Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon. B.K. Narayana, J.) These two appeals have been preferred by the appellants Kamlesh alias Kabadi and Babloo alias Bhoori against the judgement and order dated 04.04.2011 passed by the Additional Sessions Judge / Special Judge, E.C. Act, Jalaun at Orai in S.T. no. 63 of 2008 (State vs. Babloo alias Bhoori and another), arising out of Case Crime no. 773 of 2006, under Sections 302/34, 504 and 506(2) I.P.C., P.S. Kalpi, district-Jalaun, by which the appellant, Kamlesh alias Kabadi has been convicted under Section 302 I.P.C. and sentenced to life imprisonment and a fine of Rs. 5000/- and in default of payment of fine two years additional R.I., while accused-appellant, Babloo alias Bhoori has been convicted under Section 302/34 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine three years additional R.I.
In brief the prosecution case as spelt out in the written report (Ext.Ka-2) lodged by the Anil Kumar PW2 at police station-Kalpi, district-Jalaun is that while the complainant's brother Atul was standing at Hariganj crossing at about 8:00 p.m, Babloo alias Bhoori son of Harishankar Ahirwar, resident of Hariganj and Kamlesh alias Kabadi son of Parmu Ahirwar, resident of Mirza Mandi came near his brother and when he asked them why they had insulted his aunt's son Shiva, they started abusing Atul and when Atul objected they threatened him with dire consequences and accused-appellant Babloo alias Bhoori shot the complainant's brother Atul with his fire arm with the intention of causing his death which hit Atul on his head and although he ran towards his house in an injured state but he fell on the ground. Accused-appellant Babloo alias Bhoori and Kamlesh alias Kabadi ran towards Julathi Mohalla. The episode was fully witnessed by Jeevan son of Bihari and Arjun son of Ram Gopal, who are residents of same locality. The injured Atul was taken to Kalpi Hospital by his father where the Doctor had immediately referred him to Kanpur. On the basis of the aforesaid written report of the complainant Anil Kumar, chek F.I.R. (Ext.Ka-3) was prepared and relevant G.D. entry (Ext.Ka-4) was also made and Case Crime no. 773 of 2006, under Section 307 I.P.C. was registered at police station-Kotwali Kalpi against the accused-appellants.
The Investigating Officer of the case during the process of investigation recorded statements of several witnesses under Section 161 Cr.P.C. After the death of Atul Kumar his inquest report (Ext.Ka-8) was prepared by S.I. Girwar Giri PW7 on 23.10.2006, who also prepared the site plan of the place of occurrence (Ext.Ka-6) after inspecting the same and other relevant documents namely letters addressed to R.I. and Chief Medical Officer (Ext.Ka-9 & Ext.Ka-10, Photonash (Ext.Ka-11), Police Form-13 (Ext.Ka-12). He also recovered blood stained earth from the place of occurrence and prepared recovery memo (Ext.Ka-7). The postmortem of the cadaver of the deceased Atul was conducted on 24.10.2006 at about 2:30 p.m. by Dr. L.R. Ahirwar PW-5 and his postmortem report is on the record as Ext.Ka-5. The Investigation of the case, after it being converted to one under Section 302 I.P.C. was transferred to PW9 Vikramjeet Singh who after completing the investigation submitted charge sheet against both the accused-appellants under Sections 302/504/506 I.P.C. before the Chief Judicial Magistrate who after taking cognizance on the same committed the case for the trial of the accused to the court of session by his committal order dated 29.02.2008, from where, after being registered as S.T. no. 63 of 2008 (State vs. Babloo alias Bhoori and another) the case was made over to the court of Additional Sessions Judge/ Special Judge, E.C. Act, Jalaun at Orai for the trial of the accused. Learned Addl. Sessions Judge / Special Judge E.C. Act after hearing the accused-appellants on the point of charge, framed charge against them under Sections 302/34, 504 and 506 I.P.C. The accused pleaded not guilty and claimed trial.
The prosecution in order to prove its case against the accused-appellants examined following witnesses :-
PW1 Ramesh Chandra Gautam, father of the deceased wrongly described in the internal page 2 of the impugned judgement and order as complainant.
PW2 Anil Kumar, complainant who proved the written report of the occurrence (Ext.Ka-2).
PW3 Smt. Raja Bai, mother of the deceased.
PW4 Constable 446 Vinod Kumar Sachan proved the chek F.I.R. (Ext.Ka-1) and relevant G.D. entry (Ext.Ka-4).
PW5 Dr. L.R. Ahirwar who conducted the the postmortem of the cadaver of the deceased and prepared his postmortem report which was proved by him as Ext.Ka-5.
PW6 S.K. Mehra proved Ext.Ka-6, Ext.Ka-7 and material Ext. 1& 2.
PW7 Girwar Giri, the first Investigating Officer of the case proved inquest report Ext.Ka-8, letters addressed to R.I. and Chief Medical Officer (Ext.Ka-9 & Ext.Ka-10), Photonash (Ext.Ka-11), Police Form-13 (Ext.Ka-12) and material Ext.1 to 5.
PW8 Inspector, Shailendra Singh, the second Investigating Officer of the case who had submitted the charge sheet against both the accused proved the same as Ext. Ka-13.
Both the accused in their statements recorded under Section 313 Cr.P.C. denied that any investigation was done in the matter. They further stated that a false and wrong charge-sheet has been filed against them. Accused-appellant Kamlesh alias Kabadi in his additional statement further alleged that a false case had been registered against him at the behest of Yogesh Shukla alias Neeru and Ravindra Kumar alias Ravi Sharma in collusion with the informant.
Similarly accused-appellant Babloo alias Bhoori in his statement alleged that he had been falsely implicated in the present case due to the animosity nourished by the Kalpi police against him.
The learned Addl. Sessions Judge / Special Judge E.C. Act, Jalaun at Orai after examining the respective submissions made before him by learned counsel for the parties and scrutinizing the evidence on record, convicted both the appellants Kamlesh alias Kabadi and Babloo alias Bhoori and awarded them aforesaid sentences.
Hence this appeal.
Sri Rounak Chaturvedi, Amicus Curiae appearing on behalf of the appellant, Kamlesh alias Kabadi in criminal appeal no. 2396 of 2011 has submitted that the trial Judge erred in basing the conviction of the accused-appellant on the testimonies of three witnesses of fact produced by the prosecution on the ground of their being close relatives of the deceased and thus highly interested in seeing that accused-appellants were convicted for the murder of deceased. He next submitted that from the perusal of the evidence of PW1 and PW5, it is fully proved that that the F.I.R. in this case is ante-timed and is a product of deep deliberations, consultations and police interference and hence the same could not have been used against the accused-appellant, Kamlesh alias Kabadi for convicting him and awarding life sentence to him under Sections 302/34, 504 and 506 I.P.C. He further submitted that although the prosecution has come up with the case that the incident took place when deceased Atul Kumar inquired from the accused-appellants why they had insulted his aunt's son Shiva but strangely Shiva was not produced as a witness before the trial court by the prosecution. None of the prosecution witnesses of fact have disclosed the reason for alleged insult of Shiva by the accused-appellants. He also submitted that it is established, in view of the inherent contradictions in the testimonies of three eye witnesses examined on behalf of the prosecution for proving the murder of the deceased Atul by the accused-appellant that none of them was either present at the crime place or had witnessed the incident and they had given false evidence against the accused-appellant during the trial which the trial court erroneously believed and proceeded to illegally convict the appellant on the basis thereof. He also submitted that even if the entire prosecution case as spelt out in the F.I.R. and later testified by the prosecution witnesses is accepted to be true, the same does not disclose commission of any offence by the accused-appellant, Kamlesh alias Kabadi. Neither F.I.R. nor the testimonies of three witnesses of fact contain any allegation that the accused-appellant Kamlesh was either armed with any lethal weapon at the time of occurrence or he had caused any injury to the deceased or had committed any overtact of any kind. There is further no evidence on record indicating that the incident was either pre-planned or premeditated or the accused-appellant Babloo alias Bhoori in criminal appeal no. 2395 of 2011 had due to previous ill will in furtherance of common intention caused the death of Atul. The prosecution has come up with a specific case that it was accused-appellant Babloo alias Bhoori who had fired at the deceased with his fire arm, while the accused-appellant Kamlesh was merely present at the place of incident along with the accused-appellant Babloo alias Bhoori. The prosecution having failed to prove by any cogent evidence the participation of accused-appellant, Kamlesh in the commission of offence, either direct or indirect, his mere presence at crime scene at the time of occurrence cannot be said to constitute his participation in the crime. Hence his conviction recorded by the learned trial Judge under Section 302 I.P.C. by taking aid of section 34 I.P.C. is not at all legally sustainable.
He added that the prosecution further failed to prove by any cogent evidence the motive suggested by the complainant in the F.I.R. for the accused-appellants to commit the murder of the deceased which has further vitiated the finding of guilt recorded by the trial Judge against the accused-appellant in the impugned judgement and order. The ocular testimony vis-a-vis the prosecution case does not find corroboration from the medical evidence on record as well as postmortem report of the deceased (Ext.Ka-5). He lastly submitted that such being the state of evidence, conviction of the accused-appellant Kamlesh alias Kabadi and sentence awarded to him cannot be sustained and are liable to be set aside and the accused-appellant Kamlesh alias Kabadi is entitled to be acquitted of all the charges.
Sri Amit Khanna, learned counsel appearing on behalf of the appellant Babloo alias Bhoori in criminal appeal no. 2395 of 2011 has apart from adopting the submissions made by Sri Rounak Chaturvedi, learned counsel for the appellant Kamlesh alias Kabadi submitted that non examination of independent witnesses, although present in large number at the time of occurrence at the place of occurrence as per the testimonies of prosecution witnesses of fact and the two eye witnesses Jeevan son of Bihari and Arjun son of Ram Gopal who were nominated as eye witnesses of the incident in the F.I.R. puts a big question mark against the reliability of the prosecution case and trustworthiness and credibility of the witnesses produced by the prosecution. He also submitted that the failure of the Investigating Officer to recover the country made pistol ('tamancha') allegedly used in committing the murder of the deceased by the accused-appellant Babloo alias Bhoori further casts a shadow of doubt on the prosecution story. He further submitted that recovery memo of the blood stained earth recovered from the place of incident which was kept in a container was neither signed by the witnesses nor the Investigating Officer further indicates that the investigation in this case was done in a very cursory manner without any honest effort to trace out the real perpetrator of the crime rather the same was done with the sole objective of falsely implicating the accused-appellant Babloo alias Bhoori. He lastly submitted that in view of the submissions advanced by him the finding of guilt recorded by the trial Judge against the accused-appellant Babloo alias Bhoori and the sentence awarded to him cannot be sustained are liable to be scored out.
Per contra, Sri Sagir Ahmed, learned A.G.A. submitted that the prosecution case as spelt out in the F.I.R. stands proved to the hilt from the evidence of PW1, PW2 and PW3 and the other material brought on record by the prosecution. There is no law which mandates that the testimony of close relatives of the deceased is liable to be discarded on the mere ground of their being relatives of the deceased, even, if the same upon a threadbare scrutiny and analysis is found to be reliable and trustworthy. Minor contradictions and discrepancies in the witnesses of fact, as is in the present case, which do not go to the core of the prosecution story are liable to be ignored and can not be made basis for disbelieving the entire prosecution case. The F.I.R. in this case was lodged promptly without leaving any room for the complainant and other relatives of the deceased to concoct or manipulate the prosecution version with a view to falsely implicate the accused-appellants. The medical evidence on record further fully corroborates the ocular version. The finding of guilt recorded by the trial Judge in the impugned judgement against the accused-appellant is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations requiring no interference by this Court. Both the appeals lack merit and are liable to be dismissed.
We have very carefully heard learned counsel for the appellants, Sri Sagir Ahmad, learned A.G.A. and Smt. Manju Thakur, brief holder for the State and scanned the entire trial court record, as well as the law reports cited by the learned counsel for the parties in support of their respective submissions to which we shall refer later.
The accused-appellants in this case were tried for having committed the murder of Atul, real brother of PW1 Anil Kumar and sentenced to imprisonment for life under Sections 302/34, 504 and 506 I.P.C. for different periods of incarceration for their conviction under Sections 302/34, 504 and 506 I.P.C.
Now the only point involved for determination in these two appeals is whether the prosecution has been able to prove its case beyond all reasonable doubts against the appellants or against anyone of them ?
In order to ascertain whether the prosecution has been successful in proving its case beyond all established and reasonable doubts or not, the court has to examine the following main issues :-
(i) F.I.R. (whether the F.I.R. is ante-timed or a product of police interference).
(ii) Time of occurrence (whether the time coincided with medical evidence.
(iii) Place of occurrence.
(iv) Manner of occurrence.
(v) Motive (whether the motive behind the occurrence was of such intensity so as to compel a person to commit such heinous offence like murder in this case ?
(vi) Credibility of witnesses (the role of each accused in the occurrence considering the defence evidence and whether their participation in the crime has been duly proved by the prosecution ?
F.I.R :- The credibility of the F.I.R. in this case has been challenged by the learned counsel for the appellants on the ground that the same was scribed by PW2 Anil Kumar on the advise and dictation of police officers and the police personnel who had reached Kalpi Hospital upon coming to know about the occurrence, even before the F.I.R. in this case was lodged and appellants were falsely nominated as accused in Ext.Ka-2 on the insistence of police personnel of Kalpi who harbored animosity towards them. Moreover the written report of the incident (Ext.Ka-2) which was scribed by PW2, Anil Kumar in Kalpi Hospital at the behest of police personnel of Kalpi was not given by him personally to the police station-Kalpi but the same was lodged at the police station-Kalpi by some police personnel. The aforesaid fact stands proved from the following extract of cross-examination of PW2 Anil Kumar on page 30 and 31 of the paper book :-
**eSaus vius c;ku esa ;g ckr lgh fy[kkbZ gS fd dkyih vLirky esa iqfyl okys igqap x;s Fks vkSj mUgha iqfyl okyksa us eq>ls fjiksVZ fy[kkus ds fy;s dgk FkkA rc eSaus iqfyl okykas ds dgus ij ;s fjiksVZ fy[kk;hA eSaus iqfyl okyksa dks ifgys fdLlk crk fn;k FkkA fQj muds dgus ls fjiksVZ fy[kkbZA nks pkj iqfyl okys dkyih vLirky esa igqap x;s FksA mUgha ls lykg e'kfojk djds ;s fjiksVZ fy[kk;h FkhA ;s ckr lgh gS fd ?kVuk ns[kus okyksa esa eSus vius firkth o ekrkth dks p'enhn lk{kh ugha cuk;kA Loa; dgk fd eaS ml le; vius gks'k gokl esa ugha FkkA **(page 30) ";s fjiksVZ eSusa dkyih vLirky esa iqfyl okyksa dks ns fn;k FkkA dkyih Fkkus ij fjiksVZ fy[kkus Fkkuk ugha x;k Fkk ckn esa dkyih Fkkuk x;k FkkA fjiksVZ esa vkSj uke c<+okus ds fy;s x;k FkkA (page 31) In view of the facts divulged by PW2 in his cross-examination, the fact stated by PW4 Vinod Kumar Sachan who was posted as Constable/Moharrir at police station-Kotwali on the date of occurrence in his testimony that Sri Anil Kumar son of Sri Ramesh Chandra Gautam had himself given the written complaint to him at the police station on the basis of which Case Crime no. 773 of 2006, under Section 307 I.P.C. was registered against Babloo alias Bhoori and Kamlesh alias Kabadi neither appears to be true or reliable.
Thus, in view of the above, the reliability of the F.I.R. in this case stands totally shattered and the conviction on the basis of investigation done pursuant to the aforesaid F.I.R. is wholly unsustainable in the eye of law.
Time of occurrence : According to the prosecution case the incident had taken place between 7 p.m. to 8 p.m. The aforesaid time finds mention in the testimony of PW2 complainant, Anil Kumar corroborated by the evidence of PW1 Ramesh Chandra Gautam and PW3 Raja Bai. The postmortem was conducted by PW5 Dr. L.R. Ahirwar on 24.10.2006 at about 2:30 p.m. The postmortem report of the deceased (Ext.Ka-5) indicates the estimated time of the death to be about half a day before which comes to about 2:50 a.m. on the same day. However, if we take into consideration variation of 6-12 hours on the either side which is normally admissible while ascertaining the time of death of a deceased on the basis of the estimated time of death mentioned in the postmortem report, the time of death coincides with the time of death mentioned in the F.I.R. by the prosecution witnesses. PW5 Dr. L.R. Ahirwar who had conducted the postmortem of the deceased has also deposed in his examination-in-chief that the possibility of the deceased having died on 23.10.2006 at about 8 p.m. cannot be ruled out.
Learned counsel for the accused-appellants has failed to demonstrate that the incident had not taken place at the time mentioned in the F.I.R..
Place of occurrence : Prosecution in order to prove that the occurrence had taken place near Hariganj crossing in Kalpi, district-Jalaun had examined PW1 Ramesh Singh Gautam, PW2 Anil Kumar, PW3 Raja Bai and PW6 S.K. Mehra, Sub-Inspector police station-Kotwali Mainpuri, the first Investigating Officer of this case who have stated in unison that the deceased Atul Kumar was shot at Hariganj crossing in Kalpi, district-Jalaun. PW6 has further deposed in his examination-in-chief that immediately after the registration of Case Crime no. 773 of 2006, under Section 307 I.P.C. against the accused-appellants on the basis of the written report (Ext.Ka-2) allegedly given by PW2 Anil Kumar at police station-Kotwali Kalpi, district-Jalaun, the investigation of the aforesaid was taken over by him and he had reached the place of incident and prepared its site plan (Ext.Ka-6) after inspecting the same and also seized plain and blood stained earth from the place of incident and after keeping the same in two different containers had sealed the same and prepared the recovery memo (Ext.Ka-7) of the same. Although the defence counsel had cross-examined PW2 Anil Kumar, PW3 Raja Bai, PW6 S.K. Mehra and PW7 Girwar Giri at great length on the aforesaid aspect of the matter but they could not elicit anything from them which could convince us to accept that the incident had not taken place at the place mentioned in the F.I.R.
Manner of occurrence : The written report of the incident Ext.Ka-2 indicates that while Atul Kumar, brother of PW2 complainant, Anil Kumar was standing at Hariganj crossing at about 8:00 p.m. accused-appellant Babloo alias Bhoori son of Harishankar Ahirwar and Kamlesh alias Kabadi son of Parmu Ahirwar came near him and when Atul Kumar inquired from them why they had insulted Shiva, his aunt's son both the accused-appellants started abusing him and when he objected accused-appellants Babloo alias Bhoori and Kamlesh alias Kabadi threatened to kill Atul and accused-appellant Babloo alias Bhoori shot Atul Kumar with his fire arm which he was carrying in his hand and the shot so fired hit Atul on his head and although he tried to run towards his house but as a result of fire arm wound received by him in the incident he fell on the ground after running for a few paces.
The prosecution in order prove that the incident had taken place in the manner described in the F.I.R. had examined PW1 Ramesh Chandra Gautam, PW2 Anil Kumar and PW3 Raja Bai as eye witnesses of the occurrence.
Record shows that although PW2 Anil Kumar has supported the F.I.R. version vis-a-vis the manner in which the incident had taken place on almost all material points and his testimony stood further corroborated from the evidence of PW1 Ramesh Chandra Gautam and PW3 Raja Bai but no explanation has come forth for the failure of PW2 complainant Anil Kumar to name Jyoti Prasad, Prem son of Jamuna Das, Himmat son of Hari Ram, Keval son of Jyoti Prasad also as accused along with the accused-appellants in the F.I.R, although all the three witnesses of fact have in their examination-in-chief uniformly deposed that when they reached Hariganj crossing they saw deceased Atul Kumar surrounded by accused-appellants and Jyoti Prasad, Prem, Himmat and Keval also who were abusing him and exhorting to kill him. The manner of assault as described in the F.I.R. and as testified by the prosecution witnesses of fact does not find corroboration from the inquest report and the medical evidence on record. Record further shows that inquest on the cadaver of the deceased Atul Kumar was conducted by PW7 Girwar Giri, the first Investigating Officer of the case in the mortuary on 23.10.2016 who had prepared the inquest report (Ext.Ka-8) and other documents. PW7 Girwar Giri in his examination-in-chief on page 66 of the paper book has stated that at the time of inquest he had noticed a lacerated wound above the eyebrow of the right eye of the deceased which was closed and blackening was present around the wound. The left eye was not in its socket and flesh was seen coming out and according to the opinion of the inquest witnesses the deceased had died as a result of fire arm wound.
Although the consistent case of the prosecution is that accused-appellant Babloo alias Bhoori had caused single fire arm injury to the deceased but the postmortem report of the deceased (Ext.Ka-5) which was prepared by PW5 Dr. L.R. Ahirwar who had conducted the postmortem of the dead body of the deceased noted following antemortem injuries on the dead body of the deceased namely :-
(1) L/W 5cm x 1cm x bone deep on right side of forehead just above the eye brow. Margins are torn.
However, failure of PW5 to record in the postmortem report that the left eye of the deceased was missing and flesh was coming out from its socket, the fact which was noticed by the police officer who had conducted the inquest of the dead body of the deceased and the witnesses of inquest as is evident from the perusal of inquest report of the deceased (Ext.Ka-8) and the omission to give any opinion with regard to the nature and cause of the aforesaid injury reflects the cursory and in different manner in which he had conducted the postmortem.
Although learned counsel for the appellants has argued that none of the antemortem injuries found on the dead body of the deceased could have been caused by a fire arm as no bullets or pallets were recovered from the dead body of the deceased, as is evident from the evidence of PW5 Dr. L.R.Ahirwar but we do not agree with the aforesaid submission of the learned counsel for the appellants. The first ante-mortem injury found on the dead body of the deceased appears to be a fire arm injury. But the the failure of the prosecution to come up with any explanation for the missing left eye of the deceased from its socket, from which flesh was seen coming out and the second antemortem injury found on the dead body of the deceased which was in the form of a contusion, we are constrained to observe that the prosecution has not been able to prove by any reliable evidence that the incident had taken place in the manner as spelt out in the F.I.R. Moreover there is discrepancy in the F.I.R. and the testimonies of the eye witnesses with regard to the number of persons who had stopped the deceased and surrounded him at Hariganj crossing and abused him and exhorted to kill him before he was shot by accused-appellant Babloo alias Bhoori.
Motive : The prosecution has come up with a specific case that the deceased Atul Kumar was shot dead by the accused-appellant Babloo alias Bhoori when he on meeting the accused-appellants at Hariganj crossing had inquired from them about the reason for their having insulted Shiva, son of his aunt, they started abusing him. Particulars about the incident in which the deceased had allegedly insulted / humiliated Shiva are lacking. PW1 Ramesh Chandra Gautam on page 14 of the paper book has in his examination-in-chief stated that his son Atul Kumar had told him about his aunt's son Shiva being insulted by accused-appellant Babloo alias Bhoori and Kamlesh alias Kabadi. PW2 Anil Kumar in his examination-in-chief has stated that about four years before the date of recording of his evidence someone had come to his house and told him that his aunt's son Shiva was involved in a fight with someone on which his brother Atul Kumar (deceased) and his mother had left their house for the shop of their father to inform him about the occurrence and he had followed them.
Thus, it appears that even PW2 was not aware about the identity of the person who had picked up a fight with his aunt's son Shiva. PW3 Smt. Raja Bai also on page 41 of the paper book in her examination-in-chief has stated that her sister-in-law's son Shiva had been humiliated by the accused-appellants Babloo alias Bhoori and Kamlesh alias Kabadi and she had gone to her husband's shop with her son Atul Kumar to inform him about the aforesaid incident on which PW1 Ramesh Chandra Gautam had closed his shop and said that he would also accompany them. However, PW3 in her cross-examination on page 43 of the paper book has expressed her ignorance about the name of the person who had insulted Shiva. She further stated that neither she nor her son had lodged any report of the incident and she was not even aware, when Shiva who resided in Kanpur, had come to Kalpi on the date of occurrence and when he was humiliated by the accused-appellants and it was her son Atul Kumar who had come to her and informed her about the humiliation of Shiva. Shiva the person whose humiliation by the accused-appellants according to the prosecution was the root cause of the arguments between the deceased and the accused-appellants which led accused-appellant Babloo alias Bhoori to commit the murder of Atul was not produced. We also do not find any explanation forthcoming from the prosecution justifying the commission of murder of Atul Kumar by the accused-appellants merely on account of his remonstrating them for having insulted Shiva. It is not the case of prosecution that the accused-appellants harbored any animosity or enmity towards the deceased Atul Kumar.
Thus, in view of the above, we find that the prosecution has totally failed to prove the motive attributed in the F.I.R. to the accused-appellant to commit the murder of the deceased Atul Kumar. Although in a case of direct evidence, failure of the prosecution to prove the motive is not always fatal and if the testimonies of the eye witnesses examined by the prosecution to prove the charge upon proper consideration and appraisal is found to be reliable, trustworthy, unimpeachable and worthy of credit, the prosecution will not fail merely on the ground of it's failure to prove the motive.
We now proceed to examine the credibility of the witnesses examined on behalf of the prosecution to prove the participation of the accused-appellants in the crime.
As already noted earlier the prosecution in order to prove its case against the accused-appellants had examined PW1 Ramesh Chandra Gautam, father of the deceased, PW2 Anil Kumar, scribe of the F.I.R, brother of the deceased and PW3 Raja Bai, mother of the deceased as eye witnesses of the incident.
Before proceeding to evaluate the evidence of the prosecution witnesses, we consider it proper first to deal with the challenge of the learned counsel for the appellants to the admissibility of the evidence of PW1 Ramesh Chandra Gautam, PW2 Anil Kumar and PW3 Raja Bai produced by the prosecution during trial for proving the accused-appellants guilt on the ground of their being close relatives of the deceased and hence interested witnesses. On the point of interested witnesses the Hon'ble Supreme Court in State of U.P. vs. Jagdev reported in 2003 (CLJ) 844 SC observed that only on the ground of interested and related witnesses their evidence can not be discorded. Hon'ble Supreme Court in the case of Waman and others v. State of Maharashtra reported in (2011) 7SCC 295.
40. Hon'ble Supreme Court in Waman and others v. State of Maharashtra 2011 Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows:
"In Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; (2010 AIR SCW 3707), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
41. It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others (2011) 4 SCC 324."
Thus the principle which is culled out from the reading of the aforesaid authorities is that merely because witnesses are related to the deceased cannot be a good ground to discard their evidence, if after careful analysis and scrutiny of their evidence, version given by the witnesses appears to be clear, cogent and credible. We now proceed to analysis the evidence of Babloo alias Bhoori witnesses of fact produced by the prosecution during trial for proving its case against the accused-appellants on the touchstone of the aforesaid principle.
Although PW2 Anil Kumar, complainant and the scribe of the F.I.R. claims himself to be the eye witness of the occurrence which according to him was also witnessed by two other residents of the same locality namely, Jeevan son of Bihari and Arjun son of Ram Gopal, it is very significant to note that in the written report of the incident Ext.Ka-2 PW2 Anil Kumar, real brother of the deceased Atul Kumar has not referred either to the presence of PW1 or PW3 at the place of incident at the time of occurrence and their having witnessed the same. In this context it would be relevant to reproduce the following extract of his cross-examination on page 30 of the paper book :-
eSusa viuh fjiksVZ esa ;g ckr ugha fy[kh Fkh fd ?kVuk LFky ij esjs igqapus ls iwoZ esjs ekrkth o esjs firkth ?kVuk LFky ij igqap x;s FksA The two residents of the same locality Jeevan son of Bihari and Arjun son of Ram Gopal who were nominated as eye witnesses of the occurrence in the F.I.R. were not produced by the prosecution as witnesses of fact during the trial and instead PW1 and PW3 whose presence at the place of occurrence along with PW2 Anil Kumar is highly doubtful were examined as eye witnesses of the occurrence by the prosecution during the trial.
It is pertinent to note that the three eye witnesses examined on behalf of the prosecution have corroborated the prosecution case as spelt out in the F.I.R. on almost all material points except vis-a-vis the number of accused present at the place of occurrence. In the F.I.R. it was categorically stated by PW2 that accused-appellant Babloo alias Bhoori along with accused-appellants had abused the deceased and exhorted to kill him before he was shot by accused-appellant Babloo alias Bhoori. But all the three eye witnesses including the complainant PW2 have in their testimonies nominated Jyoti Prasad, Prem son of Jamuna Das, Himmat son of Hari Ram, Keval son of Jyoti Prasad also as accused who at the time of occurrence were present at the place of incident. There is no satisfactory explanation in the testimony of the complainant PW2 Anil Kumar for his failure to nominate the aforesaid persons also as accused in the F.I.R. The aforesaid omission is a very strong indication of the fact that none of the witnesses had actually seen the incident. The fact that none of the witnesses had actually seen the incident and had arrived at the place of occurrence after Atul Kumar had been murdered and PW3 Raja Bai is a tutored witness is evident from the following extract of their cross-examination which are being extracted herein below :-
PW1 in his cross-examination on page 21 of the paper book has deposed as here under :-
**tc eSa viuh nqdku ls ?kj ds fy;s vk;k rc esjk yM+dk ?kk;y iM+k FkkA vkSj ogkW ij 10&50 yksxkas dh HkhM+ FkhA eSa esjh iRuh jktkckbZ vius ?kk;y yM+ds vrqy dks mBkdj ljdkjh vLirky dkyih ys x;s FksA ogkW [kM+s yksxksa dks esa ls vU; dqN yksx Hkh vLirky vk x;s FksA muds uke eq>s ugha ekyqeA ekSds ij [kM+s yksxksa esa ls T;ksfr izlkn] isze dsoy] fgEer] vkfn yksxksa us yydkjk Fkk esjh iRuh jktkckbZ us eq>s ?kVuk ds ckjs esa crk;k FkkA** "
However, as per the allegation made in the F.I.R. which was lodged by PW2 injured Atul Kumar was taken to the hospital by his father Ramesh Chandra Gautam PW1.
Similarly PW2 in his examination-in-chief on page 21 of the paper book has stated ftl le; ?kVuk ?kVh ml le; eSa vius ?kj ij dkyih esa gh FkkA tc eSa ?kj ij Fkk ?kVuk ds lEcU/k esa fdl O;fDr us eq>s lwpuk nh Fkh mldk uke eq>s ugha ekyqeA ?kVuk dh lwpuk gksus ij eSa vius ?kj ls nqdku dh vksj HkkxkA PW3 Raja Bai on page 52 of the paper book in his cross-examination has stated that "she heard single sound of fire". This is also suggestive of the fact that she had not seen the occurrence and by the time she arrived, the incident had already taken place.
PW3 Raja Bai further appears to be a tutored witness who on page 43 of the paper book has stated that odhy lkgc us dqN eq>s crk;k vkSj dqN eSa viuh rjQ ls dg jgh gWwA Even if, it is assumed for sake of argument that she had arrived at the place of incident before the occurrence, the possibility of her having seen and identified the culprits from a distance of about 15 feet, considering the fact that the incident had taken place at about 8:00 pm. after sun set and at the time of incident she was suffering from cataract as admittedly by her as on (page 45) of the paper book, is highly doubtful.
Even otherwise her presence and also that of PW1 at the time and place of occurrence is rendered highly doubtful on account of the omission on the part of PW2, the complainant, to mention about their presence at the place of occurrence when deceased was shot dead, in the F.I.R. although PW1 and PW3 are parents of the deceased as well and the complainant. If PW1 and PW2 were actually present at the crime scene and had witnessed the occurrence there was no reason for PW2 not to state the aforesaid fact in the F.I.R. and nominate them also as eye witnesses. PW2 has failed to come up with any explanation on his part for the aforesaid omission :-
Upon a wholesome appraisal and scrutiny of the evidence on record, it is proved beyond any doubt that none of so called eye witnesses were present at the place of incident at the time of occurrence. It appears that they had actually reached the crime scene immediately after the occurrence. It is also evident from the testimony of PW2 Anil Kumar, the complainant that the F.I.R. of the incident was scribed by him on the advise of police personnel in the hospital after due deliberations and consultations and in view of the above, the possibility of false implication of the accused-appellants in this case at the behest of local police cannot be ruled out.
Having examined the material on record we have no option but to record that prosecution on the basis of the evidence led by it it has failed to bring home the charge against the accused-appellants. The F.I.R. in this case has been found to be unreliable and a product of police interference from the evidence of PW2 himself. The presence of the three eye witnesses at the place of occurrence and their having seen the incident is not established for the reasons already discussed herein above.
Thus the recorded conviction of the accused-appellants and the sentence awarded to them cannot be sustained. Consequently both the appeals are allowed. The impugned judgement and order dated 04.04.2011 passed by the Additional Sessions Judge / Special Judge, E.C. Act, Jalaun at Orai is hereby set aside and the appellants Kamlesh alias Kabadi and Babloo alias Bhoori are acquitted of all the charges.
Appellants Kamlesh alias Kabadi in criminal appeal no. 2396 of 2011 is on bail. His sureties are discharged and his bail bonds cancelled. Appellant Babloo alias Bhoori in criminal appeal no. 2395 of 2011 is in jail. He shall be released forthwith from the jail, unless he is wanted in any other case, subject to his complying with the provision of Section 437(A) of Criminal Procedure Code.
There shall be however no order as to costs.
Dated : 13.12.2016 Faridul.