HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 16
Case :- CRIMINAL APPEAL No. – 2372 of 2004
Appellant :- Ram Jeevan
Respondent :- State Of U.P.
Counsel for Appellant :- R.P.Pandey,D.P.Singh,Ganga Singh,Rajesh Kumar Dwivedi(A.C),Rishi Kumar Pandey,Soniya Mishra
Counsel for Respondent :- Govt.Advocate
Hon’ble Ritu Raj Awasthi,J.
Hon’ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Sri Rajesh Kumar Dwivedi, learned amicus curiae on behalf of the appellant and Ms. Ruhi Siddiqui, learned A.G.A. for State and perused the lower court record.
2. This appeal has been preferred on behalf of appellant Ram Jeevan assailing the impugned judgment and order dated 9.8.2004 delivered by learned Additional Sessions Judge, Court No. 1, Unnao in Sessions Trial No. 630 of 2000 for offence punishable under Section 302 IPC of Police Station Bangarmau, District Unnao. The trial court has convicted the appellant for the aforesaid offence and sentenced him to undergo imprisonment for life and amount of fine of Rs. 10,000/- has been imposed with default stipulation to serve out additional simple imprisonment for one year.
3. PW-1 complainant Santosh Kumar submitted written report Ex. Ka-1 at Police Station Bangarmau District Unnao regarding present crime. On the basis of written report Ex. Ka-1, Check FIR Ex. Ka-5 was prepared on 12.9.1999 at 20:10 hours at Police Station Bangarmau and Crime No. 347 of 1999 under Section 302 IPC was registered . G.D. of registration of crime Ex. Ka-6 was also prepared.
4. As per prosecution version, complainant is the step brother of the appellant Ram Jeevan. The appellant quarrelled with Smt. Ram Pryari, who is mother of complainant Santosh Kumar 6-7 days ago regarding family partition and some altercation occurred and on the basis of this dispute, at this point of time, his uncle (Mausiya) Sri Santu slapped the appellant. On 12.9.1999 at 7:00 p.m., the appellant assaulted the deceased Santu with Gandasa (chopper) while he was lying on roof of the house situated in locality Naseemganj within limits of Bangarmau, District Unnao. It is mentioned in written report that aunt (Mausi) Smt. Raj Kumari was also lying on the roof near the deceased. The deceased Santu died instantly. The complainant has also mentioned in report Ex. Ka-1 that his aunt raised alarm, then he also reached at the roof of the house. The appellant Ram Jeevan managed to escape from the place of occurrence. The dead body of the deceased was lying on the roof.
5. The Investigating Officer took up the investigation. He recorded statement of witnesses inspected the place of occurrence and prepared the site plan Ex. Ka-10.
6. The Investigating Officer also prepared inquest report Ex. Ka-11 of the dead body of deceased and prepared other documents i.e. report RI Ex. Ka12, letter to CMO Ex. La-13, Photo Lash Ex. Ka-14, Police Proforma Ex. Ka-15 for conducting autopsy on the dead body of the deceased. The genuineness of site plan, inquest report and these documents prepared for autopsy was admitted by learned defence counsel under Section 294 Cr.P.C.
7. The concerned doctor conducted autopsy on dead body of the deceased and prepared postmortem report Ex. Ka-4. The injury report Ex. Ka-2 of Smt. Raj Kumari was also prepared. The Investigating Officer submitted charge sheet Ex. Ka3 before the competent court.
8. The court of C.J.M. Unnao committed this case to the court of sessions on 13.10.2000. The trial court of learned Additional Sessions Judge, Court No. 3 Unnao framed the charges on 22.6.2001 against the appellant for offence punishable under Section 302 IPC. The appellant pleaded not guilty and claimed to be tried.
9. Learned trial court recorded the statements of PW-1 complainant Santosh Kumar, PW-2 injured Smt. Raj Kumari, PW-3 Dr. Sanjay Kumar Dohare, PW-4 Inspector Raj Narayan Singh, PW-5 Dr. M.C. Tiwari, PW-6 Head Constable Rajesh Kumar Bajpai, PW-7 Ganga Ram and PW-8 S.I. Nand Lal.
10. The trial court has also recorded statement of appellant Ram Jeevan under Section 313 Cr.P.C. He has stated that he has falsely been implicated in this crime due to enmity. He does not know Santu. He is rickshaw-puller and he has falsely been implicated in this crime in greed of property.
11. These witnesses proved the aforesaid documents relied upon by the prosecution.
12. The trial court has analysed and evaluated the evidence of witnesses produced on behalf of the prosecution and convicted the appellant vide impugned judgment and order dated 9.8.2004 and awarded the aforesaid punishment.
13. Learned amicus curiae has argued that there is inordinate delay in lodging the F.I.R. The F.I.R. was not forwarded to the concerned Magistrate forthwith, whereas the police station was situated at a distance of one kilometer. The incident occurred on 12.9.1999 at 7:00 p.m., whereas F.I.R. was lodged on 12.9.1999 at 20:10 hours. On perusal of endorsement of the court of learned C.J.M., it reveal that FIR was seen by the Presiding Officer on 28.9.1999.
14. Learned amicus curiae has relied upon exposition of law in the case of Ishwar Singh V. The State of Uttar Pradesh connected with Ilam Singh and others Vs. State of Uttar Pradesh reported in AIR 1976 SC 2423 and argued that in paragraph no. 5 Hon’ble Supreme Court has held as follows:-
“5. … No explanation is offered for this extraordinary delay in sending the report to the magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in court differs at least in two very important particulars from that narrated in the FIR …”
Learned amicus curiae has also relied upon a decision of Hon’ble Supreme Court in the case of Marudanal Augusti Vs. State of Kerela reported in 1980 SCC (Cri) 985 and argued that Hon’ble Supreme Court in paragraph no. 8 has held as under:-
” … The FIR contains graphic details of the entire occurrence and care has been taken not to omit even the minutest detail. The names of PWs 4, 5 and 6 as having witnessed the assault are not mentioned at all in the FIR. Secondly, even though PWs 2 and 3 have been mentioned in the FIR as having given first aid to the deceased along with the informant, it is nowhere mentioned that these two witnesses were also present when the deceased was actually assaulted. According to the allegation made in the FIR the attack on deceased was a sudden and short one and was not likely to have been noticed by anybody unless he was actually present there. The most serious infirmity which appears in the case is that although the FIR was lodged on the midnight of June 23/24, 1971, it was dispatched to the sub-Magistrate and received by him at 5-30 a.m. on June 25, 1971, that is to say, there was a delay of as many as 29 hours in the receipt of the FIR by the sub-Magistrate. The investigating officer in spite of being questioned on this matter, does not appear to have given any explanation whatsoever for this delay. On the other hand, he admits that the FIR was dispatched through express delivery. Indeed, if that was so, the FIR should have reached the Magistrate much earlier. That apart, there are intrinsic circumstances which throw serious doubt on the prosecution case.
……. The High Court, however, relied on another aspect of the matter viz. that as there was no animus between PWs 1 to 6 and the accused, there was no reason to disbelieve them. The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. At any rate we are fully satisfied that the view taken by the Sessions Judge was reasonably possible and, therefore, this was surely not a fit case in which the High Court should have interfered with the order of acquittal of the appellant passed by the learned Sessions Judge. For these reasons, therefore, we allow this appeal, set aside the judgment and order of the High Court and acquit the appellant of the charges framed against him. The appellant shall be released forthwith.”
15. Learned amicus curiae has argued relying upon these exposition of laws that FIR lodged by the complainant cannot be relied upon because according to version of FIR, PW-1 Santosh Kumar reached on the roof of the house, when his aunt raised alarm, hence the entire fabric of the prosecution case would collapse if the FIR would be found fabricated.
16. We have perused record of Sessions Trial No. 630 of 2000 (State Vs. Ram Jeevan) of Police Station Bangarmau District Unnao.
17. PW-1 Santosh Kumar submitted written report Ex. Ka-1 at Police Station Bangarmau on 12.9.1999 at 20:10 hours. It is mentioned in the written report that the appellant committed murder of his uncle Santu on 12.9.1999 at 7:00 p.m. PW-6 Head Moharir Rajesh Kumar Bajpai has prepared check FIR Ex. Ka-5 on the basis of written report submitted by PW-1 Santosh Kumar and also prepared G.D. of registration of crime Ex. Ka-6 in his hand writing and signature.
18. Learned defence counsel has cross examined this witness regarding the fact that there is an endorsement of the office of the C.J.M. regarding perusal of 28.9.1999. He has refuted this suggestion putforth by learned defence counsel that primary investigation was conducted first, then after due deliberation and consultation FIR of this case was registered ante timed. He has clarified that the complainant stayed at the police station for 20 minutes or half an hour. He has also stated in his cross-examination that he prepared and sent special report on the date of incident.
19. On perusal of check FIR it reveal that place of occurrence was house of the complainant, which was situated in locality of Naseemganj of Kasba Bangarmau, which was at a distance of one kilometer from the police station and incident has occurred on 12.9.1999 at 7:00 p.m. The Circle Officer of Police Department forwarded this check FIR Ex. Ka-5 on 13.9.1999 to the court of C.J.M. During cross examination of PW-5 dispatch register of office of the Circle Officer or register of FIR maintained in the court of C.J.M. Unnao was not summoned on behalf of the appellant and specific cross examination was not conducted on the fact that when check FIR Ex. Ka-5 was received in the court of C.J.M. Unnao. It may be possible that it may be fault of the concerned employee, who dealt with the FIR received in the court of CJM and put up it before the Presiding Officer on 28.9.1999. Moreover, the following exposition of law of Hon’ble Supreme Court is relevant regarding forwarding of check FIR to the concerned Magistrate court:-
In the case of Shiv Ram v. State of U.P., (1998) 1 SCC 149 : 1998 SCC (Cri) 278 at page 159 Hon’ble the Apex Court in paragraph no. 17 and 18 has held as under:-
17. It was then contended by Mr Sushil Kumar that the claim of the complainant that he lodged the FIR at 9.05 p.m. is false. According to him if the FIR was registered as alleged there was no reason whatsoever why the copy thereof was not sent to the Illaqa Magistrate at the earliest opportunity. As regards the contents of the FIR he urged that it was impossible for any human being to write down the complaint with such details when four dead bodies were lying of which three were without heads in the house. The contents of the complaint manifestly suggest that it was an afterthought exercise with the help of police or somebody to spread a wide net and involve as many accused as possible to take revenge. He, therefore, urged that the complaint lodged by Mahendra Kumar (PW 1) be treated as a false document and be not accepted for the purpose of seeking corroboration to the evidence of PW 1.
…..To our mind it is only a figment of imagination to contend that the investigation carried out by the investigating machinery was antedated at the instance of the complainant. It is true that the complainant at the relevant time was posted at a far-off place but he testified that he had come to Village Bajarkha on two days’ leave as he had not come till then to his village after he joined the service. This explanation given by the witness is quite plausible and the courts below were right in accepting his presence at the time of occurrence. It is also true that there was a delay in forwarding the copy of the FIR to the Illaqa Magistrate but that circumstance would not demolish the other positive and credible evidence on record. This would only show how in such a serious crime the investigating agency was not careful and prompt as it ought to be.
18. It was then contended for the appellants that if really the incident was reported at 9.05 p.m. then surely the inquest reports which were prepared on the following day must mention the title of the crime. But it was left blank and, therefore, this omission was a serious infirmity and demolishes the very substratum of the prosecution based on the first information report which is a concocted document. At the first blush the argument appeared to us attractive but on scrutiny and consideration of the materials on record we are unable to accept this submission. If really the complaint was not lodged at 9.05 p.m. then the police could not have reached at the place of occurrence at 11.00 p.m. Such minor omission is nothing but a bona fide error or casual approach on the part of the investigating agency which does not affect the substratum of the prosecution story. It was then urged that Kamlesh was taken to the police station in an injured condition but he was not sent to the hospital for treatment. In fact Kamlesh was not traced for the whole night and only on the following day he appeared and was admitted in the hospital where he died after 17 days due to septicaemia. It was, therefore, urged that neither Kamlesh nor the complainant ever went to the police station to lodge a complaint at 9.05 p.m. and this complaint was manufactured at a later stage with the connivance of the police. We see no substance in this contention also because the fact remains that Kamlesh was injured during the incident in question. If he was not sent to the hospital for medical examination and treatment by the investigating agency no fault could be found with the complainant’s evidence and the FIR (Ex. Ka-1). In these circumstances we see no merit in all these contentions raised on behalf of the appellants.
In the case of Jinnat Mia v. State of Assam, (1998) 9 SCC 319 : 1998 SCC (Cri) 1017 at page 324 Hon’ble the Apex Court in paragraph no. 15 has held as under:-
15. It is next argued that there is a considerable delay in forwarding the report to the Magistrate from the police station. We find that the report was forwarded on the next day i.e. 4-6-1987. In the facts and circumstances of the case we do not find that there is any delay which could create a doubt in the case of the prosecution. Reliance is placed by the learned counsel for the appellant in Arjun Marik v. State of Bihar[1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] . While taking into account several circumstances which vitiated the prosecution case the Court referred also to the delay of 3 days in forwarding the report to the Magistrate. Even in the said case it is pointed out that quite often there are valid reasons for the delay in the despatch of the FIR and it is not always a circumstance on the basis of which the entire prosecution case may be said to be fabricated but it all depends upon the facts and circumstances of each case where the circumstance of delay may lead to serious conclusions. In the present case we find that the delay of one day in forwarding the report does not vitiate the prosecution case.
In the case of Anil Sharma v. State of Jharkhand, (2004) 5 SCC 679 : 2004 SCC (Cri) 1706 at page 684 Hon’ble the Apex Court in paragraph no. 6 14 has held as under:-
6. In support of the appeals, it has been submitted that there was delay in recording the FIR. There was non-examination of many vital witnesses. Evidence of the defence witnesses was not carefully analysed. PW 6 later on made a statement under Section 164 of the Code that his evidence was recorded under pressure. There were exaggerations in respect of what had been indicated in the fardbeyan as recorded. Non-production of the hospital register and non-examination of the Warden and Head Warden casts serious doubts on the veracity of the prosecution version and the courts below should not have brushed aside those infirmities lightly. The production of the register and the examination of the Warden and Head Warden would have established that the place of occurrence as indicated is highly improbable. The situs has not been proved. No bloodstains have been found or seized. PW 6 is not a resident of the jail. He claimed to be an inmate of Ward No. 6 and though he stated that he was inside the camp of the jail, nothing material in that regard has been established. As soon as PW 6 came out of the jail in May 2001, he filed an affidavit stating as to how the statements made by him during trial were wrong. It has been erroneously held that no prejudice was caused by not getting him re-examined. Different yardsticks have been adopted for the prosecution and the defence witnesses. PW 5’s presence at the spot of occurrence as claimed is highly doubtful. The canteen manager himself has improbabilised the presence of the witnesses. Even if it is accepted that PW 5 was present, his evidence does not guarantee truthfulness. There was no corroborative material. After having discarded the evidence of PWs 1, 2 and 4 there was no justification to act on the evidence of PWs 5 and 6. The FIR has been dispatched after considerable delay and there has been delayed examination of PW 5. So far as PW 5 is concerned, he was examined under Section 164 of the Code. He has not named Sushil Srivastava in the statement recorded before the Magistrate though in the cross-examination he accepted that what was stated before the Magistrate was correct. The assault part as indicated by PW 6 in the so-called FIR was given a go-by in court. Though in the FIR it was stated that the assault was made by respective weapons the Court has come to a presumptive conclusion that no physical assault was made but by holding the head the killing by accused Anil Sharma was facilitated.
14. So far as the delay in dispatch of the FIR is concerned, it was noted by the High Court that the informant’s fardbeyan was recorded at 10.00 a.m. on 22-1-1999. The inquest report was prepared on 22-1-1999 at 1925 hours. The inquest report was prepared by the Executive Magistrate and the case number is also mentioned. That being so, the plea that the fardbeyan being ante-timed has not been established. Post-mortem was conducted on 22-1-1999 at 2200 hours. Above being the position, there can be no grain of doubt that the fardbeyan was recorded on the date of occurrence and filed at the indicated time and the case has been instituted on the basis of the said fardbeyan. Finding recorded by the High Court that the fardbeyan was not ante-timed is amply supported by evidence on record and no adverse view as claimed by the accused-appellants can be taken.
In the case of Jafel Viswas and others Vs. State of West Bengal reported in 2018 SCC OnLine SC 2011 Hon’ble Supreme Court has held as under:-
7… The police was informed and a FIR was lodged at about 3.15 p.m. in the afternoon. Written complaint was submitted and inquest was prepared and post mortem was conducted.In F.I.R. names of 7 accused persons were mentioned which included name of all the appellants. A report under Section 157 of the Code of Criminal Procedure, 1973 (CrPC) could be sent to the Magistrate after delay of about 3 months i.e. on 20.12.1985 and the Magistrate initiated the order sheet on 20.12.1985 on the basis of the F.I.R. A chargesheet was submitted against 10 accused persons…..
12. Learned counsel for the appellant challenging the decision of the High Court submits that the fact that F.I.R. was lodged on 25th September, 1985 and the report under Section 157 CrPC could reach the Magistrate on 20th December, 1985 in which instead of seven names, 10 accused were mentioned, causes prejudice to the accused and this ground is itself sufficient to vitiate the conviction…
14. It is further submitted that insofar as a report under Section 157 CrPC is concerned, which was submitted with delay, the issue has been considered by the High Court and the High Court has noted the lapse and observed that concerned officer was callous and unmindful of his duty as a public servant. But it has to be found out from the other evidence on record that the FIR on which the prosecution has relied was a genuine F.I.R. or not. It is further submitted that both the courts below have rightly believed the statement of eye-witnesses and convicted the accused and there are no grounds in the appeal.
17. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.
19. In State of Rajasthan (supra) in paragraphs 27 and 28, this Court has laid down as follows:–
“27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:– (SCC pp. 549-50, paras 30-31)
“30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful…..
……discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on the alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution…..
31. In this context, we would like to refer to a recent decision of this Court in Sandeep v.State of U.P. wherein the said position has been explained as under in paras 62-63: (SCC p. 132)
“62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed inSarwan Singh v. State of Punjab, Anil Rai v. State of Bihar and Aqeel Ahmad v. State of U.P.
28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR “forthwith” ensures that there is no manipulation or interpolation in the FIR. If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. However, if the court is convinced of the prosecution version’s truthfullness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.”
20. The obligation is on the I.O. to communicate the report to the Magistrate. The obligation cast on the I.O. is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. ….
21. In cases where the date and time of the lodging of the F.I.R. is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.
22. This Court in the case of Anjan Dasgupta v. State of West Bengal, (2007) 11 SCC 222 (of which one of us was a member, Hon. Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.
23. The High Court has rightly noted this submission and opined that to find out whether the F.I.R. is genuine or not, and whether the trial court has rightly convicted the accused or not, the entire evidence has to be looked into.
24. On delayed dispatch of F.I.R., some prejudice have to be proved by accused. The prejudice which was sought to be projected by the appellants is that in F.I.R. names of only 7 accused were mentioned but in the report sent to the Magistrate there were 10 names. For the present case, it is sufficient to notice that name of all the appellants were very much in the F.I.R., hence addition of three names in report can in no manner prejudice the appellants.
Learned defence counsel, who conducted the trial on behalf of the appellant before the trial court has not elicited during course of cross-examination of the Investigating Officer or the Constable Head Moharir, who registered FIR of this case at the police station that what prejudice was caused to the appellant by forwarding FIR allegedly with delay.
We have to examine the facts and circumstances in which FIR of this case was registered at the police station in light of aforesaid exposition of law of the Apex Court.
20. PW-1 complainant has proved his written report Ex. Ka-1 and stated that this report was written by him after incident was committed by the appellant on the date of occurrence. PW-1 complainant Santosh Kumar in his cross-examination has stated that the police station is situated at a distance of one kilometer from his house. He along with Rajesh and Kamlesh went at the police station at 8:00 p.m. where after the incident, the Investigating Officer met him and came and stayed at the place of occurrence for 10-15 minutes. The Gandasa used by the appellant was lying on the place of occurrence, but he did not take it in his possession at this point of time. He has specifically stated that he remained at the police station and the Investigating Officer went at the place of occurrence alone. When he returned back from the police station Gandasa was lying on the spot. He has further stated that when the Investigating Officer returned at the police station, then he came with him at his house at 9:00 p.m. He has also specifically stated that when he for the first time visited the police station, the Investigating Officer enquired from him for 10-20 minutes, then he proceeded for the police station.
21. PW-1 Santosh Kumar in his cross-examination has stated that written report Ex. Ka-1 was written by him at his house. He has disclosed time of incident as 7:00 p.m. He has also clarified his mental state that he could not think for ten minutes after the incident, what to do. The residents of his locality advised that report should be lodged at the police station, then he lodged FIR, which took one hour. He has refuted the suggestion that when the Investigating Officer visited the place of occurrence first, then with his advice report was lodged. PW-1 Santosh Kumar has stated on his own that he wrote his written report first at his house and then brought it at police station. He has also refuted the suggestion that the incident of murder of Santu was committed at 10-11 p.m. and he could not know the incident and he has adduced false evidence that the appellant committed murder. He did not see the incident.
22. PW-8 S.I. Nand Lal has stated in his examination in chief that on 12.9.1999, he was Senior Sub Inspector of Police Station Bangarmau. This crime was lodged in his presence and he started investigation of this crime on 12.9.1999 itself. He recorded statement of PW-6 Rajesh Kumar Bajpai and the complainant Santosh Kumar, then he proceeded for place of occurrence.
23. PW-8 in his cross-examination has stated that he recorded the statement of PW-1 Santosh Kumar at 9:30 p.m. at police station. He visited the place of occurrence at 11:00 p.m. after registration of crime. He did not inspect place of occurrence at night and he had not conducted inquest proceedings of dead body of the deceased Santu. He has specifically stated that he saw the Gandasa in light of torch at night. He did not take it in his possession. He took possession of Gandasa on 13.9.1999 at 9:30 a.m.
24. PW-8 has refuted the suggestion that he has shown recovery of Gandasa to strengthen and support the prosecution version. He has also refuted the suggestion that he had not conducted inquest proceedings of the deceased at night, because at this point of time no criminal case was registered. He has specifically denied this fact that proper arrangement of light was available at the place of occurrence. He has specifically stated that light of gas Batti and lantern was available on the spot. Therefore, PW-8 has given plausible explanation for not conducting inquest proceedings of the deceased at 9:00 p.m. on 12.9.1999/13.9.1999.
25. We have perused inquest report Ex. Ka-11, which has been proved by the PW-8.
26. PW-8 has stated in his examination in chief that on 13.9.1999, he conducted inquest proceedings of the deceased Santu and prepared Ex. Ka 12 to Ka-15 for autopsy of the deceased. PW-8 has also stated that on 13.9.1999, he inspected the place of occurrence on pointing out of PW-1 complainant Santosh Kumar and prepared site plan Ex. ka-10. He took in his possession bloodstained pillow, three broken teeth and one broken bangle in presence of the witnesses Bal Kishan and PW-7 Ganga Ram and recovery memo Ex. Ka-7 was prepared. He also took bloodstained Gandasa and prepared recovery memo Ex. ka-8. He also collected bloodstained material of roof and plain material of roof. He prepared recovery memo Ex. Ka-9.
27. PW-7 Ganga Ram has proved this fact that in his presence the Investigating Officer collected bloodstained soil/material of roof and plain material of roof, material Ex. 1 2 bloodstained Gandasa, bloodstained Dasani, pillow, three broken teeth and broken bangle. He and the witness Bal Kishan signed these recovery memos Ex. Ka-7, 8, and 9. He has proved blood-stained Gandas used by the appellant as material Ex.-3 and bloodstained Dasani as material Ex.-4, pillow Ex.-5, teeth Ex.-6 and broken bangle material Ex. Ka 7.
28. PW-7 in his cross examination has specifically stated that on recovery memo Ex. Ka-7, 8 and 9, he signed on 13.9.1999 at 9-10 a.m. The witness Bal Kishan also signed these recovery memos. He has refuted the suggestion that these recovery memos of Gandasa and bloodstained soil/material and clothes were prepared false and fabricated. No material contradiction has been elicited during cross-examination of PW-7 and PW-8 on behalf of the appellant, regarding preparation of recovery memos (Ex. Ka-7, 8 and 9)
29. Learned amicus curiae has argued that PW-7 Ganga Ram signed these recovery memos on 13.9.1999 at 9.10 a.m. whereas PW-8 has stated that he prepared recovery memo on 13.9.1999 at 9.30 a.m. therefore, preparation of these recovery memos Ex. 7, 8 and 9 is suspicious and doubtful.
30. The argument of learned amicus curiae is misconceived, because PW-7 has stated that he signed these recovery memos on 13.9.1999 in between 9:00-10:00 a.m. Therefore, there is no contradiction in statements of PW-1 and PW-8 regarding the fact that Investigating Officer took the aforesaid Gandasa, bloodstained soil and other articles on 13.9.1999 at 9:30 a.m. Likewise there is no contradiction in statement of PW-1 complainant Santosh Kumar and PW-8 regarding the fact that PW-8 did not take possession of Gandasa at night on 12.9.1999/13.9.1999 and it remained lying on the place of occurrence upto 13.9.1999 at 9:30 a.m. The argument of learned amicus curiae regarding these contradictions are of no avail. No material contradiction has been elicited on behalf of the appellant regarding lodging of FIR by PW-1 and the proceedings conducted by PW-8 stated by him. There is no substance in the argument of learned amicus curiae that FIR of this case was registered after due consultation and deliberations with the Investigating Officer PW-8 or FIR was lodged when PW-8 had inspected the place of occurrence and enquired from PW-1 complainant
31. On perusal of inquest report Ex. Ka-11, it reveal that information/FIR of this crime was registered at police station Bangarmau, District Unnao on 12.9.1999 at 20.10 hours and the Investigating Officer prepared inquest report on 13.9.1999 at 6.30 a.m. up to 8.10 a.m.
32. PW-1 complainant Santosh Kumar has proved this fact that he prepared his written report at his house immediately after the incident was committed by the appellant and lodged it promptly on 12.9.1999 at 20:10 hours. In light of exposition of law propounded by Hon’ble Supreme Court, there was no inordinate delay in sending check FIR Ex. Ka5 by PW-6 to the Circle Officer and the Circle Officer sent this check FIR on 13.9.1999 to the court of CJM concerned. The appellant was unable to prove this fact that, in which, circumstances, the Presiding officer of the court of CJM endorsed on it regarding perusal of it on 28.9.1999. Therefore, it cannot be accepted that written report Ex .Ka-1 and check FIR Ex. Ka-5 were registered at police station Bangarmau ante-date and time as suggested by learned amicus curiae.
33. Learned amicus curiae has further argued that PW-1 complainant Santosh Kumar has been shown during course of trial, as eyewitnesses of incident, whereas he reached on the roof of his house after hearing alarm raised by PW-2 Raj Kumari.
34. We have perused written report Ex. Kia-1, in which, PW-1 complainant Santosh Kumar has mentioned that when his aunt raised alarm, he rushed to the roof and the appellant Ram Jivan escaped after committing murder of the deceased.
35. We have perused the statement of PW-1 also. He has stated in his, examination-in-chief, that on the date of incident, he was present on the roof of his house, and on the other side of the roof his Mausi and Mausiya were lying. The appellant Ram Jivan was also lying on the roof of eastern side. When Mausi raised alarm, he saw that appellant Ram Jivan when he was assaulting Santu and trying to escape. He has disclosed reasons why appellant had committed this incident. PW-1 has stated that an altercation occurred between the appellant and his mother regarding dispute about door 6-7 days ago, when dispute escalated, the deceased Santu slapped the appellant. The appellant committed murder of the deceased at 7.00 p.m. due to this reason.
36. PW-1 Santosh Kumar has clarified that his mother was married to Ram Vilas, then in the life time of Ram Vilas, his mother started living with Neelkanth. The deceased Santu had resided with them from one year ago. The appellant often visited his house and stayed for 4-5 days at a time. The appellant is 8-10 years elder then him.
37. PW-2 has also stated in his cross examination that Ram Jivan worked as rickshaw-puller at Kanpur. He and Santu were plying cart. Kamlesh is son of his aunt (Mausi). He does not know, in which circumstances his mother Ram Pyari came and resided with Neelkanth. The house, in which, place of occurrence is situated, was owned by his father Neelkanth. His house is adjacent to house of Chhote Lal. He has disclosed his neighbours as Kailash and Chhote Lal. He has specifically stated that Shiv Shankar does not reside in his Gauda. No body resides in it. He has also disclosed the accommodation available in his house by stating that five rooms have been constructed in his house. There is a staircase to go on the roof of the house. One courtyard is situated in between the rooms.
38. PW-1 complainant Santosh Kumar has further stated in his cross-examination that he returned back on the date of incident at 6:30 p.m. Santu and Kamlesh also returned back after 10-15 minutes. His maternal grand mother Smt. Gajrani and his Mausi were present in the house. His mother went for Neemsar and had returned back on the next day. He has stated that on the date of incident, his sister, namely, Bitiya cooked food for him and his Mausi cooked food for Satnu. They did not take dinner. When he returned after plying the cart at house, then he immediately went on the roof of the house. The deceased Satnu also went on the roof and after 4-5 mintues, his Mausi Raj Kumari also came on the roof of the house. The appellant also reached there. The appellant came from Kanpur on the date of incident itself. He stayed at Kanpur for a week. He worked as rickshaw-puller at Kanpur.
39. PW-1 has specifically stated that when Ram Jivan came at roof, there was no conversation with him. Raj Kumari was also present at this point of time. Appellant Ram Jivan had no conversation with anybody. He was lying on quilt (RazaiP, which was unfolded by him on the roof. Ram Jivan brought his quilt/razai at the roof himself. They did not take dinner after the incident. PW-1 has further stated that they could lay on the roof for 5-10 minutes only and Ram Jivan wake up and assaulted Santu.
40. PW-1 has further mentioned that appellant Ram Jivan after committing the incident, jumped from the roof and escaped in the lane. He has refuted the suggestion that he was not present on the roof of house. He has accepted this fact that he has mentioned in his written report that he reached on the roof, when his Mausi raised alarm, but he has stated on his own that some wall was raised on the roof. He has stated that Kamlesh, Ganpat and his maternal grand mother were also lying on the roof. This fact was not mentioned in the report by him.
41. PW-1 has disclosed the facts and circumstances, in which, they were lying on the roof. He has stated that he was lying on the roof on southern side at a distance of ten paces from the deceased Santu. His three younger brother were also present on the roof. He has mentioned that they tried to catch hold Ram Jivan, but he had jumped from the roof and escaped. When he reached near the deceased, he died.
42. He has also stated in his cross-examination that his Mausi Raj Kumari also sustained injuries, which were seen by him after the incident. The Gandasa and other articles of the deceased were remained lying on the roof up to 6:00-7:00 a.m. of the next morning.
43. The Gansada was lying at a distance of one and a half feet on eastern side. When he ran towards appellant, he saw that he jumped from the roof. He has refuted the suggestion that he did not see the incident of murder of the deceased.
44. Learned amicus curiae has pointed out that the complainant has not mentioned in his written report that the appellant Ram Jivan was also lying on the roof on the date of incident. PW-1 complainant Santosh Kumar does not remember, whether he apprised the Investigating Officer in this regard or not? The mental state of the complainant PW-1 might have been adversely affected, after the incident of murder of his Mausa/ deceased. He has disclosed the facts and circumstances of the incident, in which, the appellant committed murder of his mausia and other minute details of incident are not required to be mentioned in the FIR.
Rulings on the point of delay in lodging the F.I.R.
In this regard, in the case of State of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384 the Hon’ble Supreme Court has held as under:-
“The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the Bus Adda is traverisity of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram.
Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account.
In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.
The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the center and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female.
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.
The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.
In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.
In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.
In the case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.
In the case of Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.
In the case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.
In the case of Raghbir Singh Vs. State of Haryana reported at 2000 CRLJ 2463 (SC), the Hon’ble Supreme court has held that if injured was sent to hospital for treatment first, then FIR was lodged then delay is very well explained and it will not affect prosecution adversely.
In the case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.
Hon’ble Supreme Court in the case of Ravinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-
……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab : AIR1991SC63 ; Jamna vs. State of UP : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab : AIR1991SC63 ; Jamna vs. State of UP : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”
Hon’ble Supreme Court regarding proof of motive of a crime by the prosecution :
It is further observed that :-
…… The third contention is that the motive alleged by the prosecution was not established and hence the area remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that aspect to the hilt. Nonetheless some materials were produced for showing that three were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have ben the cause for the murder. In this connection we deem it useful to refer to the observation of this Court in State of Himachal Pradesh vs. Jeet Singh 1999 CriLJ 2025 : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such as degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”
Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:
Hon’ble Supreme Court has held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-
49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
53. In State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.
Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.
55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.
56. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P. (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.
57. In State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. (2011) 4 SCC 336.
45. The presence of PW-1 complainant at the place of occurrence i.e. roof of the house, presence of the appellant Ram Jivan, and presence of PW-2 Smt. Raj Kumari is established on the basis of examination-in-chief and cross-examination of PW-1 Santosh Kumar. Therefore contractions on the basis of the written report Ex. Ka-1 pointed out by learned amicus curiae are not material and of much importance, regarding the fact that the complainant reached at the roof, when his Mausi raised alarm. On the other hand, PW-1 complainant Santosh Kumar, his Mausiya the deceased, and PW-2 Smt. Raj Kumari (Mausi) were lying on the roof at the time of incident, when Ram Jivan assaulted the deceased Santu with Gandasa recovered from the place of occurrence.
46. PW-2 Raj Kumari has stated that Ram Jivan is son of her sister Ram Pyari and his father was Ram Vilas. She has stated that on the date of incident he was lying along with deceased Satnu on the roof of the house. She and her husband Santu were lying adjacent of each other. The deceased Santu was wearing vest and underwear. She covered herself by linen (Chadar). The appellant Ram Jivan assaulted Santu with Gandasa. She heard screams of the deceased. She awaked and saw the appellant, in the meanwhile accused Ram Jivan assaulted Santu again. When he tried to assault the deceased thrice, then she covered his body (the deceased) on his head and chest. In the scuffle, she sustained injuries on her both the hands. Ram Jivan left Gandasa on the place of occurrence and escaped. She has clarified this fact that when she raised alarm, then Santosh, Sant Lal, Parvesh and his younger brother also reached at the place of occurrence, who were lying on the southern side of the roof.
47. PW-2 has also stated that a dispute erupted between Raj Jivan and Ram Pyari regarding partition of a house two – four days ago. When Ram Jivan was quarrelling with his mother then the deceased Santu had slapped him. The appellant Ram Jivan committed murder of Santu at 7:00 p.m. and assaulted him with Gandasa. She has stated in her cross-examination that Ram Pyari is her elder sister. Her mother Smt. Gajrani also resided in house of Neelkanth at Bangarmau. Smt. Ram Pyari was married to Ram Vilas and Ram Jivan is his son. Younger sister of appellant Ram Jivan, namely, Malti is alive. Smt. Ram Pyari, when came at house of Neelkanth, her husband Ram Vilas was alive. She does not know that Smt. Ram Pyari left Ram Vilas, when he solemnized his second marriage.
48. PW-2 Raj Kumari has disclosed this fact that she and her husband Santu was residing in house of Neelkanth from one year ago. The appellant Ram Jivan often came in this house at Bangarmau after 2-4 months and stayed there for one or two days. She does not know whether Ram Jivan is married or not, but she has specifically stated that the family of the complainant cooked food separately and her family cooked food for themselves.
49. Learned amicus curiae has argued that there is contradiction in statement of PW-1 Santosh Kumar and PW-2 Raj Kumari that appellant Ram Jivan visited house of these witnesses after interval of which period? PW-2 has stated that Ram Jivan stayed at a time for one or two days, whereas PW-1 Santosh Kumar has stated that he stayed for four-five days.
50. These are the minor contradictions depending upon the memory of the witnesses PW-1 and PW-2. These witnesses have clarified that appellant Ram Jivan often visited their house and he worked as rickshaw-puller at Kanpur. These witnesses have also clarified this fact that on the date of incident 12.9.1999 Ram Jivan came at their house. PW-2 has specifically stated that Ram Jivan came on 12.9.1999 at 12-1: p.m. at their house at Bangarmau. He was present on the roof of the house from one hour, when she reached on the roof of the house at 6.30 p.m. She has also clarified this fact that Ram Jivan went for a walk again and again and returned at the house in the evening.
51. PW-2 Smt. Raj Kumari in her cross-examination has stated that her husband Santu returned home on the date of incident at 5:00 p.m. Ram Jivan and Santosh were present in the house. Kamlesh and Rajesh went for a walk. They were present in the lower portion of the house, when Ram Jivan committed the incident. She has clarified that when she raised alarm Kamlesh and Rajesh had returned back home. She has specifically stated that the appellant committed the incident after two hours, when her husband came back at home. They could not take their dinner. PW-2 has stated that after cooking food, she went at roof of the house at 6:30 p.m. Her husband was lying on the roof. She also laid adjacent to her husband. She has clarified that usually they take their dinner at 8:30 p.m.
52. PW-2 has also stated that when she reached at the roof, her husband and accused Ram Jivan, Santosh, Sant lal and Parvesh and his younger brother were present at the roof. PW-1 Santosh, Rajesh and Kamlesh also came back home at 5:00 p.m. She has further stated that Ram Pyari was not present in the house. She went to sleep. She awaked after hearing screams of her husband, then Ram Jivan assaulted again the deceased. The appellant when tried to assault thrice, she covered body of her husband. There was scuffle between her and appellant Ram Jivan. During this scuffle, she sustained injuries on her both hands from assault made by appellant with Gandasa. Her bangles had broken during the incident. She has specifically stated that during incident, she covered head and chest of her husband on the left side.
53. PW-2 has refuted this suggestion that after death of her husband, she herself broke her bangle and sustained these injuries. She does not know from where Ram Jivan brought Gandasa. She has refuted the suggestion that there was a scuffle/alternation between the deceased and Ram Jivan and she tried to intervene and she sustained injuries. Therefore, from this suggestion putforth by learned defence counsel, the presence of PW-2 Raj Kumari at the place of occurrence/roof has been established.
54. PW-2 has further specifically stated that PW-1 Santosh Kumar and aforesaid persons Sant Lal, Parvesh and his younger brother were lying on the other side of rallying of the roof. She does not know whether they were sleeping or awaked. She has refuted the suggestion that she has not seen any incident and her injuries are self inflicted. She has also refuted the suggestion that incident of this crime was occurred at any time at night and they could not know the fact of incident and they have falsely implicated Ram Jivan in this crime.
55. Learned amicus curiae has further argued that PW-2 Raj Kumari has accepted this fact that appellant Ram Jivan could assault the deceased twice only and third blow of Gandasa stuck her both the hands obliquely, when she covered head and chest of the deceased, whereas the concerned doctor PW-5 Dr. M.C. Tiwari has proved this fact that he found three injuries on the dead body of the deceased Santu.
56. On perusal of postmortem report Ex. Ka-4, it reveal that injury no. 1 and 2 the incised wounds were of size 10 c.m. x 4 c.m. and 18 c.m. x 4 c.m. on the right side of face of the deceased. Maxilla and mandible bone were found fracture, upper jaw and teeth were also found fractured. Therefore these two injuries may be caused by same first blow of Gandasa given by appellant Ram Jivan. On screams of her husband, PW-3 awaked and saw the second blow, which was made by appellant on neck of the deceased on right side. The nature and size of injuries 1 to 3 shows impact of blows given by the appellant.
57. These injuries might have been caused by Gandasa found on the place of occurrence as proved by PW-1 Santosh and PW-2 Raj Kumari. PW-2 Raj Kumari also sustained injuries on her both the hands. The nature of these injuries have been proved by doctor PW-3 which indicates that due to resistance made by the victim and her position on the left side impact of third blow made by the appellant was not so effective. There was scuffle between PW-2 Smt. Raj Kumari and the appellant. Therefore, impact of third blow was not resulted so grave. The nature of injuries proved by PW-3 Dr. Sanjai Kumar Dohare indicates this fact. The appellant was giving blow from the right side of the deceased and PW-2 Raj Kumari tried to save her husband from his left side. Therefore, there is no substance in the argument of learned amicus curiae that there is difference in medical evidence and ocular evidence adduced by PW-1 and PW-2 regarding the fact that the appellant gave how many blows on the body of the deceased.
58. On perusal of statements of PW-1 Santosh and PW-2 Smt. Raj Kumari every details of the incident committed by appellant Ram Jivan has been proved and disclosed by these witnesses. The presence of complainant and PW-2 injured Raj Kumari and appellant Ram Jivan is established on the roof of the house.
59. Both the witnesses have specifically stated that the deceased was lying on the roof adjacent to PW-2, who is his wife. The appellant Ram Jivan was also lying on the roof on his quilt and all of sudden he assaulted the deceased with Gandasa, which was having bloodstains on it when it was found by PW-8 at the place of occurrence. PW-2 Smt. Raj Kumari sustained injuries, while she covered head and chest of the deceased during the incident, when Ram Jivan tried to assault the deceased thrice.
The following exposition of law propounded by Hon’ble Supreme Court are relevant regarding difference in medical evidence and ocular evidence of eyewitnesses:-
In the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, reported in AIR2003SC2855, (2003 )9SCC 322 Hon’ble Apex Court has held as under:-
9. Coming to the evidence of PW2 on which reliance has been placed by the learned counsel for the accused-appellant, he has been rightly described as untruthful by the Trial Court and the High Court. he accepted to have come near the house of the deceased on hearing shouts of Dahiben. But he stated that he did not enquire how he died and who was the assailant. This conduct was to say the least most unusual and abnormal. It was not because he was shocked and, therefore, did not ask. He does not say so. On the contrary, he describes in graphic details about alleged illicit relationship between PW1 and PW8. The Trial Court has rightly observed that he has tried to create a smoke screen. As regards the alleged discrepancy between medical evidence and ocular evidence it is to be noted that a combined reading of the evidence of PW9 who examined the deceased after he was brought to the hospital and PW7 who conducted the post-mortem, it is clear that there is no discrepancy in the medical evidence vis-avis ocular evidence. Only in respect of injury No. 1, there appears to be some confusion but that does not dilute the prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses account which has to be tested independently and not treated as “variable” keeping in view the medical evidence as “constant”. (See State of U.P. v. Krishna Gopal and Anr. MANU/SC/0506/1988 : 1989CriLJ288 ).
In the caes of Balbir Singh, etc. Vs. State of Punjab, reported in (2005 )9SCC 299 Hon’ble Apex Court has held as under:-
8. Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries sustained by deceased Tara Singh would show that there were no deep penetrating injuries. Most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. The doctor, who conducted the post-mortem examination deposed that injury no. 11, namely, two bruises on the back of the deceased Tara Singh fractured two of his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it was Sikander Singh who caused those injuries, which ultimately proved fatal. Two other injuries were caused by Gorkha Singh, the first accused. Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a ‘Kulhari’ (axe), used the blunt portion of that axe. Sikandar Singh was armed with a ‘Sotti’ (wooden stick). He caught hold of deceased Tara Singh to enable other assailants to cause injury to him and Sikandar Singh himself gave ‘Sotti’ blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The ‘Sotti’ blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.
In the case of Shamsher Singh @ Shera vs. State of Haryana reported in (2002 )7SCC 536 Hon’ble the Apex Court has held as under:-
6. This is a case where the trial court as well as the High Court have concurrently held that the appellant is guilty of offence under Section 302 IPC. Both the courts have relied on the evidence of eye-witnesses, PW-7 and PW-8, on proper appreciation of their evidence. We do not find any good reason to discard their evidence. Their presence at the time of incident could not be doubted. Non-examination of Satbir, in our opinion, was not fatal when his brother Ram Chander (PW-8) was examined. It was not necessary that in all cases all the witnesses present at the time of occurrence should be examined, that too on the same point. Mere non-examination of one of the eye-witnesses to speak on the same point does not impair the prosecution case when the eye-witnesses examined fully support the prosecution case, as is done in this case.
At any rate, it is the domain of appreciation of evidence and both the courts below have accepted their evidence as supporting the case of the prosecution. PW-11, Dr. B.R. Kayat, has stated that cause of death was due to head injuries which were three in number and those injuries could be caused on the deceased by the axe (Ext.P9). He has also stated that the possibility of causing these injuries on the deceased with sharp side of axe was totally ruled out. It is on this statement that the learned counsel for the appellant laid great emphasis in the light of the statements of PW-7 and PW-8, the accused used the axe from the sharp side. The trial court in this regard observed that it might have been merely misjudgment of the witnesses; may be the axe was used from sharp side but if the deceased had attempted to sit or move, the sharp side had slipped and the blunt side of the head of the axe or the stick would have hit the head of the deceased. In our view, the evidence of the doctor himself that the injuries could be caused by the axe (Exbt. P-9) and the cause of death was because of head injuries, his evidence has to be read in proper perspective as a whole. Added to this, the evidence of eye-witnesses also support the case of the prosecution as to the giving of three blows on the head of the deceased by the appellant. Further recovery of axe (Exbt. P9), which was found with bloodstains, lent support to the prosecution case. The evidence of PW-13, the Investigating Officer, is also available on record in support of the prosecution case. Absence of motive, assuming it to be, does not benefit the appellant when there is reliable and acceptable version of the eye-witnesses pointing against him supported by the medical evidence.
8. The authorities cited by the learned counsel for the appellant, on the point that when there is conflict between medical evidence and the ocular evidence, the prosecution case should not be accepted, are of no help to him in this case. On deeper scrutiny of evidence as a whole, it is not possible to throw out the prosecution case as either false or unreliable on mere statement of the doctor that injuries found on the deceased could not be caused by a sharp edged weapon. This statement cannot be taken in isolation and without reference to other statement of the doctor that the injuries could be caused by Ex. P-9 axe to disbelieve the evidence of eye-witnesses. From the evidence available in this case the possibility of the blunt head of the axe or the stick portion coming in contact with the head of the deceased cannot be ruled out.
In the case of P. Venkateswarlu Vs.State of A.P. and Ors., reported in (2002 )10SCC 46 Hon’ble Apex Court has held as under:-
8. On the question of discrepancy between the medical and oral evidence of the eye-witnesses, a reference has to be made to the statement of P.W.5, the autopsy Surgeon. He has given a list of 27 injuries found on the body of the deceased. Injuries No.1 to 6 and 17 are on the head. Injuries Nos. 1,2,3,17,23 and 26 are cut lacerations. The cut lacerations could have been caused by a heavy cutting weapon just like an axe. The eye-witnesses had referred to axe blows given on the head of the deceased by A1 to A3. Only thing is that the autopsy surgeon did not say that the head injuries could have been caused by axe blows. This is the reason for alleged discrepancy between the medical and oral evidence. The cut laceration as stated could be said to be as a result of axe blows and therefore, we need not take this as discrepancy between medical and oral evidence. Injuries No. 13, 15, 16, 18, 24 and 25 were described by the doctor as stab injuries. These injuries could have been caused by a spear also which is a sharp edged weapon. Therefore, when doctor described certain injuries as stab injuries the same could well be caused by a spear. Injury No.1 alongwith injury No.17 was itself sufficient to cause death, and therefore, could be described as a fatal injury. The way we look at it, it appears that medical evidence is consistent with oral evidence, it is not possible to say that there is any discrepancy between medical and oral evidence.
In the case of Kamaljit Singh v. State of Punjab, reported in (2003) 12 SCC 155at page 159 Hon’ble Apex Court has held as under:-
7. The trial court was of the view that PW 5 was a “transplanted” witness and he was introduced after consultation and confabulations. No relevant or just reason was indicated by the trial court to so conclude. Though effort was made to show that he was interested in the conviction of the accused, the High Court analysed his evidence with great care and caution, taking note of the fact that he was the son of deceased Gurcharan Singh. After detailed analysis his evidence was found credible and the reasons which weighed with the High Court in this regard are not shown to suffer any infirmity to warrant our interference. The other factor which weighed with the trial court is the alleged variation between the medical and the ocular evidence. Here again, the trial court’s judgment was practically not based on any acceptable reason. From a perusal of the statement of Devinderpal Singh (PW 5) and the medical evidence, referred to above, in our opinion, it cannot be said that there was any contradiction between the ocular and medical evidence. There was absolutely no occasion for the trial court to have observed that the evidence of PW 5 Devinderpal Singh was not exactly in tune with the medical evidence. Gurcharan Singh, the deceased had a stab-wound on the back of the chest on “left side, 22 cm below the neck and 1 cm from the midline”, whereas Devinderpal Singh (PW 5) had stated that blow was given to his father on the back towards the right side. In our opinion, it could not be said that there was any contradiction between the ocular and medical evidence when sufficient materials were produced to prove the presence of the accused as well as PW 5 at the factory at the time of occurrence, the fact that some or more of records which could have been produced but not shown to be deliberately withheld cannot by itself cast any shadow of doubt on the veracity of the prosecution version.
8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484] .) The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal[(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154] . When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.
In the case of Krishnan v. State, reported in (2003) 7 SCC 56 : 2003 SCC (Cri) 1577 at page 61 Hon’ble Apex Court has held as under:
13. The medical evidence is at variance with the ocular evidence and, therefore, casts doubt thereon. Even if the prosecution case is accepted in its entirety, accused-Appellants 3 and 4 cannot be held guilty of offence punishable under Section 302 IPC as the ingredients of Section 34 IPC are not made out. According to the prosecution, blows were given on the back and this did not result in fatal injuries which were attributed to the assaults by the appellants Ayyar Thavar and Porutchyelvan. It was submitted that the defence plea of alibi taken by accused-appellant Ganesan has been wrongly discarded by the trial court and the High Court and similar is the case with the plea taken by accused-appellant Krishnan. Had the plea of alibi of the accused-appellant been accepted, it would have clearly established how the prosecution was trying to falsely implicate more persons. In other words, it was submitted that the material is inadequate so far as the accused-appellants Krishnan and Ganesan are concerned, and at the most they could be convicted for offence punishable under Section 324 or Section 326 IPC. It is pointed out that accused-appellant Krishnan is an advocate and has already been in custody for nearly four years.
18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not in any way run contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence.
20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”.
21. 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 quality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for its 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.
In the case of Thaman Kumar v. State (UT of Chandigarh), reported in (2003) 6 SCC 380 : 2003 SCC (Cri) 1362 at page 388 Hon’ble Apex Court has held as under:-
13. Shri Sushil Kumar, learned Senior Advocate has strenuously urged that the injury found on the body of the deceased could not have been caused in a manner deposed to by the eyewitnesses and thus there is a conflict between the medical evidence and ocular testimony. At the time when the statement of PW 2 Dr G. Dewan was recorded, the chadar was produced in the Court and the same was converted into a rope by twisting and according to the witness, the thickness of the same in the middle was about 6 or 7 cm. Learned counsel has submitted that the ligature mark on the neck of the deceased was 1/2 cm in width and this was not possible from a chadar, the thickness of which after twisting and converting into a rope came to about 6/7 cm. We are unable to accept the submission made. It has come in evidence that the chadar was about 1 1/2 metre long and 1 metre wide. This shows that in fact it was not a full chadar or a bedsheet but was a piece of cloth, which is sometimes used by ordinary people like rickshaw-pullers to cover their face during winters, especially in the night. If the said piece of cloth is converted into a rope by rolling it over, its diameter will very much depend upon the fact as to how strongly and tightly it is rolled over. If a piece of cloth which is only one metre in width is tightly rolled over in the shape of a rope, its diameter will be much less than 6 or 7 cm and the ligature mark on the neck of the deceased would be of still lesser dimension.
16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.
18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellants while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara Singh, who is the brother of the deceased, turned hostile and did not support the prosecution case. In his statement under Section 161 CrPC he had said that the deceased used to get commission for bringing customers to the guest house and he owed about Rs 42,000 in that account and some dispute had taken place with the owner when he had demanded his money. However, in his statement in Court he denied to have given any such statement. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav v. State of Bihar [(1998) 9 SCC 238 : 1998 SCC (Cri) 992] it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.
On appreciation and evaluation of evidence of PW-1 and PW-2, we found that there is no difference in the ocular and medical evidence adduced by witness PW-1 Santosh Kumar, PW-2 Smt. Raj Kumari, PW-3 Dr. Sanjai Kumar Dohari and PW-5 Dr. M.C. Tiwari. There is no substance in the argument of learned amicus curiae in this regard.
60. Learned amicus curiae has pointed out this fact that PW-2 Smt. Raj Kumari has accepted in her cross examination that other witnesses could not reach at the place of occurrence when the appellant Ram Jivan assaulted the deceased. Her statement has to be read over along with other statement of PW-2 Raj Kumari that PW-1 complainant Santosh Kumar, Sant Lal, Parvesh and his younger brother were lying on the other side of rallying of the roof. The witness PW-8 Investigating Officer has proved site plan Ex. Ka-10. The deceased was lying at place marked ”X’. The appellant was lying at place marked ”D’. PW-1 Santosh Kumar, Sant lal, Sarvesh Kumar and Parvesh Kumar were lying at Place ”C’. The place ”X’ and ”C’ are in opposite direction of rallying of courtyard at roof. Bloodstained Gandasa was found at place marked ”B’. PW-8 has also shown way, by which, the appellant fled away from the place of occurrence, which is situated on roof, by jumping in lane, which was situated on northern side of house of PW-1.
61. Therefore, it cannot be doubted that PW-1 and his brothers were not present at the place of occurrence i.e. roof of the house. Hence, there is no substance in the argument of learned amicus curiae that PW-1 complainant Santosh and PW-2 Smt. Raj Kumari have not seen the incident of murder of the deceased.
62. The appellant is unable to prove this fact by adducing any defence evidence that the deceased Santu was murdered at any time at night and these witnesses could not know about the facts and circumstances of murder of Santu deceased. Since PW-1 complainant Santosh and PW-2 Smt. Raj Kumari has established presence of Ram Jivan on the date and time on the incident, on the roof/place of occurrence and in the house. The appellant committed murder of the deceased at 7:00 p.m. Therefore, his false implication in this crime has been ruled out. On the other hand, there is no reason why PW-1 complainant Santosh Kumar and PW-2 Smt. Raj Kumari would absolve the real culprit and falsely implicate the appellant Ram Jivan on the basis of dispute of partition of the house.
63. Learned amicus curiae has also aruged that PW-1 Santosh Kumar in his cross-examination has accepted this fact that Chhote Lal and Kailash are his neighbours and they might have seen the incident of this crime. But these neighbours of the complainant were not produced by the prosecution during course of trial. No independent witness was produced on behalf of the prosecution. PW-1 Santosh Kumar and PW-2 Smt. Raj Kumari are relative of the deceased and they are interested witnesses.
64. On appreciation and evaluation of evidence of PW-1 Santosh Kumar and PW-2 Raj Kumar, it is proved that appellant Raj Jivan, deceased Santu and these witnesses were residing in the same house, in which, the incident of this crime was committed by the appellant on roof of this house. The deceased, appellant Ram Jivan, PW-1 Santosh Kumar and PW-2 Smt. Raj Kumari along with Sant Lal and Parvesh and his younger brother were lying on the roof of the house on the date and time of the incident, when the appellant committed murder of the deceased Santu while the deceased was lying on the roof along with PW-2 Smt. Raj Kumari, who is his wife. There was no occasion for the presence of neighbours Chhote Lal and Kailash on the place of occurrence i.e. roof of the house.
65. PW-1 and PW-2 are the natural witnesses and their presence in the house has been established on the basis of their evidence adduced during course of trial.
66. The presence of appellant has been proved by these witnesses on the roof of the house. Therefore, these witnesses are most natural and competent witnesses to prove facts and circumstances, in which, the appellant murdered the deceased.
67. PW-1 Santosh Kumar has specifically stated in his cross- examination that the rooms has not been constructed on the roof of the house of Chhote Lal and Kailash. No specific cross examination was conducted by learned defence counsel whether family members of Chhote Lal and Kailash or they were present on roof of their house on the point of time of incident of this crime. Therefore the fact of non-production of neighbours Chhote Lal and Kailash does not affect adversely the prosecution case.
On the other hand, following exposition of law is relevant regarding interested and independent witness:-
In the case of Yogesh Singh vs. Mahabeer Singh, reported in (2017) 11 SCC 195, Hon’ble Supreme Court has held in para 24 to 28, 50 and 51 as under:
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. 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, in Piara Singh v. State of Punjab [Piara Singh v. 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. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. 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, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. 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. (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] )
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.
In the case of Vijendra Singh v. State of U.P., (2017) 11 SCC 129, Hon’ble Supreme Court 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 from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. 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 in Kartik Malhar v.State of Bihar [Kartik Malhar v. 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.
In the case of Juman v. State of Bihar, (2017) 11 SCC 85, Hon’ble Supreme Court has held as under:
21. We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recording of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eyewitness, since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.
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.”
Therefore, on the basis of aforesaid exposition of law propounded by Hon’ble Apex Court, the evidence adduced by PW-1 and PW-2 cannot be discarded due to the reason that they are relative of the deceased. On the other hand, they are natural witnesses being resident of the house, in which, the appellant committed murder of the deceased on roof of this house. Their presence is established and proved by the evidence of PW-1 and PW-2. Their evidence is cogent reliable and trustworthy. Therefore, the evidence adduced by them cannot be discarded being relative of the deceased. There is no substance in the argument of learned amicus curiae in this regard.
68. PW-3 Dr. Sanjai Kumar Dohare has medically examined PW-2 Smt. Raj Kumari on 13.9.1999 at 11:45 a.m. and found the following injuries on her body:-
“1. Incised wound of size 1.5 c.m. x 0.5. c.m. x skin deep on left posterior side of forearm. Sharp edges. Clotted blood was present. Tailing downward. 7 cm. above left wrist joint. Direction obliquely.
2. Incised wound of size 1.5 c.m. x 0.3 c.m. x skin deep on right interior side of forearm. Sharp edges. Clotted blood was present. 12 c.m. above right wrist joint. Tailing downward. Direction obliquely.”
69. These injuries were of simple in nature and duration was ¾ days old and all the injuries were caused by sharp object.
70. PW-3 has proved injury report of PW-2 Smt. Raj Kumari injured as Ex. Ka-2 and opined that these injuries could be sustained on 12.9.1999 at 7.00 p.m. by sharp edged weapon.
71. The defence counsel has cross examined PW-3 Dr. Sanjay Kumar Dohare regarding nature of injuries, which were found skin deep. PW-3 has clarified the nature of these injuries along with their seat. He has specifically stated that these injuries could not be inflicted at 11:00 p.m. and these were sustained eighteen hours before medical examination of the injured.
72. The opinion of PW-3 Dr. Sanjai Kumar Dohare regarding the fact that both the injuries sustained by PW-2 Smt. Raj Kumari could not be sustained by one weapon and one blow is only his opinion.
73. PW-2 Smt. Raj Kumari has proved this fact that she covered head and chest of her husband Santu to save him, from third blow of Gandasa made by the appellant Ram Jivan, in the meanwhile she sustained aforesaid injuries on her both the hands. Therefore opinion given by PW-3 Dr. Sanjai Kumar Dohare is of no avail that these injuries could be sustained by her by broken bangle or two blows. Direction of these injuries of PW-2 were obliquely, which corroborates evidence of injured PW-2. Hence, the argument of learned amicus curiae is of no avail.
74. PW-5 Dr. M.C. Tiwari had conducted autopsy on the body of deceased Santu on 13.9.1999 at 3:00 p.m. He found following injuries on the body of deceased:-
“(i) Incised wound of size 10 c.m. x 4 c.m. x bone deep on right size of face on cheek in between nose and ear. Maxilla bone and teeth were fractured.
(ii) Incised wound of size of 18 c.m. x 4 c.m. x bone deep on right side of fact from angle of mandible to mouth. Mandible bone and upper jaw were fractured.
(iii) Incised wound of 10 c.m. x 4 c.m. bone deep on right side of neck below 4 c.m. below the right ear.
Food pipe, trachea and artery were cut. 100 gm undigested food was found in stomach.
75. He has proved postmortem report Ex. Ka-4 and opined that cause of death was shock and haemorrhage due to ante-mortem injuries.
76. He has also opined that these injuries were caused to the deceased on 12.9.1999 at 7:00 p.m. by sharp edged weapon.
77. PW-5 Dr. M.C. Tiwari has stated in his cross examination that the deceased might have died instantly after sustaining these injuries.
78. Learned amicus curiae has further argued that PW-2 Smt. Raj Kumari has accepted this fact that appellant Ram Jivan could assault the deceased twice and third blow of Gandasa and did not stuck on his body (the deceased).
79. Learned amicus curiae has also argued that bloodstained Gandasa material Ex. Ka-3 was not produced at the point of time of recording the statement of PW-5 Dr. M.C. Tiwari. Therefore, it cannot be proved that injuries sustained by the deceased were inflicted with Gandasa. He has also argued that PW-5 has opined that these injuries could be caused by Khurpa or axe and the deceased might have died on 12/13.9.1999 at 12:00 p.m.
80. Learned amicus curiae has relied upon decision of Ishwar Singh V. The State of Uttar Pradesh connected with Ilam Singh and others Vs. State of Uttar Pradesh (supra) and argued the Gandasa allegedly recovered by the Investigating Officer was not produced at the point of time of recording the statement of the concerned doctor to know whether the injuries found on the body of the deceased could be inflicted by Gandasa or not? Learned amicus curiae has relied upon paragraph-8 of the said judgment.
8. … The evidence of Sub-Inspector Karam Chand (PW 8) is that a ballam was recovered from Ishwar Singh’s house, and a bhala from Harpal’s. Dr Mathur who said that the fatal injury “might have been” caused by a ballam, admitted on cross-examination that he did not know the difference between ballam and a bhala. By ballam he meant “such weapon as is sharpedged on both sides, pointed, and less than 2 cm. in width” and he added that “if a bhala is of this very shape this injury is possible”. It is not disputed that ballam and bhala are weapons of a similar type. Had the doctor seen the weapons seized from the houses of Ishwar Singh and Harpal, it might have been possible for him to say which of them caused the injury. But the weapons seized were not shown to the doctor. In Kartarey v. State of U.P. [(1976) 1 SCC 172, 177 : 1975 SCC (Cri) 803, 808 (para 26)] this Court emphasised the importance of eliciting the opinion of the medical witness who had examined the injuries of the victim:
“It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.”
In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and, therefore, whether it was Ishwar Singh or Harpal who was responsible for it, even if one believed that on the day of the occurrence the former carried a ballam and the latter a bhala. Ishwar Singh’s conviction under Section 302 of the Indian Penal Code cannot also be sustained in these circumstances.”
81. These opinion given by PW-5 Dr. M.C. Tiwari cannot be basis of fixing exact time of death of deceased Santu and following exposition of law are relevant in this regard.
In the case of Pattipati Venkaiah Vs State of Andhra Pradesh reported in AIR 1985 SC 1715, Hon’ble Supreme Court has held in paragraph nos. 10 and 17 as under:-
“10. ……….. Moreover, the trial court as also the counsel for the appellant have not properly interpreted the evidence of medical officers (PWs. 20 and 21). To begin with, Dr. Padmanabharao (PW 20) had stated that “the injuries could have been caused by a sharp weapon like a spear” and that “the injuries were aged about an hour or so”. In cross-examination, however, the Doctor has stated that “the margin of time of the causing of the injuries in Ex.p.-17 could not have been 5 or 6 hours”. But, later on, he (PW 20) corrected himself by saying that the injured must have died one hour prior to his examination. The doctor has made a clear admission in the following words;
I cannot pinpoint the time of the causing of the injuries; it may be 5 to 6 hours prior to my examination.
17. Another argument advanced before us was that although PWs. 1 and 2 were supposed to be eye-witnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs. 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”
In the case of Ram Bali Vs. State of Uttar Pradesh reported in 2004 Cri L J 2490, Hon’ble Supreme Court in paragraph no. 10 has held as under:-
10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 Sc 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. The State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.”
In the case of Ramanand Yadav Vs. Prabhu Nath Jha reported in (2003) as SCC 606 Hon’ble Supreme Court in paragraph nos. 17, 18 and 20 has held as under:
“17. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.
18. The High Court has thus Knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adaptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony, of eyewitnesses, only if it is so conclusive as to rule out even the possibility of the eyewitness’s version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice.
20. Even otherwise, the medical evidence may be at variance so far as alleged assault by accused Prabhu Nath Jha is concerned. But there is no variance pointed out by the High Court so far as others are concerned. Therefore, there is no supportable foundation for holding that there was concoction. Accused Prabhu even otherwise can be held guilty by application of Section 34 IPC. Though there was no charge framed for an offence under Section 302 read with Section 34 the evidence on record clearly brings out application of Section 34 and as was observed by this Court in Lallan Rai and Ors. v. State of Bihar 2003 (1) SCC 268: 2003 SCC (Cri) 301] Section 34 can be applied if the evidence of the eyewitnesses clearly establishes the role played by the concerned accused.”
In the case of Ramkisan and others vs. State of U.P reported in AIR 2004 SC 4678 Hon’ble the Apex Court has held as under:-
“… The counsel for the appellants further contended that the medical evidence adduced in this case disproved the prosecution case. PW 8 Dr. B.B. Subramaniya conducted the post-mortem on the dead body of the deceased Shiv Shankar Singh. He deposed that the injuries found on the body of Shiv Shankar Singh may have been caused by a sharp, heavy-cutting weapon. Injuries 3, 4 and 6 are injuries which must have been caused by such a weapon. Injury 3 is a chop wound on the left forehead 18 cm × 4 cm brain-deep; Injury 4 is a chop wound 10 cm × 3.5 cm and Injury 6 is a chop wound 6.5 cm and 5 cm. All these three injuries are on the head and the brain was exposed. Counsel for the appellants contended that according to the prosecution, the appellants were armed with “lathis” fitted with iron rings and there was no case that any one of the appellants was having any sharp-cutting weapon. It is important to note that the “lathis” were fitted with iron rings and a heavy blow with such a weapon on the head would have caused the skull to break. The doctor was of the opinion that there were multiple fractures of the skull. Except the witnesses saying that “lathis” were fitted with iron rings, there is no evidence as to the nature of the weapons. During the course of the investigation, these weapons were not examined. What was the width of the ring which covered the “lathis” is not known. Under the circumstances, the Sessions Court and the High Court were justified in accepting the prosecution case.
… The counsel for the appellants strongly urged before us that the evidence of the other two witnesses, namely, PW 2 and PW 6, cannot be accepted as they were also not independent witnesses. It was pointed out that these witnesses were so close to deceased Shiv Shankar Singh that they even filed an affidavit before the court in support of the plea for the cancellation of the bail of these appellants. The incident allegedly happened at 8 o’clock in the morning. These witnesses are persons residing in the locality. PW 1 also deposed that these witnesses were present at the time of the incident. The courts below have relied on the evidence of these two witnesses. We do not find any strong reason to discard their evidence.
… Another contention urged by the appellants’ counsel is that the post-mortem showed that the stomach of the deceased was empty. According to the learned counsel, PW 1 and the deceased had left the house in the morning and they must have taken food and that the prosecution story must be false, for the reason that the incident must have taken place somewhere during the night and that is why the post-mortem evidence is to the effect that the stomach of the deceased was empty. There is no direct evidence as to whether the deceased had taken any food in the morning. The counsel for the appellants pointed to the statement given by the investigating officer during the cross-examination in which he had admitted that the father-in-law had stated to him that the deceased had taken breakfast in the morning and thereafter left the house. The father-in-law of the deceased was not examined as a witness. Therefore, the statement given by the investigating officer must have been based on the statement of the father-in-law of the deceased recorded under Section 161 of the Code of Criminal Procedure. The statement given by the investigating officer regarding this fact is not directly admissible in law. In the absence of any evidence to the effect as to whether the deceased had taken food or not before leaving the house on 12-10-1979, the findings of the doctor to the effect that the stomach of the deceased was empty are of no consequence.”
PW-1 and PW-2 have proved this fact that although food was cooked by PW-2 but they could not have their dinner when incident was committed by the appellant. The argument of learned amicus curiae put forth on the basis of postmortem report of the deceased and statement of PW-5 that 100 gm undigested food was found by the doctor in the stomach of the deceased. Therefore, it may be possible that incident of murder of Santu occurred at night when he already took his dinner. This argument is not of avail because PW-1 and PW-2 have specifically stated that they could not take their dinner prior to the incident. Moreover, no specific cross-examination was made by learned defence counsel to PW-1 and PW-2 regarding the fact that the deceased ate what kind and quality of food i.e., its contents and nature of food whether solid or liquid were not clarified from these witnesses. It may be possible when the deceased returned home at 5.00 p.m. he might have ate sometime outside the house, which was found in his stomach by PW-5 Dr. M.C. Tiwari in form of undigested food. No question was put up to PW-5 by learned defence counsel that what was the contents of this undigested food. Therefore, there is no substance in the argument of learned amicus curiae.
82. Moreover, PW-7 Ganga Ram has proved this fact that in his presence PW-8 Investigating Officer collected bloodstained soil/material of roof from the place of occurrence alongwith Dasani, bloodstained pillow, broken pieces of bangles, three broken teeth and bloodstained Gandasa material Ex. Ka-3 to 7.
83. The statement of PW-7 has corroborated the statements of PW-1, PW-3 and PW-8. The statement of PW-3 Dr. Sanjai Kumar Dohare corroborates the statement of PW-3 Smt. Raj Kumari regarding the injuries sustained by her and the statement of PW-5 Dr. M.C. Tiwari corroborates statement of PW-1 and PW-2 regarding the fact that appellant Ram Jivan assaulted the deceased Santu with bloodstained Gandasa was recovered from the place of occurrence.
84. The trial court has also analysed and appreciated the evidence of PW-1, PW-2 and doctors PW-3 and PW-5 and recorded finding that argument of defence counsel could be accepted that PW-5 Dr. M.C. Tiwari has opined out that injuries sustained by the deceased could be inflicted by sword and Khurpa. The nature of injuries sustained by the deceased co-relates to the weapon Gandasa recovered from the place of occurrence, because the injuries inflicted by sword and Khurpa would be of another nature. Therefore opinion of PW-5 Dr. M.C. Tiwari was discarded by the trial court and it was held that appellant Ram Jivan assaulted the deceased with Gandasa recovered by PW-8 Investigating Officer from the place of occurrence.
85. The trial court has also analysed the evidence of PW-6 Constable Rajesh Kumar Bajpai, PW-7 Ganga Ram, PW-8 Investigating Officer and discarded the argument of learned defence counsel that FIR of this case was registered after due deliberations and consultations. The trial court has also analysed the evidence of PW-4 Ram Narain Singh, who has proved this fact that he perused the case diary prepared by S.S.I. Sageer Ahmad and other Investigating officers and submitted charge sheet Ex. Ka-3 against the appellant before the competent court therefore, PW-4 Ram Narain Singh earlier Investigating Officer is the formal witness.
86. The trial court after appreciating the evidence of aforesaid all witnesses and has recorded finding that appellant Ram Jivan assaulted the deceased with Gandasa and in the process of saving her husband, PW-2 Smt. Raj Kumari also sustained injuries on her both the hands. Bloodstained articles and bloodstained Gandasa were recovered by PW-8 from the place of occurrence material exhibits Ka 3 to 7 and these were sent by him through Ex. Ka-16 letter for chemical examination at the Forensic Science Laboratory, Lucknow. Constable Awadh Kishore Yadav submitted these articles at laboratory. It may be fault of Investigating Officer PW-4 Ram Narain Singh that he did not obtain chemical analysis report from Forensic Science Laboratory before submission of charge sheet against the appellant. This fact cannot adversely affect the prosecution case.
87. Learned amicus curiae has further argued that appellant Ram Jivan was falsely implicated in this crime on the basis of dispute of partition of the house, in which, incident was allegedly committed by unknown person. The appellant has not adduced any defence evidence regarding the facts and circumstances, in which, as suggested to the witnesses that the deceased Santu was murdered at about 11:00 p.m. at night of 12.9.1999 instead of 7:00 p.m. The appellant Ram Jivan could obtain permission from the trial court under Section 315 Cr.P.C. for his examination and could prove this fact that he was not present at the date, time and place of incident and unknown person committed murder of Santu deceased.
88. PW-1 Santosh Kumar and PW-2 Smt. Raj Kumari has proved this fact that appellant Ram Jivan often visited the house, in which, they were residing. The appellant had quarrelled with his mother Ram Pyari 6-7 days ago. The deceased intervened and slapped the appellant.
89. PW-1 PW-2 have proved this fact that on the date of occurrence, appellant Ram Jivan was present on the roof of the house and was lying on his quilt and assaulted the deceased in their presence, when PW-2 and her husband Santu deceased were lying on the roof adjacent to each other.
90. The presence of PW-1 Santosh Kumar cannot be doubted as suggested by learned amicus curiae. Therefore this argument cannot be accpeted that some unknown person committed murder of the deceased and appellant Ram Jivan has falsely been implicated on the basis of dispute of partition of the house in which mother of appellant and PW-1 Santosh Kumar and PW-2 Smt. Raj Kumari were residing along with deceased Santu. There is not substance in the argument of learned amicus curiae in this regard.
91. Learned amicus curiae has relied upon the exposition of law in the case of Ishwar Singh V. The State of Uttar Pradesh connected with Ilam Singh and others Vs. State of Uttar Pradesh (supra) but facts of this case law are different, because there was two weapons Ballam and Bhala used by the accused persons and the concerned doctor opined that injuries sustained by the deceased might have been caused by Ballam or Bhala.
Whereas in the present case, PW-1 and PW-2 have adduced their evidence by stating that appellant Ram Jivan assaulted the deceased with Gandasa and bloodstained Gandasa was recovered from the place of occurrence, therefore, it cannot be doubted that appellant Ram Jivan has not assaulted the deceased with this Gandasa material Ex. Ka-3. Therefore, the exposition of law relied upon by learned amicus curiae does not extend any benefit because it is not applicable to the facts of this case.
Likewise other exposition of law in the case of Marudanal Augusti Vs. State of Kerela (supra) regarding details of incident mentioned in FIR is of no avail in light of exposition of law mentioned by us on the proper place regarding lodging of FIR.
92. It may be fault of the Investigating Officers including PW-8 that bloodstained Gandasa and other articles material Exhibits Ka-3 to 7 although sent for chemical analysis to the forensic science laboratory but report was not obtained before charge sheet was filed. Likewise it may be fault of PW-8 that he did not take bloodstained Gandasa immediately into his possession, when he visited the place of occurrence at 11:00 p.m. on 12.9.1999.
The following exposition of law are relevant regarding fault of investigating officer.
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.
93. It is relevant to mention here that site plan prepared by PW-8 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.
Hon’ble Supreme Court in the case of Bhaskaran Vs. State of Kerala, (1998) 9 SCC 12 : 1998 SCC (Cri) 843 in para-6 of the said judgment has observed as under:
6. This being a statutory appeal we have, with the assistance of the learned counsel for the parties, gone through the entire evidence on record, particularly, the evidence of PWs 1 and 2. Having done so we are in complete agreement with the High Court that the evidence of the above two eyewitnesses can be safely relied upon and made the basis for conviction. The High Court rightly pointed out that considering the fact that the distance of the police station from the village in question was 15 kms and the uncontroverted evidence of PW 1 that no buses were available to reach the police station in the night, it could not be said that there was any delay in lodging the first information report at 9 a.m. on the following morning. On the contrary, in our opinion, the report was lodged at the earliest available opportunity. Equally justified was the High Court in observing that since different persons reacted differently in the same circumstances the other two reasons canvassed by the trial court to disbelieve PWs 1 and 2 were patently wrong. As regards the failure of the Investigation Officer to seize the torchlight, the trial court failed to consider that the remiss on his part could not be made a ground to disbelieve PWs 1 and 2, if they were otherwise trustworthy.
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.
Hon’ble Supreme 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.
94. PW-8 Investigating Officer has mentioned in site plan from where he took in his possession bloodstained Gandasa and other articles material exhibits Ka-3 to 7, which were lying on the place of occurrence.
The fault and omission committed by the Investigating Officers, namely PW-4 Ram Narain Singh and PW-8 S.I. Nand Lal during course of investigation cannot affect the prosecution version adversely.
95. Learned A.G.A. has pointed out that Government of State of U.P./Hon’ble Governor has released the appellant Ram Jivan by invoking powers under Article 161 of the Constitution of India. He has been released by remitting his remaining period of imprisonment, after serving out imprisonment of 23 years, one month and 21 days including the period of remission, on execution of his personal bond of amount of Rs. 50,000/- to keep peace and good conduct, during remaining period of imprisonment.
96. On the basis of above discussions and exposition of law propounded by Hon’ble Supreme Court, the impugned judgment and order dated 9.8.2004 cannot be termed as perverse or against evidence available on record. The judgment of trial court is liable to be upheld and it is affirmed.
97. Appeal accordingly dismissed.
98. Copy of judgment be sent to the trial court and the concerned Jail Superintendent for compliance.
99. Learned amicus curiae shall get fee prescribed by the Government of U.P. immediately.
100. The record of trial court be sent back.
Order Date :- 23.04.2019