these facts in reply to question put forth by learned defence counsel, he has not stated these facts in his examination-in-chief, therefore, these facts cannot be termed as improvement of facts by PW-1 Nazir Ali as argued by learned counsel for appellants. Therefore, there is no substance in argument of learned counsel in this regard.

67. PW-1 Nazir Ali has further stated in his cross-examination that the Investigating Officer recorded his statement at 5:00 p.m. on the date of incident at the place of occurrence, when the Investigating Officer brought the dead body of the deceased from the place of occurrence. He has mentioned that at this point of time witness PW-2 Ismile, PW-3 Bhinnu and Ram Gopal were also present. The Investigating Officer also enquired from these witnesses in his presence. He has also stated that PW-2 Ismile only apprised him that accused persons hidden themselves below culvert and committed the present crime.

68. PW-1 Nazir Ali has refuted the suggestion that he was not present in his village and he was at Shahjahanpur on the date of incident and other witness had not apprised him about the incident. He has also refuted the suggestion that accused persons/appellant had not committed murder of his son and he lodged FIR with deliberations and consultations of police personnel.

69. PW-1 Nazir Ali has further stated that he has not dictated this fact to the scribe that Saneel alias Sanda was relative of other co-accused persons. He did not apprise the Investigating Officer in this regard also. A suggestion was given by learned defence counsel to PW-1 and he replied that appellant Saneel alias Sanda is not relative of other co-accused persons.

70. On perusal of statement of PW-1, it reveal that he has proved this fact that he was residing in his village Rautapur Mazra Sahijana. On the date of incident, his nephew PW-2 Ismile alias Guddu and Ram Gopal were companions of his son Shamin (deceased) and they were coming by motorcycle from Shahjahanpur towards village Alamnagar. His nephew PW-2 Ismile apprised him regarding the incident by stating that appellants stopped their motorcycle, Shamin (deceased), Ram Gopal and he tried to flee away from the place of occurrence. In the meanwhile, the appellants shot fires at the deceased Shamin and he expired on the spot.

71. PW-1 Nazir Ali has lodged written report Ex. Ka-1 at police station Manjhila, District Hardoi on 9.6.2005 at 16:30 hours immediately after only five hours, because the incident was committed by the appellants at 11:00 a.m. on 9.6.2005. The place of occurrence Rarri Jhavar Pulia/culvert was situated at a distance of 20 kilometers from Police Station Manjhila. Therefore, sometime might have been consumed by witness PW-2 Ismile and Ram Gopal, when they fled away from the place of occurrence and apprised the complainant PW-1 Nazir Ali in his village Rautapur about the incident. Then PW-1 Nazir Ali proceeded to lodge FIR of the present crime by covering about 24-25 kilometer.

72. As far as learned counsel for appellants has argued that prosecution has not produced Ram Gopal son of Babu Ram as he was an independent witness. It is relevant to mention here that he was summoned by ADGC by moving application dated 20.2.2006 49 Ba/2, and application dated 6.3.2006 49 Ba/3. PW-2 Ismile also moved application 49 Ba/6 mentioning in it that Ram Gopal and Bhinnu (PW-3) were ill. Ram Gopal was again summoned on the basis of application dated 2.5.2006 49 Ba/7 by ADGC and bailable warrants were issued against him.

Therefore, it may be possible that under influence or fear of appellants, witness Ram Gopal did not turn up during the course of trial even after information of summons and bailable warrants was issued against him by the trial court. PW-2 Ismile also moved an application on the basis of his illness. Hence, the concerned ADGC, who conducted proceedings of trial before the trial court has also tried to produce Ram Gopal by getting issued bailable warrants against him.

73. The Investigating Officer has recorded statement of Ram Gopal under Section 161 Cr.P.C. in which he has stated that he at the time of incident, he fled away with PW-2 Ismile and thereafter he returned again along with villagers and PW-2 Ismile, at the place of occurrence.

74. On the point that the the Court is always entitled to look into the case diary, Hon’ble Supreme Court in para-10 of its judgment in the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 SCC 505, has held that, “If the investigating officer did obtain the signature of Nar an intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the CrPC but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary.

75. On perusal of case diary it reveal that witness Ram Gopal has apprised the Investigating Officer about facts narrated/mentioned in the FIR by PW-1 complainant Nazir Ali and supported the prosecution case. He was companion of the deceased and PW-2 Ismile alias Guddu, while the deceased went from Shahjanapur to his maternal uncle’s house situated at village Alamnagar. He was riding on motorcycle of the deceased.

Therefore, there is no substance in argument of learned counsel for appellant that material witness Ram Gopal was withheld by the prosecution. On the other hand, he himself had not cooperated the prosecution during the course of trial.

76. We have perused statement of PW-2 Ismile and PW-3 Bhinnu also.

77. Learned counsel for appellants has submitted and vehemently argued that both these witnesses have given different version regarding incident of the present crime. PW-2 Ismile has stated that PW-3 Bhinnu was grazing his cattle near the place of occurrence, while PW-3 Bhinnu has stated that he was coming from village Salaiya for his village Alamnagar riding on bicycle and reached at the place of occurrence. Likewise learned counsel has argued that on the basis of statement of PW-2 Ismile and PW-3 Bhinnu, the presence of both the witnesses is doubtful.

78. PW-2 Ismile is real cousin brother of Shamin (deceased). He has stated that he knows all the appellants. The appellant Saneel alias Sanda is resident of Madaiya and other appellants are resident of his village Rautapur. PW-2 has stated in his examination-in-chief that he, Mohd. Shamin (deceased) and Ram Gopal were coming riding on motorcycle from Shahjahanpur to Village Alamnagar. They reached near Jhavar culvert situated in vicinity of village Rarri on the date of occurrence at 11:00 a.m. The deceased Mohd. Shamin was driving the motorcycle.

79. PW-2 has further stated that appellants Meera alias Ashmeer, Mehandi Hasan, Muneem, Shamshuddin, Saneel alias Sanda stopped their motorcycle. As and when motorcycle stopped, they all three persons fled away leaving their motorcycle towards southern side. All the appellants were wielding firearms/country-made pistol and shot fires at Mohd. Shamin from his front, who fell down at the place of occurrence after sustaining firearm injuries.

80. PW-2 Ismile has mentioned that he and his companion Ram Gopal ran towards his village and apprised the complainant, who is father of Mohd. Shamin (deceased).

81. On the date of recording of statement of PW-2 Ismile, witnesses Ram Gopal and Bhinnu were not present before the Court, as it is revealed by statement of PW-2 Ismile. He had stated that he was not aware, whether Ram Gopal and Bhinnu came to the court or not on that date?

82. PW-2 Ismile has disclosed that PW-1 Nazir Ali is real brother of Bashir. PW-2 is son of Bashir. Ram Gopal is resident of Shahjahanpur. Mohd Shamin (deceased) resided at Shahjahanpur and he was having a dairy. He has specifically stated in his cross-examination that he does not know witness PW-3 Bhinnu.

83. PW-2 Ismile has mentioned in his cross-examination that on the date of occurrence, he went at Shahjahanpur by motorcycle at 6:00 a.m. and reached there within one and a half hours. The same motorcycle was recovered from the place of occurrence. He was not having a watch, therefore, he could not specifically state that how much time was consumed to take refreshment and after how much time, they proceeded from Shahjahanpur for Alamnagar. But he has clearly stated that when they proceeded from Shahjahnpur, they did not stop on the mid way. They came from Shahjahanpur for Alamnagar en-route Uchauliya and Sunahua halt. He was going with deceased Shamin at his maternal uncle’s House.

84. PW-2 Ismile in his cross-examination has stated about details of incident that all the appellants were sitting on the culvert. They were coming from the northern side, as and when, motorcycle reached near culvert, the appellants were sitting on left side of the culvert. He apprised the Investigating Officer that the place, on which, the appellants were sitting. He has also stated that the appellants stopped their motorcycle. When they were sitting on the motorcycle, the appellants started firing from the front side. The motorcycle fell down in the middle of the culvert. They (all the three persons) tried to flee away towards northern side from culvert.

85. PW-2 Ismile has denied this fact that they stayed at one place and saw the incident. He has specifically stated that the deceased Shamin sustained firearm injuries, while he was sitting on the motorcycle, they (He and Ram Gopal) fled away. He did not see that how many fire shots were made by the appellants and how many fire shots were sustained by the deceased. He ran away and met his uncle Nazir (PW-1) and apprised him about the incident.

86. PW-2 in his cross-examination has further stated that his village Rautapur is situated at a distance of two and a half kilometer from the place of occurrence. He has mentioned that Ram Gopal ran towards village Rarri and stayed there. He has disclosed the distance of village Rarri from the place of occurrence as half kilometer.

87. PW-2 Ismile has also stated that when he apprised PW-1 complainant Nazir Ali, he and other persons ran towards Jhavar culvert. He has mentioned that when he reached at village Rautapur, the appellants also reached in the village. He saw the appellants and found that their clothes and hands were soaked with blood. He apprised the Investigating Officer that the appellants came en-route/ way which passed in front of house of the complainant.

88. PW-2 Ismile has further elaborated enmity between the complainant and the appellants on the basis of murder of Village Head Rashid and this enmity become much graver due to this incident. Therefore, family members of the complainant including deceased Shamin shifted to Shahjahanpur.

89. PW-2 has specifically stated that after the incident, he and Ram Gopal again reached at the place of occurrence. Sub Inspector also came there at 2:00 p.m. He met the Sub Inspector, who recorded his statement. The Sub Inspector also recorded statement of witnesses Ram Gopal and Bhinnu. He has further stated that the dead body of the deceased was lying on the place of occurrence up to 6:00 p.m., then it was sealed and Sub Inspector brought it at the police station. Nazir Ali also went with him at the police station.

Since PW-2 Ismile has specifically stated that he did not go along with dead body of deceased at police station. Therefore, his statement given in his cross-examination that inquest proceedings were conducted at the place of occurrence and dead body was sent from the police station in the morning for Hardoi and dead body was sealed at the police station are of no avail.

It is pertinent to mention here that he has also stated that he came to know about these facts in the village. He has further stated that Nazir and his family members were weeping at the place of occurrence. He has further stated that he did not see the appellants in the village after the incident. He has mentioned that police personnel reached at the place of occurrence first, then Nazir and Mulayam Khan son of Shakkar Khan reached there. He has accepted that Mulayam Khan is his relative.

90. Learned counsel for appellants has pointed out that PW-2 Ismile has stated in his cross-examination that when Mulayam Khan reached at the place of occurrence, police personnel dictated FIR to him. He wrote it and Nazir Ali appended his thumb impression.

91. On perusal of inquest proceedings Ex. Ka-18, it reveal that Puttu, Abdul Gafoor, Raees, Siddiq and Idrish are the witnesses of the inquest proceedings. PW-2 Ismile was not the witness of inquest proceedings. He has stated that he came to know about the inquest proceedings in the village. Therefore, his presence at the point of time of inquest proceedings conducted by the Investigating Officer is not revealed on the basis of his previous statement given in the cross-examination. Therefore, his statement is of no avail that police personnel dictated FIR of scribe Mulayam Khan and Nazir only appended his signatures. Perhaps he has given this statement carelessly.

92. PW-1 Nazir has specifically stated that he met Mulayam Khan. His written report (Ex. Ka-1) was prepared by Mulayam Khan, who wrote in it the fact, which were dictated by him and, then he appended his thumb impression on it. During cross-examination, PW-1 Nazir Ali has also clarified this fact that he was going for police station when scribe Mulayam Khan met him on the midway. In these circumstances, statement of PW-2 Ismile in this regard does not extend any benefit to the appellants. On the other hand his evidence inspires confidence and credibility.

93. He has refuted the suggestion that he did not see anybody assaulting the deceased and on someone advice, he was adducing his false evidence.

94. PW-2 in his cross-examination conducted by learned defence counsel on behalf of co-accused/appellant Saneel alias Sanda has mentioned that Saneel alias Sanda is resident of village Bhedaiya and Bhedaiya Lamhara and Rautapur are Mazra of Village Sahijana. Therefore, appellant Sanil is also resident of neighbouring village of Rautapur.

95. PW-2 Ismile does not know Guddu son of Saifulla resident of Lamhara and Guddu contested election of Village Head against wife of Haseen. He has no knowledge that family members of appellant Saneel alias Sanda opposed wife of Haseen in this election. PW-2 Ismile has specifically stated that he never visited village Bhedaiya nor visited it after the incident.

96. Learned defence counsel has cross-examined PW-2 Ismile regarding the fact that appellant Saneel alias Sanda assaulted his mother ten years ago. He was not present at the place of occurrence of this incident, although he came to know about this incident afterwards and conduct of appellant Saneel alias Sanda was not appealed to him.

97. Learned counsel for appellants relying upon this statement has submitted that appellant Saneel alias Sanda has falsely been implicated in this crime due to the incident committed by him with mother of PW-2 Ismile. On the basis of statement of PW-2 Ismile regarding his feeling about this incident, it cannot be said to be the basis of his false implication, because that alleged incident occurred ten years ago and it was not reported to the concerned police personnel. No cross-examination was conducted by learned defence counsel in this regard in details. Therefore, cross-examination in this regard does not extend any benefit to appellant Saneel alias Sanda.

98. PW-2 has mentioned that he was having two buffaloes and doing work of selling milk in the village. He has specifically stated that he did not sell milk outside the Village. He has further stated that he brought motorcycle of the deceased Shamin 2-3 days prior to the incident. He apprised the Investigating Officer in this regard that on the date of incident, he went Shahjahanpur to return back motorcycle to the deceased. He has disclosed this fact that he or his any other family member was not owing motorcycle.

99. As per prosecution case, he has supported this fact in his cross-examination that “Nansal” of deceased Shamin was in Village Alamnagar. He has refuted the suggestion that on the date of incident, he was not present in Shahjahanpur and was not returning back with the deceased Shamin and he did not see the alleged incident of murder of the deceased. He has also refuted the suggestion that he was adducing false evidence and appellant Saneel alias Sanda was implicated in this crime due to enmity of election of Village Head.

100. On the basis of statement of PW-2 Ismile, examination-in-chief and cross-examination, facts and circumstances, narrated in the FIR Ex. Ka-1 by PW-2 Nazir Ali, got corroboration that on the date of incident, PW-2 Ismile was coming from Shahjahanpur for village Alamnagar along with deceased Shamin and Ram Gopal. The appellants met them at culvert of Jhavar in vicinity of village Rarri. This route was followed by the deceased from Shahjahanpur for Village Alamnagar. The place of occurrence was situated on the way en-route Uchauliya and Sunahua Halt.

101. PW-2 Ismile has further proved that the appellants stopped motorcycle of the deceased, on which PW-2 Ismile and witness Ram Gopal were pillion rider. All the appellants started firing from the front of deceased Shamin. In the meanwhile PW-2 Ismile and witness Ram Gopal including deceased Shamin tried to flee away from the place of occurrence. PW-2 Ismile and Ram Gopal were successful, but the deceased Shamin sustained firearm injuries and succumbed to these injuries at the place of occurrence. The statement of PW-2 Ismile that witness Ram Gopal stayed in Village Rarri may be the result of loss of memory, because his statement was recorded on 1.4.2006 after ten months.

It is relevant to mention here by PW-2 Ismile in his cross-examination has specifically stated that when Ram Gopal and family members of the deceased reached at the place again, all the appellants passed through the way in front of the complainant’s house. It may be possible that PW-1 Nazir and PW-2 Ismile after ensuring that the appellants had returned back in village Rautapur after committing the incident, which was apprised by PW-2 Ismile to PW-1 Nazir Ali, then they again visited the place of occurrence and found the deceased Shamin dead.

Therefore the presence of PW-2 Ismile cannot be doubted only on the basis of his statement given in his cross-examination that witness Bhinnu was grazing his cattle at nearby place i.e. the place of occurrence. He has specifically stated in his cross-examination that witness Ram Gopal and PW-3 Bhinnu were present at the place of occurrence. The Investigating Officer/S.I. visited the place of occurrence at 2:00 p.m. and recorded his statement and statements of witnesses Ram Gopal and PW-3 Bhinnu.

There is no substance in the argument of learned counsel for appellants in this regard that PW-2 has given contradictory version of incident of this crime in comparison to witness PW-2 Bhinnu.

102. We have perused statement of PW-3 Bhinnu son of Pyare, who is resident of Alamnagar. He has stated in his examination-in-chief that he knows accused Meera alias Ashmeer, Mehandi Hasad, Muneem, Shamshuddin and Sanil and Sanda. He has further stated that he was coming from Salaiya for Alamnagar at 11:00 a.m. when he reached on the northern side of culvert of Jhavar in vicinity of Rarri, he saw all the appellants when they were wielding firearm country-made pistols and shot fire at deceased Shamin and who fell down and expired on the spot. He also saw that Shamin was coming riding on motorcycle and Ismile and Ram Gopal were pillion rider. PW-3 has further stated that Saneel alias Sanda is resident of Bhadaiya and remaining appellants are resident of Rautapur.

103. Learned counsel for appellants has submitted that PW-3 Bhinnu is the resident of village Alamnagar. He is a chance witness and his presence at the place of occurrence is doubtful. There is material contradiction in statement of PW-2 Ismile and PW-3 Bhinnu, which makes prosecution version suspicious. It is also submitted that PW-3 Bhinnu was allegedly returning back from village Salaiya for his village Alamnagar. He has not proved the circumstances, in which, he went in village Salaiya for what purpose.

104. It is also pointed out by learned counsel for appellants that PW-2 Ismile has stated that the Investigating Officer recorded statement of PW-3 Bhinnu and has further stated that Sub Inspector met him on the road and also in his village at house of Ex-Village Pradhan Zaheer. At this point of time, he had no conversation with Sub Inspector and afterwards he never met the Investigating Officer.

105. PW-3 Bhinnu in his examination-in-chief has specifically stated that Sub Inspector recorded his statement. In his cross-examination also, he has corroborated statement of PW-2 Ismile by stating that he was present at the place of occurrence and Investigating Officer recorded his statement along with statement of witness Ram Gopal. He has stated that he met the Sub Inspector on road after the dead body of the deceased was sealed by him in the evening on the date of incident. Likewise, PW-3 has also stated that Sub Inspector had also met in his village at house of Ex Village Head Zaheer. His statement that he had no conversation with the Sub Inspector is related to the point of time, when Sub Inspector was taking tea at the house of Village Head Zaheer. He has also stated in this regard only that afterwards Sub Inspector did not meet him.

106. PW-3 Bhinnu has specifically stated that at this point of time, the Sub Inspector did not ask him about anything and he had also not apprised him anything at house of Zaheer. Therefore, cross-examination conducted by learned defence counsel in this regard is of no avail. On the basis of these facts, his presence at the place of occurrence cannot be doubted.

107. PW-3 Bhinnu in his cross-examination conducted by learned defence counsel on behalf of the appellant Shamshuddin has stated that he was coming from village Salaiya for his house on the date of incident. He proceeded from village Salaiya at 10-10:30 p.m. The Village Salaiya was situated at a distance of 5 kilometer from the place of occurrence. He has refuted the suggestion that he was not coming from village Salaiya on the date of incident and he did not see any incident and he was adducing false evidence.

108. Learned defence counsel has not cross-examined PW-3 Bhinnu in this regard that for what purpose and when he went in village Salaiya and in which circumstances, he was returning back his home. He has also refuted the suggestion that daughter of Basheer, (who is cousin sister of the deceased Shamin) was married to cousin brother of PW-3 (who is Shamin son of Chhote). He has specifically stated that Shamin son of Chhote is not his cousin. Therefore, PW-3 Bhinnu was not related to the deceased Shamin.

109. PW-2 Ismile has stated in his cross-examination conducted by learned defence counsel on behalf of other appellants that Village Rautapur and village Bhedaiya are Mazra Village Sahijana, Village Bhedaiya was situated at a distance of two and a half kilometer from his village. He knows appellant Saneel alias Sanda and his father. He has no knowledge that there was any partibandi in his village and he was having a dispute with Village Head.

Therefore, PW-3 witness Bhinnu is also resident of village Alamnagar, which is situated nearby i.e. at a distance of five kilometer from the place of occurrence. He was returning back from Village Salaiya to his village Alamnagar on the date of incident, while he reached at the place of occurrence. Therefore, it cannot be said that PW-3 Bhinnu was a chance witness, because Bhinnu is resident of Village Alamnagar in which maternal uncle of the deceased had resided. “Nansal” of Shamin deceased was situated in his village Alamnagar. The Village Bhedaiya of appellant Saneel alias Sanda and village Rautapur of other appellants and the deceased are situated near approachable/distance from place of occurrence. PW-3 Bhinnu knows all the appellants and appellants have not claimed their identification during course of trial or investigation.

110. As far as PW-2 Ismile has stated that witness PW-3 Bhinnu was grazing cattle near the place of occurrence/culvert of Jhavar cannot be considered to affect prosecution adversely, regarding the presence of PW-3 Bhinnu at the place of occurrence. Because PW-2 Ismile has stated in his cross-examination that he does not know witness Bhinnu. But he has specifically stated that the Investigating Officer recorded statement of PW-3 Bhinnu at the place of occurrence while his statement also recorded by the Investigating Officer.

111. PW-3 in his cross-examination has stated that in-laws of Nazir are resident of his village. The daughter of Mahange was married to Nazir (PW-1). Now no body is available in family of his in-laws, brother in law of Nazir had expired prior to date of present incident. They were not having any issues.

112. PW-3 Bhinnu has further stated that when he was at a distance of 60-70 meters from the place of occurrence and was coming riding on cycle, he saw the incident. For the first time, he saw that suddenly firing started there and all the appellants had surrounded the deceased Shamin. He could not see, who fell down, 5-6 fires were shot by the appellants. He also saw all the appellant, while they were going towards their village after committing murder of the deceased.

113. PW-3 Bhinnu has mentioned that he saw Shamshuddin and Mehandi Hasan while they had wielded country-made pistol. He has also stated that the scuffle was going on footpath of Damar Road. The appellants fired shots from nearby places at the deceased. He has refuted the suggestion that he has stated regarding this incident of scuffle and firing, falsely.

114. PW-3 Bhinnu has further stated in his cross-examination that he did not apprise to Sub Inspector the place from where he saw the incident. But he has specifically stated that PW-2 Ismile was standing on the southern side from him. He does not know at which place PW-2 Ismile was standing. PW-2 Ismile and other persons came after 10-12 minutes after the incident. He stayed at the place of occurrence until Ismile and Bhinnu and other persons stayed there i.e. the place of occurrence, then he returned back home. He has refuted the suggestion that he did not see the incident and he was adducing his evidence being relative of the deceased.

115. On the basis of examination-in-chief and cross-examination , the presence of PW-3 Bhinnu at the place of occurrence cannot be doubted. He has narrated details of the incident, in which, he saw that appellants fired 5-6 shots at the deceased Shamin. As far as he has stated in his cross-examination that PW-2 Ismile was standing on the southern side of the place, where he was standing, this statement is related to the fact that PW-2 Ismile and other persons came after the incident i.e. after ten-12 minutes. The witness PW-3 Bhinnu is stating in this regard, on the basis of his observation about the incident. It is relevant to mention here that his statement has been recorded after a considerable span of time before the trial Court. His statement has been recorded by the trial court on 30.5.2006. The murder of the deceased Shamin was committed by the appellants on 9.6.2005 at 11:00 a.m. in broad-day light, which was witnessed by PW-2 Ismile and PW-3 Bhinnu.

116. It may be fault of the Investigating Officer PW-9 Sub Inspector Jay Prakash Shukla that he had not mentioned in Site Plan (Ext Ka-17) the place, from where, PW-3 Bhinnu saw the incident or from which place, PW-2 Ismile and witness Ram Gopal fled away, leaving Motorcycle, when the appellants started firing at the deceased Shamin by leaving Motorcycle. PW-9 the Investigating Officer Sub Inspector Jay Prakash Shukla has also not mentioned in Site Plan (Ext ka-17), at which place, PW-2 Ismile and witness Ram Gopal reached again at the place of occurrence, where PW-3 Bhinnu saw them, while they were standing on the place of occurrence, as disclosed by him in his cross-examination.

117. It is relevant to mention here that the Sub-Inspector Subhash Chandra Tiwari PW-5 has stated in his cross-examination that he recorded statement of witness Bhinnu on 22.06.2005. PW-2 has disclosed this fact that his statement was recorded by the Investigating Officer at the place of occurrence on the date of incident. The witness Bhinnu PW-3 and witness Ram Gopal also reached there, where Sub Inspector recorded their statements. It may be possible that Investigating Officer PW-9 Sub-Inspector Jay Prakash when inspected the place of occurrence and prepared Site Plan (Ext Ka-17) also enquired from witness Bhinnu, but afterwards Sub Inspector Subash Chandra Tiwari PW-5 recorded his statement under Section 161 Cr.P.C. on 22.06.2005.

118. It is also relevant to mention here that PW-9 has stated in his examination-in-chief that he inspected the place of occurrence and prepared Site Plan (Ext Ka-17). He took in his possession one empty shell from the place of occurrence and prepared recovery memo (Ext ka-24).

119. On perusal of recovery memo (Ext Ka-24) it reveal that PW-9 Jai Prakash Shukla, Investigating Officer collected two empty shell of cartridge of 315 bore and three empty shell of cartridge of 12 bore. Therefore, he has carelessly stated in his statement/examination-in-chief in this regard.

120. PW-9 Investigating Officer also took in his possession Cycles of the appellants and prepared recovery memo (Ext Ka-25) on the date of incident. He also collected plain and blood stained soil from the place of occurrence and prepared recovery memo (Ext Ka-26). PW-9 has also took in his possession Motorcycle of the deceased and prepared “supurdgeenama” (Ext Ka-27) in favour of his father Nazir Ali. PW-9 has also proved this fact that he prepared Site Plant (Ext Ka-28), on direction and dictation of Station House Officer, regarding discovery of firearms on pointing out of appellants.

121. PW-9 has also stated that on the same date 09.06.2005 he recorded statement of witness Ram Gopal Yadav, Ismile @ Guddu (PW-2). He conducted inquest proceedings of dead body of the deceased Mohd. Shamin and prepared inquest report and documents i.e. Chalanlash, Photolash, letter to C.M.O., letter to R.I. and sample of seal in his hand writing and signature and proved as Ext Ka-18 to Ka-23. The present crime was registered in presence of PW-9 at Police Station Manjhila and he proceeded for the place of occurrence after 15-20 minutes.

122. Although, in his cross-examination he has stated the he did not recorded statement of witnesses Ismile (PW-2), Ram Gopal and Bhinnu at the same time, but he has recorded statement of Ismile and Ram Gopal on the date of incident i.e. 09.06.2005 itself. He has stated that witness Ismile (PW-2) did not apprise him that witness Bhinnu was grazing cattle at the place of occurrence. He has further stated that he has not recorded statement of witness Bhinnu.

123. PW-9 in his cross-examination has stated that after conducting inquest proceedings of dead body of the deceased, he proceeded from the place of occurrence for search of appellants. He has further stated that the complainant Nazir Ali did not apprise him that Ismile informed him the fact that appellants were hidden below culvert. Ismile also did not apprise him that appellants were sitting on the culvert. He has specifically stated that witness Ismile or any other witness did not apprise him the place where appellants were sitting on the place of occurrence.

124. PW-9 in his cross-examination has also stated that complainant Nazir did not apprise him that appellants also made firing in the village and he saw blood on their hands. He has accepted this fact that he recorded statement of PW-1 Nazir Ali at police station. He could not remember the time when he recorded his statement. He has specifically denied and stated that he did not record the statement of Nazir Ali at 5.00 p.m. He has also denied this fact that dead body of the deceased was brought by him at police station, but he has stated that he sent dead body to the Civil Hospital. He has further stated that the complainant Nazir Ali did not visit the police station in the morning and until this time dead body was present at the police station.

125. PW-9 has stated in his cross-examination that at place marked with “B” Motorcycle of the deceased was found by him and at place marked with “C” and “D” cycles of appellants were lying in the “Jhaver”. He has clarified this fact that he prepared Site-Plan on pointing of complainant Nazir Ali. He has not shown the place situated in “Jhaver”, from where, he took in his possession Cycles of appellants. He also has not shown the place, from where, witnesses saw the incident and from where appellants fired shots. He has also specifically stated that bullets, wad of cartridges/tikli were not found by him on the place of occurrence. But he has stated that he took in his possession three empty shells of cartridges of 12 bore and two empty shells of cartridges of 315 bore.

126. The carelessness of PW-9 is apparent from perusal of his statement. The following case law of Hon’ble Supreme Court is relevant regarding preparation of Site Plan and its evidenciary value, which are as follows:

In the case of Prithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 2729 the Hon’ble Apex Court has observed in para 17 and 19 as under:

17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan.

Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] , SCC at p. 64, para 8, that:

“The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused.”

19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.

In the case of Raghuraj Singh and Ors. Vs State of U.P reported in 1996(20) ACR(R) 409 a Division Bench of this Court at Allahabad in paragraph no. 12 and 19 has held as under:-

12.the learned Counsel for the Appellants,pointed out to the defects of the prosecution and investigation done in the case. He submitted that the blood-stained soil was not sent for opinion of the Chemical Analyst which admittedly was taken by the I.O. Similarly, the blood-stained knife said to have been left at the place of occurrence was recovered by the I.O. It was neither sent for opinion by the Chemical Examiner nor the knife was shown to the witness P.W. 4 Dr. Vijal Pal Singh who had conducted the post-mortem examination. The guns of Raghunath Singh and Raghu Raj Singh, accused persons, were not seized during the investigation nor the empty cartridges recovered at the place of incident was sent to the Ballistic Expert to ascertain that the empty cartridges recovered were fired from the gun of the accused Raghuraj Singh and Raghunath Singh. He also pointed out that pair of shoes of the accused person, as stated by the witness, was not proved to be of the present Appellants or Raghunath Singh, co-accused deceased. It was necessary for the prosecution to have proved that the shoes recovered at the place belong to some of the accused persons which could have fixed clinchingly that a particular accused person was present at the time when the incident took place. He also submitted that no application was moved by the prosecution to ask any of the accused persons to wear the shoe to show that they belong to him.

19. The learned Counsel for the Appellants submitted that the investigation in this case was defective. The points of defect in the investigation are narrated in the earlier part of the judgment itself. He submitted that on account of the non-seizure of the guns of the accused persons, said to have been used in the commission of the offence, not getting the opinion of the Ballistic Expert in respect to the cartridges found at the spot which could have been obtained from the Ballistic Expert after getting the opinion about the guns of the accused persons had it been seized. The learned Counsel further submitted that the blood-stained soil recovered from the place of occurrence was not sent to the Serologist for his opinion that it was the human blood. The failure of the prosecution to adduce evidence and investigate on the aforementioned points, in our opinion, does not constitute any ground for disbelieving the eye-witnesses who are not simply eye-witnesses but also injured witnesses. Had the prosecution examined the blood-stained soil and proved it to be stained with human blood by the Serologist and getting an opinion from the Ballistic Expert to show that the empty cartridges recovered at the place were used and fired with guns of the accused persons, had the gun of the accused Appellants seized and recovered. Had the prosecution investigated the case and obtained Ballistic Expert opinion and opinion of the Serologist that the incident did take place at the place as set up by the prosecution. If that evidence would have been procured and adduced in the case, that would have further strengthened the prosecution case. In the absence of those evidence, the prosecution case is proved by other injured witnesses and the evidence of the Doctor who conducted the postmortem examination and he proved the injuries of the injured witnesses. Their presence have been proved at the place of incident at the relevant time. The omission of non-investigation of the case on the lines suggested would not sufficient to discard the prosecution evidence and the witnesses.

In the case of Naurangi Vs. State of U.P., reported in 1996 CrLJ 81, a Division Bench of this Court at Allahabad in para 7,8 and 16 has held as under:

7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father’s licensed gun and had come out in the open space.

8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the ‘Rabat’ along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.

16 . We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained soil was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, : 1992CriLJ3584 . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.

In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon’ble Apex Court in para 4, 8 and 11 has observed as under:

4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.

8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained soil at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the soil.

11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor’s evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

In the case of Sewak Vs. State of U.P. reported in 1995 ALJ 987 Allahabad, the Allahabad High Court has held in Para 8 and 11 as under:

8. It has been contended on behalf of the appellant that the rape was not Committed by the appellant on the prosecutrix but that it was one Hanif who was working in the Forest Department who had actually committed rape on the prosecutrix but in order to save himself and his service, he maneuvered to get involved the appellant for the commission of rape. It has also been urged on behalf of the appellant that the manner in which the rape is said to have been committed by the appellant appears much too improbable, inasmuch as the appellant would not succeed in accomplishing the act with one of his hands placed on the mouth of the prosecutrix. It was further contended that the medical evidence does not support the commission of rape on the prosecutrix and that the spots of semen found on the Petticoat and Dhotti of the prosecutrix were not sent for chemical examination. The learned counsel for the accused-appellant, therefore, strenuously contended that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. Sentence of fine imposed on the appellant, was also said to be severe.

11. It has been further contended that the stains of semen which are said to have been found on the petticoat of the prosecutrix were not sent for chemical examination. The learned Additional Sessions Judge has rightly commented on this lapse of the investigating agency and has further rightly observed that this lapse of the investigating agency would not furnish the sole ground for rejecting the prosecution case. I agree with the learned Additional Sessions Judge on this score.

It is relevant to mention here that site plan prepared by Investigating Officer is not a substantive piece of evidence as held by Hon’ble the Supreme Court in the case of Jagdish Narain Anr vs State Of U.P reported in JT 1996 (3) 89, Hon’ble Apex Court in paragraph no. 9 has held as under:-

9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former’s evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court in Tori Singh v.State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580]. In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:

“… the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.”

In the case of State Of U.P vs Babu And Ors reported in 2003 (11) SCC 280, Hon’ble Supreme Court in paragraph no. 5 has held as under:-

5. A bare perusal of the High Court’s Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short ‘Cr. P.C.’). The position is no different in case of site plan.

127. We have perused Site Plan (Ext Ka-17), the details of which has been proved by PW-9 in his cross-examination. PW-9 has mentioned place marked “A”, where dead body of the deceased Mohd. Shamin was found and where the appellants fired shots by their country made pistol. He has marked the place “XX”, from where, he collected empty shells of two cartridge of 315 bore and three empty shells of cartridge of 12 bore. Therefore, sufficient particulars has been mentioned by PW-9 in Site Plan (Ext Ka-17). He took in his possession Motor Cycle of the deceased and Cycles of the appellants from the place of occurrence, from place marked B, C and D.

128. On the basis of fault committed by PW-9 Sub Inspector Jay Prakash Shukla the prosecution cannot be affected adversely, on the basis of fact that he has not mentioned in Site-Plan, the place, at which, witness PW-3 Bhinnu was present or from which/place PW-2 Ismile and Ram Gopal fled away and returned back again at the place of occurrence. There is no substance in argument of learned counsel for the appellants in this regard.

129. PW-9 has further stated in his cross-examination that he has also mentioned in the relevant column of inquest report (Ext Ka-18), from where, he collected the aforesaid shells from nearby place of dead body.

130. It may be fault of PW-9 that he had not mentioned the time in Case Diary regarding proceedings conducted by him during course of investigation. Likewise, he had not verified ownership of the Motorcycle. He has refuted this suggestion that he did not record statements of witnesses on the date of incident and recorded false and fabricated statements of witnesses. He has also refuted this suggestion that he prepared wrong Site Plan of the place of occurrence and F.I.R. was lodged with deliberation and consultation of police personnel ante-timed.

131. Some faults were committed by PW-9 during the course of investigation, which is, apparent from his statement given carelessly during course of trial and on the basis of these faults, the prosecution cannot be affected adversely or presence of PW-2 Ismile and PW-2 Bhinnu cannot be doubted.

132. PW-9 has refuted this suggestion that when he conducted inquest proceedings Check F.I.R. was not available with him. He has also stated in his cross-examination that he firstly prepared recovery memo of empty shells of cartridges, then plain and blood stained soil was collected by him from the place of occurrence, and he conducted inquest proceedings of dead body.

133. Learned counsel for the appellants has pointed out that distance of police station from the place of occurrence is mentioned in check F.I.R. (Ext Ka-13) 20 Kilometers, whereas PW-9 has disclosed this distance 22 Kilometers.

134. We have perused check F.I.R. (Ext Ka-13) and check F.I.R. (Ext Ka-15). It may be possible that the concerned police personnel also provided copy of check F.I.R. (Ext Ka-15) to PW-9, but he did not peruse check F.I.R. (Ext Ka-13), which was registered regarding present crime No. 146 of 2005 under Sections 147, 148, 149 and 302 I.P.C. The distance 20 Kilometers as mentioned in check F.I.R. (Ext Ka-13) regarding place of occurrence from the police station, whereas distance 22 Kilometers is mentioned regarding place, from where, discovery of firearms was made by police party of Station House Officer Subhash Chandra Tiwari-PW-5 i.e. “Siddh Baba ki Kothri” in vicinity of village Sahjana i.e. place of arrest and discovery of firearms on pointing out by the appellants from police station.

Therefore, no material contradiction appears in the statement of PW-9 regarding entries of check F.I.R. and inquest report. On the basis of this fact, check F.I.R. (Ext Ka-13) of present case cannot be termed as ante timed. There is no substance in arguments of learned counsel for the appellants in this regard.

135. PW-8 Head Constable Virendra Kumar Pandey was posted as Head Moharrir on 09.06.2005 at Police Station Manjhila. He has stated that he prepared check F.I.R. (Ext ka-13) and G.D. (Ext Ka-14) of registration of crime, on the basis of written report submitted by the complainant, he has proved check F.I.R. of offence punishable under Section 3/25 Arms Act as Ext Ka-15 and G.D. (Ext Ka-16), which was prepared by him on the basis of recovery memo dated 14.06.2005 submitted by police personnel including PW-5, the then Station House Officer.

136. PW-8 witness Constable Virendra Kumar Pandey has disclosed this fact that check F.I.R. was received in Court of C.J.M. on 18.06.2005. He sent special report on 09.06.2005 to the higher superior authority and check F.I.R. was sent by “dak” on 09.06.2005 itself, when check F.I.R. (Ext Ka-13) was prepared by him. PW-8 has refuted this suggestion that check F.I.R. was not written by him on the actual time and it was prepared by him ante-timed.

137. No material contradiction was elicited during cross-examination of PW-8 and on the basis of this fact that F.I.R. was received in the Court of C.J.M. on 18.06.2005, F.I.R. (Ext Ka-13) cannot be termed as ante-timed. It is pertinent to mention here that learned defence counsel has not conducted cross examination on the basis of dispatch register of C.O. office, when it was received in C.O. office and when C.O. office sent it to the Court of C.J.M.

138. The witnesses PW-5 Sub Inspector Subhash Chandra Tiwari and PW-6 Constable Ram Kumar Pal have adduced their evidence regarding discovery of firearms on pointing out by the appellants according to provision of Section 27 of Indian Evidence Act. PW-5 Sub Inspector Subhash Chandra Tiwari was posted as Station House Officer of police station Manjhila on 11.06.2005. He has stated that earlier Jay Prakash Shukla was the Investigating Officer and he took over investigation on 11.06.2005. He searched the appellants on 12.06.2005 and 13.06.2005.

139. PW-5 has further stated that on 14.06.2005 he was busy along with Sub Inspector Jay Prakash Shukla, Constable Ram Kumar Pal, Constable Ram Prasad Mishra and Constable Suraj Kumar Yadav. In search of appellants, they reached in village Muradpur. The informer informed him that appellants were present in bushes, which were situated near Kothri of Siddh Baba. Constable Ram Kumar Pal, PW-6 has corroborated statement of PW-5 in this regard that informer gave information regarding the appellants on 14.06.2005.

140. PW-5 and PW-6 have further stated that they took assistance of witnesses Naseem and Ashmool for witnessing the arrest of the appellants. PW-5 and PW-6 reached at place of arrest of appellants along with there witnesses and members of police party at 4.30 p.m.. The appellants were arrested from bushes at a distance of 30 paces. The appellants Meera @ Ashmeer, Muneem, Samsuddin and Saneel @ Sanda apprised the police party their names and confessed that they had murdered Shamin on 09.06.2005. They had also apprised the police party and gave information about the place, where they had hidden firearms used by them to commit murder of the deceased.

141. On the basis of information given by the aforesaid appellants, PW-5 and PW-6 along with their police party and public witnesses reached near under-construction/semi -constructed mosque, which was situated on Southern side of village Rautapur. The appellants Meera and Muneem took up plastic bag from “bathia” of dungs and Meera @ Ashmeer picked up one country made pistol and two cartridges and Muneem picked up half-country made (addhhi) pistol of 315 bore and two cartridges from inside of bags.

142. The witnesses PW-5 and PW-6 has also stated that the appellants Samsuddin and Saneel @ Sanda took up another plastic bag from the place, which was situated at two paces from first discovery. The appellants Samsuddin picked up country made pistol 12 bore and two cartridges and appellant Saneel @ Sanda picked up a country made pistol of 315 bore and two cartridges 315 bore from inside of bag and apprised the police party that they committed murder of the deceased Mohd. Shamin by using these firearms on 09.06.2005. PW-5 dictated recovery memo to Sub Inspector Jay Prakash Shukla PW-9. The recovery memo has also been proved by PW-5 and PW-6.

143. PW-5 and PW-6 submitted country made pistols and cartridges along with recovery memo (Ext Ka-3) at police station and crimes under Section 3/25 Arms Act were registered against the appellants. PW-5 Sub Inspector Subhash Chandra Tiwari has conducted investigation of present crime of murder of the deceased. PW-5 recorded statement of witnesses Naseem and Ashmool on 17.06.2005 and PW-7 S.I. Prem Shanker Katiyar recorded statement of Naseem and Ashmool on 16.06.2005.

144. These witness Naseem and Ashmool witnessed discovery of firearms and cartridges, relating to offence punishable under Section 3/25 Arms Act on pointing out by the appellants. PW-7 the Investigating Officer also recorded statement of appellant Menhdi Hasan and Sub Inspector Jay Prakash Shukla. He submitted charge-sheet (Ext Ka-4) on 19.07.2005 against the appellants for offence punishable under Section 302 I.P.C.

145. PW-5 has proved country made pistol and cartridges as material Ext 01 to Ext 13. He also proved four test cartridges of 315 bore and five tests cartridges of 12 bore as material Ext 14 to Ext 22. He also proved half country made pistol 315 bore, material Ext 23, discovered on pointing out of appellant Meera @ Ashmeen. One country made pistol 12 bore, material Ext 25, discovered on pointing out of Samsuddin.

146. PW-5 has also proved country made pistol 315 bore material Ext 26 on pointing out of appellant Saneel @ Sanda. He has further proved both the plastic bags in which the aforesaid country made pistol and cartridges were kept by the appellants.

147. PW-5 in his cross-examination has stated that the appellants were arrested by him at 4.30 p.m. on 14.06.2005. He enquired from them and recorded their statements. He has further stated that place of discovery was situated at a distance of two kilometers, from the place, where the appellants were arrested by him. He clarified that within half-an-hour, they reached at the place of discovery. The appellant Meera @ Ashmeer and Muneem firstly took up plastic bag from “bathia” of dungs and picked up the aforesaid country made pistol and cartridges. Afterwards, Samsuddin and Saneel @ Sanda discovered from country made pistol and cartridges. PW-5 has stated in examination-in-chief that under-conduction/semi-constructed Mosque was situated on outskirt of village Rautapur.

148. The place of discovery pointed out by Meera @ Ashmeer, Muneem ,Samsuddin and Saneel @ Sanda were at a distance of two paces in between these places. He has also disclosed this fact that Naseem and Ashmool gave them assistance during arrest of the appellants and witnesses. Therefore, on the place of arrest or discovery, he did not take assistance of other witnesses or villagers. PW-5 has stated that he does not know that Naseem and Ashmool were relatives of the complainant. Both the witnesses had met him infront of village Muradpur. The witness Naseem is resident of village Mujhapara and Ashmool is resident of Rohra.

149. PW-5 has further stated that he recorded separate statements of the aforesaid appellants on 14.06.2005. He has also stated that informer met him on road at a distance of one furlong before village Muradpur. The place of arrest i.e. Siddh Baba Kothri was at a distance of three kilometers from place of discovery. He has refuted this suggestion that appellants Saneel @ Sanda was not ever arrested and no discovery was made on his pointing out.

Therefore, no material contradiction was elicited during course of cross-examination conducted by learned defence counsel. PW-5 has proved from his statement, examination-in-chief and detailed cross-examination that discovery was made by him on pointing out of of appellants according to provisions of Section 27 of Indian Evidence Act.

150. PW-6 has corroborated statement of PW-5 in this regard and stated in his cross-examination that public witnesses Naseem and Ashmool were their associates and they met these witnesses in front of village Muzhadpur/Muradpur. He has disclosed this fact that appellants were sitting at a distance of 30 paces near bushes. The Sub-Inspector arrested the aforesaid four appellant. First of all Meera @ Ashmeer and in the last Saneel @ Sanda was arrested. Muneem was arrested after Meera @ Ashmeer. The country made pistol and cartridges were kept by appellants in plastic bags of “Urea”.

151. PW-6 has also stated specifically that Sub-Inspector PW-5 discovered country made pistol and cartridges on pointing out of Meera @ Ashmeer and Muneem firstly, then recorded their statements afterwards. He has also stated that PW-5 Investigating Officer recorded statement of Samsuddin. PW-6 has also disclosed this fact that “Bathia” of dungs was situated on land of gram samaj on open place, which was at some distance from locality.

152. PW-6 in his cross-examination conducted on behalf of appellants Saneel @ Sanda has stated that they proceeded from police station at 3.00 p.m.. They were going to village Rautapur by “pakka” road. Village Rautapur was connected by “kacchhi” road of 300 Yard. He has also clarified topography of village Muradpur and place where informer met them.

153. PW-5 and PW-6 have specifically stated that no villagers came at the place of discovery during period of one and half hour. PW-6 has further stated that Station House Officer dictated these proceedings to Sub Inspector Jay Prakash Shukla and both the bags were sealed after keeping case property in it. He has refuted this suggestion that the alleged discovery was not made on the pointing out of aforesaid appellants and false and fabricated discovery was shown. No material contradiction was also elicited during cross-examination of PW-6 Constable Ram Kumar Pal.

154. Learned counsel for the appellants has argued that public witnesses Naseem and Ashmool were not produced by the prosecution during course of trial regarding alleged discovery made on pointing out of aforesaid appellants. He has also stated that no firearm was seized from the possession of appellant Menhdi Hasan. Likewise, learned counsel for the appellants has also argued that empty shells, which were collected by PW-5 Sub Inspector Jay Prakash Shukla from the place of occurrence, were not sent for comparison to ballistic expert with country made pistol allegedly discovered on pointing out of appellants to ballistic expert to connect these empty shells/cartridges with country made pistols of the appellants.

155. The Investigating Officer, the then Station House Officer of Police Station Manjhila, District Hardoi had sent blood stained and plain soil collected from the place of occurrence, empty shells collected from the place of occurrence and country made pistol, discovered on pointing out of appellants for chemical examination and opinion of ballistic expert, through C.J.M. Hardoi. Constable Girija Shanker brought these articles at Forensic Science Laboratory and submitted these articles on 16.07.2005. The Additional Superintendent of Police, Hardoi forwarded these article vide letter dated 15.07.2005. The seal of receipt of Forensic Science is appended on Carbon copy of letter of Additional Superintendent of Police, Hardoi and it is mentioned on it that for collecting report send the messenger after 16.12.2005. These letters are available on record of Sessions Trial No. 758 of 2005 for offence punishable under Section 3/25 Arms Act.

156. The Investigating Officer has mentioned in C.D. dated 28.06.2005 and 29.06.2005 that case property/country made pistol, empty shells and cartridges remained to be sent to the Forensic Science Laboratory, Lucknow, even then the Investigating Officer submitted charge-sheet against appellants on 29.07.2005 without obtaining/searching report of Forensic Science Laboratory. Therefore, PW-5 and PW-9 Investigating Officers committed fault in this regard that they has not searched/obtained report of Forensic Science Laboratory.

157. On perusal of statement of PW-5 it appears that four tested cartridges of 315 bore and five tested cartridges of 12 bore were also produced before the trial Court during recording of statement of PW-5, which was recorded on 29.08.2006 before the trial Court, but learned A.D.G.C. or pairokar of police station Manjhila had not cared to search ballistic expert report solicited by the Investigating Officer. The appellants have also not tried to summon the ballistic expert report obtained by the Investigating Officer during course of trial.

158. On the basis of fault committed by the concerned learned A.D.G.C. or pairokar of police station Manjhila, evidence of PW-5 and PW-6 cannot be discarded. The following exposition of law regarding discovery, under provisions of Section 27 Indian Evidence Act and fault committed by PW-5, PW-7 or PW-9, prosecution cannot be termed as suspicious or concocted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hon’ble Supreme Court in the case of State of Rajasthan v. Teja Ram : (1999) 3 SCC 507in the following parashas held as under:

25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.

27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different.

28. Learned counsel in this context invited our attention to one step which PW 21 (investigating officer) had adopted while preparing the seizure-memos Ex. P-3 and Ex. P-4. He obtained the signature of the accused concerned in both the seizure-memos. According to the learned counsel, the aforesaid action of the investigating officer was illegal and it has vitiated the seizure. He invited our attention to Section 162(1) of the Code which prohibits collecting of signature of the person whose statement was reduced to writing during interrogation. The material words in the sub-section are these:

“162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it;”

No doubt the aforesaid prohibition is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. (Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] and Razik Ram v. Jaswant Singh Chouhan [(1975) 4 SCC 769 : AIR 1975 SC 667] .) But if any investigating officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.

29. That apart, the prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1872. It is clearly provided in sub-section (2) of Section 162 which reads thus:

“Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”

30. The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure-memos would vitiate the evidence regarding recovery of the axes.

Hon’ble Apex Court after considering the various expositions of law regarding provisions of Section 27 in Natarajan Vs. Union Territory of Pondicherry, rep. by the Inspector of Police, Pondicherry, 2003 Cri. L.J. 2372 has held as follows:

57. The relevant observation by a Constitution Bench of the Supreme Court in State of U.P. v. Deoman Upadhayaya, (1961) 1 S.C.R. 14 at 26: A.I.R. 1960 S.C. 1125 which has been followed in A.I.R. 1980 S.C. 1632 is as follows:

“Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence and on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. The expression “accused of any offence” is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by Sec. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.”

58. These decisions would clearly show that even though the accused was not formally arrested, once he appears before the police and offers to give information leading to the discovery of a fact, he must be deemed to have surrendered himself to the police and as such, in the said surrender, the information given by him is provable under Sec. 27 of the Evidence Act.

59. However, in this case, as indicated above, there is a clear evidence that P.W.21, the Inspector of Police got the information from his informant about the involvement of the accused Natarajan in this case and therefore, he arrested the suspect accused on the said information and brought him to the police station where he gave a voluntary confession which led to the recovery of the articles. As such, both the requirements are very much present in this case.

71. From the above observations, the following principles would emerge:

(1) Under Sec. 27, where the statement of the accused distinctly relates to the discovery it will be admissible whether it is confessional or not. Even when these words contained in the statement show some of the offences, the same would not prove the said offences for the reason after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the main crime.

(2) If any fact is discovered on a search made on the strength of any information from the accused, such a discovery is a guarantee that the information supplied by the accused is true.

(3) A fact can be discovered by the police pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause? An object could also be a fact, but recovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information.

(4) The basic idea embedded in Sec. 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it.

(5) A fact should have been discovered in consequence to the information received from the accused. The fact so discovered should have been deposed to by the witness.

72. The decisions referred to above and the principles emerging from the decisions mentioned above would never indicate that the full details such as addresses, etc. of the places from where the objects are to be recovered have to be mentioned in the confession. The only requirement contemplated under Sec. 27 of the Evidence Act is that the discovery of the fact in pursuance of the information given by the accused would embrace the place from where to be recovered as well as the objects recovered.

159. The witness PW-7 Prem Shankar Katiyar has conducted investigation of Crime No. 147-150 of 2005 for offences punishable under Section 3/25 Arms Act registered against the aforesaid appellants Meera @ Ashmeer, Muneem, Samsuddin and Saneel @ Sanda. He recorded statements of witnesses Naseem and Ashmool and members of police party of Subhash Chandra Tiwari, the then Station House Officer on 16.06.2005. He inspected the place of discovery and prepared Site Plan (Ext 4A).

160. The witness PW-7 obtained prosecution sanction from the concerned District Magistrate Sri Abhishek Singh. He has proved sanction for prosecution (Ext ka-5 to Ext Ka-8). He submitted charge-sheet (Ext ka-9- Ka-12) against the appellants Meera @ Ashmeer, Muneem, Samsuddin and Saneel @ Sanda. PW-7 the Investigating Officer has stated that the aforesaid appellants were arrested by Station House Officer Subhash Chandra Tiwari (PW-5). He remained posted at police station up to 01.07.2005. He has again stated in his cross-examination that he took prosecution sanction from the then District Magistrate by producing case property before him. The office of District Magistrate again sealed the property and provided to him, which were submitted by him at police station. PW-7 has refuted this suggestion that he conducted investigation of this crime under Section 3/25 Arms Act under influence of PW-5, the then Station House Officer.

161. Therefore, PW-7 the Investigating Officer has also not perused ballistic expert report and adduced his evidence carelessly during course of trial. It was duty of witness PW-7 Sub Inspector Prem Shanker Katiyar that he might have obtained/searched ballistic expert report and brought it on the record of the trial Court during course of trial. On the basis of fault committed by the Investigating Officer PW-5, PW-7 and PW-9 prosecution version cannot be discarded as argued by learned counsel for the appellants.

162. The following exposition of law is relevant regarding fault of Investigating Officers PW-5, PW-7 and PW-9 regarding non-seizure of firearms from possession of appellant Menhdi Hasan and the fact that they have not searched or obtained ballistic expert report regarding comparison of empty shells, which were recovered by PW-9, the Investigating Officer from the place of occurrence, with country made pistols discovered on pointing out of appellants Meera @ Ashmeer, Munnem, Samsuddin and Saneel @ Sanda.

In the case of State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598:2001 SCC (Cri) 49, the Hon’ble Apex Court in para-12 of the said judgment has observed as under:

12. Circumstance 6 was held proved which, according to the trial court, strengthened the conclusion regarding the guilt of accused Hari Mohan. Regarding Circumstance 7, it was held that the investigating officer had noted the existence of fresh mud plastering at the place of occurrence, obviously with the object of destroying the evidence in the form of bloodstains and other marks which could prove the killing of the deceased by a gunshot. Though Circumstance 8 was held proved, yet it was not relied, on account of the negligence of the investigating officer as he had failed to get the Chemical Examiner’s report about the origin and nature of the blood. In appeal the High Court, as noted earlier, has erroneously held that Roop Devi could have died by committing suicide. There was no evidence or any basis to return such finding by the High Court.

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

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

In the case of Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518:2003 SCC (Cri) 641, the Hon’ble Apex Court in para-15 has observed as follows:

15.Coming to the last point regarding certain omissions in DDR, it has come in evidence that on the basis of the statement of PW 4 Amar Singh, which was recorded by PW 14 Sardara Singh, SI in the hospital, a formal FIR was recorded at the police station at 9.20 p.m. In accordance with Section 155 CrPC the contents of the FIR were also entered in DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar[(1999) 2 SCC 126 : 1999 SCC (Cri) 104] while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.

The Hon’ble Apex Court in the case of U.P. Vs. Harban Sahai, (1998) 6 SCC 50:1998 SCC (Cri) 1412 in its para-11 has observed as under:

11.The third reasoning of the High Court is that the bloodstained earth collected by the Investigating Officer from the place of occurrence was not forwarded to the Chemical Examiner to test the origin of blood. Such a reasoning is too tenuous and even if such contention was advanced by the defence, the High Court need not have taken any serious heed to it. Omission to send the earth collected from the place of occurrence for chemical examination has not vitiated the investigation to any extent. We disapprove the aforesaid reasoning of the High Court.

In the case of Gajjan Singh v. State of Punjab, (1999) 1 SCC 233: 1998 SCC (Cri) 1603, the Hon’ble Apex Court in paras-2 and 3 has observed as under:

2. Both the courts below have accepted the evidence of eyewitnesses PWs 5, 6 and 9 after careful scrutiny thereof. It was however submitted by the learned counsel for the appellants that as the eyewitnesses were interested witnesses and there were material inconsistencies between the evidence of PWs 5 and 6 on the one hand and PW 9 on the other hand, their evidence should not have been accepted. He also submitted that though the guns stated to have been used by the two appellants were seized by the police and forwarded to the ballistic expert for examination, no report of the ballistic expert was produced to show whether they were used or not. He also submitted that the circumstances that both the gun injuries on the person of the deceased were possible by one shot, that there were no pellet marks on the walls or other parts of the Haveli and no blood was found on the ground inside the Haveli create a doubt regarding the manner in which the incident had really happened.

3. One of the inconsistencies pointed out by the learned counsel is with respect to the nature of weapons which the two co-accused carried with them. PWs 5 and 6 have stated that they were carrying guns whereas PW 9 has stated that one of them was carrying a gun and the other was having a dang (a thick stick). The other inconsistency pointed out is regarding the part of the body on which the shot fired by Ratan Singh had caused injuries to the deceased. In fact, this is not an inconsistency at all. PW 5 has not stated on which side of the chest the injuries were caused. PWs 6 and 9 have stated that the shot had hit the deceased on the left side of his chest. These are the only inconsistencies in the evidence of the eyewitnesses. One more inconsistency pointed out by the learned counsel is between the evidence of PW 9 and the investigating officer. PW 9 has stated that he had seen one pellet in the mouth of the deceased. The investigating officer has denied to have seen any pellet in the mouth of the deceased. Blood had collected in the mouth of the deceased. It is quite possible that PW 9 mistook something in the mouth of the deceased as a pellet or the investigating officer missed to notice it. It is a minor inconsistency and can have no effect on the credibility of the eyewitnesses.

This Court in the case of Gopal Vs. State of U.P., 1999 SCC OnLine All 1339:1999 All LJ 1068:(1999) 39 ACC 98:1999 Cri LJ 2501 in paras 22 and 26 has observed as under:

22. Place of occurrence, time of occurrence, weapon of assault and participation of accused persons, all have been fully established. Both the witnesses are fully believable witnesses and they have proved the case to the hilt. Some laches or mischief on the part of the I.O. is no ground to discard the statement of the witnesses which has been fully corroborated by the medical evidence.

26. It was argued that the copy of the G.D. entry No. 2, at 1 a.m. lodged by Amrit Lal Maurya has not been produced. It is true that the paper has been weeded out. But there is nothing on record to show that this entry of the G.D. was the FIR. Had it been a FIR chick report might have been prepared on this basis. Amrit Lal Maurya has not been examined. He could have been summoned by the accused as defence witness but mere non examination of Amrit Lal Maurya and non production of G.D. entry will not show that the FIR is ante timed. Emphasis was Laid on the citation made in the FIR ”Muljimon ki talash police kar rahi hai’ will not in any way help the accused persons because information had already been given at the police station at 1 p.m. One police and one homeguard was already there FIR is not a substantive piece of evidence. By this alone the entire prosecution case cannot be rejected. This is only to confront the maker of it. It will only put the machinery of law into motion. It is only corroborative piece of evidence. In no way it can be said that the FIR is false. In this particular case, learned brother Sri B.K. Sharma, J. has also mentioned that the Government Advocate could not give explanation as to why the information given by Amrit Lal Maurya — Homeguard was not recorded in the chick register and why it was recorded in the G.D. The simple reply is that creptive information by RT set, information by telephone and the information by only stating that some incident has occurred is no FIR in the eye of law and if Amrit Lal Maurya — Homeguard had only informed that murders have been committed without telling other details and without saying that he was an eye-witness of the occurrence it was not necessary for the police to have recorded his information in the chik report, to be used as the FIR. At page 22 of his judgment, brother Sri B.K. Sharma, J. himself has observed that the Investigating Officer did not record his arrival etc. in the G.D. The I.O. has given conflicting statement. For that the I.O. is to be blamed and the entire prosecution story is not to be thrown away. In the Chitthi Majroobi by Rakesh Kumar crime number etc. has not been given, for the simple reason that he was sent from the police station at 1.30 p.m. to Swarup Rani Nehru Hospital, Allahabad, while information given by Amrit Lal Maurya was not treated to be an FIR and looking to the urgency that like other four persons who had only one injury and had died, the police might have thought that without going into other formalities at least one injured may be saved, and he should be immediately sent to the district hospital. That may be only a clerical lapse on the part of the police authorities. By no stretch of imagination it can be said that the FIR was lodged after 9.30 a.m. of the other day. Learned brother Sri B.K. Sharma, J. has thrown the entire prosecution story only disbelieving the investigation of the case and the I.O. which, in our opinion, is not sufficient to discard the entire prosecution story. There may be ignorance, laches and loss of patience looking the four murders and even the mischief by the I.O., as discussed above.

163. The appellant/accused Menhdi Hasan surrendered on 16.06.2005 before the Court of C.J.M. Hardoi. He could not be arrested by the Investigating Officer PW-5, PW-7 and PW-9. The Investigating Officer PW-7 has recorded statement of Menhdi Hasan in Jail. He apprised the Investigating Officer that “the country made pistol used by him in murder of Mohd. Shamin was thrown at some place in the night and he was unable to recognize that place”. Therefore, the aforesaid Investigating officers could not seize country made pistol used by the appellant Menhdi Hasan.

164. On the basis of appreciation and analyzation of evidence of PW-5, PW-6, PW-7 and PW-9, it reveal that no material contradiction was elicited by learned defence counsel regarding discovery of country made pistols on pointing out of appellants Meera @ Ashmeer, Munnem, Samsuddin and Saneel @ Sanda. It may by fault of the Investigating Officers PW-5, PW-7 and PW-9 that they have not tried to seize the firearm from possession of Menhdi Hasan or search ballistic expert report to bring it on the record of aforesaid sessions trials.

There is no substance in arguments of learned counsel for the appellants and the defects of investigation pointed out by learned counsel for the appellants does not extend any benefit to the appellants.

165. Learned counsel for the appellants has further submitted that all the appellants have been convicted with aid of provision of Section 149 I.P.C. and Hon’ble Supreme Court has entertained the writ petition to examine provision of Section 149 I.P.C. No specific role of firing was disclosed by PW-3 witness Bhinnu. PW-2 Ismile is also unable to see the overt act committed by each appellants during firing made by them, because he has stated that he and witness Ram Gopal fled away by leaving Motorcycle and deceased on the place of occurrence.

166. On evaluation and analysation of evidence of PW-2 and PW-3 witnesses, we find their evidence credible, reliable, trustworthy and acceptable. Their presence at the place of occurrence cannot be doubted. PW-2 Ismile, along with witness Ram Gopal and the deceased Mohd. Shamin was riding on Motorcycle of the deceased and reached at culvert of “jhaver”, where the appellants met them in vicinity Rarri, while they were going from Shahjahanpur in village Alamnager. All the appellants were armed with country made pistols. They firstly shot fire on the deceased Mohd. Shamin targeting him from front of his motorcycle. The motorcycle fell down on the place of occurrence and PW-2 Ismile and witness Ram Gopal fled away from the place of occurrence. The deceased Shamin sustained firearm injury and expired on the place of occurrence. All the appellants were resident of Village Rautapur. PW-1 Nazir Ali, PW-2 Ismile are also resident of village Rautapur. The village Alamnager, in which, PW-3 Bhinnu resides, is also neighbouring village of Rautapur and place of occurrence is situated in vicinity of village Rarri.

167. It is also pertinent to mention here that on perusal of Site Plan, it reveal that the appellants were present on culvert of “Jhaver”, which is a deserted place. The locality of all the nearby villages were at a considerable distance ranging from 2.5 to 5 km. Therefore, no villager of the aforesaid villages was present on the place of occurrence at the point of time, when appellant surrounded the deceased and fired shots at him from their country made pistols as proved by PW-2 and PW-3. These witnesses have proved active participation of all the appellants in the incident of the present crime. On the other hand, unless Hon’ble Supreme Court interprets provisions of Section 149 I.P.C., otherwise the following exposition of law of Hon’ble Supreme Court holds field up to now, which are as follows:

Hon’ble Supreme Court in Case Masalti Vs. State of U.P. AIR 1965 SC 202 (coram : Four Hon’ble Judges) has held as under:

….Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

….What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s. 141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s. 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin1956CriLJ345 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin 1956CriLJ345 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.

In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day. Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not supported by the principles of law enunciated by this Court in the case of Baladin1956CriLJ345 .

Hon’ble Supreme Court in Case Lalji and Ors. vs. State of U.P. (1989 )1SCC 437 has held as under:

….An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carry out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed’ Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined, It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

Thus, once the Court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

Hon’ble Supreme Court in Case Shaji and Ors. Vs. State of Kerala (2011 )5SCC 423 has held as under:

7. On the other hand, Mr. T.S.R. Venkata Ramana, learned Counsel appearing for the Respondent-State, by drawing our attention to the judgment of the Constitution Bench inMohan Singh and Anr. v. State of Punjab: AIR 1963 SC 174, submitted that even after acquittal of two accused, in order to bring home the charge under Section 149 Indian Penal Code , it is not necessary that five or more persons must necessarily be brought before the Court and convicted. The following principles laid down by the Constitution Bench are relevant for our consideration:

8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot be invoked against the Appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the Appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

9. In dealing with the question as to the applicability of Section 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the criminal courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted….

Hon’ble Supreme Court in Case Umesh Singh Anr. Vs.State of Bihar (2000 )6SCC 89 has held as under:

Vicarious liability, we may state, as rightly contended for the State by Shri B.B. Singh relying upon the decisions of this Court in Shamshul Kanwar v. State of U.P. [1995]3SCR1197 and Bhajan Singh and Ors. v. State of U.P.1974CriLJ1029 , extends to members of the unlawful assembly only in respect of acts done in pursuance of the common object of the unlawful assembly or such offences as the members of the unlawful assembly are likely to commit in the execution of that common object. An accused whose case falls within the terms of Section 149 IPC as aforesaid cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined. It is not necessary in all cases that all the persons forming an unlawful assembly must do some overt act. Where the accused had assembled together, armed with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is not obliged to prove which specific overt act was done by which of the accused. Indeed the provisions of Section149 IPC, if properly analysed will make it clear that it takes an accused out of the region of abatement and makes him responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. We may also notice that under this provision, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. Tested on this touchstone, we may safely say that in the present case when the appellants were members of an unlawful assembly which was armed with lathis and guns and a declaration had been made that in the event there is any resistance to take away the paddy which is stated to have been the original object, they were willing to take life out of the deceased and take away the paddy. If that is the position, it is futile to contend for the appellants that their conviction is in any way bad.

Hon’ble Supreme Court in Case Bans Narain Singh and Ors. Vs. State of U.P.(1998 )9SCC 3 has held as under:

….The arguments so far as the appellants whose conviction and sentence has been passed by the learned Sessions Judge and affirmed by the High Court is that the prosecution case must be held not to be proved beyond reasonable doubt, inasmuch as in respect of the 12 Army personnel found dead neither there has been any inquest nor has there been any post-mortem report and consequently the fact that homicidal death occurred has not been established. Further argument advanced was that even if it is held that the prosecution has been able to establish the 12 persons belonging to the Army forces died but there is no evidence to indicate that their death occurred on account of the shooting from the appellants and, therefore, the conviction of the appellants of the charge under Sections 302/149 cannot be sustained. It was also contended that so far as the appellant Shambhu Singh is concerned, on the admitted prosecution case that he was not there at the Quarter Guard when the firing started and came at a later stage he cannot be held to be a member of the unlawful assembly nor can he be held to have shared a common object particularly when the prosecution evidence is totally silent with regard to the overt act by the said Shambhu Singh.

….The High Court has indicated the fallacy of the reasonings advanced by the learned Sessions Judge in acquitting some of the accused persons by holding that “the trial court having held those accused persons were members of an unlawful assembly, they could not be exonerated under Sections 302/149  and 307/149”. On analysis of the evidence the High Court has come to the conclusion that those accused persons became the members of an unlawful assembly and had seen some of the members of that assembly to have equipped themselves with rifles and have been indiscriminately using them against the Army jawans. Some of the accused persons in fact were injured which establishes the fact of their being present at the place of occurrence and their presence is also otherwise established through the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of an unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns.

….The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with Section 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that the accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.

Hon’ble Supreme Court in Case Murali Vs. State of Tamilnadu AIR 2001 SC 413 has held as under:

….. A perusal of the facts, as appears from the decision makes it clear the circumstances under which the right of private defence is to be made applicable, unfortunately the same is not available on the contextual facts. The accused was found present at the Tea Stall being deceased’s place of business and as such can be termed to be an aggressor and as such question of there being any right of private defence does not arise. The definite evidence in the matter is that the accused opened the door with a blood stained knife. The nature of his injuries are not, however, sufficient by itself to sustain the plea of private defence. As a matter of fact both, learned Sessions Judge and the High Court have negatived such a plea and we do record our concurrence therewith. The injuries on the accused are rather minor in nature since they were restricted to tender diffusion and abrasion. There is no wound, much less any serious injury which may even prompt a person to take the most heinous step of committing the murder. Reliance was also placed on the decision in the case of Vijayan alias Vijayakumar v. State (represented by Inspector of Police) 1999CriLJ2037 wherein this Court on the facts of the matter in issue and evidence on record was inclined to give judicial imprimatur to the plea of right of private defence advanced by the appellant and held him not guilty and granted pardon.

Hon’ble Supreme Court in Case Abdul Sayeed Vs. State of Madhya Pradesh (2010 )10SCC 259 has held as under:

On the other hand, Shri C.D. Singh, learned Counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye-witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed.

In the instant case, a very large number of assailants attacked Chand Khan and Shabir (deceased), caused injuries with deadly weapons to them. The incident stood concluded within few minutes. Thus, it is natural that the exact version of the incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by the eye-witnesses.

There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of criminal Procedure, 1973. ( Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364; Malhu Yadav and Ors. v. State of Bihar (2002) 5 SCC 724; Dhaneswar Mahakud and Ors. v. State of Orissa ; and Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC 2661).

Hon’ble Supreme Court in Case Gurmail Singh Vs. State of Punjab and Anr. : (2013)4SCC228 has held as under:

….Section 149 of the Indian Penal Code constructively criminalizes all members of an unlawful assembly if a member of that assembly commits an offence in prosecution of a common object of that assembly or if the members of that assembly knew likely to be committed in prosecution of that object. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been committed by a member of the unlawful assembly. Thirdly, the offence committed must be in prosecution of a common object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be committed in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the Indian Penal Code will come into play and cover every member of the unlawful assembly.

Hon’ble Supreme Court in Case Madan Singh Vs.State of Bihar : reported in (2004)4SCC622 has held as under:

It cannot be laid down as a general proposition of law that unless the commission of an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means always necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage.

The expression ‘in prosecution of common object’ as appearing in Section149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may also vary on different members of the same assembly.

….When the factual scenario is considered in the background of the legal position enumerated above, the inevitable conclusion is that Section 149 has been rightly applied. The fact that the unlawful assembly’s common object was to resist the enforcement of law, and to commit criminal offences and to overawe the authorities/public servants by use and show of criminal force stood firmly established on the evidence on record. Consequently, the criminal acts committed in furtherance of the common object, which acts were not only part of the common object of the unlawful assembly but also such which the members of the assembly knew reasonably well are such as are likely to be committed squarely attract Section 149 I.P.C. Certain Salient factual aspects clearly establish prosecution version. Firstly, defence plea regarding alleged apprehended attack by higher caste people has been found to be of no substance. If really the accused persons had gathered for reaping singada as claimed, there was no reason for the call to be given to start shooting at the police and then actual firing. A person who apprehends attack from some other person would rather welcome the arrival of the police and bring to notice of the officials about the apprehended danger and not to start firing at the police officials knowing them to be police, with defiance adopting a violent posture. This itself is sufficient to discard the defence version about nature and object of assembly.

In the case of State of Maharashtra Vs. Kashirao and Ors. : reported in AIR 2003 SC 3901, Hon’ble Supreme Court has held as under:-

….A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’. it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section149, IPC may be different on different members of the same assembly.

‘Common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot co-instanti.

….Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word ‘knew’ used in the second branch f the section implies something more than a possibility and it cannot be made to bear the sense of ‘might have been known’. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikka range Gowda and Ors. v. State of Mysore1956CriLJ1365 ).

In the case of Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Mangal Pathak and Ors. reported in 1995 Supp (1) SCC 239, Hon’ble the Apex Court has held as under:-

….Now coming to the question of applicability of Sections 302/149 I.P.C., taking into consideration all the circumstances of the case we are firmly of the view that more than five persons participated in the occurrence. Therefore there is no difficulty in convicting A-2, A3 and A-8 under Sections 302/149 I.P.C.

….Accordingly we set aside the judgment of the High Court so far these three accused are concerned and convict A-2 Gurupada Pathak, A-3 Bidyadhar Pathak and A-8 Aswini Pathak under Sections 302/149 I.P.C. and sentence each of them to undergo imprisonment for life. Their conviction for the offence punishable under Section 148 I.P.C. and sentence of R.I. for one year and to pay a fine of Rs. 100/- in default of payment of which to undergo further R.I. for one month and the conviction of A-2 and A-3 under Sections 326/34 I.P.C. and sentence of R.I. for two years and to pay a fine of Rs. 500/- in default of payment of which to undergo further R.I. for six months, as awarded by the trial court, are restored. The other directions given by the trial court regarding disposal of the articles seized are upheld. In the result the appeal is allowed as against A-2, A-3 and A-8 and dismissed against other respondents-accused.

Hon’ble Supreme Court in Case State of Haryana Vs. Shakuntla and Ors. (2012)5SCC171 has held as under:

….On a proper appreciation of the evidence placed on record, it is clear that in the circumstances, one could hardly expect any other evidence to be available. It would only be the family members who would be present at the place of occurrence of the crime and only such interested persons could depose with regard to commission of the crime. The statements of these witnesses are trustworthy and offer the graphic eye account of the exact events, during the course of occurrence. Clearly, there was common object among the members of the unlawful assembly to somehow do away with Manohar Lal and his wife Sushila.

….It is a settled principle of the law of evidence that it is not the quantity, but the quality of evidence that has to be taken into consideration by the Court while deciding such matters. As already noticed, even in the year 1986, Rajender and Matadin had beaten Manohar Lal and his wife, for which they were also facing criminal trial. Again, they had abused and beaten Naresh, PW-4 on 3rd July, 1994, when he was putting earth in the street in front of his house. Thereafter, on 5th July, 1994, this unfortunate incident had taken place. When on 5th July, 1994, Manohar Lal and his wife returned from Delhi, even before they entered their house and when they were discussing the incident that took place on 3rd July, 1994 with their teenage children, the accused persons, armed with weapons, came there and started assaulting Manohar Lal and his wife. This clearly shows that Matadin and the other accused had been looking for an opportunity to fight with Manohar Lal and his family members, on one pretext or the other. Matadin exhorted the others to ‘finish them’, upon which the accused persons started assaulting the victims and continued till both Manohar Lal and his wife Sushila died. The circumstance deserving the attention of this Court is that, even when Manohar Lal fell on the ground as a result of a blow on his spine, still none of the accused person showed any mercy, they instead continued with the assault. The statements of Dr. G.S. Yadav, PW-1 and Dr. Kamal Mehra, PW2, and the post mortem reports of the deceased, Ext. PA and Ext. PC clearly demonstrate the intentional brutality and intent of the accused to kill the victims. They caused as many as 30 injuries on the person of Manohar Lal and 33 injuries on the person of Sushila, resulting in the death of both of them.

Both the deceased had tried to run away, but were chased by the accused. While Manohar Lal exhorted the others, all accused persons, particularly accused No. 7, Kailash, effectively participated in inflicting injuries on the bodies of the deceased. Thus, a common intention came into existence at the spur of the moment, even if the same was not pre-existing. The existence of common object and intent is not only reflected from the circumstantial evidence, but is also clearly demonstrated in the statement of PW-4 and PW-5, respectively. The offenders, if have no common intention or object to kill the victim, they would normally stop assaulting the victim and leave him in the injured condition when he falls down on the ground. On the contrary, in the case in hand, all the accused, except those acquitted by the High Court, had participated with a common mind to cause fatal injuries upon both Manohar Lal and Sushila. PW-4, in his statement, has clearly and definitely explained the occurrence, by attributing specific role to each one of the accused. According to him, Rajender inflicted Jaily blow on the legs of Manohar Lal. Matadin gave Jaily blow on the head of Manohar Lal, which the deceased deflected with his hands. Krishan gave Jaily blow on the back of Manohar Lal, whereafter the victim fell on the ground. Thereafter, Bhim inflicted Kasola blow on the head of the deceased Manohar Lal and finally, all the other accused started mercilessly inflicting blows on the person of the deceased Manohar Lal.

….In this regard, we may refer to the judgments of this Court, in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law. This Court, in the said judgment, held as under:

From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.

….Section 149 creates a specific offence and deals with punishment of the offence. The only thing is that whenever the court convicts any person or persons of any offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same Under Section 149.

Besides relying on para 40 of the judgment of this Court in Waman others Vs. State of Maharashtra (2011) 7 SCC 295, reliance has also been placed on Sarman and Ors. v. State of M.P. 1993 Supp. (2) SCC 356 to argue that as all the Appellants were armed with lathis, it was not clear from the statements of witnesses as to which injury had been inflicted by which accused. All the members of the unlawful assembly cannot be charged with offences Under Sections 302read with 149, Indian Penal Code.

In the case of Ramchandran and Ors. v. State of Kerala (2011) 9 SCC 257, a Bench of this Court dealt, at some length, with the scope and object of Section149 Indian Penal Code. It was held that Section 149 Indian Penal Code essentially has two ingredients, one, that the offence must be committed by any member of unlawful assembly consisting of five or more members and second, such offence must be committed in prosecution of the common object Under Section 141Indian Penal Code of that assembly or such as the members of that assembly knew was likely to be committed in prosecution of the common object.Clarifying the expression “common object”, the Bench further said that it is not necessary that there should be a prior concert in the sense of a meeting of minds of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if it is then adopted by all the members and is shared by all of them.

In the case of Waman (supra), the Court also stated that in order to attract Section 149 Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. It must be within the knowledge of other members that the offence is likely to be committed in prosecution of the common object, and if such requirement is satisfied, then they would be held liable Under Section 149 Indian Penal Code.

It is not possible to define the constituents or dimensions of an offence Under Section 149 simplicitor with regard to dictionary meaning of the words ‘unlawful assembly’ or ‘assembly’. An “assembly” is a company of persons assembled together in a place, usually for a common purpose. This Court is concerned with an “unlawful assembly”. Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. The ingredients which need to be satisfied have already been spelt out unambiguously by us. Reverting back to the present case, it is clear that, as per the case of the prosecution, there were more than five persons assembled at the incident. All these nine persons were also convicted by the Trial Court and the conviction and sentence of six of them has been affirmed by the High Court. The members of this assembly had acted in furtherance to the common object and the same object was made absolutely clear by the words of accused Matadin, when he exhorted all the others to ‘finish’ the deceased persons.

In other words, the intention and object on the part of this group was clear. They had come with the express object of killing Manohar Lal and his family members. It might have been possible for one to say that they had come there not with the intention to commit murder, but only with the object of beating and abusing Manohar Lal and Ors. but in view of the manner in which Matadin exhorted all the others and the manner in which they acted thereafter, clearly establishes that their intention was not to inflict injuries simplicitor. Manohar Lal, admittedly, had fallen on the ground. However, the accused still continued inflicting heavy blows on him and kept on doing so till he breathed his last. They did not even spare his wife Sushila and inflicted as many as 33 injuries on her body. Where a person has the intention to cause injuries simplicitor to another, he/she would certainly not inflict 30/33 injuries on the different parts of the body of the victim, including the spine. The spine is a very delicate and vital part of the human body. It, along with the ribs protects all the vital organs of the body, the heart and lungs, etc. Powerful blows on these parts of the body can, in normal course, result in the death of a person, as has happened in the case before us. The way in which the crime has been committed reflects nothing but sheer brutality. The members of the assembly, therefore, were aware that their acts were going to result in the death of the deceased. Therefore, we find no merit in this contention of the accused also.

Hon’ble Supreme Court in Case State of M.P. Vs. Deshraj and Ors. 2004CriLJ1415, has held as under:

….Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab 1977CriLJ164 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

….The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34. In law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh1993CriLJ2246, Section34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

Hon’ble Supreme Court in Case Charan Singh and Ors. Vs. State of Uttar Pradesh(2004 )4SCC 205, has held as under:

….The six appellants faced trial along with 18 others for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short ‘the IPC’). They were convicted by the Trial Court. For the offence relatable to Section 302 read with Section 149 IPC, life imprisonment was awarded; whereas for the offence relatable to Section 307read with Section 149 IPC imprisonment of 7 years was awarded. According to the prosecution, one Devi Charan (hereinafter referred to as the ‘deceased D-1’) lost his life on account of murderous assaults of the accused persons. Two other persons namely, Buddha and Shanti Devi (described hereinafter as deceased D-2 and D-3 respectively) lost their lives in the incident. All the 24 accused persons preferred appeal before the High Court. The High Court found that one accused named Shyamu was a juvenile and with reference to Section  of the U.P. Children Act, 1951 his conviction was maintained, but he was extended the benefit of the said Act. Though one Ram Pal was named in the first information report, no charge sheet was submitted so far as he is concerned. One Narena died during the pendency of the appeal before the High Court and the appeal abated so far as he is concerned. Dealing with the case of other 22 accused persons, the High Court found that the appellants 10 to 23 were stated to be armed with lathies only. There was no sufficient material to bring home the accusations so far as they are concerned. Though one Raj Pal was also similarly placed, the High Court made a distinction holding that he being the son of Harkesh, the prime mover of the entire episode, it can be presumed that he may have had a motive to join the unlawful assembly with his father, brother and others. Though one Mahesh Chand was also stated to be holding a spear, he was also found to be not guilty on the logic of the other accused persons who were holding lathies. He was also given the benefit of doubt.

Coming to the others who were armed with double barrel guns and country made pistols, the question is regarding applicability of Section149 IPC. Section 149, IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.

‘Common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.

The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti v. State of U.P [1964]8SCR133 observed as follows:

“Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciated of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.”

To similar effect is the observation in Lalji v. State of U.P., 1989CriLJ850

“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

In State of U.P. v. Dan Singh and Ors.1997CriLJ1150 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji v. State of U.P 1989CriLJ850 where it was observed that “while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149”.

….When the factual scenario is analysed in the background of legal position highlighted above, the inevitable conclusion is that accused-appellants Charan Singh, Dev Dutt, Virender Kunwar Pal and Harkesh have been rightly convicted by application of Section 149 IPC. Their appeals are without merit and are dismissed. In the ultimate result, the appeal of accused-appellant Raj Pal is allowed while those of the other accused-appellants stand dismissed. Appellant Raj Pal shall be released from custody unless required in any other case.

Hon’ble Supreme Court in Case State of A.P. Vs. Thakkidiram Reddy Ors. (1998 )6SCC 554 , has held as under:

….It was also contended by Mr. Arunachalam mat since, admittedly, the injury inflicted by A1 caused the death of the deceased and the injuries inflicted by others on his person were simple in nature, it could not be conclusively said that A2 to A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with, the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. (emphasis supplied)

Lalji v. State of U.P.,1989CriLJ850 wherein it said :

….”The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct office. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused.This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.” (emphasis supplied)

….From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed – or he knew was likely to be committed – by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.

168. Learned A.D.G.C. moved application 49B/15 on 17.08.2006 for summoning the witnesses Naseem and Ashmool, but they had not cooperated during the course of trial, therefore, prosecution could not produce them. The witness Ashmool was discharged by A.D.G.C. on 12.10.2006 vide application 49B/19. It is mentioned in application by A.D.G.C. that the appellants have won over witness Ashmool.

169. The witness Naseem was again summoned vide application 49B/20 dated 27.10.2006 and non-bailable warrant was issued against him. It may be possible that witness Naseem also had not appeared during course of trial under influence of appellants, as witness Ashmool was discharged by the A.D.G.C. Likewise, It is also possible that witness Ram Gopal had not appeared under influence of appellants.

170. We have perused evidence of Dr. Amar Jeet Singh PW-4, who conducted autopsy on the corpse of the deceased Mohd. Shamin. He found on 16.06.2005 that rigour mortis had passed away from all over the dead body. P.M. staining was present. The witness PW-4 found the following ante-mortem injuries on dead body of the deceased:

“1) A firearm wound of entry of size 2.0 cm. x 1.5 cm x through and through present on right cheek. Blackening present around wound. Margins were inverted and lacerated.

2) A firearm exit wound of size 4.0 cm x 3. 5 cm on left side of face involving eyebrow and left eye. Margins were everted and lacerated. Injury was communicating with injury no.1.

3) A firearm wound entry 2.5 cm x 2.0 cm on left side skull in temporal area just above left ear. Margins were inverted and lacerated.

4) A firearm wound entry 2.5 cm x 2.0 cm x chest cavity deep, 12 cm below left nipple at 6 O’clock position.

5) Gutter shaped, lacerated wound of size 6 cm x 1 cm x muscle deep on right forearm, 6 cm above wrist.

6) A firearm wound of entry 2.5 cm x 2.0 cm x abdominal cavity deep present on right side laterally (of back) 15 cm above from iliac crest. Margins were inverted and lacerated. Blackening present all around wound.

7) Multiple firearm wound enteries present on right side chest back in area of 12 cm x 8 cm. average measuring 0.3 cm x 0.3 cm x muscle to chest cavity deep.

8) A Gutter shaped lacerated wound 5.0 cm x 1.0 cm x muscle deep present on lateral aspect of lower part of left thigh.

171. PW-4 has proved post-mortem report (Ext ka-2). He has further stated that temporal bone of skull was fractured. Brain and its membrane were lacerated. Both lungs, heart and their membranes were lacerated. Pericardium, pleura were also lacerated. Blood vessels were collapsed. Clotted blood and fluid one and half litre was found in chest cavity.

172. PW-4 Dr. extracted 29 small metallic pallets from brain matter facial muscle, both lungs, both large and small intestine, right kidney and abdomen and chest cavity. He has also stated that both maxilla bone were fractured. These aforesaid injuries were caused by firearms. He opined that death of the deceased was caused due to shock and Haemorrage one day prior to the date of autopsy i.e. 09.06.2005 at 11.00 p.m.

173. PW-4 Dr. has stated in his cross-examination that he had not found bullets, except pallets. He has opined that the firearm injuries, in which, he found blackening were caused from a distance of one meter. Dispersal of pallets would be in periphery of 05 cm.

174. PW-4 also found 120 ml pasty material in stomach of the deceased and opined that food was might have digested within 02-03 hours. The opinion given by PW-4 that the deceased might have sustained these injuries on 09.06.2005 in the morning at 5.00 p.m. is of no avail, because PW-2 and PW-3 witnesses have proved this fact that appellants had shot fired at the deceased Shamin at 11.00 a.m. PW-4 could not opined about direction of the fire shots.

175. On the basis of analysis of evidence of PW-4, it reveal that no material contradiction was elicited by learned defence counsel during his cross-examination. The evidence of PW-4 corroborates the statements of PW-2 and PW-3, witnesses of facts.

176. It may be possible that country made pistol of 315 bore used by appellants Munnem and Saneel @ Sanda could not be aimed/targated perfectly on the body of the deceased Modh. Shamin. Therefore, no bullet was found in the body of the deceased or fire shot by them might have passed through exit wound injury no.2, because the injury no.1 and 2 sustained by the deceased were communicating to each other, as proved by doctor PW-4. The injury nos. 3 to 8 are firearm entry wounds. These injuries found by PW-4 on the corpse of the deceased also indicates the active participation/overt act of all the appellants during course of incident.

177. We have also appreciated and evaluated evidence adduced by the prosecution, we are of the firm view that all the appellants being member of unlawful assembly actively participated during course of incident and made indiscriminate firing (according to PW-3, witness Bhinnu 5-6 fires were shot by the appellants) at the deceased Mohd. Shamin in furtherance of their common intention to murder him. The evidence of PW-4 Dr. Amar Jeet Singh corroborates evidence adduced by PW-2 and PW-3. The aforesaid injuries indicates that all the appellants actively participated in gruesome and heinous crime of day light murder of the deceased.

178. On the basis of exposition of law quoted by us and evidence available on record, the case law relied upon by learned counsel for the appellants is not applicable to the facts and circumstances of the present case.

179. On the basis of appreciation and analysation of evidence of witnesses, learned trial Court has convicted all the appellants in correct perspectives. It has considered arguments put forth by learned defence counsel and recorded finding regarding involvement of all the appellants in the incident of present crime. The impugned judgment and order dated 19.07.2007 cannot be termed as perverse or against evidence available on record.

180. The appellants have been convicted rightly and sentence awarded against them are adequate. The impugned judgment is liable to be upheld and it is upheld.

181. The appeal lacks merit, liable to be dismissed. Accordingly, dismissed.

182. The copy of this judgment be sent to the learned trial court and the concerned Jail Superintendent for compliance.

183. The record of all the Session Trials be sent back to the lower court.

Order Date :- 2.8.2019

Mustkeem/Virendra/Arvind

 

 

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