Hon'ble Naveen Srivastava,J.
(Delivered by Naveen Srivastava, J) This criminal appeal is preferred against the judgment and order dated 14.10.2011 passed by the Addl. Sessions Judge, Court No.3, Jalaun at Orai, convicting the appellant under Section 302 IPC for life imprisonment.
1. (i) The case of prosecution is that the informant are 5 brothers, having a dispute over a house with paternal uncle "Rajendra Beldar". On 14.10.2009 at about 7.30 PM, accused Mahesh Mehtar and Shatrughan Chamar were present in the house of Rajendra Beldar, wherein upon the exhortation of Rajendra Beldar and Shatrughan Chamar, Mithun Beldar (deceased) / brother of informant came out of his house who was shot by an illicit fire-arm possessed by Mahesh Mehtar. The occurrence was allegedly witnessed by P.W.-1 & P.W.-3 / mother of informant (P.W.-1) along with others in torch light in which the identity of the assailants was authenticated. The deceased was rushed to the hospital where he was declared dead.
(ii) A written report dated 14.10.2009 (Ext. Ka-1) in respect of the above occurrence was submitted by P.W.-1 before the P.S. concerned at a distance of 2 kms at 8.30 PM, nominating the above 3 accused persons which became the basis for registering an FIR (Ext. Ka-4) as Case Crime No.1639/2009, under Section 302/34 IPC. P.W.-5, the Head Moharrir entered the contents of the written report in GD Report No. 45 at 8.30 PM same day.
(iii) P.W.-7 was the IO in whose presence the FIR was registered. He proceeded to the District Hospital, Orai along with force wherein he could not obtain statements as all the relatives were mourning. He then proceeded to the scene of occurrence where no one was present. Inquest (Ext. Ka-6) was carried out next morning under his instructions by P.W.-6. He then sent the body for autopsy. He obtained statement of P.W.-1 / the informant who also submitted an affidavit in respect of the occurrence which became part of investigation. He also prepared site plan (Ext. Ka-7) under instructions of P.W.-1. He carried out other investigational formalities including recovery of blood-stain and plain earth in the presence of named witnesses and also obtained their statements. P.W.-8 is the 2nd I.O. who ensured the custody of accused Mahesh Mehtar from the Court and at his instance recovered a countrymade pistol from railway compound. He after carrying out other investigational formalities submitted a charge-sheet (Ext. Ka-10) under Section 302 IPC against accused Mahesh Mehtar on 17.11.2009.
(iv) After submission of charge-sheet, the case being exclusively triable by Sessions was committed to it, charges were framed to which the accused denied and claimed trial.
(v) The prosecution in order to establish it's case apart from 3 witnesses of fact examined 7 other formal witnesses. The accused claimed false implication on account of previous animosity. He produced D.W.-1 in his defence to raise an alibi.
(vi) The trial court after analysing the evidence convicted the accused - appellant as above.
2. Heard Sri Vishwajeet Singh, learned counsel for the appellant and Sri A.N. Mulla, the learned AGA assisted by Sri V.S. Rajbhar.
3. Learned counsel for the appellant canvassed the following submissions:-
(i) No motive was assigned to the accused - appellant.
(ii) Eye-witnesses account of P.W.'s- 1, 2 & 3 suffers from inherent contradictions as to the identity of the 3 accused as P.W.-1 authenticated the presence of all 3 accused while P.W.-2 ruled out the presence of two accused i.e. Rajendra Beldar and Shatrughan Chamar.
(iii) P.W.-2 was manipulatively introduced as an eye-witness after 14 days.
(iv) Once two accused namely Rajendra Beldar and Shatrughan Chamar were dropped at the stage of investigation, false implication of the present accused - appellant cannot be ruled out.
4. Sri A.N. Mulla, the learned AGA assisted by Sri V.S. Rajbhar while refuting the above submission, contended that prosecution case cannot be foolproof, minor inconsistencies have to be ignored, the alleged incident is taking place at the doors of P.W.-1 where presence of family witnesses is very natural and probable considering the timing of occurrence, motive is irrelevant in a case of direct evidence. He fairly conceded that a witness may have a tendency to exaggerate to the number of accused but would never miss out the real assailant whose presence is established.
5. P.W.-1 on 14.10.2009 at about 7.30 PM was sitting at the entrance door along with his mother (P.W.-3). There was a pending monetary dispute over which accused Mahesh Mehtar armed with countrymade pistol, was hurling abuses to which P.W.-1 requested that outstandings would be cleared and that he may not shoot anyone. Before he along with his mother could go inside the house, accused Mahesh Mehtar fired a shot at his brother Mithun from a distance of 4-5 steps. He identified the assailant which was also witnessed by Veer Singh and his younger brother Jeetu (P.W.-2). The victim was rushed to the hospital where he was declared dead.
6. During his entire cross-examination, P.W.-1 could not be dented as regards the presence of accused Mahesh Mehtar and his role. We do not attach any importance to the discharge of other two accused at the stage of investigation as presently the appeal is at the behest of convicted accused - Mahesh Mehtar. In our considered view, a witness does have a tendency to exaggerate the number of accused but he would never miss to implicate the real culprit, if his presence is otherwise established. The distance between P.W.-1 and the deceased at the time of firing, is not more than 10-15 steps. It's a common feature that lamps are lit up before darkness actually sets in. Moreover, source of light i.e. torch has been introduced in the FIR itslef.
7. P.W.-2 is the younger brother of P.W.-1 who also claims to have witnessed the occurrence. If that was so there is no reason as to why his statement was not recorded on the same day when P.W.-1 was examined by the I.O. as statement of P.W.-2 came to be recorded for the first time after 14-15 days of the occurrence. We do not find him to be a wholly reliable witness as P.W.-7, the I.O. admitted that even though the statement of P.W.-1 was recorded a day after occurrence, name of P.W.-2 was not disclosed. He also admitted that P.W.-1 did not disclose him the motive for alleged occurrence.
8. P.W.-3 / mother of deceased also alleged that she was outside her doors at around 7 PM when accused Mahesh Mehtar came out of the house of Rajendra Beldar he fired a shot at her son over a monetary dispute. She affirmed the presence of P.W.-1. She admitted that the occurrence took place at twilight. She identified the assailant in the court. She recorded her first statement before the police after 3 days of occurrence. She witnessed that the shot was fired from a distance of 4 steps.
9. P.W.-4 is the Medico at District Hospital, Orai who conducted the autopsy of the deceased on 15.10.2009 at about 2.30 PM. He reported following ante-mortem injuries:-
"Fire-arm wound of entry sized 4 cm x 2 cm chest cavity deep on the right side chest, 1 cm close to right nipple. Margin black contused inverted, gun powder doted multiple mark all around the wound of entry in an area of 25 cm x 15 cm over right side anterior chest region and anterior upper arm region, right upper arm region. On dissection of chest, this injury is directing posterity downwards right side chest towards left side chest, right side IVth anterior chest rib is fractured, right lung, heart both atrium and left limps are badly lacerated, left sided, IVth chest rib at mid axilliary line is fractured, injury directed upto left axilliary region. A single metallic bullet recovered from left deep axillary region.
Death due to shock and hemorrhage as a result of anti-mortem fire-arm injury."
10. He fixed the timing of death as alleged by prosecution. During cross-examination, he did not rule out the possibility of injury to be an outcome of a fire-arm and also confirmed that it was close distance shot in view of tattooing present around the wound. He also opined that in view of condition of stomach (empty) the deceased had taken his meal around noon.
11. The case is based on direct evidence where motive is of no consequence, once the presence of eye-witness is established by cogent evidence. P.W.'s- 1 & 3 established the alleged occurrence which took place at the doors of P.W.-1. Presence of P.W.'s- 1 & 3 at their doors in the given season is not improbable. It's twilight and these two witnesses identified the assailants. Torch as a source of light already stands introduced in the FIR itself. There is dhaba (way-side-eatery), near the scene of occurrence where battery light was already glowing. We are not prepared to believe that witnesses could not have identified the assailant from the distance of 10-15 steps firstly for the reason that source of light was sufficient to identify the accused coupled with the fact that accused and witnesses were familiar to each other and it is not highly unlikely that a person can identify a familiar / known person from his gait, body structure and voice. We do not find any material contradiction between P.W.'s- 1 and 3 as regards the nature and sequence of occurrence as also the identity and role of accused. P.W.-4, the doctor does not dispute that the alleged injuries were on outcome of fire-arm but fairly conceded that he is not in a position to disclose as to whether it was caused by a rifle or pistol. The prosecution alleged use of an illicit fire-arm which has no standard specifications. We do not attach any significance to the contents of the stomach for the reason that P.W.-4, the doctor had stated that the stomach was empty and there was pasty material in small and large intestine, probably raising an inference that the deceased may have had his lunch around noon which is not so unlikely coupled with the fact that it was not the case of defence that the deceased was put to death elsewhere at wee hours by unknown assailants and the appellant falsely implicated.
12. D.W.-1 has a son who is married to daughter of one Ram Swaroop who is real brother of accused Mahesh Mehtar. He raised an alibi that accused was with him and had gone to see the daughter for marriage. D.W.-1 appears to be highly interested witness in view of his close proximity with accused Mahesh Mehtar.
13. We, in the light of above evidence, are of the considered view that the prosecution has been able to establish its case beyond a reasonable doubt, appeal is bereft of merit, is liable to be dismissed.
The appeal is dismissed. The appellant is in jail.
Let a copy of this order be supplied to the Judgeship concerned.
Order Date:- 17.8.2021 Chandra (Naveen Srivastava,J) (Pankaj Naqvi,J)