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Sattar vs State Of U.P. on 9 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Court No. – 16

Case :- CRIMINAL APPEAL No. – 2518 of 2007

Appellant :- Sattar

Respondent :- State Of U.P.

Counsel for Appellant :- Akhter Abbas,Izhar Hussain (Amicus Cur,Kaushal Kishore Tewari,S.C. Sitapuri

Counsel for Respondent :- Govt. Advocate

Hon’ble Ritu Raj Awasthi,J.

Hon’ble Virendra Kumar-II,J.

(Delivered by Virendra Kumar-II, J.)

1. This criminal appeal has been preferred on behalf of appellant assailing impugned judgment and order dated 09.10.2007 delivered by the court of learned Additional Sessions Judge, Court No. 5 Sitapur in Sessions Trial No. 913 of 2003 (State Vs. Jabbar and Sattar) arising out of Case Crime No. 222 of 2003 under Section 302 IPC, Police Station Talgaon, District Sitapur. Co-accused Jabbar expired during the course of trial. Learned trial court abated/dropped the proceedings against him on 19.03.2007.

2. The appellant Sattar has been convicted vide impugned judgment and order dated 09.10.2007 for offence punishable under Section 302 IPC and sentenced for imprisonment for life and fine of amount of Rs. 5,000/- was also imposed with default stipulation to serve out additional rigorous imprisonment for three years.

3. Sri Izhar Hussain, Advocate has been appointed as amicus curiae vide order dated 24.01.2019 passed by this Court to conduct this appeal on behalf of the appellant.

4. We have heard Mr. Izhar Hussain, learned amicus curiae for the appellant and learned A.G.A. for the State and perused the lower court record.

5. As per prosecution version, the complainant PW-1 forwarded a written report (Ex. Ka-2) at the Police Station Talgon District Sitapur. PW-1 complainant Nattha has mentioned in his written report that he is the resident of Village Obari within limits of Police Station Ramkot, District Sitapur. His relatives reside in village Baldev Purwa, Mazra Madnapur within limits of Police Station Talgaon. He visited house of his relative Mahboob son of Bakhtawar Gaddi one day prior to the date of incident. The complainant has further mentioned that his brother Mustafa was working as labour at M/s Kanhaiya Transport, Sitapur. On 8.9.2003 his brother came at Kasaula Bridege Market from Sitapur by Truck No. UP 78 T 3486, in which, Maurang/building material was loaded. Sri Sandeep Sachan son of Ramkesh was driver of this truck. His brother and Nattha son of Huddi, resident of Village Kanba Kheda within limits of Police Station Kotwali District Sitapur, were unloading the truck near the place of occurrence. The complainant has mentioned that he was present near this place, where the aforesaid truck was being unloaded by the deceased. Other persons were also present on the shops situated near place of occurrence.

6. The complainant has also mentioned in his written report that appellant Sattar and co-accused Jabbar (since dead) came at about 9:30 a.m. and dragged his brother from the place where he was unloading truck, abused him and brought him behind shop of Kadir. They assaulted him with sickles (Banka). They gave several blows with sickle, therefore his brother fell down on the place of occurrence. The complainant and witnesses Haider Ali, Mahboob and other persons tried to save the deceased Mustafa, but the appellant and co-accused Jabbar threatened them brandishing Banka to eliminate them also and abused them by stating that they will cut all of them like the deceased. No body could muster courage to save the deceased. The appellant and co-accused fled away from the place of occurrence brandishing their Banka. The complainant disclosed this fact in the written report that deceased Mustafa solemnized marriage with wife of Jabbar eight years ago. The appellant and co-accused Jabbar (since dead) has committed murder of the deceased due to this reason. It is mentioned in the written report that dead body of the deceased was lying at the place of occurrence.

7. On the basis of written report of the complainant, check F.I.R. (Ex. Ka-4) of Crime No. 222 of 2003 under Sections 302, 504 and 506 IPC was registered on 8.9.2003 at 10:30 a.m. The G.D. (Ex. Ka-5) of registration of this crime was prepared.

8. The Investigating Officer prepared inquest report (Ex. Ka-1) of the dead body and sent corpse of the deceased for autopsy. The postmortem report (Ex. Ka-3) was prepared by the concerned doctor. The Investigating Officer also prepared documents (Ex. Ka-7) Photolash, (Ex. Ka-8) sample of seal, (Ex. Ka-9) Chalan Lash, (Ex. Ka-10) letter to R.I. and sent these documents along with the dead body of the deceased for autopsy.

9. The Investigating Officer recorded statements of witnesses, prepared recovery memo of simple and bloodstained soil collected from the place of occurrence (Ex. Ka-13) site plan of the place of occurrence, recovery memo Ex. Ka-14 regarding discovery of blood stained Banka on the pointing out of the co-accused Jabbar (since dead) and site plan Ex. Ka-15 of the place from, where this discovery was made by the Investigating Officer.

10. Likewise the Investigating Officer prepared the recovery memo Ex. Ka-16 regarding discovery of Banka on the pointing out of appellant Sattar and site plan Ex. Ka-17 of the place, from where this discovery, was made by him.

11. After conclusion of the investigation, the Investigating Officer submitted charge sheet Ex. Ka-6 against the appellant and co-accused Jabbar (since dead) before the competent court. The court of C.J.M. Sitapur took cognizance on the basis of charge sheet submitted by the Investigating Officer and committed this case to the court of sessions on 3.12.2003.

12. The trial court of learned Additional Sessions Judge, court No. 1 Sitapur on 14.1.2004 framed charges against the appellant Sattar and co-accused Jabbar for offence punishable under Section 302 IPC.

13. The appellant and co-accused pleaded not guilty and claimed to the tried.

14. Learned trial court recorded statement of PW-1 complainant Nattha, PW-2 Haider Ali, PW-3 Dr. K.N. Anand, PW-4 Anees, PW-5 Harun, PW-6 Lal Mohammad, PW-7 Shafiullah, PW-8 Constable Ram Autar Verma, PW-9 S.I. Amit Kumar Singh and PW-10 Investigating Officer S.I. Sher Bahadur Singh. These witnesses proved the aforesaid documents relied upon by the prosecution.

15. The trial court recorded the statement of the appellant under Section 313 Cr.P.C. The appellant has stated that he has falsely been implicated in this crime and witnesses have adduced false evidence against him. He has denied this fact that the deceased Mustafa had worked as labour at M/s Kanhaiya Transport, Sitapur and on 8.9.2003, the deceased Mustafa along with Nattha ( Buddha DW-1) came on Truck No. UP 78 T 3486, in which Maurang was loaded, from the aforesaid transport at Kasraila Bridge. He has further stated that deceased Mustafa was a criminal. He was resident of place, which was far away from the occurrence. The complainant and witnesses produced on behalf of the prosecution were not present at the place of occurrence. They were called from their house and a fake and fabricated report was registered at the police station and their false statements were recorded by the Investigating Officer.

16. The witness DW-1 Buddha son of Huddi was produced as defence witness on behalf of the appellant.

17. Learned trial court has appreciated and analysed the evidence of witnesses produced on behalf of the prosecution and defence witness DW-1 and delivered the impugned judgment and order sentencing the appellant Sattar for imprisonment for life and imposed aforesaid fine.

18. Learned amicus curiae for the appellant has argued that PW-1 complainant Nattha has accepted in his statement given during the course of cross-examination that co-accused Jabbar never raised objection on the marriage of his ex-wife with the deceased Mustafa. Therefore, motive and genesis of the crime could not be proved by the prosecution during the course of trial. Therefore, the entire prosecution version became suspicious.

19. We have perused the statement of PW-1 complainant Nattha son of Ghasite in this regard. He has proved his written report as Ex. Ka-2 by stating that he is a illiterate person. He dictated the report to Jitendra Kumar. He listened this written report readover by Jitendra Kumar, then appended his thumb impression on this written report and submitted at about 10:30 a.m. at police station Talgaon. The Investigating Officer has recorded his statement on the place of occurrence on the same day.

20. PW-1 has mentioned in his written report that the deceased solemnized his marriage with ex-wife of co-accused Jabbar (since dead). He was having animosity with the deceased on this ground. This was the motive for murder of the deceased. Therefore, at the outset, the complainant disclosed the reason of murder of his brother in his written report.

21. PW-1 in his statement has stated that co-accused Jabbar left his wife, then his brother Mustafa solemnized marriage with her. The appellant and co-accused committed murder of the deceased due to this enmity.

22. Learned amicus curiae has relied upon the statement of PW-1 complainant Nattha given in his cross examination that he has accepted this fact that co-accused Jabbar never raised any objection regarding marriage of his ex-wife with the deceased Mustafa. The complainant has replied to the question putforth by learned defence counsel in this regard that he has no knowledge that wife of co-accused Jabbar took divorce from him and resided for two – three years at her parental house, then she solemnized her marriage with the deceased Mustafa. This statement given by the PW-1 complainant in his cross examination did not extend any benefit to appellant Sattar, because PW-1 is an eyewitness of the murder of his brother Mustafa and PW-2 Haider Ali has also adduced his evidence regarding the fact that appellant Sattar along with his brother, co-accused Jabbar, committed murder of Mustafa by giving blow of Banka on the date and time of occurrence i.e. 8.9.2003 at about 9:30 a.m. Therefore, this is a case of direct evidence.

23. Learned A.G.A. has also argued that in a case of direct evidence, the motive has no relevance and it is not material. On the fact of motive the following exposition of law of this Court and Hon’ble Apex Court are relevant:-

Hon’ble Supreme Court (Division Bench) in the case of State of U.P. vs. Babu Ram reported in 2000 Cri. L. J. 2457 in para-11 has observed as follows:-

“11. We are unable to occur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, if cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.”

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

46. It has next been contended by the learned counsel for the respondents that there was no immediate motive with the respondents to commit the murder of the deceased. However, the trial court found that there was sufficient motive with the accused persons to commit the murder of the deceased since the deceased had defeated accused Harcharan in the Pradhan elections, thus putting an end to his position as Pradhan for the last 28-30 years. The long nursed feeling of hatred and the simmering enmity between the family of the deceased and the accused persons most likely manifested itself in the outburst of anger resulting in the murder of the deceased. We are not required to express any opinion on this point in the light of the evidence adduced by the direct witnesses to the incident. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shanker v. State of U.P. [Hari Shanker v. State of U.P., (1996) 9 SCC 40 : 1996 SCC (Cri) 913] , Bikau Pandey v.State of Bihar [Bikau Pandey v. State of Bihar, (2003) 12 SCC 616 : 2004 SCC (Cri) Supp 535] , State of U.P. v. Kishanpal [State of U.P. v. Kishanpal, (2008) 16 SCC 73 : (2010) 4 SCC (Cri) 182] , Abu Thakir v. State of T.N. [Abu Thakir v. State of T.N., (2010) 5 SCC 91 : (2010) 2 SCC (Cri) 1258] and Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150] )

In the case of Rajagopal v. Muthupandi, (2017) 11 SCC 120 Hon’ble the Apex Court has held as under:-

14. Equally, it is well established that motive does not have to be established where there is direct evidence. Given the brutal assault made on PW 1 by criminals, the fact that witnesses have turned hostile can also cut both ways, as is well known in criminal jurisprudence.

In the case of Badam Singh Vs. State of M.P. reported in AIR 2004 SC 26 has held as under:-

20. We also find that there was no motive for the appellant to kill the deceased. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In this case the brother of the deceased, PW-7 clearly stated that even though there was some dispute between the appellant and the deceased three years before the occurrence, that dispute was amicably settled and the disputed land was shared half and half by them. Thereafter they continued to cultivate their respective plots of land peacefully and no untoward incident took place whatsoever. We must, therefore, hold that the prosecution has failed to establish any motive for the offence. The fact that the deceased met a violent death is not surprising. He was a history sheeter and he was involved in large number of criminal offences including dacoity, robbery, abduction, kidnapping and attempt to murder etc. The possibility of his having been killed by one of his enemies cannot be ruled out.

24. Therefore, on the basis of statement of PW-1 complainant given in his cross examination, it cannot be said that co-accused Jabbar and the appellant, who are real brothers, were not having any animosity on the ground of marriage of deceased Mustafa with ex-wife of co-accused Jabbar.

25. PW-1 complainant has stated that maternal relative of the appellant and co-accused are resident of his village Obari. He and co-accused Jabbar often visited house of their maternal relative. Therefore, he very well know both the accused persons. He has also identified both the accused including appellant Sattar on 15.9.2004 at the point of time of recording of his statement of examination-in-chief. It may be possible that the appellant Sattar and co-accused Jabbar were having maternal relations in the Village Obari and often visited house of their relatives and ex-wife of Jabbar was residing with the deceased Mustafa in his house. Therefore this fact was kept in mind of the appellant and his brother Jabbar, why the deceased Mustafa solemnized marriage with his ex-wife.

26. This reason might be locked in their mind and possible reason to commit the murder of the deceased Mustafa. There is no substance in argument of learned amicus curiae for appellant that a weak motive was mentioned by the complainant in his written report and it was not proved during the course of trial.

27. Since it is a case of direct evidence, therefore, alleged motive has lost its importance and may not be very much material. It is generally difficult area for the prosecution to bring on record what was in the mind of accused. The exposition of law of Hon’ble Apex Court supports the argument of learned A.G.A. that motive have no importance or relevance in the case of direct evidence and it pales into insignificance.

28. The prosecution version cannot be adversely affected on the basis of statement of PW-1 given in his cross-examination.

29. Learned amicus curiae has vehemently argued that F.I.R. of this case is ante-timed on the basis of statement of PW-1 complainant Nattha and statement of PW-10 Investigating Officer S.I. Sher Bahadur Singh. Learned amicus curiae has relied upon the statement of the Investigating officer given in his cross examination that the distance of the police station from the place of occurrence was five and a half kilometer and the complainant PW-1 Nattha went with the Investigating Officer at place of occurrence by Jeep. PW-10 Investigating Officer has stated that he might have reached at the place of occurrence within an hour. Therefore, the complainant lodged written report at Police Station Talgaon on 8.9.2003 at about 10:30 a.m. with consultation and deliberation of the police personnel including PW-10 Investigating Officer. PW-1 complainant Nattha has mentioned time of occurrence as 9:30 a.m. and he himself reached at the police station at 10:30 a.m. He has also stated that police personnel reached at the place of occurrence at 10:30 a.m. Therefore, on the basis of statement of PW-1 complainant and PW-10 Investigating Officer, the F.I.R. of this case becomes ante-timed apparently on its face.

30. Learned A.G.A. has relied upon exposition of law of Hon’ble Apex Court in the case of Jugendra Singh Vs. State of U.P. reported in [2012 Cri. L.J. 3005 SC] and Hon’ble Apex Court in paragraph no. 33 has held as under:-

“33. Another aspect which has weighed with the learned trial Judge was about the time of the lodging of the FIR. The said timeing has no bearing on the case of the prosecution inasmuch as rustic and uneducated villagers could not have been precise on the time concept.”

31. On the point of rustic witness, we would like to quote the pronouncement of Hon’ble Apex Court’s judgment in the case of State of U.P. Versus Krishna Master reported in [(2010) 12 SCC 324]. In paragraph nos.15 and 17 of the said judgment Hon’ble Apex Court has observed as under:-

“15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.”

This point was also considered by Hon’ble the Apex Court in its earlier judgment in the case of State of Punjab Vs. Hakim Singh reported in [2005 (7) SCC 408], wherein Hon’ble the Apex Court has observed in para 7 as under:-

“We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle.”

The Hon’ble Supreme Court in AIR 1990 SC 538: State of Haryana V. Prem Chand and others has observed in para 11 as under:

11. At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C. In fact, we have expressed our views in the judgment itself stating “No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment.

Reference on this point may be made to the pronouncement of Hon’ble the Apex Court in the case of Govindaraju Vs. State of Karnataka reported in (2009) 14 SCC 236 wherein Hon’ble the Apex Court in paragraph no. 27 has observed as under:-

“27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative.”

Hon’ble the Apex Court in the case of State of Uttar Pradesh Vs. Krishna Master and others (supra) has held in paragraph no. 23 and 24 as under:-

“23. …………………… A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.

24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness.”

Hon’ble the Apex Court in the case of Sukhwinder Singh Vs. State of Punjab reported in (2014) 12 SCC 490 has observed in paragraph no. 13 as under:-

“13. ………………………………… They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence.”

32. On perusal of written report (Ex. Ka-2), it reveal that PW-1 complainant Nattha son of Ghasite has appended his thumb impression on this written report. The scirbe of this written report was Jitendra Kumar according to PW-1. PW-1 complainant Nattha was recalled by the learned trial court vide order dated 19.08.2005 in which he has stated that written report (Ex. Ka-2) was written by Jitendra Kumar on the gate of the police station and he appended his thumb impression on it. During his cross examination, PW-1 complainant has clarified this fact that police personnel did not call the scribe Jitendra Kumar. He has refuted the suggestion put forth by learned defence counsel that FIR/written report of this case was registered with the consultation and deliberation of police personnel after inspection of the place of occurrence. He has specifically stated that written report (Ex. Ka-2) was written on the gate of the police station. No other material contradiction was elicited on behalf of the appellant regarding submission of written report at police station.

33. PW-1 complainant Nattha has stated in his cross examination that he went at police station Talgaon by Tempo and returned also by Tempo at place of occurrence. He is an illiterate/rustic person and resident of Village Obari. It cannot be expected from him to disclose exact time of reaching at place of occurrence after visiting the police station.

34. Although PW-10 Investigating Officer has not mentioned time when he started inquest proceedings on 8.9.2003. He has mentioned time 13:45 hours when inquest proceedings were concluded by him. But he has specifically stated that he reached at the place of occurrence immediately after registration of this crime. This crime was registered in his presence. He collected all the essential documents and according to his memory, he reached at the place of occurrence within an hour.

35. Therefore, there is no material contradiction in the statements of PW-1 complainant and PW-10 Investigating Officer regarding the fact that in which circumstances, the police personnel including PW-10 Investigating Officer reached at the place of occurrence. The alleged contradictions pointed out by the learned amicus curiae does not help the appellant in anyway.

36. PW-1 complainant in his previous statement examination in chief dated 15.9.2004 has also reiterated this fact that Jitendra Kumar wrote his written report and he dictated him and after listening it, he appended his thumb impression on Ex. Ka-2 and he submitted this written report at 10:30 a.m. at police station Talgaon. Therefore, PW-1 complainant did not contact the police personnel of police station Talgaon, prior to reaching the police station, he met firstly with Jitendra Kumar scribe of the written report, dictated him and after appending his thumb impression, submitted this written report at police station Talgaon.

37. In his cross-examination dated 2.2.2005, PW-1 complainant has disclosed this fact that driver of the truck apprised him number of the truck by which Maurang was brought at Kasraila from Sitapur and driver was present at the point of time when written report was prepared by the scribe at police station Talgaon.

38. Learned amicus curiae has relied upon the statement given by PW-1 complainant that he does not know name of driver and cleaner of the truck nor the number of the truck. Likewise, he has also pointed out statement of PW-1 given in his cross-examination that he came by tempo at police station and stated that police personnel reached at the place of occurrence at 10:30 a.m. He has also stated that while police personnel reached at the place of occurrence, witnesses Sone, Haider Ali and Mahboob were present. Whereas PW-10 Investigating Officer has stated that PW-1 went at the place of occurrence with him by jeep.

39. Therefore, considering the distance of police station from the place of occurrence, i.e. five and a half kilometer. The statement of PW-10 Investigating Officer seems to be correct that the police personnel reached at the place of occurrence within one hour. He has stated these facts only on the basis of his memory. He has not mentioned time in the case diary regarding the fact that when he reached place of occurrence. Since PW-1 complainant is an uneducated and rustic witness, therefore, it cannot be expected from him that he may remember the exact time, when he reached at the place of occurrence and in which circumstances, police personnel reached there.

40. As far as learned amicus curiae has pointed out that PW-1 complainant states that he went at the place of occurrence alone by tempo and PW-10 Investigating Officer has stated that the complainant went with him by jeep. This minor natural contradiction may occur in the statement of PW-1 complainant and PW-10 Investigating Officer, on the basis of loss of memory and on the basis of their statements, it cannot be inferred safely that F.I.R. of this case was registered ante-timed.

41. Moreover, PW-8 Constable Ram Autar Verma prepared check FIR (Ex. Ka-4) on the basis of written report submitted by PW-1 complainant Nattha and he also prepared GD of registration (Ex. Ka-5) of this crime. He has proved these documents.

42. PW-8 has disclosed in his cross-examination that Sone son of Sadhari came along with complainant Nattha at police station. He has stated that special report was sent to higher authorities through Constable Amrendra Kumar Dwivedi vide G.D. No. 16 time 11:30 a.m. Constable Amrendra Kumar Dwivedi did not return/come back at police station on 8.9.2003 after service of special report. He has specifically stated in his cross-examination that this crime was registered in presence of S.H.O. PW-10 Sher Bahadur Singh and he proceeded for place of occurrence vide G.D. Ex. Ka-5 itself. He has refuted the suggestion put forth by learned defence counsel that on the basis of oral information, police personnel visited the place of occurrence, inspected it and called the complainant from his village Obari and ante timed FIR was registered, till then G.D. of the police station was stopped.

43. PW-10 Investigating Officer S.I. Sher Bahadur Singh has stated in his examination-in-chief that on 8.9.2003 he was S.H.O. of police station Talgaon District Sitapur and this crime was registered in his presence. He started investigation obtained copy of check FIR and GD, took essential documents and proceeded for place of occurrence, which was situated in vicinity of Village Hussainpurwa Mazre Madnapur. He prepared inquest report (Ex. Ka-1) and other exihibits 7, 8, 9 and 11.

44. On perusal of inquest report (Ex. Ka-1), it reveal that proceedings of inquest of dead body of deceased Mustafa was started by PW-10 Investigating Officer Sher Bahadur Singh on 8.9.2003 itself. It is mentioned in inquest report (Ex. Ka-1) that information/written report was registered on 8.9.2003 at about 10:30 a.m. PW-10 Investigating Officer appointed Sone Gaddi son of Sadhari, Haider Ali son of Mazeed Gaddi, Mahboob son of Bakhtawar and Nawab as panch witnesses of inquest.

45. Therefore, on the basis of statement of PW-1 complainant and PW-10 Investigating Officer it can safely be observed that PW-1 complainant Nattha never contacted police personnel prior to submission of his written report at police station Talgaon and PW-10 Investigating Officer Sher Bahadur Singh proceeded immediately for preparation of inquest report (Ex. Ka-1) and it was prepared at the place of occurrence.

46. Since PW-1 is an uneducated and rustic witness, therefore, on the basis of alleged contradiction pointed out by learned amicus curiae regarding registration of F.I.R. at police station Talgaon and arrival of police personnel at place of occurrence, it cannot be inferred that F.I.R. of this case was lodged ante-timed with consultation and deliberation of PW-10 Investigating Officer then S.H.O. of police station Talgaon District Sitapur.

47. PW-8 Constable Ram Autar Verma has specifically stated that police personnel never visited the place of occurrence. PW-1 complainant Nattha was not called from his village Obari. Hence there is no substance in the argument of learned amicus curiae in this regard.

48. Learned trial court has also considered argument of learned defence counsel that FIR of this incident was registered ante-timed and it was suspicious, because it was lodged promptly after the occurrence. The trial court has also considered this argument put forth by learned defence counsel that “it is doubtful Sone resident of Village Obari, in which circumstances, reached at the place of occurrence or police station Talgaon. Therefore, it may be inferred that the complainant was called by police station from his village Obari after incident of this crime”.

49. The trial court has recorded finding that incident occurred on 8.9.2003 at 9:30 a.m. and the distance of police station from the place of occurrence was five and a half kilometer and PW-1 complainant went at the police station by tempo. Therefore, it cannot be inferred that FIR of this case was lodged ante-timed by PW-1 complainant Nattha but it was lodged by him promptly. On the basis of statement of PW-1 complainant and PW-10 Investigating Officer, the circumstances, of lodging the FIR by PW-1, cannot be termed as suspicious. Therefore, the trial court has discarded argument of learned defence counsel in correct perspective.

50. Learned amicus curiae has further submitted that driver of the truck Sandeep Sachan was the material witness, but he was not produced by the prosecution. Therefore, material evidence of this witness was withheld by the prosecution. Likewise he has argued that the witness Mahboob was mentioned in the F.I.R. itself, but he was also not produced by the prosecution.

51. Learned amicus curiae has relied upon exposition of law propounded in the case of Sham Singh Vs. State of Haryana reported in AIR 2018 Supreme Court 3976 regarding non-production of witnesses relied upon the prosecution.

The relevant paragraph relied upon by learned amicus curiae read as under:-

18. The evidence of DW1 and DW2 was not shaken in the cross-examination. There is nothing on record to discard the evidence of these witnesses. DW1 and DW2 are Panchayatdars and are independent witnesses. Moreover, DW1 is a relative of both, the victim and the Accused and he does not have any grudge against the victim. The evidence of DW1 and DW2 have practically remained untouched and their version fully supports the stand taken by the Accused persons. It is specifically deposed by DW1 that he has seen the house of Laxmi (PW10), where the victim was staying, and the said house is having bathroom and latrine. If it is so, there was no occasion for the victim to go out of the house for the purpose of urinating. These facts, coupled with the fact that there is no medico-legal report to support the case of the victim relating to offence of rape, and as there are no injuries on the body of the victim, which is also admitted by PW10, it appears that the prosecution has cooked up the story against the Accused for the reasons best known to them.

21. The three important witnesses, namely the milkman Mahavir, the doctor who administered injection immediately after the alleged incident and Pappu in front of whose house the victim was allegedly lying unconscious were not examined by the prosecution. Non-examination of these crucial witnesses further weakens the case of the prosecution.

52. The witness Mahboob is the son of Bakhtawar, who is resident of Village Baldevpurwa, Mazra Madnapur. PW-1 complainant Nattha has stated that he came one day prior to the date of occurrence at house of his relative Mahboob son of Bakhtawar and Mahboob also accompanied them i.e. PW-1 complainant and PW-2 Haider Ali on 8.9.2003 at 8:00 a.m.

53. The Investigating Officer has recorded statement of witness Nattha son of Huddi resident of Kanwakheda Police Station Kotwali, Sitapur and Sandeep Sachan son of Ramkesh, who was the truck driver, who brought Maurang/building material from M/s Kanhaiya Transport, Sitapur in Truck No. UP 78 T 3486. Both these witnesses apprised the Investigating Officer on 8.3.2003, the facts and circumstances, in which, the deceased Mustafa was unloading the aforesaid truck along with witnesses co-labourer Nattha son of Huddi. In the meanwhile, appellant Sattar and co-accused Jabbar (since dead) came on 8.3.2003 at about 9:30 a.m., they dragged and brought the deceased Mustafa on the river bank behind shops situated on the place of occurrence and assaulted him with their Banka. The witness Nattha son of Huddi co-labourer informed the truck driver at tea shop, where he was taking tea. After committing murder of the deceased, appellant Sattar and co-accused Jabbar fled away by brandishing their Banka held by them.

54. The truck driver Sandeep Sachan son of Ramkesh in his statement recorded under Section 161 Cr.P.C. has corroborated the statement of Nattha son of Huddi recorded under Section 161 Cr.P.C. and apprised the Investigating Officer that he brought Maurang from M/s Kanhaiya Transport in truck no. UP 78 T 3486. He drove this truck from Sitapur to Kasraila. The deceased and his co-labour Nattha were unloading the truck, in the meanwhile, he went to take tea at tea shop. The co-labourer (DW-1) apprised the truck driver Sandeep Sachan that the appellant and co-accused dragged the deceased Mustafa and he (Sandeep Sachan) also saw the accused persons, while they were assaulting the deceased with Banka.

55. In the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 SCC 505, it is held by Hon’ble Supreme Court that the Court is always entitled to look into the case diary.

56. PW-1 complainant Nattha has stated in his cross-examination dated 2.2.2005 that his father Ghasite, Bakhtawar, Balhe and Sadhari are four brothers. Mahboob son of Bakhtawar, is witness of this case, Haider Ali is son of Mazeed and Mazeed is son of Bakhtawar. Haider Ali is also witness of this crime. He has also stated that Tulla, Hussaini and Nazeer are resident of his village and they are maternal uncle of the accused persons.

57. Learned amicus curiae relying upon the statement of PW-1 has argued that no independent witness was produced on behalf of the prosecution during course of trial and only interested witnesses were produced by the prosecution and their presence is also doubtful at the place of occurrence on the basis of material contradictions appeared in their cross examination.

58. In the cross-examination, PW-1 complainant has disclosed this fact that on the date of occurrence, he was present in the Village Baldevpurwa and he went one day prior to the date of incident in this village. He has further stated that witnesses Mahboob, Haider Ali (PW-2) resided in village Baldevpurwa from so many years. He was waiting for private bus on brick kiln, which was situated from the village Baldevpurwa at a distance of 100 paces. Kasraila is situated on the way to Sitapur to Laharpur and Sitapur is situated at a distance of 4-5 Kos from Kasraila.

59. PW-1 has also mentioned specifically this fact that he was not aware of the fact that his brother Mustafa was coming to Kasraila from Sitapur on the truck of M/s Kanhaiya Transport, where he was working as labourer from two and a half years. He has stated that deceased Mustafa after finishing his labour work usually came in his village Obari. He has further stated that witness Haider Ali and Mahboob resident of Baldevpurwa accompanied him and they were coming from Village Baldevpurwa at about 8:00 a.m. on their foot. They stopped at brick kiln for 5-10 minutes, where bus would have to stop.

60. Learned amicus curiae has submitted on relying upon this statement appeared in the cross-examination that there is material contradiction in the statement of witness Haider Ali and complainant Nattha that for what purpose these witnesses accompanied the witness PW-1, because PW-1 has accepted this fact that Haider Ali and Mahboob came with him and they were having conversation, while they were coming from village Baldevpurwa. They were not having specific work for coming at Kasraila.

61. PW-1 complainant Nattha in his cross-examination has stated that the deceased Mustafa and witness Nattha (his correct name is Buddha son of Huddi resident of Kanwakheda, Police Station Kotwali, Sitapur) were unloading the truck in front of southern shop owned by Kadir. He has stated that he did not know owner of the Maurang, therefore, he was unable to disclose this fact, whether owner of Maurang was present on the place of occurrence or not? He has specifically stated that when they reached at the place, where Maurang was unloaded, he saw that some Maurang was unloaded and some Maurang was remained to be unloaded. At about 9:30 a.m., the appellant Sattar and co-accused Jabbar dragged his brother Mustafa behind the shop of Kadir. He was present at a distance of 10 paces in eastern side of truck. He heard the noise and go ahead along with other persons of public. He saw the incident from northern side of truck. He apprised the Investigating Officer about the place, where he was present.

62. PW-1 complainant has specifically stated that witness Haider Ali and Mahboob were not present at the place where he was present, but they were purchasing articles at Kasraila Bridge. This Kasraila Bridge was situated at a distance of 40-50 paces from the place, where the deceased was unloading the Maurang. Mahboob and Haider Ali came after 5-10 minutes at his place, where he was standing. He has also stated that he remained at the aforesaid place, until the appellant and co-accused Jabbar committed murder of Mustafa by assaulting him with Banka and fled away brandishing their Banka.

63. PW-1 complainant has also disclosed topography of the place of occurrence in his cross-examination that Gon river is situated on southern side from the place, where the truck was being unloaded at 10-12 paces. The appellant and co-accused Jabbar assaulted the deceased on river bank at a distance of eight paces from the truck. PW-1 has stated that he could notice assault made by the accused persons on his brother Mustafa after hearing noise. He went at the place of occurrence, when the appellant and co-accused fled away after committing the incident. He saw the deceased in an injured state and his neck was cut. The deceased was wearing pant and vest and blood oozed from his body. Mahboob and Haider Ali witnesses also reached at the place of occurrence.

64. PW-2 Haider Ali has stated that he and his uncle Mahboob went on the date of occurrence to purchase fertilizer at Hussainwapur Crossing. They were at tea shop. His uncle Nattha (PW-1) was also present at the crossing. They came by bicycle. He has also stated that Nattha went towards truck, where Maurang was being unloaded. They also go ahead near tree of Babool and saw that appellant Sattar and Jabbar were assaulting the deceased with their Banka. The accused persons threatened them by brandishing their Banka that if they will come towards them. They will also cut them like the deceased. The accused persons fled away towards the river. The deceased Mustafa expired on the place of occurrence. PW-2 has also proved inquest report (Ex. Ka-1) of the deceased.

65. PW-2 in his cross examination has disclosed this fact that his grand father is Bakhtawar and Ghasite is nephew (Bhanja) of Bakhtawar. The complainant Nattha and deceased Mustafa are son of Ghasite. The complainant is resident of Village Obari, Police Station Ramkot, Sitapur.

66. PW-1 complainant Nattha has disclosed the distance of his village Obari from the place of occurrence as 20 kilometer. PW-2 Haider Ali has disclosed the distance of his village Obari from Baldevpurwa as 17 kilometer.

67. PW-2 has specifically stated that their agricultural land is situated in Village Obari and they are looking after their agricultural land himself. He has also stated that passengers usually alighted from bus near brick kiln and some person alighted on Hussainwapur Crossing. During his cross-examination, he has specifically stated that he was present at Hussainwapur Crossing for the purpose to purchase fertilizer and he and Mahboob were taking tea at the point of time of incident. He has disclosed this fact that bus did not stop near brick kiln, therefore, they told PW-1 complainant Nattha to come with them at Hussainwapur Crossing. Therefore, they went at Hussainwapur Crossing, where bus was not available also, then PW-1 complainant apprised this witness that his brother has come with truck of Maurang and he want to meet his brother.

68. PW-2 has disclosed specifically this fact that truck loaded with Maurang was parked near Hussainwapur Crossing and this place was at a distance of 30 paces on southern side from the place, where they were awaiting for tea. He did not visit the place, where Maurang was being unloaded. They saw the incident from the place where Babool tree was standing. This tree was situated at a distance of 15 paces from the tea shop, where they were awaiting for tea. The place of occurrence where the accused persons were assaulting the deceased Mustafa was at a distance of 30-35 paces from Babool tree. They did not go at the place of occurrence due to fear. The Babool tree was 5-6 paces below the surface of the road.

69. PW-2 in his cross examination has mentioned that he did not go at the place of occurrence, until the accused persons fled away. When they reached at the place of occurrence, the deceased had expired. He has further stated that truck driver, cleaner or other labourer of the truck had not gone at the place of occurrence due to fear.

70. PW-2 Haider Ali has also stated that the appellant and co-accused Jabbar fled away by crossing the river on western side. He and Mahboob along with the complainant stayed at the place of occurrence until the police personnel of the police station arrived after 15-20 minutes on the place of occurrence.

71. Learned amicus curiae of the appellant has pointed out that PW-2 Haider Ali has accepted this fact that two constables were present on duty at the crossing, when the accused persons committed this incident. One constable was urinating on western side at a distance of 20 paces from the place, where they (PW-2 and Mahboob) were taking tea. Both the constables were having rifles. The Constable went at place of occurrence after five minutes, where the deceased Mustafa was lying in an injured state. He has clarified that when the accused persons were crossing the river, the Constables/police personnel fired shots, but the accused persons could not be arrested. These two constables remained present until police personnel of police station did not reach at the place of occurrence. Therefore, inference may safely be drawn that PW-1 complainant Nattha was called from his village Obari and he was not present on the place of occurrence. The fact of his presence has been developed which is false and fabricated. Moreover, PW-2 Haider Ali has accepted this fact that somebody having motorcycle gave information in the village Obari.

72. The presence of PW-1 complainant has been established on the basis of evidence adduced by PW-2 near the truck, which was being unloaded by the deceased along with co-labourer (DW-1). Therefore, aforesaid statement of PW-2 regarding information given by somebody in Village Obari is not so material. He has also stated that he, PW-1 complainant and Mahboob remained at the place of occurrence until police personnel of police station arrived at the place of occurrence.

73. PW-2 Haider Ali is resident of Village Baldev Purwa and his presence was at shop of fertilizer near Kasraila Bridge at tea shop. PW-1 the complainant, PW-2 Haider Ali and Mahboob came at the place of occurrence from village Baldev Purwa on 8.9.2003 at about 8:00 a.m. PW-1 complainant had to board bus at brick kiln situated near Village Baldev Purwa, but the bus was neither available at brick kiln nor at Hussainwapur crossing. Therefore, the presence of PW-1 complainant and PW-2 Haider Ali cannot be doubted as pointed out by learned amicus curiae only on the ground that witness Mahboob was not produced on behalf of the prosecution.

74. PW-2 Haider Ali has stated that he was present on the place of occurrence at the point of time, while PW-10 Investigating Officer prepared inquest report. The dead body of the deceased was sealed and sent for autopsy, then the police personnel brought him in their jeep at police station. He remained at police station for half and hour. In the meantime, the complainant also reached there from the place of occurrence. PW-1 and PW-2, both the witnesses are the witness of inquest proceedings conducted by PW-10 Investigating Officer. PW-2 is unable to disclose this fact that the constables, who were present at the time of incident, went with complainant Nattha and dead body of deceased or not? He has stated that dead body for autopsy was sent by cycle trolley/cart.

75. PW-2 Haider Ali has refuted the suggestion that on information given in village Obari, the complainant Nattha and Sone Gaddi resident of village Obari reached at the police station or he did not see the incident and being nephew of the complainant, he is giving false evidence against the accused persons.

76. The contradictions pointed out by learned amicus curiae that sealed dead body of the deceased Mustafa was sent by cycle trolley or tractor trolley at 1:00 p.m. as per statement of PW-1 and at 1:30 p.m. – 2:00 p.m. as per statement of PW-2, is not so material, because statement of PW-1 and PW-2 were recorded after considerable lapse of time on 15.9.2004 examination in chief of PW-1 and on 19.9.2005 of PW-2. The cross-examination of PW-1 was conducted on 2.2.2005 and 20.7.2005. Therefore, some, minor contradiction may naturally appear in the statement of these witnesses. The presence of PW-1 complainant and PW-2 Haider Ali at the place of occurrence is apparent and established on the basis of evidence adduced by them, which cannot be termed as suspicious, as suggested by learned amicus curiae that they came after receiving the information of the incident in the village Obari.

77. There is no substance in the argument of learned amicus curiae for the appellant regarding other contradictions pointed out by him regarding the fact that Sone resident of Obari was also present at the place of occurrence and police station Talgoan according to PW-1 complainant and PW-2 Haider Ali. These circumstances, reveal/infer that information of incident was given by somebody in village Obari, then Sone came along with PW-1 complainant at the place of occurrence at the point of time, when inquest proceedings was being conducted by the Investigating Officer.

78. It is also submitted by learned amicus curiae for the appellant that PW-1 Nattha has accepted in this cross-examination that the appellant and co-accused Jabbar called the deceased Mustafa from truck to have a talk with him. The deceased Mustaffa and other witnesses co-labourer Nattha did not raise any objection.

79. PW-1 has stated in this regard that he saw the deceased Mustafa, while he heard the noise, when the appellant and co-accused persons were dragging his brother towards place of occurrence and assaulted him.

80. Learned A.G.A. has pointed out that motive of crime remained closed in the mind of the accused persons and prosecution cannot bring this fact on record, why any particular accused committed the incident/crime.

81. The fact that the deceased Mustafa went with the accused persons from truck in normal circumstances does not affect the prosecution adversely, because PW-1 complainant has specifically stated that the accused persons dragged the deceased Mustafa and assaulted him with Banka on river bank at a distance of eight paces from the truck.

82. PW-1 complainant was present near truck at a distance of 10-12 paces. Therefore, no material contradiction has been elicited during cross-examination of PW-1 complainant and PW-2 Haider Ali on behalf of the appellant. The presence of two constables on the place of occurrence at the point of time of incident has been disclosed by PW-2 Haider Ali in his cross-examination. This fact was not stated by him in his examination- in-chief. Every person observe the incident according to his own perception and narrate the details of incident according to his personal perception.

83. Moreover, learned defence counsel has not put any question on the basis of this fact stated by PW-2, Haider Ali, in cross-examination of the PW-10 Investigating Officer, whether any two constables were deputed for duty at Hussainwapur Crossing and whether they fired shots on the appellant and co-accused Jabbar. There is no substance in submission put forth by learned amicus curiae in this regard.

84. PW-10 Investigating Officer has accepted this fact in his cross-examination that PW-1 complainant Nattha son of Ghasite went at the place of occurrence from police station with him. The place of occurrence was situated at a distance of five and a half kilometer from the police station and he inspected the place of occurrence on the pointing out of PW-1 complainant. He has stated that Sone Gaddi, Chhatra Pal, Nawab, Nattha son of Huddi resident of Kanwakheda, truck driver Sandeep Sachan and witness Haider Ali were present at the place of occurrence and he recorded their statements. During his cross-examination, he has stated that he has marked alphabet (Ga) in the site plan, the place, where PW-1 the complainant was present and saw the incident. The place of occurrence was marked by him as alphabet ”A’. He has disclosed the distance between mark “Ga” and “A” as 25 meters. He has specifically stated that he found ample blood on the place marked by alphabet “A”. It is fault of PW-10 Investigating Officer that he did not mention in the site plan that blood was available at the place mark “A”. On the fault and omission made by the Investigating Officer, the prosecution cannot be adversely affected.

85. PW-10 Investigating Officer has also stated in his cross-examination that when he visited the place of occurrence, he was having copy of check FIR and G.D. of registration of crime. He has also collected plain and blood stained soil from the place of occurrence and he has sealed it in separate container and prepared recovery memo (Ex. Ka-12). He has proved site plan (Ex. Ka-13) in which he has shown place marked “B” wherefrom witnesses PW-2 Haider Ali and Mahboob saw the incident committed by the appellant and co-accused Jabbar on the place of occurrence mark “A”.

86. According to site plan Ex. Ka-13, witnesses Haider Ali and Mahboob saw the incident from place marked with alphabet “B”. There is no hindrance in between the place marked “B” and place of occurrence marked “A”. No such question was put forth by learned defence counsel to PW-1 complainant, PW-2 Haider Ali and PW-10 Investigating Officer in this regard that there was any hindrance in between these places.

87. PW-1 complainant and PW-2 Haider Ali have proved their presence at the place of occurrence, while the appellant and co-accused Jabbar assaulted the deceased Mustafa with Banka held by them.

88. PW-1 complainant has disclosed this fact that Sone resident of his village met him. Sone did not come with him from village Obari while he came in his village Baldev Purwa at house of his relation Mahboob. He met him on the road, when he was going to lodge FIR after half an hour of the incident. He has clarified that Sone was going to Laharpur.

89. PW-10 Investigating Officer has recorded statement of Sone Gaddi son of Sadhari under Section 161 Cr.P.C. regarding inquest report of the deceased. Chhatra Pal and Nawab are also witnesses of inquest proceedings. Therefore, they have not seen the incident committed by the appellant and co-accused Jabbar. Therefore, non-production of these witnesses Sone Gaddi, Chhatra Pal and Nawab does not adversely affect the prosecution case and there is no substance in the argument of learned amicus curiae, because these witnesses are not the eyewitnesses.

90. As far as witness Sandeep Sachan son of Ramkesh, who was truck driver of truck No. UP 78 T 3486 has not been produced on behalf of the prosecution, it is relevant to mention here that on the application moved by PW-1 he has been discharged. The witness Mahboob along with Nattha (Buddha son of Huddi DW-1) has also been discharged by the prosecution.

91. On perusal of record of trial court, it is relevant to mention here that Mahboob son of Bakhtawar was continuously summoned by ADGC Criminal Sitapur vide application dated 30.1.2004, 13.2.2004, 28.2.2004, 29.3.2004, 13.4.2004 and 10.8.205 and summon dated 20.7.2005 was served on witness Mahboob. He did not appear before the trial court therefore, on 1.9.2005, he was again summoned by issuing non-bailable warrant against him. The witness Mahboob moved application 29 Kha/2 before the trial court on 17.9.2005 and submitted undertaking that he would appear on 19.9.2005 for adducing evidence. After submitting personal bond, witness Mahboob son of Bakhtawar was released by the trial court. On the fixed date 19.9.2005 PW-1 complainant Nattha moved application 29 Kha for discharging witness Mahboob son of Bakhtawar, Sandeep Sachan son of Ramkesh, Nattha son of Huddi, resident of Kanwakheda, Police Station Kotwali Sitapur. Witness Mahboob was present on this date before the trial court. The trial court allowed application for discharge of these witnesses on the basis of application moved by the complainant.

92. Learned A.G.A. relying upon the exposition of law in the case of Hukam Singh and others Vs. State of Rajasthan reported in 2000 Supreme Court Cases (Cri) 1416 argued that in paragraph nos. 12, 13 and 14, Hon’ble Apex Court has held that the testimony of related witness cannot be disbelieved merely on the ground that they are interested witnesses and the public prosecutor may prefer to examine related witnesses and to drop witness, who would not support the prosecution version, which read as under:-

“12. In trials before a Court of Sessions the prosecution “shall be conduced by a Public Prosecutor”. Section 226 of the Code enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in Court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

13. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution.” It is clear from the said section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to lake a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those Courts crammed with cases, but without impairing the cause of justice.

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

93. Learned trial court has discharged witnesses, Mahboob, Sandeep Sachan and Nattha(Budha son of Huddi) and permitted the learned defence counsel to produce this witness discharged by the prosecution to be examined as DW-1, although he has discarded evidence of DW-1. In this regard, following exposition of law of Hon’ble Supreme Court in the case of State of M.P. Vs. Badari Yadav and another : 2006 (3) Supreme 204 SC is relevant. It has been held by Hon’ble Supreme Court as follows:

” …….In our view, the reasoning recorded by the High Court, itself would have been sufficient to reject the testimony of DW-1 and DW-2. However, having said so the High Court reversed the order of conviction and recorded the order of acquittal, which is perverse.

In this case the application under Section 311 Cr.P.C. for recalling PW-8 and PW-9 and re-examining them was rejected by the Court on 2.9.1994. Therefore, the question with regard to recalling PW-8 and PW-9 and re- examining them stood closed. There is no provision in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PWs (PW-8 and PW-9 in this case) could be juxtaposed as DW-1 and DW2- and be examined as defence witnesses on behalf of the accused. Mr.A.T.M. Rangaramanujam, learned senior counsel for the respondent, however, contended that the accused is entitled to enter upon defence and adduce evidence in support of his case as provided under Section 233 Cr.P.C. particularly Sub-Section (3) of Section 233. Sub-Section (3) of Section 233 reads: –

“(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.”

(emphasis supplied)

Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C. When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub- section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law.

In the case of Yakub Ismail Bhai Patel vs. State of Gujarat, (2004) 12 SCC 229 in which one of us Dr.AR. Lakshmanan,J. was the author of the judgment, in somewhat similar case to the facts of the present case it was held that once a witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath by filing affidavit stating that whatever he had deposed before court as PW was not true and was done so at the instance of the police. In that case the evidence of PW-1 was relied upon by the Trial Court and also by the High Court. He was examined by the prosecution as an eyewitness. He also identified the appellants and the co- accused in the Court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the Court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paragraphs 38 and 39 at SCC pp.240-241 held as under: –

“38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW 1 was not true and it was so done at the instance of the police”.

“39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there.”

94. Therefore, from initial stage prosecution was not relying on the evidence of DW-1, because DW-1 adduced his evidence on behalf of appellant, whereas he in his statement recorded under Section 161 Cr.P.C. has supported the prosecution version. Therefore, inference may safely be drawn that he adduced his evidence under influence of appellant Sattar by developing new facts of attempt of robbery committed by unknown miscreants, which were contradictory to his statement recorded under Section 161 Cr.P.C.

95. Learned amicus curiae has vehemently argued that PW-1 and PW-2 did not try to save the deceased Mustafa from the clutches of the appellant and co-accused along with people gathered at the place of occurrence, therefore, these witnesses conducted unnaturally, which creates doubt about their presence at the place of occurrence.

96. Learned A.G.A. has submitted that the conduct of PW-1 complainant and PW-2 Haider Ali cannot be held unnatural on the ground that they stood at the place from where they saw the incident of this crime and did not try to save deceased Mustafa.

97. On the point of conduct and reaction of a witness after seeing the incident of heinous crime, following exposition of law of Hon’ble Apex Court are relevant, which are as follows:-

In the case of Yakub Ismailbhai Patel v. State of Gujarat, (2004) 12 SCC 229 Hon’ble the Apex Court in paragraph nos. 33, 34 and 36 has held as under:-

33. He invited our attention to paras 20, 21 and 29 of the High Court’s order and paras 50-53 of the trial court’s order of PW 2 Akbar Khan @ Raju. This witness is an eyewitness to the incident. The two other eyewitnesses who were examined by the prosecution turned hostile during the trial and thus this witness was rendered in the position of being the sole eyewitness. We have perused the evidence of PW 2. It was given in his testimony that on the fateful day of the incident, he escorted the deceased to the railway office in order to enable him to place a sick note in the railway office. PW 2 has specifically stated that while he has present in the railway office, the appellant along with the co-accused threatened and attacked the deceased with sharp dangerous weapons on his neck. It is the version of PW 2 that on witnessing this ghastly attack, he ran away from the spot out of fear. He came back from the hiding after some time and saw the dead body of the deceased. While PW 2 was near the body, he has stated to have met PW 1. In fact, PW 1 who is also the complainant was accompanied by PW 2 to the police station for lodging of the complaint.

34. The testimony of this witness, in our opinion, proves and corroborates the presence of the complainant PW 1 and vice versa. PW 2 does not claim to have seen the entire attack but has categorically deposed about having seen the initial attack by the appellant and co-accused with sharp-edged weapons on a vital organ of the deceased, namely, the neck.

36. The learned counsel for the appellant has argued before this Court as well as the courts below that the conduct of this witness in not saving the life of his friend, the deceased, renders him an improbable witness. In our view, the act of this witness in running away to save his own life and not going forward to help the deceased at the time of the incident is a most probable and natural human conduct which most men faced in such situation would resort to. In our view, the conduct of PW 2 in not having the courage to stop three persons armed with deadly sharp-edged weapons is not and cannot be a circumstance or a ground to disbelieve his testimony particularly when the rest of his testimony is tested with cross-examination.

In the case of Main Pal v. State of Haryana, reported in (2004) 10 SCC 692 Hon’ble Supreme Court in paragraph nos. 10 and 11 has held as under:-

10. On a bare perusal of the trial court’s judgment one thing is patently noticeable. The trial court has merely referred to the arguments advanced and has then come to abrupt conclusions without even indicating any plausible or relevant reasons therefor. Merely coming to a conclusion without any objective analysis relating to acceptability or otherwise of the rival stands does not serve any useful purpose in adjudicating a case. The trial court was required to analyse the evidence, consider the submissions and then come to an independent decision after analysing the evidence, the submissions and the materials on record. Since the trial court had not pragmatically analysed the evidence, and had given abrupt conclusions, that itself made the judgment vulnerable. Further, several aspects which the trial court found to be of significance were really arrived at hypothetically and on surmises. Merely because the evidence of PW 2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. The High Court on the other hand has considered in great detail the evidence of the witnesses. It has come to a positive finding that PW 1 was in a position to identify the accused persons. Some of the pleas now advanced were also not taken up before the courts below, for example, non-examination of the pellets/wads by the Forensic Science Laboratory. On considering the evidence on record, pragmatically one thing is clear that the High Court after analysing the evidence in great detail, was justified in treating the trial court’s judgment to be practically unreasoned.

11. Though PWs 1 and 2 were related to the deceased, that does not in any manner affect the credibility of their evidence. When a person is shown to be the relative of an accused, it is open to the courts to critically analyse his evidence with caution and then come to a conclusion whether the same is credible and cogent. Though the conduct of PW 2 may appear to some to be somewhat unusual, as rightly noted by the High Court, every person cannot act or react in a particular or very same way and it would depend upon the mental set-up of the person concerned and the extent and nature of fear generated and consequently on the spot his reaction in a particular way has to be viewed on the totality of all such circumstances. The hypothetical discrepancy regarding the height from which the gun was shot is one aspect which needs to be noted, only to be rejected. If the eyewitnesses’ version, even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses’ evidence. The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him.

In the case of State of U.P. Vs. Devendra Singh reported in (2004) 10 SCC 616, Hon’ble Supreme Court in paragraph no. 7 has held as under:

7. As rightly noted by the trial court, the witness was a young lad and according to his testimony the accused was a hardened criminal with records of violence. It is his evidence that he was threatened by the accused, therefore, his silence in not telling others for some time, cannot, in the circumstances of the case, be held to be suspicious and unnatural. Further, the High Court erred in observing that he had stated during examination about his having not seen the occurrence and later on clarifying that he did so because of threats given by the accused. PW 4 nowhere stated of his having not seen the occurrence. The High Court also committed another error in holding that the witness refused to be cross-examined. This fact is also not borne out from the record.

98. PW-1 complainant and PW-2 Haider Ali have specifically stated that appellant Sattar and co-accused Jabbar after committing murder of appellant Mustafa threatened them brandishing their Banka that if any body will come ahead, they will cut them also like the deceased. Therefore, due to fear PW-1 the complainant and PW-2 Haider Ali and other people of public present on place of occurrence did not muster courage to go ahead or save the deceased Mustafa from the clutches of the appellant and co-accused Jabbar.

99. The case law Abdul Razak and others Vs. State of Karnataka represented by Station House Officer, Hutti Police Station reported in (2015) 6 SCC 282) relied upon by learned amicus curiae does not extend any benefit to the appellant in the circumstances of this incident in which deceased Mustafa was murdered by the appellant and co-accused.

100. PW-1 complainant and PW-2 Haider Ali have adduced this evidence that accused persons threatened them not to go ahead or intervene during the course of incident otherwise they will eliminate them also in the same manner they committed murder of the deceased. Therefore, exposition of law relied upon by learned amicus curiae does not extend any benefit to the appellant. The evidence of PW-1 complainant and PW-2 Haider Ali is reliable, trustworthy and credible. Their presence at the place of incident is established on the basis of their statements. Therefore, non-production of other witnesses does not extend any benefit to the appellant and exposition of law of Sham Singh Vs. State of Haryana (supra) is of no avail for the appellant.

101. There is no substance in the argument of learned amicus curiae that presence of PW-1 complainant and PW-2 Haider Ali is doubtful and is liable to be discarded.

102. On the point of production of independent witness and relative/interested witnesses, the following exposition of law are also relevant.

103. Hon’ble the Apex Court in the following case laws has held regarding interested witnesses and non-production of independent witnesses as under:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Testimony of interested/inimical witnesses

24. On the issue of appreciation of evidence of interested witnesses, Dalip 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] )

INDEPENDENT WITNESS

50 – The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court 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.

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

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

31. In this regard reference to a passage 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.

104. The trial Court has also appreciated evidence of PW-1 and PW-2, eye witnesses in correct perspectives and found their evidence reliable, cogent and trustworthy regarding their presence on the place of occurrence and details given by them of the incident committed by the appellant along with co-accused. PW-1 and PW-2 has testified the fact that the appellant along with co-accused has committed murder of the deceased Mustafa by assaulting him with their “banka”.

105. Learned Amicus Curiae has argued that the post-mortem report of the deceased Mustafa does not support the prosecution version because the concerned doctor K.N. Anand-PW-3 has found rectum of the deceased empty and opined that the deceased had defecated before the time of incident and he did not eat any thing from 04-06 hours. The position of rigour mortis also indicated that the deceased was murdered in wee hours of date 08.09.2003. PW-3, doctor has also opined that death of the deceased may have been caused on 08.09.2003 at 4-5 a.m.

106. We have perused statement of PW-3 Dr. K.N. Anand, who has conducted autopsy of the dead body of the deceased on 09.09.2003. He has found the following ante-mortem injuries on the body of the deceased.

Injury No.1:- Incised wound of size 15 cm x 13 cm on neck 2.5 cm below chin. The neck was fully cut. Head was attached with torso by skin only on right side. Only a flap of skin width 3 cm was on right side.

Injury No.2 :- Incised wound of size 10cm x 2 cm x muscle deep on left side of face 3 cm above.

Injury No.3:- Incised wound of size 9 cm x 2 cm x bone deep on outer aspect of left upper forearm of left hand below 4 cm above left elbow joint.

Injury No.4:- Multiple incised wounds in an area 35 cm x 12 cm on front and inner aspect of right arm, forearm. Largest wound of size 5.5 cm x 2 cm x bone deep, smallest 2 cm x 0.5 cm x muscle deep.

Injury No.5 :- Incised wound of size 8.5 cm x 3.5 cm x bone deep on front of left knee

Injury No.6 :- Incised wound of size 6.5 cm x 1.5 cm x muscle deep on back of chest on right side scapula.

107. PW-3 doctor has opined that death of the deceased was caused due to shock and hemorrhage and as a result of ante-morterm injuries. He has also opined that it may be caused on 08.09.2003 at 9.30 a.m.. The deceased may sustain these injuries by blows of “banka”. The PW-3 has proved post-mortem report (Ext Ka-3).

108. As far as learned amicus curiae has relied upon opinion given by concerned doctor PW-3 about position of empty rectum of the deceased Mustafa and, time of his death, the following exposition of law is relevant:-

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.”

109. PW-3 has stated in his cross examination that rigour mortis in the lower part of the deceased was present and rigour mortis in the upper part had passed. The DW-1 Budha son of Huddi has stated that on the date of incident, he along with deceased brought “maurang” loaded on UP78 T 3486 from M/s Kanaihya Transport. On the date of incident they proceeded along with driver. They were going near Kasraila Husainwapur Crossing for un-loading this truck. The truck driver was in hurry to return back at Sitatpur, therefore, he asked DW-1 and the deceased Mustafa to un-load the truck. Therefore, they proceeded in the night itself.

110. Therefore, it may be possible that the deceased could not get opportunity to eat something before un-loading the truck and he could only defecate before unloading the truck. Hence, according to PW-3 doctor his rectum was found empty. The DW-1 has not stated in this regard that he and the deceased Mustafa ate something before unloading the truck UP78 T 3486.

111. Therefore, on the basis of opinion given by doctor PW-3 exact time of death of the deceased could not be pointed out or established. The contents of stomach and rectum (feacal matter) depends upon the quality and quantity and nature of contents liquid or solid are material to be considered before pinpointing actual time of death of any person. The opinion given by PW-3 regarding time and death of the deceased cannot be held as exact time of death.

112. The statement of PW-1 given in his cross-examination that he does not know Truck Number or name of the driver is not material, because number of truck was mentioned in the F.I.R. itself by PW-1. The witness DW-1 has stated that the deceased Mustafa son of Ghaseete was resident of village Obari, which is in neighbourhood of his village Kanwakherha. The Investigating Officer has also recorded his statement under Section 161 Cr.P.C. and he has supported the version of the prosecution given by witnesses PW-1 and PW-2 that appellant Sattar and co-accused Jabbar committed murder of the deceased Mustafa while he was unloading the truck near place of occurrence on 08.09.2003 at about 9.30 a.m. He has not apprised the Investigating Officer that some miscreants tried to rob the truck driver Sandeep Sachan son of Ramkesh Sachan. The deceased Mustafa had intervened and those miscreants committed murder of the deceased.

113. The D.W.-1 witness never moved any complaint against the Investigating Officer PW-10 that he wrote his false and fabricated statement, as mentioned in the Case Diary and he never apprised the Investigating Officer that he saw the incident of this case. DW-1 Budha (Nattha son of Huddi, as per prosecution version) or truck driver Sandeep Sachan had not lodged any First Information Report at the concerned police station, that some miscreants tried to rob the truck driver and the deceased intervened. This version was given by D.W-1 for the first time before the trial Court.

114. The trial Court has analyzed and appreciated evidence of defence witness DW-1 in correct perspectives. The DW-1 has accepted in his cross-examination conducted by learned A.D.G.C. that he did not lodge any report of the incident narrated by him as DW-1. He has also accepted that he apprised the Investigating Officer that he and the deceased brought “Maurang” from M/s Kanaihya Transport for unloading it near the place of occurrence. He has also stated that he could not recognize any miscreant, because it was odd hours of night, whereas he has stated in his examination-in-chief that the appellant Sattar and co-accused Jabbar were not associates of miscreants, who tried to rob the truck driver. Therefore, statement of DW-1 was found contradictory and hence the trial Court has discarded the evidence of defence witness DW-1.

115. Moreover, it is pertinent to mention her that this witness was discharged on behalf of prosecution. It may be possible that under influence of appellant Sattar, he did not support the prosecution version, therefore, he was discharged. In his cross-examination he has resiled from his statement recorded under Section 161 Cr.P.C., in which he supported the prosecution version. The learned trial Court has righty discarded evidence of

DW-1, and version of robbery put forth by DW-1 was not found reliable and his evidence was found suspicious.

116. It is also relevant to mention here that PW-10 during his cross-examination has refuted this suggestion that person, namely, Nattha son of Huddi does not reside in village Kanwakherha in limits of Kotwali Nagar, Sitapur and his false evidence was recorded by the Investigating Officer as dictated by the complainant PW-1. The DW-1 Budha son of Huddi is the same person, only name Nattha instead of Budha has been mentioned by the witness PW-10 in his statement recorded under Section 161 Cr.P.C.

117. On the other hand, DW-1 has accepted this fact that he came with the deceased Mustafa for the purpose of un-loading the aforesaid truck at Husainwapur Crossing near Kashraila. Therefore, from his statement, it reveals that he has adduced false evidence only to extend un-called for benefit to the appellant Sattar. He is co-labourer of the deceased Mustafa and proceeded on the date of occurrence on 08.09.2003 from M/s Kanaihya Transport Sitapur and reached near the place of occurrence. Therefore, there is no substance in the argument of learned Amicus Curiae that PW-10, Invesitating Officer recorded false and fabricated evidence of DW-1 by changing his name as Nattha son of Huddi, only to support the prosecution version.

118. Learned amicus curiae has pointed out that Sahate is brother of witness Mahboob, who is relative of PW-1 complainant. Maternal uncle of the appellant Tulla resides in village of the complainant. Sahate got theft committed in house of Tulla. Therefore, there was animosity of the complainant with Tulla, Nazeer and Hussaini. It is pertinent to mention here that PW-1 complainant in his cross-examination 2.2.2005 has refuted suggestion given by learned defence counsel that Sahate got theft committed in house of Tulla. He has specifically stated that he has no enmity with maternal uncles of the appellant, who are Tulla, Nazeer and Hussaini, resident of his village. Likewise, PW-1 complainant Nattha in his cross examination has stated that first wife of deceased Mustafa died due to drowning in the river but he has refuted the suggestion that the deceased Mustafa caused death of his wife by drowning her in the river. No defence evidence was adduced on behalf of the appellant regarding the fact that the deceased Mustafa was having criminal history or he committed murder of his first wife. On the other hand, on the point of criminal antecedents of the deceased/victim, the following exposition of law of Hon’ble Apex Court is relevant:-

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

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

In the case of Dhanraj alias Shera Vs. State of Punjab reported in 2004 (3) SCC 654 Hon’ble the Apex Court in

paragraph no. 4 has held as under:-

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

119. There is no substance in the argument of learned amicus curiae that the deceased was having criminal antecedents thereby affecting the prosecution version in any context.

120. Learned amicus curiae has lastly argued that the Investigating Officer PW-10 has created false and fabricated discovery of “banka” from possession of the appellant Sattar and co-accused Jabbar. The witnesses mentioned in both recovery memo have turned hostile and have not supported the prosecution version. PW-4 Annesh son of Habbibulla, PW-5 Harun son of Sajan, PW-6 Lal Mohammad and PW-7- Safiullah

son of Bakhatawar have been declared hostile by the prosecution. These witnesses have denied that they ever witnessed alleged discovery of “banka” on pointing out of appellant Sattar or co-accused Jabbar. They have clearly stated that PW-10, the Investigating Officer obtained their thumb impression i.e. of PW-4, PW-5 and PW-6 and signature of PW-7 on plain papers. Learned Amicus Curiae has further submitted that witness PW-7, Saifiulla is son of Bakhtawar and uncle of witness Haider Ali. Therefore, in light of evidence adduced by PW-7, evidence of PW-2 also becomes suspicious. He has relied upon exposition of law in the case of Anil Shamrao Sute and another Vs. State of Maharastra 2013 CRl. L.J. page 2223 SC and argued that Hon’ble Supreme Court has held in para 9 as follows:

“9. It is pertinent to note that learned Sessions Judge acquitted the accused of the offence punishable under Sections 147 and 148 of the IPC and observed that as per the prosecution case there were only three persons at the spot that is A1-Anil, A2-Ashok and A5-Shankar. He observed that the prosecution has failed to prove that all the accused were members of the unlawful assembly and in prosecution of their common object they committed murder of the deceased. All the accused were acquitted of the offence under Section 302 read with Section 149 of the IPC. As no overt act was attributed to A4-Kishor, A5-Shankar and A6-Mayabai, he acquitted them of offence punishable under Section 302 read with Section 34 of the IPC. The appellants A1-Anil and A2-Ashok were convicted for the offence punishable under Section 302 of the IPC with the aid of Section 34 thereof. Now, the question is whether the version given by PW3-Meena in the FIR that A1-Anil and A2-Ashok assaulted the deceased is to be accepted or whether the version given by her in the examination-in-chief that A1-Anil, A2-Ashok,

A4-Kishor and A5-Shankar assaulted the deceased has to be accepted or whether the version given by her in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out in the courtyard along with A3-Baba and A3-Baba assaulted the deceased with others is to be accepted. When there is such a great variance in her versions, we find it risky to convict the accused on the basis of such evidence. If her version in the FIR and examination-in-chief is to be accepted, then A5- Shankar could have been convicted with the aid of Section 34 of the IPC. But, he has been acquitted. If the version given in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out and A3-Baba assaulted the deceased is to be accepted, then, it is necessary to examine whether they shared common intention with A3-Baba to commit murder of the deceased. It is possible that they did share common intention with A3- Baba. It is equally possible that they did not. If A1-Anil and A2-Ashok merely dragged the deceased and they had no intention to kill the deceased, they may be guilty of a lesser offence. It appears that unfortunately, this aspect was not examined properly by learned Sessions Judge because during the pendency of the case, A3-Baba was murdered and could not be tried. At this stage, in the absence of evidence, it is not possible for us to make out a new case. The prosecution case is, therefore, not free from doubt. Undoubtedly, the evidence on record creates a strong suspicion about involvement of A1-Anil and A2-Ashok, but, it is not sufficient to prove their involvement in the offence of murder beyond doubt. It is well settled that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. We find that such evidence is absent in this case. The prosecution cannot rely on the evidence of discovery of weapons at the instance of A1-Anil and A2- Ashok because the panchas have turned hostile. In order to have the evidence of an independent witness on record, the prosecution examined PW-7 Shashikala, but,

she turned hostile. Similarly, another witness PW-4 Ramesh Kale also turned hostile. Therefore, there is no other evidence on record which can support the prosecution case. In any case, there is no question of seeking corroboration to the evidence of PW-3 Meena because her evidence itself does not inspire confidence. It must be remembered that on the same evidence, A4-Kishor, A5-Shankar and A6-Mayabai have been acquitted. In the circumstances, we are of the opinion that benefit of doubt will have to be given to A1-Anil and A2-Ashok.”

121 Per contra, learned A.G.A. has relied upon exposition of law in the case of Modan Singh Vs. State of Rajasthan 1978 CRI. L.R. 1531 and argued that Hon’ble Supreme Court has held in para 9 as follows:

“9. The only other material on which the prosecution can connect the appellant with the crime is the recovery of the fired cartridge, Ex. 9 and the seizure of the pistol, Ex. 8 and the deposition of the ballistic expert, P.W.9. It is found that the witnesses who have been examined for attesting the seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. If the evidence of the investigating officer who attested the seizure memo. If the evidence of the investigating officer who recovered material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version ……………………”

122. The following exposition of law on the point of discovery under Section 27 Indian Evidence Act is also relevant:

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

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

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

[(1997) 10 SCC 675 : 1997 SCC (Cri) 1032] .”

In the case of State (NCT of Delhi) Vs. Navjot Sandhu :2005 Cri.L.J. 3950 the Hon’ble Apex Court has observed in para 13 and 14 as under:

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

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

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

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

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

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

…………… There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment

of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.

14………. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficultiesin placing reliance on such

evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel. …………………

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

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

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

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

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer I s either

unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

123. We have perused statements of PW-4 Annesh, PW-5 Harun, PW-6 Lal Mohammad and PW-7 Shafiulla in light of the above mentioned exposition of law regarding discovery made by the Investigating Officer under Section 27 of Indian Evidence Act. Although, these witnesses have denied to witness discovery of “banka” on pointing out of the appellant Sattar and co-accused Jabbar, but they have accepted in their cross-examination conducted by learned A.D.G.C. that the police personnel including PW-10 obtained their thumb impressions i.e. of PW-4, PW-5 and PW-6 and signature of PW-7 on plain paper, on which alleged recovery memo was prepared by the PW-10.

124. The PW-10 is the Investigating Officer of this heinous crime of murder of the deceased Mustafa. He has proved this fact that he found blood stained soil on the place of occurrence and prepared recovery memo regarding collection of plain and blood stained soil from the place of occurrence. He has stated that co-accused Jabbar was arrested on 13.09.2003 from railway station Sitapur. His statement was recorded, it is mentioned in recovery memo (Ext Ka-14) that co-accused Jabbar (since deceased) apprised the Investigating Officer that “banka” by which he murdered the deceased Mustafa on 08.09.2003 at 9.30 a.m. was hidden by him in bricks lying near Culvert, which was situated near grove of Aazam Ali on road from Husainwapur Crossing to Husainpurwa. The PW-4 Aneesh and Harun-PW-5 went with the police party of PW-10 and co-accused Jabbar pointed out the place, where blood stained “banka” was hidden in bricks. The recovery memo (Ext Ka 14) was prepared on 14.09.2003. He recorded statement of witness Harun and Aneesh and prepared Site Plan of discovery of “banka” (Ext Ka-15).

125. Likewise, PW-10 has proved that (Ext Ka 16) recovery memo was prepared by him. The appellant Sattar surrendered before the Court and he recorded his statement on 15.09.2003, while he was detained in jail. The Court of Chief Judicial Magistrate, Sitapur granted police custody remand vide order dated 19.09.2003 during the period from the evening of 20.09.2003 up to 22.09.2003 at 2.00 p.m.

126. PW-10 took police custody remand on 20.09.2003. He brought appellant in the vicinity of village Husainwapur on Kachcha road,, where the appellant Sattar pointed out the place agricultural field owned by Habeeb son of Ali Raza, in which rice crop was standing. The appellant Sattar in presence of PW-6 Lal Mohammad and PW-7 Shafiulla pointed out the place from where blood stained “banka” was discovered by PW-10. PW-10 has also

prepared recovery memo (Ext Ka-16) and prepared Site Plan (Ext Ka-17) of place of discovery. He has also stated that on 21.09.2003 he produced sealed “banka” and accused-appellant Sattar before the Court of Chief Judicial Magistrate and lodged the appellant in the District Jail Sitapur. He has proved blood stained “banka”, discovered on pointing out of Sattar as material Ext 2 and “banka” discovered on pointing out by co-accused Jabbar as material Ext 1.

127. PW-10 has stated that only one copy of recovery memo was prepared by him. Therefore, copy of recovery memo could not be given to appellant Sattar.

128. During his cross-examination PW-10 has stated that he found ample amount of blood on the place of occurrence marked by “A” in site plan from where he collected plain and blood stained soil and prepared recovery memo (Ext Ka-12). Therefore, it may be possible that PW-4, PW-5, PW-6 and PW-7 are not supporting the prosecution version under influence of the appellant Sattar. These witnesses have resiled from their statement recorded under Section 161 Cr.P.C., but they have identified their thumb impression and signature on the recovery memo prepared by PW-10.

129. The statement of PW-4 Aneesh given in cross-examination that information of murder of deceased Mustafa reached in the village Obari and he along with complainant Nattha son of Ghasete went at the place of occurrence, where police personnel were already present. No such suggestion was given to PW-1 Nattha son of Ghasete that witness PW-4 Aneesh accompanied him from village Obari for place of occurrence after receiving information of murder of deceased Mustafa. Moreover, PW-4 has not apprised the Investigating Officer PW-10 in this regard in his statement recorded under Section 161 Cr.P.C. Therefore, this statement of PW-4 is of no avail to extend benefit to the appellant Sattar. In light of evidence adduced by PW-10, the Investigating Officer, the fact that witnesses PW-4 to PW-7, who were witness of alleged discovery, have been declared hostile, does not extend any benefit to the appellant Sattar.

130. As far as learned Amicus Curiea has submitted that blood stained soil or “banka” (material Ext Ka-1 and Ka-2) were not sent by the Investigating Officer for chemical analysis, this argument does not extend any benefit to the appellant Sattar, because PW-10 has stated in his cross-examination that on 21.09.2003 he sent discovered both “banka” to Forensic Science Laboratory, Lucknow for chemical analysis.

131. The letter dated 10.10.2003 44Ka/14 is available on record of trial Court, by which, two container of plain and blood stained soil and two “bankas” and blood stained clothes of the deceased were sent to the Forensic Science Laboratory through Constable Pradeep Kumar by Senior Superintendent of Police, Sitapur.

132. Learned Amicus Curiae has relied upon statement of PW-10 that alleged discovery of “banka” was done by PW-10 from open place, which was accessible to public. There is no substance in argument of learned Amicus Curiae in this regard in light of exposition of law mentioned by us on the proper place, because the place where “banka” was hidden by the appellant Sattar and co-accused Jabbar were well within their knowledge and not in knowledge of any other person. The appellant Sattar pointed out this place in rice crop owned by Habeeb son of Ali Raza and co-accused Jabbar pointed out the bricks, which were lying near Culvert, which was situated near grove of Azam Ali. Therefore, these places were in personal knowledge of appellant Sattar and co-accused Jabbar and other person could not know these places, where “bankas” were hidden by them.

133. The prosecution version cannot be discarded on the basis of faults and omissions committed by PW-10, the Investigating Officer. The PW-10 was transferred and further investigation was conducted by Sri Amit Kumar Singh, PW-9. The witness PW-9 has accepted in his cross-examination that while he submitted charge-sheet on 14.10.2003, after perusing the Case Diary prepared by PW-10. He had taken up further investigation on 26.09.2003 and in the meanwhile he recorded statement of witnesses Waris, Vishnu, Sanjay Shukla, Chinta Haran, Rameshwar etc on 09.10.2003. He has proved charge-sheet (Ext Ka-6) forwarded against the appellant and co-accused. It may be fault of PW-9 that he did not verify details of the witness Nattha son of Huddi (DW-1). He did not try to obtain report of chemical analysis, even then PW-10 had sent blood stained both “bankas” discovered by him and blood stained soil and clothes of the deceased discovered by him to the Forensic Science Laboratory. Therefore, prosecution version cannot be discarded on the basis of faults and omissions committed by PW-9 and PW-10, the Investigating Officers.

134. The following exposition of law is relevant regarding fault and omissions committed by the Investigating Officers.

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

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

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

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

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

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

12.the learned Counsel for the Appellants,

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

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

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

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

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

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

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

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

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

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

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

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

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

It is relevant to mention here that site plan prepared by PW-10 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.

135. It may also be the fault of the concerned A.D.G.C. that truck driver Sandeep Sachan and witness Mahboob were discharged and they were not produced during the course of trial. It is pertinent to mention here that for proving some fact quality of evidence of witnesses is material, any particular number of witnesses is not required to prove any fact. Section 134 of Indian Evidence Act provides as follows:

“Number of witnesses:-No particular number of witnesses shall in any case be required for the proof of any fact”

136. The learned trial court and we have found evidence adduced by PW-1, PW-2 and PW-10 reliable, trustworthy and cogent and acceptable. Other witnesses are formal witnesses. The evidence of PW-3-doctor extend support to and corroborate the ocular evidence adduced by PW-1 and PW-2. The prosecution has proved the charge framed against the appellant beyond reasonable doubt. The learned trial court has convicted him in correct perspective on the basis of evidence available on record.

137. The impugned judgment and order dated 09.10.2007 cannot be termed as perverse or against the evidence available on record. The impugned judgment and order is liable to be upheld and it is affirmed. This appeal lacks merit and liable to be dismissed.

138. Dismissed accordingly.

139. Copy of judgment be sent to the Jail Superintendent concerned and trial Court for compliance.

140. Learned Amicus Curiae shall receive fees as prescribed by State Government immediately.

141. Record of trial Court be sent back.

Order Date :- 09.04.2019

Virendra/Arvind

 

 

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