Reserved on: 24.09.2021 Delivered on 17.12.2021
Court No. - 86
Case :- CRIMINAL APPEAL No. - 2838 of 2000
Appellant :- Makhan Lal
Respondent :- State of U.P.
Counsel for Appellant :- Ashwini Kumar Awasthi,Chandra Kant Jha,Manish Tiwari,Rajesh Kumar Mishra
Counsel for Respondent :- D.G.A.
Hon'ble Mohd. Aslam,J.
1. Heard Shri Rakesh Kumar Mishra, learned counsel for the accused-appellant, Shri Sanjay Sharma, learned A.G.A. for the State- respondent and perused the lower court record.
2. This criminal appeal is preferred under Section 374 (2) of Criminal Procedure Code, 1973 against the impugned judgment of conviction and order of sentence dated 02.11.2000 passed by learned VIIth Additional District and Sessions Judge, Pilibhit in Session Trial No. 153 of 1999 'State vs. Makhan Lal' (arising out of Case Crime No. 250 of 1998, under Section 307 of Indian Penal Code, 1970 (in short 'I.P.C.'), Police Station- Barkhera, District- Pilibhit), by which accused appellant-Makhan Lal was convicted for offence punishable under Section 307 I.P.C. and was sentenced to undergo rigorous imprisonment for 3 years and fine of Rs.2000/–, in default of payment of fine to undergo additional imprisonment for six months.
3. In brief, the prosecution story is that PW1 Hari Om has lodged the first information report on 07.10.1998 at 9:40 AM at Police Station Barkhera, District Pilibhit on the basis of Written Tahrir (Exhibit-Ka-1) alleging that on the fateful day at about 07:00 AM the appellant Makhan Lal came at the house of informant and asked him to remove hut upon which he replied that hut belongs to his relative Shankar Lal son of Hemraj and he may remove the hut. Upon it, Makhan Lal stated that “Salon Abhi Batata hun” and taken out his licensed gun from the house of Mehi Lal son of Mithai Lal and with intention to kill opened fire upon them which hit on the face of his younger brother Khem Karan PW2. The occurrence was witnessed by his cousin Anokhey Lal son of Jwala Prasad and PW8 Shiv Lal son of Angan Lal and others. The enmity between them over the land has been going on for a long time. The informant also handed over the empty cartridges picked up from the place of occurrence to Constable Krishna Kumar PW5 at Police Station Barkhera.
4. PW5 Head Constable Krishna Kumar scribed the Chick F.I.R. (Exhibit-Ka-5) on 07.10.1998 at 9:40 AM and by making necessary entry in GD at serial No. 15 (Exhibit-Ka-6) on 07.10.1998 at 9:40 AM registered Case Crime No. 250 of 1998, under Section 307 I.P.C. He has also taken the empty cartridge in possession brought by informant and prepared Memo (Exhibit-Ka-2).
5. The investigation of the case was undertaken by PW9 Sub- Inspector Syed Zahurul Haq on 07.10.1998. He copied the written complaint of informant, GD registering the case, memo of empty cartridge (Exhibit-Ka-2) and recorded the statement of PW1 Hari Om, statement of PW7 Nanhey Lal who scribed the written complaint, eye- witness Anokhey Lal and inspected the place of occurrence, prepared site-plan (Exhibit-Ka-9) on the same day on the pointing out of informant. He took the plain-earth and blood-stained earth from the place of occurrence and sealed it into two containers and also took pellets from the place of occurrence and sealed it separately. He also prepared common memo in this regard (Exhibit-Ka-1). On the same day he searched the house of the accused in presence of two witnesses namely Ishwari Prasad and Krishna Pal and prepared memo, Khana Talashi (Exhibit-Ka-11). At the time of search, the accused was found absent from his house.
6. On the basis of Majroobbi Chitthi of Police Station injured Khem Karan PW2 was taken for medical examination at Primary Health Centre, Barkhera from there he was referred for medico-legal and treatment by making endorsement at 9:55 AM to District Hospital Pilibhit. He was examined at 11:35 AM on 07.10.1998 by PW4 Dr. Vimal Kumar who found following injuries on the body of injured Khem Karan:-
(i) Multiple firearm wound of entry in the area of 27 cm x 17 cm on the face and in front of left side of neck. Each wound measures 0.2 cm x 0.3 cm in diameter margins of each irregular and averted. The area extends from whole of forehead, face, neck down to root of neck including both eyes. Contused swelling on both eyes in area 5 cm x 4 cm in both eyes.
All the injuries were found about fresh caused by firearm. Injuries were kept under observation, advised X-ray and referred to Eye Surgeon. Dr. Vimal Kumar PW4 at the time of medical examination prepared injury report (Exhibit-Ka-4) in his own hand writing.
6. PW3 Dr. Ashok Kumar has medically examined the injury of eyes of Khem Karan on 09.10.1998 at 12:30 PM at District Hospital Pilibhit who was brought by neighbor Khoob Chand Verma and prepared injury report of eye (Exhibit-Ka-3). He found following injuries on the right eye of the injured Khem Karan:-
(i) Right eye lid black and swollen
(ii) Conjunctiva swollen
(iii) Cornea damaged
(iv) Iris erupted
(v) eye shrunken
(vi) multiple firearm wounds all around the face with tiny whole. Injury was caused by hard and blunt object (firearm) duration is about two and a half days old. Nature of injury was found grievous. Right eye has been totally damaged.
7. PW6 Dr. K.N. Tiwari got X-ray of skull (face) with neck of injured Khem Karan done under his supervision on the reference of emergency medical officer in District Hospital Pilibhit on 08.10.1998 vide X-ray plate No. 2272/98 and prepared X-ray Report (Exhibit-Ka- 8) in his own hand writing. He mentioned the findings in the X-ray report of the skull (face) with neck as follows:-
“There are multiple radio opaque shadow of metallic density in soft tissue of neck and skull. No bony injury is seen.”
8. I.O. received information from an informer that accused Makhan Lal was standing near a bus-stand. On this information, he arrested accused Makhan Lal at 18:05 p.m. along with his gun and belt of cartridge having nine cartridges and prepared a memo (Exhibit- Ka-12) and gave a copy of memo and arrested him after informing him grounds of his arrest and taken him to police station. After investigation he has submitted charge sheet (Exhibit-Ka-13) against accused Makhan Lal under Section 307 I.P.C..
9. Learned Additional Chief Judicial Magistrate, Court No. 1 took cognizance of offence on the basis of charge sheet on 06.01.1999 and after complying the provision of Section 207 of Code of Criminal Procedure, 1973 committed the case to the Court of Session for trial vide committal order dated 28.05.1999.
10. Learned Additional Sessions Judge, Court No.7, Pilibhit framed charge against accused-appellant Makhan Lal under Section 307 I.P.C. The accused-appellant pleaded not guilty and claimed to be tried.
11. To prove the charges against the accused-appellant, the prosecution has examined as many as nine witnesses namely PW1 Hari Om (informant/brother of injured to prove written report ) (Exhibit-Ka-1) and empty cartridge found on the place of incident, PW2 Khem Karan (injured), and PW8 Shiv Lal as witnesses of the fact. Prosecution has also examined as formal witnesses PW4 Dr. Vimal Kumar, ENT Surgeon to prove that he conducted medical examination of injured Khem Karan on 07.10.1998 at 11:35 AM at District Hospital Pilibhit and prepared the injury report (Exhibit-Ka-4) and to prove the injuries found on the body of the injured Khem Karan at the time of medical examination and the injury report (Exhibit-Ka-4). Prosecution has also examined PW3 Dr. Ashok Kumar, Eye Surgeon to prove the injury of the right eye and to prove that cornea and iris of right eye was damaged and shrunken and injured has lost sight of right eye, injury on the right eye was caused by firearm and also to prove other injury found on eye and the injury report of eye (Exhibit-Ka-3). The prosecution has also examined PW6 Dr. K.N. Tiwari, Radiologist to prove that he got X-ray of the skull and neck of the Khem Karan done under his supervision on 08.10.1998 vide X-ray plate No. 2272/98 (Exhibit-Ka-8) wherein he found “there are multiple radio opaque shadow of metallic density in the soft tissue of neck and skull. No bony injury is seen.”
12. Prosecution has also examined witness PW5 Head Constable Krisha Kumar to prove recovery memo of empty cartridge (Exhibit- Ka-2) and Chick Report (Exhibit-Ka-5), GD registering the case (Exhibit-Ka-6). Prosecution has also examined Investigating Officer Sub-Inspector Syed Jahurul Haq as PW9 to prove steps taken in investigation, to prove the site plan (Exhibit-Ka-9), memo of bloodstained-earth, plain-earth and pellets (Exhibit-Ka-10), memo of taking in possession the licensed gun, one empty cartridge in barrel and belt having nine live cartridge (Exhibit-Ka-11), Forensic Science Report, Agra dated 23.10.1998 paper No. Ka 39/1 material object gun Exhibit-1A, cartridge material Exhibit-2 to 10A apart from it 5 empty cartridge material exhibit-11 to 14 which was received from forensic science laboratory after ballistic examination.
13. Learned lower court has recorded the statement of accused under section 313 Cr.P.C. wherein it is stated that witness Hari Om is deposing falsely against him. He has no enmity with informant and has further stated that witnesses of the fact also deposing falsely against him due to enmity on account of party-bandi. Regarding the depositions of the doctors, he stated that they are deposing falsely.
Regarding recovery of the gun and cartridges by the police, he stated that Investigating Officer is deposing falsely regarding it. Regarding evidence of the loss of eyesight of Khem Karan by firearm, he stated that it is false. Regarding the report of forensic science laboratory, he has stated that it is fabricated. He further stated that due to party- bandi he was falsely implicated. He has not adduced any evidence in his defence.
14. The learned trial Court after hearing Additional Public Prosecutor and learned counsel for the accused-appellant, on the basis of critical evaluation of evidence held that testimony of PW1 Hari Om (eye witness and informant), PW2 Khem Karan (injured) and PW8 Shiv Lal (eye witness) is cogent, credible and trustworthy and they are liable to be relied on. The evidence of the relative cannot be disbelieved merely on the ground that witnesses are related to each other or to the injured. The trial court further held that PW1 Hari Om lodged the F.I.R. narrating the occurrence in detail without any delay, he is eye witness and has given vivid description of occurrence in his deposition and defence could not impeach testimony in cross- examination. It is further held that the accused has asked the informant to remove hut, thereupon informant replied that hut in question belongs to his relatives, Shanker Lal who can remove the hut. The place of occurrence is 6 km away from the police station. The occurrence has taken place at 7 AM in the morning and eyewitness/informant Hari Om lodged F.I.R. at 9:40 AM. The trial court also held that PW1 Hari Om and PW8 Shiv Lal were eye witnesses of the incident and their names were mentioned in F.I.R. as eye-witness of the incident. With regard to PW2 Khem Karan, the trial court held that he is injured witness and sustained grievous injury of pellets of firearm and loss the sight of right eye due to damage of iris and cornea and has also sustained firearm injury on his face and neck in the incident. Above-mentioned witnesses of the facts gave vivid description of the occurrence and manner in which the accused- appellant opened fire which hit PW2 Khem Karan on his face including neck who sustained injuries in which his right eye was damaged due to the injury sustained by firearm shot by accused- appellant. The trial court has also held that it is proved from the deposition of PW4 Dr. Vimal Kumar who had examined Khem Karan on 07.10.1998 at 11:35 AM and found firearm injury in the area of 27 cm X 17 cm on whole face, front & left side of neck. The margins of the injury were averted. Injuries were caused by firearm and were kept under observation and advised for X-ray. He found injury fresh. Learned lower court also held that from the deposition of PW3 Dr. Ashok Kumar it is proved that swelling was found on the right eyelid and conjunctiva, cornea and iris of the right eye were damaged and injured has lost vision of right eye completely. He further stated that he examined the eye of the injured on 09.10.1998 at 12:30 PM. He also proved the injury report of eye (Exhibit-Ka-3) and opined that injury on the right eye was caused by firearm. Learned lower court also held that from the deposition of PW6 Dr. K.N. Tiwari, (Radiologist) it is proved that he got X-ray of the skull and neck of the injured Khem Karan done on 08.10.1998 under his supervision and on the basis of X-ray plate Material Exhibit-2, he prepared X-ray Report (Exhibit-Ka-8) and opined that there are multiple radio opaque shadow of metallic density in the soft tissue of neck and skull. Learned Lower Court also held that although the empty cartridge collected from the place of occurrence is not proved to be fired from the gun of accused appellant, but as per Forensic Science Laboratory Report, Agra, consistent and cogent oral testimonies of eyewitnesses and even supported by the deposition of the injured witness PW2 Khem Karan which is also corroborated by medical evidence and first information report, therefore, the prosecution was successful in proving the charge of offence punishable under 307 of Indian Penal Code against the accused-appellant beyond reasonable doubt. It is also held that after occurrence accused has left his house just after committing the incident in question and was arrested near bus stand at Paura. The trial court did not accept the submission of counsel for the accused-appellant and after appreciating the evidence on record, oral and documentary, in detail the trial court held that it is proved beyond all reasonable doubt that appellant fired from his licensed gun on the informant with intention to kill him which hit his brother injured Khem Karan PW2 which resulted into firearm injury in the right eye of injured which damaged iris and cornea due to which injured has lost sight of his right eye completely and has sustained injury of fire on his face and neck. The trial court held the accused-appellant guilty for offence punishable under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for 3 years and a fine of Rs.2000/-, in default to undergo additional imprisonment for 6 months. It was further ordered that amount of fine shall be given to injured as a compensation by impugned judgement and order dated 02.11.2000.
15. Being aggrieved by the impugned judgement of conviction and order of sentence dated 02.11.2000, accused-appellant has preferred this appeal under section 374(2) Code of Criminal Procedure, 1973 for setting aside the judgement of conviction and order of sentence awarded to him.
16. Learned counsel for appellant assailing the judgement of the trial court submitted that the appellant has no motive to commit the crime. No motive is mentioned in F.I.R. and also in the depositions of the witnesses. It is submitted that if the hut did not belongs to informant, therefore, it was improbable for accused-appellant to ask him to remove it. PW1 Hari Om admitted that the house of Makhan Lal and informant are in the north side of the village while the hut was situated in the south side of the village, therefore, there was no occasion for Makhan Lal to ask informant to remove the hut. He has submitted that PW1 Hari Om has admitted that he had seen Makhan Lal carrying gun from 5-6 paces but he has not warned the persons sitting near him to run away from there. It is submitted that Khem Karan has sustained injury somewhere else in the darkness and accused-appellant was falsely implicated due to party-bandi. It is also submitted that occurrence has taken place in the village Bhagwantapur, whereas, the written Tahrir was scribed by Nanhey Lal who is resident of village Nauwa Nagla which is 35 km away from Pilibhit and Pilibhit is about 20 km away from the Barkhera and Nanhey Lal was called to scribe the written Tahrir for falsely implicating the accused-appellant. As per deposition of Hari Om, Nanhey Lal was not present at the place of occurrence and has admitted that he got scribed the written Tahrir at Bus-stand, Paura by Nanhey Lal. It is submitted that above circumstances pointed out that the F.I.R. was ante-timed. It is submitted that Khem Karan PW2 has admitted that altercation had taken place between accused-appellant and his brother Hari Om, therefore, there was no occasion to sustain injury by the injured Khem Karan. The dispute regarding land of hut in question was between Shankar Lal and Jwala Prasad and who has forcibly occupied the land which was claimed by Jwala Prasad, therefore, there was no probability for the accused-appellant to open fire on informant which allegedly hit the injured Khem Karan. As per deposition of PW8 Shiv Lal, he saw the appellant from 50 paces, therefore, it was natural for them to go to the place which also make improbable the incident as alleged by prosecution and create doubt on the prosecution case. As per deposition of Dr. Ashok Kumar PW3, injury in the eye of injured was about two and a half day's old and it did not corroborate the prosecution story that injured has sustained injury in the incident as alleged by prosecution. It is also submitted that Dr. Vimal Kumar PW4 in his cross-examination admitted that if the gunshot would have been fired from more than 15 feet and the injury on the face may not penetrate deep and by chance it hit on right eye due to which injury become grievous. It is further submitted that Dr. Vimal Kumar has admitted in cross-examination that there may be variation of time of injuries about 3-4 hours either side. It is submitted that the case against the appellant is not proved beyond reasonable doubt and impugned judgement of conviction and order of sentence passed by learned lower court is liable to be set-aside and accused -appellant deserves to be acquitted.
17. Refuting the submissions of learned counsel for appellant, it is submitted by Shri Sanjay Sharma, learned A.G.A. for State- respondent that PW1 Hari Om and PW8 Shiv Lal are eyewitnesses to the incident and they have given clear and cogent statement in the court that it was the appellant who fired from the licensed gun on them which hits PW2 Khem Karan (injured). The injured PW2 Khem Karan has also given a clear and cogent statement in the court that it was accused-appellant who fired from his single barrel licensee gun which hit on his face and neck. As the case is based on the direct evidence, therefore, non-alleging and non-proof of motive by prosecution is insignificant. No material contradictory, inconsistency and embellishment has been pointed out during the argument in the statement of the witnesses by counsel for the accused-appellant to disbelieve the prosecution case. The gun used in the commission of incident was also recovered from the appellant at the time of arrest near bus stand, Paura with belt having nine live cartridges and one empty cartridge in the barrel. It is also contended that single barrel licensed gun recovered from the appellant was of 12 bore description. The injured was taken to police station at the time of lodging of F.I.R.
and from where he was sent for medical examination on Majroobi Chitthi to Primary Health Centre, Barkhera from there he was referred to District Hospital at 9:55 AM by making an endorsement that the patient serious referred to District Hospital Pilibhit without conducting medical examination of injuries of the injured. It is also contended that F.I.R. was lodged promptly within 2 hours and 40 minutes of the incident giving vivid details of the occurrence, name of the witnesses and weapon used in the incident. The distance between place of occurrence and police station is 6 km, as F.I.R. was lodged within 2 hours and 40 minutes promptly which in above circumstances ruled out any sort of concoction. The deposition of injured Khem Karan PW2 is fully corroborated from the deposition of PW1 Hari Om and PW8 Shiv Lal and the version given in F.I.R. The witnesses including injured have given detailed description of the occurrence in their depositions which got corroboration from medical evidence and weapon used in incident. Although Dr. Vimal Kumar PW4 has stated in his cross-examination that injury on the face of injured was not deep and pellet has, by chance, hit in the right eye of the injured due to which injury become grievous, but Dr. K.N. Tiwari PW6, Radiologist has proved X-ray Plate Material Exhibit-1 on the basis of which X-ray Report (Exhibit-Ka-8) was prepared which indicates that he found “multiple radio opaque shadow of metallic density in the soft tissue of neck and on face” which establishes that accused has fired by gun with intention to kill them which hit on the face and neck of injured Khem Karan PW2. The injured has lost vision of his right eye due to damage of iris and cornea and on account of which eyeball was shrunken. The case of the prosecution is proved beyond reasonable doubt and learned lower court has rightly held the accused-appellant guilty for offence punishable under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for three years with fine and has shown undue leniency in awarding the sentence of imprisonment. It is further submitted that the appeal has no force and is liable to be dismissed.
18. I have examined the contentions of learned counsel for accused appellant and learned A.G.A. for the State and have gone through the entire evidence on record with care and caution.
19. Now, I shall proceed to examine the argument advanced on behalf of accused-appellant that distance between place of occurrence and police station is 6 km and the F.I.R. was lodged within 2 hours and 40 minutes of the occurrence, therefore, the F.I.R. is delayed and no reliance can be placed on it whether such claim is fatal to the prosecution, particularly, where the scriber of the written Tahrir Nanhey Lal was a resident of another village which is 35 km away from Head Quarter, Pilibhit and was not present on the place of occurrence.
20. Section 154 of Criminal Procedure Code, 1973, requires an Officer In-charge of police station to reduce to writing every information relating to commission of cognizable offence, if given orally to such Officer. It further requires that such information, which has been reduced to writing shall be read over to the informant and information reduced to writing or given in writing by the person concerned shall be signed by the person giving it. The only suggestion given to witness PW7 Nanhey Lal is that he had not scribed the written complaint on the dictation of informant but had scribed it on the dictation of police which was denied by him. No cross examination was done on this witness about how he had reached at bus station, Paura and met the informant. From the deposition of PW7 Nanhey Lal, it is clear that the distance between Barkhera and Pilibhit is about 18-20 km and the distance between his village Nauwa Nagla is about 35 km. Injured Khem Karan was medically examined by Dr. Vimal Kumar PW4 on 07.10.1998 at 11:35 AM which is proved by deposition of Dr. Vimal Kumar and also proved the injury report (Exhibit-Ka-4). From above discussion, it is clearly proved beyond reasonable doubt that F.I.R. was lodged promptly which is counter checked by prompt medical examination of the injured on the basis of Majroobi Chitthi on endorsement of medical officer Barkhera at 9:15 AM on 07.10.1998. The vivid detail of the occurrence, weapon used and the name of the witnesses were mentioned in F.I.R. Therefore, in the above circumstances, prompt lodging of F.I.R. ruled out ante- timing of F.I.R. and any sort of concoction or embellishment.
21. Informant Hari Om PW1 in his deposition stated that occurrence has taken on 07.10.1998 in the morning at 7 AM while he was sitting and chatting at his door along with his family members Nokhey Lal (his cousin), Shiv Lal (independent witness) and Khem Karan, meanwhile, accused-appellant Makhan Lal came there and asked him to remove hut and he replied that he would not remove because it belongs to his relative Shankar Lal, who may remove the hut. On this Makhan Lal said that “Salon I will tell you now”, then he went to the house of Mehi Lal and took out his licensed gun from there and fired a shot with intention to kill them which hit at the face of his brother Khem Karan PW2 resultantly he sustained injury. Makhan Lal fled from there. Informant picked up empty cartridge from the place of occurrence. He further deposed that written complaint of the incident was scribed by Nanhey Lal on his dictation, thereafter, he put his signature on it and handed over to Constable PW5 Krishna Kumar along with empty cartridge who prepared the memo of empty cartridge (Exhibit-Ka-2) and obtained the signature of informant on it and sealed in clothes. He lodged F.I.R. on the basis of written complaint (Exhibit-Ka-1). He identified his signature on written Tahrir/complaint and memo and proved them.
22. The first point to be considered is F.I.R. in this case. First information report in criminal cases is a valuable document as the entire prosecution case revolves around it. Though it is not a substantive piece of evidence, but definitely it is the pivotal document on which the entire prosecution case rests. The incident of this case is alleged to have taken place at 7 AM on 7.10.1998 and the F.I.R. of the case was lodged in the same morning at 9:40 AM within 2 hours and 40 minutes of the incident. The distance of place of occurrence from the police station, as per chick report, was 6 km. It has come in the evidence that after the incident all witnesses went to police station by conveyance. From the statement of PW8, it is proved that they had gone to police station by Buffalo Cart because it was not challenged in cross-examination. Learned counsel for the accused-appellant even could not dare to clarify from PW1 Hari Om that what kind of conveyance was used for going to police station. PW1 Hari Om has stated on oath in cross-examination that they remain half an hour in the village after the incident that is quite natural because they might had taken some time to cool down as the brother of the informant has lost sight of his right eye and sustained several pellet injuries on face and neck by 12 bore single barrel gun, after getting out of fear they left the village for lodging the F.I.R and treatment. The evidence of PW1 Hari Om transpires that they got down from conveyance and directed the person controlling the conveyance to carry Khem Karan and he would come after getting the complaint ready at bus station and there he met PW7 Nanhey Lal and got the written complaint scribed by Nanhey Lal on his dictation. This circumstance also corroborates that the conveyance used for going to police station was animal pulled kind. In above circumstance, deposition of PW1 Hari Om that he remained in his village after incident is natural and believable because some time must have been taken by the informant to cool down from the fear of incident. It is also proved that a lot of time was consumed by the animal pulled cart to reach bus-stand. PW1 Hari Om has stated on oath that he got down from conveyance at bus stand “Paura” and got the written complaint scribed by Nanhey Lal PW7 in about 20 minutes. Therefore, in this regard the statement of PW1 is natural and is liable to be accepted because some time would have taken in the process of scribing the written complaint. Caution was also taken in reaching the police station because injured PW2 Khem Karan who has lost sight of his right eye on account of injuries sustained by pellets of cartridge fired from gun by accused-appellant was being carried along with him by buffalo cart. In aforesaid circumstance, it cannot be said that first information report is ante- timed. It also cannot be said that F.I.R. was lodged with delay. The village of the scriber was about 35 km away from Pilibhit and it is probable that he was seen by informant at bus-station Paura who had dictated him the content of written complaint. Learned counsel for the accused-appellant did not cross-examine the witness PW7 as to how and why he reached at bus-station Paura in the morning at about 9 AM. After perusal of evidence on record, I do not find any ground to hold that F.I.R. was not registered at the time as alleged by the prosecution and there was any delay in lodging of first information report. PW1 Hari Om has stated that he handed over the written complaint to police of Police Station Barkhera in the morning at about 9:40 AM which get corroboration from the deposition of PW5 Head Constable who deposed that he scribed the chick report on the basis of written complaint of informant PW1 Hari Om at 9:40 AM and had proved the chick report (Exhibit-ka-5). He further deposed that he has registered the case crime number by making entry at serial number 15 on 07.10.1998 at 9:40 AM in GD and has proved entry of said GD (Exhibit-Ka-6). He was cross-examined only regarding overwriting by red ink on Exhibit-Ka-2 wherein he stated that there is no overwriting on No. 2 of 250. He was not cross-examined regarding the timing of F.I.R., except by putting bald suggestion that F.I.R. is ante-timed which was denied by this witness. In above circumstance, it is proved beyond doubt that F.I.R. was lodged at 9:40 AM in the same morning as alleged by the prosecution. Prompt lodging of F.I.R. is further corroborated from the endorsement of a reference made by Medical Officer, PHC Barkhera at 9:55 A.M. on 07.10.1998 for treatment and medico-legal to District Hospital, Pilibhit.
23. After going through the entire evidence and documents relied by prosecution, I could not notice anything to hold that F.I.R was not in existence at the time as alleged by prosecution and there was any delay in lodging the F.I.R. This prompt lodging of F.I.R. lends credence to the case of prosecution and also support the prosecution story that witnesses saw the incident. The F.I.R. was lodged in the same morning at 9:40 AM, so it cannot be presumed by any stretch of imagination that first information report was delayed or ante-timed and it rules out any sort of concoction in the version of first information report.
24. A prompt first information report lends credence to the prosecution case because a prompt first information report eliminates all chances of cooking up a false story as held by Hon’ble Apex Court in case of Maharaj Singh versus State of U.P. [reported in (1994) 5 SCC 188] while emphasizing the importance of recording a prompt first information report the Supreme Court observed as under:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story."
25. Similarly in the case of Kishan Singh (D) through Lrs versus Gurpal Singh and others [reported in (2010) 8 SCC 775], the Hon'ble Supreme Court, has held that:
"Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging F.I.R. does not make the complaint case improbable when such a delay is properly explained. However, deliberate delay in lodging the complaint is always fatal."
26. Hon’ble Apex Court in the case of Nanhey versus State of Uttar Pradesh [reported in 1973 (3) SCC 317] has held that prompt F.I.R. eliminates the chance of cooking up a false story. In such circumstances, learned lower court has rightly held that F.I.R. was promptly lodged and it gives the assurance regarding truth regarding facts as narrated in F.I.R.
27. So far as the argument of learned counsel for the appellant regarding non-alleging of motive in F.I.R. and non-deposing by the informant and the witnesses are concerned, it is proved that there was no enmity between appellant and informant and there was dispute regarding hut between Shankar Lal and Jwala Prasad as it has come in the deposition of PW2 Khem Karan that there was dispute between Shankar Lal and Jwala Prasad regarding the land on which hut of Shankar Lal existed and Jwala Prasad was claiming that it belongs to him. From the evidence, it appears that accused-appellant came to place of occurrence from the side of Jwala Prasad to ask informant to remove disputed hut on account of which this occurrence has taken place. The accused-appellant in his statement under Section 313 of Cr.P.C. stated that he was falsely implicated due to village party-
bandi. This assures that accused-appellant has taken side of Jwala Prasad and directed informant to remove the hut of his relative Shankar Lal which was not complied by informant on which the accused-appellant felt bad and thereafter this occurrence has taken place; it demonstrates that motive had developed on the spot spontaneously due to above reason. Moreover, Hon’ble Apex Court in the case of Kukapalli Mohan Rao versus State of Andhra Pradesh [decided on 11 December, 2012 in Criminal Appeal No. 316 of 2008] has observed in para 13 of the judgement as follows:
“13. In Baitullah and Another v. State of U.P. (1998) 1 SCC 509, this Court has taken the view that where a murderous assault has been established by clear ocular evidence, the motive pales into insignificance. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, this Court held that it is a sound principle to remember that every criminal act was done with a motive, but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it and the prosecution succeeded in showing the possibility of some ire for the accused towards the victim. This Court held that it is also impossible for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. Reference may also be made to the judgments of this Court in Nathuni Yadav and Another v. State of Bihar and Another (1998) 2 SCC 238.”
28. In the fact and circumstances of the case, it is proved that motive to commit crime by accused-appellant developed on the spot when informant has not complied his command for the removal of hut and appellant felt bad. Moreover, it is a sound principle to remember that every criminal act is done with motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it and prosecution succeeded in showing the possibility of ire for the accused towards the victim as held by on Hon’ble Apex Court in Nathuni Yadav case (supra). Therefore, I find no substance in the argument of the appellant's counsel that non-disclosure of motive to commit the crime by accused-appellant creates doubt on the prosecution case because of the reason mentioned above. Moreover, in Stalin versus State represented by Inspector of Police (Criminal Appeal No. 577 of 2020, decided on 9.9.2020), the Hon’ble Apex Court has observed in Para 8.1 as under:-
“8.1. As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560, the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case.”
29. The instant case is based on direct evidence of eye witnesses, it is settled position of law that the motive is always in the mind of person authoring the incident. In this case, there is direct evidence of witnesses as to the commission of offence, motive loses its significance.
30. Therefore, I find no substance in the argument of the appellant's counsel that for want of allegation of motive in F.I.R. the case of the prosecution became doubtful and it creates a circumstance which leads to the conclusion that accused was falsely implicated.
31. I shall now examine the evidence pertaining to the incident. There were three eye-witnesses, namely Hari Om PW1(informant and brother of injured), PW2 Khem Karan (injured), PW8 Shiv Lal (independent witness) and ladies of the house present there. All of them have consistently stated that on the date of incident on 07.10.1998 at 7 AM they were chatting at the door of informant, meanwhile, appellant Makhan Lal arrived there and asked them to remove the hut in question on which they replied that it belongs to their relative Shankar Lal who will remove the hut, and thereafter, some altercation has taken place on which Makhan Lal reacted and said “SALON ABHI BATA HUN” and went to the house of Mehi Lal and took out his licensed gun and fired on them with intention to kill them which hit injured Khem Karan who sustained pellet injuries on his face and neck and he has also lost sight of his right eye. After occurrence, informant Hari Om might have taken some time to come out from fear and thereafter he went to police station along with injured Khem Karan PW2 and eye-witness PW8 Shiv Lal and lodged the F.I.R. on the basis of written complaint. PW1 Hari Om stated that he got the written complaint scribed by PW7 Nanhey Lal at bus-stand Paura.
32. Promptly lodging of first information report by PW1 Hari Om within 2 hours and 40 minutes after the occurrence, in which all necessary details of the incident have been given, led enough assurance to the presence of PW1 and witness PW8 Shiv Lal and sustaining injury by PW2 Khem Karan in the incident. It also reflects the first account of incident as to what has actually happened and who is responsible for the crime in question. PW9 S.I. Syed Jahurul Haq Investigating Officer has proved in his deposition that he recovered pellets of cartridge, taken blood-stained earth and plain-earth from the place of occurrence and sealed them into containers and also sealed pellets in separate containers and prepared Memo (Exhibit-Ka-10) in this regard. He also inspected the place of occurrence and prepared site-plan (Exhibit-Ka-9) with the assistance of PW1 Hari Om. He also raided the house of Makhan Lal who was found absent and he prepared Memo Khana Talashi (Exhibit-Ka-11). No suggestion was put to this witness that he had not seen the incident. Thus, it is proved that Hari Om was present on the place of occurrence and has witnessed the incident. From above discussions, it is proved that he is eye-witness of occurrence. PW1 Hari Om also stated on oath that medical examination of injuries of his brother Khem Karan was conducted at District Hospital on the same day. He further deposed that occurrence has taken place at 7 AM in the morning when he along with Khem Karan, Nokey Lal, Shiv Lal and ladies of his family were sitting at his door and were chatting with each other, meanwhile, accused Makhan Lal arrived there and asked them to remove hut thereupon they had replied that the hut belongs to his relative Shankar Lal who will remove the hut. Thereupon, appellant Makhan Lal stated “SALON ABHI BATATA HUN” and went to the house of Mehi Lal and took out his gun and with intention to kill all of them opened fire which hit his brother Khem Karan who sustained injury on his face and neck and accused Makhan Lal fled from there. He picked up empty cartridge from the place of occurrence and gave it to constable at the time of lodging of F.I.R. He further stated on oath that the memo of cartridge (Exhibit-Ka-2) was prepared by constable of Police Station, Barkhera on which his signature was also obtained. The constable had sealed the empty cartridge in white clothes in his presence. The empty cartridge was produced at the time of recording of his deposition and he identified the empty cartridge as Material Exhibit-1. He further deposed that his brother was medically examined in the hospital after the occurrence. He further deposed to the effect that his brother Khem Karan lost the vision of his eye due to the injury sustained by firearm and because of it his brother had to get stoned eye.
33. In cross-examination he stated that villagers of his village know that the hut in question does not belongs to him. He corroborated in cross-examination that the hut in question belongs to his relative Shankar Lal who had gone out of the village on the day of occurrence. He further stated in cross-examination that house of Makhan Lal is situated in the North side of the village and the hut is situated in the South side of the village. He has also deposed that no dispute continued regarding hut in question among Shankar Lal and Jwala Prasad. He further clarified that Jwala Prasad had not initiated any legal proceedings against Shankar Lal. He has further stated that no legal proceeding has taken place between Shankar Lal and Jwala Prasad. He has further deposed that Shankar Lal did not lay any foundation stone at that place and Jwala Prasad did not throw bricks by uprooting them. He further stated on oath that his house is situated in the North side of the house of Jwala Prasad and the house of Makhan Lal is situated towards West side of his house. He further stated that his door is in West side of his house. They were sitting there when Makhan Lal had arrived there. Makhan Lal has not stated that he was having gun. He further stated that he saw Makhan Lal from 5-6 steps away and thereupon Makhan Lal came closer. He further deposed that he did not say that Makhan Lal is bringing a gun. When Makhan Lal pointed the gun, Khem Karan was standing and all others were sitting. Khem Karan fell down as soon as fire broke out. First of all, he picked up the empty cartridge which had fallen on the place of occurrence.
34. Learned counsel for the accused-appellant has submitted that PW1 Hari Om has admitted in his cross-examination that house of Makhan Lal is situated in the North flank of the village while the hut in question is situated in the South flank of the village, therefore, no interest of Makhan Lal was involved in the hut thereupon there was no occasion for him to ask informant to remove the hut and also there was no occasion for Makhan Lal to indulge in altercation and take-out gun from house of Mehi Lal and opened fire upon Hari Om etc. It is also submitted by learned counsel for the accused-appellant that it is admitted to both parties that there was no enmity between informant and his family and appellant Makhan Lal. It is also submitted that in above circumstances it was plausible that injured Khem Karan had sustained injury in the darkness of the night in morning and might has falsely implicated the appellant Makhan Lal due to party-bandi of the village.
35. Although, informant, injured and witnesses had not given any evidence regarding their enmity with the accused-appellant. As to what would be the consequences of such discrepancy in the testimony of the eye-witnesses, it would be useful to notice few decisions of the Hon'ble Apex Court. In Pirthu @ Pirthi Chand and Another versus State of Himachal Pradesh (2009) 11 SCC 588, the Hon'ble Apex Court, has observed at Para 14 as under:-
“14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753), it was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be accepted to possess a photographic memory and to recall the deals of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have been anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses.”
36. In State of U.P. versus M.K. Anthony (1985) 1 SCC 505, the Hon'ble Apex Court observed as under: (SCC pp. 514-15, para 10) "10. 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 formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs 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 given by the witness 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, hyper- technical 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. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals..."
37. In Yogesh Singh verses Mahabeer Singh and others (2017) 11 SCC 195, the Hon'ble Apex Court observed as under: (SCC p. 212, para 29) "29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction and omission. (See Rammi @ Rameshwar Vs. State of M.P. (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors. (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police Krishnagiri (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Another (2013) 12 SCC 796).”
38. Although informant, injured and other witnesses had not given any evidence regarding their enmity with the accused-appellant, but from the medical evidence the prosecution case is proved beyond doubt, hence, non-mentioning motive in first information report and non-adducing any evidence in this regard by informant, injured and eye-witnesses does not affect the prosecution case.
39. PW1 informant has consistently stated in his deposition that he along with PW2 Khem Karan, PW8 Shiv Lal, Anokeylal and ladies of his family were sitting at the door and were chatting with each other in the morning at 7 AM. Meanwhile, Makhan Lal arrived there and asked them to remove the hut in question, thereupon, they replied that it belongs to his relative Shankar Lal who may remove it. Thereupon, accused-appellant took out the gun from the house of Mehi Lal and opened fire upon him which hit on the face and neck of injured PW2 Khem Karan who sustained injuries due to which he remained admit- ted in hospital for treatment for a period of fifteen days. He further de- posed that operation of eye of his brother was conducted by the doc- tor. He further deposed that due to injury caused by pellets his brother lost vision of his right eye completely and which also weaken his memory.
40. PW8 Shiv Lal has deposed that occurrence has taken place two years before in the morning at 7 AM when he was sitting in front of the door of house of Hari Om along with Nokhey Lal, Khem Karan and informant, meanwhile, accused Makhan Lal, who is a resident of his village and also known to him, arrived there and asked them to re- move hut, thereupon, Hari Om replied that the aforesaid hut belongs to his relative Shankar Lal who will remove it. Makhan Lal left from there and brought out licensed gun from the house of Mehi Lal and opened fire which hit Khem Karan resultantly he sustained injuries. Thereafter, Makhan Lal fled from there. From the place of incident, the empty cartridge was found and picked up by PW1 Hari Om. He in clear terms has stated that he saw the incident. In cross-examination he has stated that the house of Hari Om is towards North side of the house of Jwala Prasad. He further deposed that Hari Om and Khem Karan are residing in the same house. It is further clarified that he was sitting on the North side of the door. He further clarified that house of Mehi Lal is hundred steps away in the North side of the house of Hari Om. He further stated on oath that he saw Makhan Lal from a distance of 50 steps when Makhan Lal was carrying gun and shot fire, and thereafter, he ran away. He further deposed in cross-examination that Investigating Officer has not inspected the place of occurrence and has not prepared the site-plan before him.
41. PW9 SI Zahurul Haq has proved in his deposition that he re- ceived the information from an informer that accused is standing at bus stand Paura and arrested the accused on 07.10.1998 at 6:05 PM with his licensed gun SBBL No. 653 New Light Arts Works with belt of cartridge having 9 live cartridges and one empty cartridge inside the barrel of the gun. He prepared the recovery memo (Exhibit-Ka- 12) in presence of witness Kallu and has produced them in the court below as Material Exhibit-1A (gun), Material Exhibit-2 to 10A (empty and live cartridges) and has also proved the specimen cartridge and test cartridge Material Exhibit- 11 to 14 in lower court.
42. Learned counsel for the appellant has further submitted that as per the case of the prosecution, incident has taken place in the morn- ing at 7 AM at village Bhagwantapur which is 6 km away from the police station which could hardly take half an hour to reach at police station but written complaint was given to the police station at 9:40 A.M. which creates a circumstance which cast doubt about prosecu- tion story. It is true that informant is the real brother of the injured and at the time of incident his brother Khem Karan, witness PW8 Shiv Lal and others were chatting at the door of informant and, meanwhile, ac- cused appellant appeared and asked informant to remove hut upon which he replied that it belongs to Shankar Lal and it is he, who may or may not remove the hut. Thereupon, altercation has taken place and accused appellant had gone to the house of Mehi Lal and taken out his single barrel licensed gun and opened fire on informant which unfor- tunately hit on the face and neck of PW2 Khem Karan who sustained injury. In the cross-examination the appellant's counsel has not chal-
lenged the version of the informant PW1 Hari Om, PW2 injured Khem Karan and PW8 Shiv Lal eye-witness regarding their chatting at the door of the informant along with injured, witnesses named in the F.I.R. and other villagers, therefore, their presence on the place of occurrence cannot be doubted. It is emphasized by learned counsel for the appellant that there are related witnesses in the instant case and no reliance can be placed on their depositions.
43. Law is settled on the point that evidence of a witness cannot be discarded only on the ground that he is related witness. But it is only rule of prudence, rule of caution that evidence of such witness is to be scrutinized with some extra caution. Once the court is satisfied that witness was present at the scene of occurrence and his evidence in- spires confidence, then the same cannot be discarded on the sole ground of relationship with the victim. The law is settled on the point that even if a witness is chance witness or related witness even then his evidence cannot be discarded solely on the ground that he was a related or chance witness. Hon’ble Apex Court in the case of Nagap- pan versus State Inspector of Police, Tamil Nadu (2014) 3 SCC (Cri) 660 has observed in Para 10 as under:-
" 10. As regards the first contention about the admissibility of the evidence of PW1 and PW3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. Prosecution heavily relied on the evidence of PW1, PW3 and PW 10. The trial court and High Court, in is view of their relationship, closely analyse their statement and ultimately found that their evidence is clear, cogent and without considerable contradiction, as claimed by their counsel. This court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same on the ground that they were interested witness. In other words, relationship is not a factor to affect credibility of the witness (Vide Dalip Singh v. State of Punjab AIR 1953 SC 364, Guli Chand v. State of Rajasthan (1974) 3 SCC 698, Vadivelu Thevar v. State of Madras AIR 1957 SC 614, Masalti V. State of U.P. AIR 1965 SC 202, State of Punjab v. Jagir Singh (1974) 3 SCC 277, Lehna v. State of Haryana (2002) 3 SCC 76, Sucha Singh V. State of Punjab (2003) 7 SCC 643, Israr v. State of U.P. (2005) 9 SCC 616, S. Sudershan Reddy v. State of A.P. (2006) 10 SCC 163, Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra (2007) 9 SCC 1, Woman v. State of Maharashtra (2011) 7 SCC 295, State of Haryana v. Shakuntla (2012) 5 SCC 171, Raju v. State of T.N. (2012) 12 SCC 701, Subal Ghorai v. State of W.B. (2013) 4 SCC 607." (emphasis added)
44. On the point of chance witness reference may be made to the pronouncement of Hon'ble Apex Court in the case of Vikram Singh and others V. State of Punjab (2010) 3 SCC 56 wherein Hon'ble Apex Court has cited paragraph 3 of its earlier pronouncement in the case of Rana Partap & Others V. State of Haryana 1983 (3) SCC 327 which reads as under:-
“3. There were three eyewitnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as "chance witnesses" implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence." (emphasis added)
45. Reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Thangaiya V. State of Tamil Nadu [re- ported in (2005) 9 SCC 650] wherein the Hon'ble Apex Court has ob- served in para 8 as under:-
"8. Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. Therefore, there is no substance in the plea that PW-3's evidence which is clear and cogent is to be discarded."
46. It is further submitted by learned counsel for the appellant that in above circumstances deposition of PW8 Shiv Lal is not reliable. In this case the site-plan was not prepared at the instance of PW8 Shiv Lal. The presence of PW8 at the time of preparation of site-plan of the place of occurrence is not required, therefore, his presence at the time of inspection of place of occurrence is in no way affect the deposition of PW8 Shiv Lal. Therefore, I find no substance in the argument of counsel for the appellant that his absence at the time of preparation of site-plan is fatal to the prosecution case. Moreover, from the evidence on record it is evident that as soon as accused-appellant Makhan Lal came out from the house of Mehi Lal, he opened fire on the persons sitting at the door of informant which is further corroborated by medical evidence. From the perusal of injury report, it is apparent that no blackening or tattooing is found around the wound which corroborates that fire was made from considerable distance. From the evidence, it is proved that as soon as accused-appellant came out from the house of Mehi Lal, which is about 50 paces away from the place of occurrence, he opened fire, therefore, there was no occasion for the injured and the persons sitting there including the informant to leave the place in order to save themselves. The testimony of witnesses PW1 Hari Om, PW2 Khem Karan and PW8 Shiv Lal is corroborated from the medical evidence. Injury report also establishes that injury was caused by pellets on the face and neck including eye of injured Khem Karan. From the evidence on record, it is also proved that right eye of Khem Karan was damaged due to injury sustained by firearm as it is proved from the combined evidence of PW4 Dr. Vimal Kumar and PW3 Dr. Ashok Kumar.
47. In the case of Akhtar & Ors vs. State Of Uttaranchal (2009) 13 SCC 722, Hon'ble Apex Court, held that if the prosecution case supported by injured witnesses and eye-witnesses is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. Again, it was held that it is extremely difficult to believe that injured witness would shield the real culprit and name someone else only due to some enmity.
48. In the present case from the evidence on record, it is proved that accused Makhan Lal was arrested by Investigating Officer along with single barrel 12 bore gun with cartridges. The injury sustained by injured was also from the pellets which were fired from 12 bore gun. Ocular testimony of the witnesses is fully corroborated by medical evidence. Hence, in above circumstance, the witnesses PW1, PW2 and PW8 are liable to be relied on. Injury report also proves the manner and time of assault. The injured has sustained injury on his face and he has lost his eye-sight. In above circumstance, it is proved that injury caused by accused-appellant was with intention to cause such fatal injury. As if the injured had died, the accused-appellant would have been liable for murder of Khem Karan.
49. In above circumstance, the charge under Section 307 I.P.C. is proved beyond reasonable doubt against the accused-appellant and the learned lower court has rightly relied on it and has rightly held that charge of offence under Section 307 I.P.C. is proved against the accused-appellant. In this case, injured Khem Karan has lost his right eye and the injuries were found on the vital part of body and from the X-ray report it is also proved that radio opaque shadow of metallic density was also found on his face etc. In above circumstance, learned lower court has rightly not extended the benefit of Probation Act and has rightly awarded the punishment of three years and fine of Rs.2000/- and further has rightly ordered that fine amount shall be given to the injured Khem Karan as compensation.
50. In above circumstance, I find no substance in the appeal and the same is, accordingly, dismissed.
51. Let a copy of this order be communicated to the lower court concerned along with lower court record. Lower court is directed to get the accused-appellant served out the remaining sentence awarded to him.
Order Date :- 17.12.2021 Vikas