Hon'ble Umesh Kumar,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri Vijay Singh Gour, learned counsel for the appellant and Sri Ratnendu Kumar Singh, learned A.G.A. for the State.
2. The Criminal Appeal No. 8335 of 2008 has been preferred against the judgement and order dated 29.11.2008 passed by Additional District Judge/F.T.C.- 1, Court No.4, Chitrakoot delivered in S.T. No. 104 of 2006, State Vs. Raj Bali Tewari and one another under Section 302 I.P.C. read with Section 34 I.P.C. and Section 307 I.P.C. read with Section 34 I.P.C., P.S. Raipura, District Chitrakoot arising out of Crime No. 24 of 2006 and the other Crl. Appeal No. 8337 of 2008 has been preferred against the same judgement and order arising out of S.T. No. 105 of 2006, State Vs. Raj Bali Tewari @ Badka Tiwari under Section 25 Arms Act arising out of Crime No. 25 of 2006 and P.S. and District are the same, whereby the accused appellant has been convicted under Section 302 I.P.C. and has been awarded punishment of life imprisonment with fine of Rs. 5,000/- and in default of payment of fine, one year additional imprisonment and under Section 307 I.P.C., he has been held guilty and awarded punishment of ten years R.I. and fine of Rs. 3,000/- and in default of payment of fine, 6 months additional Imprisonment and both the sentences are directed to run concurrently. Further accused appellant has also been held guilty under Section 25 of Arms Act and has been awarded punishment of three years R.I. and fine of Rs. 1,000/- and in default of payment of fine, three months additional imprisonment. The co-accused, Dinesh Kewat has been acquitted of charges under Section 302/34 I.P.C. and Section 307/34 I.P.C.
3. Both the appeals are being decided together.
4. The prosecution version as disclosed from the F.I.R. is that Gajadhar Prasad Mishra son of Ram Swambar Mishra R/o village Babhet, P.S. Rajapur, District Chitrakoot who is first informant of the case lodged a written report, Exhibit Ka-1 stating therein that his real brother Kallu @ Ram Sawanre had a land dispute with Raj Bali Tewari, accused appellant son of Suraj Pal R/o Bhakharwar regarding which a consolidation case was pending. On 5.06.2006 in the morning, when he came to his brother, Kallu's house to take straw and was staying there for sometime, then at about 4:00 p.m., appellant also came to the house of Kallu along with the son of Natthu Chamar of his village on a bicycle and was talking to Kallu and his wife for compromise and had also drunk water with jaggery and at that time his brother, Kallu and his wife, Kusama were milking in front of Goruhaai Bakhri, right then appellant and son of Natthu Chamar reached near Kallu talking to each other and at about 7:30 p.m., he heard two shots of fires and in the meantime a scream of Kusama was heard, hearing which the informant reached Goruhaai Bakhri and saw that appellant Raj Bali Tewari @ Badka again made a fire upon Kallu, at this, the informant and Kusama both screamed loudly hearing which Basant S/o Shakal Narayan, Shiv Autar Mishra S/o Bhondu and many other persons reached there and challenged the accused-appellant and his companion, at this both the accused made three-four fires from their respective pistols, as a result of which, his brother, Kallu died on the spot and Chamelia (P.W.1), wife of Satku Prajapati and Kusama (P.W.3), wife of Kallu also became injured. He also mentioned in the F.I.R. that large number of the villagers had reached the place where the dead body of the deceased was lying, thereafter, he had gone to the police station along with the injured for lodging the report. At P.S. Raipura, Case Crime No. 24 of 2006 was registered against appellant, Raj Bali Tewari @ Badka Tewari and son of Nathu Chamar (name not known) under Sections 302 and 307 I.P.C. on the same day i.e. 5.06.2006 at about 8:40 p.m., the chick F.I.R., Exhibit Ka-16 was prepared and entry of the said case was made in G.D. (Exhibit Ka-17) as report no. 34 at 20:40 hours. On 5.06.2006, the investigation of this case was assigned to S.I., Shubhash Kumar Yadav, P.W.8 who prepared the site-plan, Exhibit Ka-13, also prepared recovery memo, Exhibit Ka-2 of taking into possession one blood soaked 'Angocha' of the deceased, collected plain soil as well as blood soaked soil and prepared its memo (Exhibit Ka-3) also made recovery memo of blood smeared bullet and two blank cartridges which was Exhibit Ka-4. The Panchayatnama was prepared in his supervision by S.I., P.D. Mishra which is Exhibit Ka-8 and, thereafter, the dead body was sent for post-mortem after being sealed along with necessary documents i.e. letter to C.M.O., Exhibit Ka-6, sample seal, Exhibit Ka-7, Challan Nash, Exhibit Ka-10, Photo Nash, Exhibit Ka-9, letter to R.I., Exhibit Ka-11 and report of P.S., Chitrakoot, Exhibit Ka-12. On 6.06.2006 at 1:30 p.m. Dr. S.P. Tripathi (P.W.-7) conducted the post-mortem and prepared its report which is Exhibit Ka-5. After having collected the entire evidence on record, the Investigating Officer, Shubhash Chandra Yadav submitted charge-sheet in Crime No. 24 of 2006 under Section 302 and 307 I.P.C. against the appellant and co-accused, Dinesh Kewat which is Exhibit Ka-15.
5. As regards the case under Section 25 of Arms Act, the facts are that on 7.06.2006, S.O., Shubhash Kumar Yadav along with S.I., P.D. Mishra, companion Constable-53 , Shiv Lal and Constable 101, Kamlesh Rai with Government Jeep and Driver, Constable Surjeet Singh departed from the police station vide G.D. No. 2 at 1:20 a.m. dated 8.06.2006 in connection with arrest of accused of Crime No. 24 of 2006 under Sections 302 and 307 I.P.C. on information of informer and arrested accused-appellant as well as co-accused at 21:30 hours on tri-section of road going to Bhakharwar and after their arrest, the accused confessed their guilt and accused, Raj Bali Tewari @ Badka stated that he could provide the country-made pistol by which, he had murdered Kallu @ Ram Sawanre. Pursuant to the said disclosure made by him, the said S.O. along with above force took the accused appellant, Raj Bali Tewari and Dinesh Kewat in his jeep to village Bhakarwar and outside the village, both the accused got down from the jeep and thereafter, accused appellant, Raj Bali Tewari @ Badka proceeded on foot followed by police party and went inside the Farari village and after taking out key from his pocket, he opened the door of his house and handed over country-made pistol of 315 bore taking it out from beneath the bedding on the cot and also three live cartridges of 315 bore and stated that the deceased was murdered by the said weapon and that the fire was also made by him on his mother Kusama @ Chirai with an intention to kill her because Kallu (deceased) had usurped his whole land and property. The accused could not show the licence to possess the said weapon and the cartridges and he was also arrested for having committing offence under Section 25 of Arms Act by registering Crime No. 25 of 2006 and recovery memo (Exhibit Ka-14) was also prepared. On the basis of said recovery memo, chik F.I.R., Exhibit Ka-21 was prepared under Section 25 of Arms Act regarding which a case was registered under the said Act on 8.06.2006 at 1:20 a.m. chik of which is Exhibit Ka-21 and the entry of the said case was also made in G.D. at report No. 2 at 1:20 a.m. dated 8.06.2006, Exhibit Ka-22. The investigation of this case was handed over to S.I., Harivansh Singh, P.W.9 who made spot inspection and prepared site-plan (Exhibit Ka-18) and after obtaining sanction for prosecution (Exhibit Ka-20) from District Magistrate, Chitrakoot on 10.07.2006 submitted charge-sheet under Section 25 Arms Act against the accused appellant which is Exhibit Ka-19. 6. On the basis of evidence on record, learned trial court framed charges under Section 302/34 and 307/34 I.P.C. against accused-appellant as well as accused Dinesh Kewat in S.T. No. 104 of 2006 and under Section 25 of Arms Act against the accused appellant in S.T. No. 105 of 2006 to which accused-appellant and the co-accused pleaded not guilty and claimed to be tried. Learned trial court consolidated the two cased and had tried them together because they pertain to the same incident.
7. In support of the prosecution version, Chamelia who is neighbour of the deceased as well as injured witness as P.W.1, Gajadhar who is real brother of the deceased as P.W.-2, Kusama, wife of deceased as P.W.3, Shiv Autar, an independent eye-witness as P.W.-4, Basant Mishra, an independent eye-witness as P.W.5, Ramayan Das, an independent eye-witness as P.W.6, Dr. S.P. Tripathi who conducted the post-mortem of the deceased as P.W.7, Investigating Officer of Crime No. 24 of 2006, Shubhash Kamar Yadav as P.W.8, Harivansh Sigh, Investigating Officer of Crime No. 25 of 2006 as P.W. 9 and Dr. P.C. Bajpayee who conducted medical examination of injured as Smt. Kusama as P.W.10, have been examined.
8. By way of documentary evidence in support of prosecution version following documents have come on record i.e. Written report, Exhibit Ka-1, recovery memo of blood soaked Angocha, Exhibit Ka-2, recovery memo of blood soaked soil and ordinary soil Exhibit Ka-3, recovery memo of blood smeared bullet and two blank cartridges, Exhibit Ka-4, post-mortem report, Exhibit Ka-5, police prapatra no.33, Exhibit Ka-6, sample seal, Exhibit Ka-7. Panchayat Nama, Exhibit Ka-8, Photonash, Exhibit Ka-9, Police Prapatra No. 13, Exhibit Ka-10, letter to R.I., Chitrakoot, Exhibit Ka-11, letter to Medical Officer, Exhibit Ka-12, site-plan of place of occurrence of Crime No. 24 of 2006, Exhibit Ka-13 all of which related to Crime No. 25 of 2006 and recovery memo of the country-made pistol and cartridges, Exhibit Ka-14, charge-sheet pertaining to Crime No. 24 of 2006, Exhibit Ka-15, F.I.R. (chik) of Crime No. 24 of 2006 Exhibit Ka-16. G.D. No.34 of Crime No.24 of 2006, Exhibit Ka-17, site-plan of place of recovery, Exhibit Ka-18, Charge-sheet of Crime No. 25 of 2006, Exhibit Ka-19, prosecution sanction, Exhibit Ka-20. F.I.R. (chik) of Crime No. 25 of 2006, Exhibit Ka-21, G.D., Exhibit Ka-22, F.S.L. Report, Agra are paper Nos. 42 Ka/1 and 42 Ka/2. Thereafter, the prosecution evidence was closed and statement of accused under Section 313 Cr.P.C. was recorded in which the accused has stated that no such occurrence took place as alleged. He further stated that P.W.3, P.W.8 and P.W.9 have given false statements on account of enmity only to implicate the accused appellant falsely in this case, however he had denied to give any evidence. On the basis of evidence after having evaluated the entire evidence on record as well as taking into consideration the arguments of the learned counsel for the defence, learned trial court has held the accused-appellant guilty under the afore-mentioned sections although co-accused Dinesh Kewat has been acquitted.
9. Before us in appeal, the learned counsel for the appellant has vehemently argued that the F.I.R. is ante-timed in the present case; inquest of the deceased was conducted on 6.06.2006 at 6:00 a.m. i.e. after 12 hours of the incident though, the police had reached the place of occurrence immediately after the incident. Further it is argued that deceased is the real brother of the informant who has not supported the prosecution case. The recovery of the pistol of 315 bore and blood stained 'angocha' have not been properly proved by the prosecution. Further pointing out towards post mortem report, Exhibit Ka-5, he argued that 'rigor mortis' had passed off from neck at the time of conducting the post-mortem which was done on 6.06.2006 at 01:30 p.m. and also due attention has been drawn towards cross-examination of doctor who conducted the post-mortem in which the said doctor has stated that the 'rigor mortis' starts in about 1-2 hours of the death and, thereafter, it spreads to the whole body within 12-24 hours and, thereafter, he argued that because of the 'rigor mortis' in the neck of the deceased having passed off, the death of the deceased must have happened much after 7:30 p.m. which also suggests that F.I.R. was ante-timed. But the said logic could not be appreciated by us. Further it is argued that recovery of country-made pistol has not been proved by the prosecution because no site-plan has been prepared by the Investigating Officer in respect of its recovery. It is next argued that statement of P.W.3, who is sole witness, upon whose testimony, learned trial court has convicted the accused, is not trust-worthy because as per the F.I.R. version as well as the statement of the said witness, the deceased was milking at the time when he was fired upon, therefore, his face would have been towards the cow which he was milking and towards the accused must have been his back side while in the post-mortem report, the injuries shown to have been received by him clearly suggest that fire was made from the front because in the post-mortem report, one injury is found to have been caused on his face on the right side and the other injury is found on the front portion of his chest and the bullet exited from the back side. Further it was argued that P.W.3 was, as per his own statement, near the said cow holding the calf although she has received only pallet injuries which was not possible to have been caused to her by the weapon by which the deceased was assaulted which is being alleged to be a country-made pistol of 315 bore, therefore, the whole story of the prosecution seems to be doubtful and concocted one and the occurrence might have happened in some other manner. Further it is argued that in F.S.L. report, it was opined that the disputed 315 bore blank cartridges were not found to have been fired by the pistol which was sent for the examination which also belies the case of the prosecution. He has also drawn attention towards the statement of P.W.1, Chamelia who was according to prosecution had received injury in this occurrence and stated that in cross-examination, this witness has clearly stated that the brother of the deceased, Kallu i.e., Gajadhar Prasad Mishra, P.W.2 had not been seen by P.W.1 at the house of the deceased at the time of incident, rather he had come there the next day on being called and thus, it was argued that P.W.2 (informant) was not an eye-witness of this case although he has turned hostile.
10. Learned counsel further argued that this is a case only of circumstantial evidence and not of direct evidence and also had taken us through the replies given by the accused in his statement under Section 313 Cr.P.C. and hammered subsequently the reply given to question no.1, to which he gave reply in affirmative when he was asked, as to what he had to say in respect of the evidence, that there was a case of land dispute going on in consolidation court between him and deceased, Kallu @ Ram Sanwre. It was argued that no document pertaining to the said case being pending was submitted from the side of prosecution, hence, such question could not have been put to the accused under Section 313 Cr.P.C. Thereafter, he also took us through to the reply given by the accused of question no. 3 in which he replied in affirmative to question as to what did he have to say on evidence on record to the effect that he was son of Suraj Pal who had been murdered and that Kusama was his mother and that said Kusama had started living with deceased, Kallu. In this regard, it was argued that by replying this question in affirmative, the accused has come with clean hand but he has been falsely implicated. Further it was argued that written report, Exhibit Ka-1should not be treated to have been proved by the prosecution because it was scribed by Arjun Shukla who has not been examined in the present case and also attention was drawn towards statement of P.W.3 who in cross-examination has stated that Gajadhar Prasad Mishra had come in the morning of the next day and when he came she and other persons were also at Police Station; Arjun Shukla was also at Police Station who was resident of her own her village i.e. Chhibo and is also a leader of B.J.P.; he supplies the kerosene in Ram Nagar Block to all the quota-dars. The Investigating Officer, Arjun Shukla and the scribe Gajadhar Prasad Mishra consulted each other and, thereafter, the report was dictated to Arjun Shukla. Drawing attention to this statement, it was argued that F.I.R. was got lodged after much consultation only to implicate falsely the accused appellant. He has also drawn attention towards the statement of P.W.3 in cross-examination wherein she has stated that her earlier husband was Suraj Pal who was real uncle of Omkar both of whom had been murdered together by Dadua Brahman resident of village Chhibo because the father of her father-in-law, Jagadish Prasad had given land to Dadua Brahman for the purpose of agriculture and the said Dadua Brahman wanted the said land to be written in his name and for this, they were not ready, hence, both Suraj Pal and Omkar have been murdered. After their murder, her father-in-law, Jagdish Prasad had taken his son Raj Bali (accused-appellant) to his Sasural, village, Bhakarwal, P.S. Raipura so that appellant could be kept safe, right then P.W.3 also started living with her second husband, Kallu in her house of Ram Nagar. Further it is stated that because her husband wanted that half of the land of Ram Nagar should go to the Raj Bali Tewari @ Badka (appellant) and remaining half should go to the son born out of wedlock of P.W.3 and Kallu, hence, the deceased Kallu had got a case filed in consolidation court. Drawing attention to this statement, it was argued by the learned counsel for the appellant that it clearly establishes that there was no enmity with regard to the land. It was further argued that in-fact it could be very easily gathered from the facts that this occurrence might have been committed by Dadua Brahmin who had an evil eye on property of the deceased.
11. On the other hand, learned A.G.A. has vehemently argued that there is no infirmity in the impugned judgement because it has been proved beyond reasonable doubt that it was accused appellant who had murdered the accused on 5.06.2006; the post-mortem was conducted at 18:00 hours after the said incident; as regards non filing of the documentary evidence pertaining to land litigation, it has been stated that since there was an admission made on the part of the accused, the said papers were not filed. It was also argued that thirty years ago when the father of the accused, Suraj Pal and his uncle, Omkar were murdered, the appellant was just 3 months old. Name of other co-accused, Dinesh Kewat came into light the very next day of the incident which was disclosed by the P.W. 3, although he has been acquitted for want of evidence by the trial court but as regards the appellant accused, there is sufficient evidence against him to hold him guilty and the impugned judgement does not suffer from any infirmity. As regards the deceased having received injury on the face and not on the back side, it is argued that it is common knowledge that when a cow is being milked, it cannot be believed that she would have remained in one particular position, it keeps shifting its direction, hence, such an argument that the deceased could not have received injury on his face as he was fired from behind, therefore, the injury ought to have received by him at his back, cannot be sustainable argument.
12. Now, we have to evaluate the statement of the witnesses who have been examined by the prosecution.
13. Chamelia (P.W.1), who is an injured witness has turned hostile and has stated that at the time of incident, it had become dark and at that time she was sitting in court-yard of her house; she had heard the sound of fire at the roof of her house. When she received fire arm injury, she was in court-yard, but who had made that fire, she could not see. Further she had stated that she had not seen Raj Bali Tewari & Dinesh Kewat in front of the house of Kallu from her roof and the fire made by Raj Bali Tewari @ Badka did not injure her. She in her cross-examination further stated that how it could be recorded by the Investigating Officer in her statement that Raj Bali Tewari had murdered Kallu and had fired upon him by which she and Kusama also became injured, she could not tell its reason. She has also not given such a statement that the deceased was milking at the time when the incident happened and that Kusama, wife of the deceased was standing there holding the calf and that Raj Bali Tewari @ Badka and Dinesh Kewat were also sttanding there. She does not know any person by the name of Dinesh Kewat. Lastly, she has stated that the brother of the deceased, Kallu i.e. Gajadhar Prasad Mishra, P.W.2 had come to the house of the deceased or at the place of occurrence on the next day when he was called, therefore, it is apparent that this witness has not supported, at all, the prosecution case.
14. P.W.2, Gajadhar Prasad Mishra has also turned hostile and has stated that the deceased was his real brother who was engaged as gate-keeper in Ram Nagar and used to live there only; kusama was not his wife and rather was his mistress and not a legally wedded wife. Appellant, Raj Bali Tewari @ Badka was not Kallu's son as Kallu was unmarried.
15. Further he has stated that Kallu was murdered in May last year in Ram Nagar at about 7:30 p.m. regarding which he has no knowledge. He has also no knowledge as to whether there was any litigation pending regarding sale of land between his brother, Kallu and the appellant, Raj Bali Tewari @ Badka. He also denied that on the date of incident, he had gone to the house of Kallu for taking straw although, he had admitted his signature on Exhibit ka-1 (written report) but further stated that he had not got the same written on his dictation rather the same was written at Police Station where Arjun and Shiv Autar were also present who had obtained his signature on the said report without reading it out to him. He had not got written in the said report that on the date of incident, he had gone to his brother's house for taking the straw and stayed there till 04:00 p.m. where appellant, Raj Bali Tewari @ Badka along with another person had come to the house of Kallu for the purpose of compromise and also denied that at about 7:30 p.m. when the deceased was milking, the appellant and son of Nathu Chamar reached near him and that after sound of fire arm, he also reached there and in front of him, Raj Bali Tewari @ Badka had fired upon Kallu. He had also not got it written in the written report that when he and Kusama (P.W.3) screamed, witness, Basant and Shiv Autar came there and then both the accused made three to four fires in which Kallu died and Chamelia and Kusama got hurt. He has denied to have given any statement to police when the same was read out to him and also stated that he had received a telephonic information at 10:00 p.m. regarding the murder of Kallu from his village Bhabhet, District Rajapur whereafter he reached at the police station at about 12:00 hours at night with 3-4 persons and there only Arjun Shukla and persons who were accompanying him had got his signature at Exhibit Ka-1 in which it was mentioned that his brother had been murdered. He also stated that the statement which has been made by him before court was not given under any kind of pressure.
16. It is also apparent from the statement of this witness that he has not supported the prosecution case but has proved that Exhibit Ka-1 written report, bears his signature, therefore, to the extent that the said report bears his signature, the said document shall be treated as proved, although he is denying its contents.
17. P.W.3 who is main witness of this incident is wife of the deceased who has stated in examination-in-chief that her husband was murdered in front of the door of the cattle house about one year ago at about 7:30 p.m. At that time her husband was milking cow and she was present there holding the calf. At that time Raj Bali Tewari @ Badka and Dinesh Kewat reached there and Raj Bali Tewari @ Badka made 4-5 fires on her husband with intention to kill which hit her husband who got injured on the spot and died, then she made a scream and ran towards the house of Satku and by the time she reached the door of his house, the appellant made two fires upon her also with intention to kill which hit her and the wife of Satku i.e. Chamelia. For rescuing her at her scream witnesses, Basant, Shiv Autar, Arjun Shukla etc. and other persons of the village reached there and then both Dinesh Kewat and appellant fled from there. It is further stated that Dinesh Kewat had come one day before, hence, she recognized him. Further she stated that both the appellant and Dinesh Kewat had come one day before occurrence and were saying for compromise in respect of the dispute of the land. Prior to the incident at about 05:00 p.m., appellant and his friend, Dinesh Kewat had touched her feet and both had been fed 'Jaggery' with water and they were also given Rajshree (Gutkha) and, thereafter appellant told not to delay milking and, thereafter, both the deceased and P.W.3 went for milking the cow.
18. She has further stated that the name of her first husband is Suraj Pal who was murdered along with Omkar ten years ago. The appellant, Raj Bali Tewari @ Badka was born to her from her first husband, Suraj Pal. At the time when the Suraj Pal was murdered, Raj Bali Tewari @ Badka was only three months old. After the death of first husband, Suraj Pal, her father-in-law engaged Kallu @ Ram Sanwre to take care of her and subsequently she fell in love with Kallu and both started living like husband and wife. From deceased, Kallu one son and a daughter were born to her. His father-in-law, Jagdish had given her and her husband 15 bighas of land and rest of the land i.e. about 30 bighas, was given to the appellant, Raj Bali Tewari @ Badka. Her father-in-law, Jagdish had died four years ago and after his death, the appellant started making attempt to grab her land then her husband, Kallu had filed a case by the name of his son, Kallu against the appellant in consolidation court in which there was talk going on for compromise and because of this only, this incident happened. In connection with this occurrence, P.W.3 and Chamelia had gone to the police station where they met Gajadhar who lodged the report and, thereafter, Chamelia and she were medically examined in Government Hospital, Ram Nagar.
19. In cross-examination, she has stated that Gajadhar, who is brother of Kallu, had come next day in the morning on being called and at that time, she with other persons was at police station where Arjun was also present who belonged to his village, Chhibo. He used to supply Kerosene oil in Ram Nagar to all the quotadars. The S.O., Arjun Shukla and Gajadhar, all the three had consulted each other and, thereafter the report was dictated to Arjun Shukla and after getting all the papers prepared, the dead body was sent to Karvi for post-mortem. Further she has stated that 30 years ago when her husband, Kallu had come to Ram Nagar from his original village, Bhabhet, P.S., Rajapur since then, he never went back to Bhabhet nor did he have anything to do with his family members there.
20. She further stated that Arjun Shukla had reached at her rescue call within half an hour along with 20-25 persons which included Basant Lal and Shiv Autar. Prior to reaching of these persons at the place of occurrence, many people had assembled at the door of her house after hearing about the incident. She had told Investigating Officer about Arjun Shukla having reached on the spot but if the same was not written, she could not tell its reason. When Arjun Shukla reached the spot, he had telephoned police station, Raipura and on his information, the police had come.
21. She has further stated that in the west of her house is situated, Kharanja road and at the time of incident, the fire were being made from the side of Kharanja which hit her and her husband. The said Kharanja (Chak road) was located about 30-50 steps away form her Gorhai Bakhari towards west. This occurrence happened at about 05:00 p.m. in the evening in which her husband died and she became injured. Further she stated that the occurrence happened at 7:30 p.m. and by that time i.e. after 6:00 p.m., the sun had set and it had become quite dark at 7:30 p.m. The assailants were firing from the side of Kharanja Road and fled back from the same route. Further she stated that towards south of Gorhai Bakhari, is a land and towards south of that, there is situated the house of Vashishtha Muni and Ram Surat Mishra. Towards west of Gorhai Bakhari, is a wall and towards west of house of Vashishtha Muni, is a wall which extends up to the front of Gorhai Bakhari towards an open land where towards west is also a wall, thus in front of the Gorhai Bakhari the open place is surrounded by three sides and there is only one door near her Gorhai Bakhari, coming out of which one would come to Kharanja Road.
22. Further she has stated that at the time of incident, her husband was having a batloi (vessel) which could contain one and half litres of milk or water, which had fallen on the spot after getting fire arm injury which remained there till the police arrived. She further stated that she does not recall as to whether the assailants were 30 years of age; she could know about their age only when after the incident, people were discussing about identity of the assailants; all this talk/discussion was being done only after Arjun Shukla reached there. Her husband was fired from the side of his back meaning thereby in the rear portion of the neck, the bullet entered and came out from his mouth. There were four other injuries apart from the said injury on his body. Some bullets entered his back and exited from his face. When she ran from the place of Gorhai Bakhri, she also received pallet injury on her face. No cartridge was found on the Kharanja Road except two blank cartridges which were found in 'Bada' and two blank cartridges were found in front of the door of Satku Prajapati which were shown to the police when it reached there. She has also stated that her earlier husband was Suraj Pal who was real uncle of Omkar both of whom had been murdered together by Dadua Brahman resident of village Chhibo because the father of her father-in-law, Jagadish Prasad had given land to Dadua Brahman for the purpose of agriculture and the said Dadua Brahman wanted the said land to be written in his name and for this, they were not ready, hence, both Suraj Pal and Omkar have been murdered. After their murder, her father-in-law, Jagdish Prasad had taken his son Raj Bali (accused-appellant) to his Sasural, village, Bhakarwal, P.S. Raipura so that appellant could be kept safe, right then P.W.3 also started living with her second husband, Kallu in her house of Ram Nagar. Further it is stated that because her husband wanted that half of the land of Ram Nagar should go to the Raj Bali Tewari @ Badka (appellant) and remaining half should go to the son born out of wedlock of P.W.3 and Kallu, hence, the deceased Kallu had got a case filed in consolidation court.
23. A meticulous appreciation of this witness would be made at the relevant time with respect to the place of occurrence and the manner in which the occurrence took place.
24. P.W.4, Shiv Autar has been declared hostile as he has stated that he had not seen the deceased being assaulted. Nothing special has been stated by the learned counsel for the appellant about his statement nor by the learned A.G.A., hence, his statement does not require to be dealt with at length.
25. P.W.5, Basant Mishra has also turned hostile as he has stated that he has not seen the incident and his statement has also not been relied upon by the learned counsel for the appellant as well as learned A.G.A., hence, this Court does not deem it proper to deal with his statement too at length.
26. P.W.6, Ram Narayan also turned hostile although he has admitted his signatures on Exhibit Ka-2, Exhibit Ka-3 and Exhibit Ka-4 which are the recovery memos of "Angocha" of the deceased, plain and blood soaked soil as well as the bullet and cartridges being taken in possession and he was declared hostile. His statement is also not discussed by the learned A.G.A. and learned counsel for the appellant, hence, we do not deem it proper to dealt with his statement at length.
27. P.W.7, Dr. S.P. Tripathi has stated in examination-in-chief that he conducted the post-mortem of the deceased on 06.06.2006 at 1:30 p.m. and has found the following ante-mortem injuries on his person.
" (i) Fire arm gun shot wound of entry 1 cm. x 0.7 cm. Buccal cavity deep (communicating to the injury no.2) margins everted abraded collar present; situated on the right side of the face 1.25 cms. above and lateral to the right angle of the mouth.
(ii) Fire-arm gun shot wound of exit 3 cm. x 1.5 cm. x Buccal cavity deep stretched on the left side of face 1 cm. lateral to the left angle of the mouth (communicating to the injury no.1). The margins of the wound everted. On section injury nos. 1 and 2, the right upper pre-molar canine and incisor teeth fractured and lower left lateral incisor canine and pre-molar teeth fractured. The tongue is lacerated at the middle 1 cm. proximal to the tip of the tongue. The buccal cavity is blood stained. The direction of the injury nos. 1 and 2 is from right to left.
(iii) Fire arm gun shot wound of entry, 1 c.m. x 0.75 c.m. x chest cavity deep situated on the right side of the interior aspect of the chest away to the costal margins at about 1'o clock position (communicating to the injury no.4) margins enverted, abraded collar present.
(iv) Fire arm gun shot wound of exit 3 cm. x 1.5 cm.; chest cavity deep situated on the back of chest on the left side 5 cm. lateral to the vertebral column and 7 cm. below and lateral to the C-I (communicating to the injury no. 3); margins everted. On section injuries 3 and 4, the right third rib fractured on front; the right lung with pleura lacerated; the chest cavity contains about 2 litres of freezed clotted blood. The sixth rib on the left side posteriorly fractured; duration of injury nos. 3 and 4 fresh; front to back and right to left (obliquely)."
28. The death is due to shock and haemorrhage as a result of ante-mortem gun shot injury.
29. Rigour-mortes passed off from neck and was passing off from upper limb and was present in the lower limbs. Eyes closed, mouth half open. Marks of blood coming out from the mouth present. Blood stains over the face and nostril.
30. He has further stated that the said report was prepared by him which is Exhibit Ka-5. He has further stated that Tehmad, one Janeu, one banyan, one under-wear belonging to the deceased were in sealed condition which were handed over to the police and that the injuries received by the deceased were possible to have been caused on 5.06.2006 at 7:30 p.m. All the papers related to the deceased were read by him and his signatures existed on all these papers.
31. In cross-examination, this witness has stated that he cannot say as to from what distance, the said injury to the deceased might have been caused and he was also not in a position to tell whether the same were caused by 12 bore or 315 bore pistol. Further he has stated that one-two hours after death, normally, the 'rigour mortis' starts and normally the same extends to the whole-body between 12-24 hours. The said 'rigour-mortis' after the death extends to the lower-limbs gradually or simultaneously and in the case at hand, the 'rigour-mortis' had passed off from the upper limb i.e. neck and in the duration of death, there could be difference of three to four hours on either side. He also stated that which injury out of the injury nos. 1 and 3 might have caused first, was not possible for him to say.
32. P.W.8, Shubhash Chandra Yadav, Investigating Officer has stated that on 5.06.2006, he had taken the investigation of this case and recorded the statement of witness, Shiv Autar; due to being night time and there being no arrangement for light, the Panchayatnama of the deceased could not be prepared. On 6.06.2006, the Panchayatnama of the deceased was prepared by S.I., P.D. Mishra in his supervision which was signed by him also which is Exhibit Ka-8. It is further stated that in his supervision, S.I. P.D. Mishra prepared photonash, chalan-nash report of R.I. and report of C.M.O. which were signed by him and were Exhibit Ka-9 to Exhibit Ka-12. After spot inspection, site-plan was prepared by him which is Exhibit Ka-13. Thereafter, he recorded statement of Ram Mohan Mishra and Vashishtha Muni and also prepared recovery memo of blood stained and plain soil which is Exhibit Ka-13 and also the recovery memo of blood stained 'Angocha' of the deceased which is Exhibit Ka-2. He also prepared recovery memo of bullet which was blood smeared and blank cartridges which is Exhibit Ka-4 and, thereafter recorded statements of formal witnesses. On 7.06.2006, he recorded statement of Smt. Kusama @ Chirai and, thereafter he went for search of the accused and in village Badhi, he got information that the accused related to this occurrence were available on the road which went towards , Bhakarwar and pursuant to that information, the accused were arrested by reaching there and statement of accused, Raj Bali Tiwari and Dinesh Kewat were recorded who admitted their guilt; accused appellant also stated that he could help in recovering the country made pistol used in commission of this offence, where after, he went along with accused to his house in Bhakarwal where after opening the lock of the room, the accused provided the country made pistol along with three cartridges, thereafter, he prepared its memo which is Exhibit Ka-14. On 11.06.2006, he recorded statement of Chamelia and on 16.06.206 postmortem report of the deceased was copied and he entered in case diary the injuries of Chamelia; on 20.06.2006, he sent for examination the recovered articles; thereafter, submitted charge-sheet, Ka-15 against appellant and co-accused Dinesh Kewat.
33. Further he has stated that the 'chik' F.I.R. of this case was prepared by A.S.I., C.P. Arvind Kumar Dwivedi who had been seen by him while writing and, therefore, he identified his signatures and proved Exhibit Ka-16, the chick F.I.R. and the entry of the said case was made in G.D. No. 34 at 20:40 hours on 5.06.2006 which was also prepared by the same constable which is Exhibit Ka-17.
34. Further he stated that the recovered country made pistol was in front of him in sealed condition which was opened in court and he stated that it was the same country made pistol along with three cartridges which accused appellant had got recovered and, hence, the cartridges were marked as material Exhibit Nos. 2 to 4 and from the same bundle, four blank cartridges were also taken out, out of which it was stated that two cartridges were recovered from the spot while two cartridges were such which were used during test. On the said blank cartridges, material exhibit nos. 5 and 6 were marked and from the same bundle, one bullet was also taken out which was stated by this witness to be the same which was recovered from the spot and the same was marked as material Exhibit-7. It is further stated that one 'potli' was opened in front of him in court from which the containers having blood stained soil and plain soil was taken out. On blood stained containers, material Exhibit-8, on blood stained soil, material Exhibit 9 and on the container of plain soil, Exhibit 10 were marked and on the said plain soil, material Exhibit 11 was marked. Further this witness has stated that Banyan, Tehmad and under-wear were marked as material Exhibit nos. 12, 13 and 14 and Gamcha was marked as material Exhibit 15.
35. In cross-examination, this witness has stated that after reaching the place of incident, he had visited the spot in the night itself and had seen the dead body but due to it being dark, remaining work of investigation could not be completed. The place of occurrence was visited next day in the morning; he denied that he had pretended lack of light for not preparing Panchayat-Nama in the night. He had been told by the witnesses that when the deceased was milking the cow in bucket then he was murdered but he could not find the said bucket on the spot nor did he find any sign of milk having spilled. The witness, Gajadhar Prasad, injured witness, Kusama and injured Chameli had not told him that they had recognized the accused in some light. At the time of occurrence at 7:30 p.m., it had become dark. Further he has stated that in the site-plan, on the place where dead body was lying five steps towards west, one blank cartridge was found and towards the south-east at the distance of six steps, the other blank cartridge was found but in Panchayat-Nama, it has not been entered that these articles were found there while in the Panchayat Nama, two blank cartridges are shown to have been recovered four steps towards the south of dead body and three steps towards the east of it but he could not tell the reason for this difference.
36. Further he has stated that in the written report given by informant, the other accused apart from Raj Bali Tewari @ Badka was stated to be son of Natthu Chamar of the village of Raj Bali Tewari @ Badka. On being asked this question as to how in place of son of Natthu Chamar, Dinesh Kewat was made accused, this witness has stated that when Dinesh Kewat was arrested, he had confessed the crime, therefore, he was made an accused and witness, Kusama had also stated about Dinesh Kewat to be an accused. No recovery of country made pistol was made from Dinesh Kewat which was used in the offence. At the time of writing the F.I.R. at P.S., the wife of the deceased, Kusama was present but she had not made any objection at the time of writing regarding son of Natthu Chamar being written in place of Dinesh Kewat because she was in a baffled and unconscious condition.
37. Further he has stated that informant had told him that he had reached the spot after hearing two fires and had further stated that one fire was made by Raj Bali Tewari @ Badka upon Kallu. It was further stated that both the accused had made fires by which Kusama and Chamelia had got injured. Shiv Avtar had not stated that he had seen any fire being made upon the deceased rather he stated that at the scream of Kusama, he had reached there and one fire was made by companion of Raj Bali Tewari @ Badka whose name was not disclosed.
38. The witness, Kusama had stated that Raj Bali Tewari @ Badka had made 5 to 6 fires. Chamelia had stated that she had not seen the deceased being fired upon and had stated that Raj Bali Tewari @ Badka had made one fire upon Kusama by which she had got injured. Kusama had not told that Arjun Shukla had come to her house with 10 to 25 person when she had called for rescue rather Arjun Shukla had stated that informant had reached the house and at his instance, the F.I.R. was written. Kusama had not told that occurrence took place at 5:00 p.m., rather she had told that accused had come to her house and she had also not stated that the milking was being done in any Batloi (pot), however, she did say that at that time milking was being done.
39. Further he has stated that Raj Bali was arrested at 21:30 hours at night, thereafter, his search was made in which nothing was found and because of it being night, the site-plan of recovery of country-made pistol was not prepared. No one was at the house of accused, Raj Bali Tewari @ Badka and the same was found locked. No one had given consent to be a witness of that recovery. He denied that he was giving any false information to give colour to the incident.
40. P.W.-9, S.I., Harivansh Singh has stated in examination-in-chief that on 11.06.2006, he was posted at Police Station, Rajpura as Sub-Inspector and on the said date, he had recorded statement of the scribe of the F.I.R., Amar Nath, statement of first informant, Shubhash Kumar Yadav and statement of P.D. Mishra, Sub-Inspector. In 'parcha' dated 12.06.2006, he recorded statement of Constable, Shiv Lal Yadav, Constable, Kamlesh Kumar and on 27.06.2006, he went to the place of incident and at the instance of first informant, he prepared the site-plan which is Exhibit Ka-18 and on the basis of evidence collected by him, he submitted charge-sheet which is Exhibit Ka-19 and, thereafter, on 10.07.2006, he obtained prosecution sanction from the District Magistrate which is Exhibit Ka-20. He further stated that Constable, Amar Nath had worked with him, therefore, he knew his writing and the 'chik' F.I.R. of Crime No. 25/16 Arms Act has been prepared by him which is Exhibit Ka-21 and the entry of the said case is made in G.D. Report No. 2 at 1:20 a.m. on 8.06.2006 which is Exhibit Ka-22 which was also prepared by the same constable.
41. In cross-examination, this witness has stated that the accused appellant was arrested on the turn of the road which goes to Bhakarwar at about 23:15 hours and his departure from the police station was made on 7.06.2006 at about 12:30 hours.
42. The accused was searched but nothing was recovered from him. It is further stated by this witness that informant had told him that the accused had taken out key from his pocket by which he opened lock of his house and after getting inside the same, he got the country-made pistol recovered but he did not seek any explanation from the informant in respect of the fact that when nothing had been recovered from him when he was searched how could he possess one key by which he had opened the lock, despite the fact that he continued to remain in police custody since the time of his arrest. It is further stated by this witness that no independent witness could be taken by the informant of this case as no one came forward to be a witness. He had not enquired from the informant as to whether he had tried to make any of the neighbours of the accused to be a witness of this case. Further he has stated that during investigation, he did not make any interrogation from the persons who were residing in the neighbourhood, only police witness had proved the said recovery and not any independent person.
43. Further he has stated that after his departure from the police station, he had perused the G.D. but the same was not copied in the case diary. He had gone to the D.M.'s place after taking the country-made pistol for seeking prosecution sanction and in the said bundle, the seal of the informant of the case was affixed. The sample seal which he had brought from the police-station, on the same paper, D.M. had also separately affixed his seal. He had not considered it necessary that the country-made pistol, which was recovered be sent to F.S.L. but later on he stated that he had not got the same examined nor did he consider it important as the said country-made pistol was in running condition. At the end, he denied the suggestion that he has shown wrong recovery of country-made pistol from the appellant.
44. P.W.10, Dr. P.C. Bajpayee had conducted medical examination of the injured, Smt. Kusama (P.W.3) and prepared the injury memo, Exhibit Ka-23 at 9:20 a.m. on 6.06.2006 and found on her person following injuries:
(i) Multiple fire arm abrasion of approx. .1 mm. to 0.2 mm x .1 mm. x .2 mm. all over face and ear in the area of 17 cms. x 22 cms. with swelling on left side of upper and lower lids and face with multiple abrasions over both eyes due to fire arm injuries with diminution of vision in both eyes; only wound of entry present.
(ii) Lacerated wound of 3 cm. x 0.4 cm. x skin deep on lower lip with swelling in the area of 4 cm. x 2 cm. around left lower lip.
(iii) Multiple gun shot wounds measuring 33 cm. x 50 cm. on whole of front of chest and on left upper arm measuring 0.1 cm. x 0.1 cm. to 0.2 x 0.2 cm.; only wound of entrance present.
Opinion- All injuries were caused by fire arm and were directed to be kept under observation and the injured was referred to district hospital for x-ray management and x-ray; duration approx half day old.
45. The injury memo, Exhibit Ka-23 has been proved by him and further stated that these injuries were possible to have been caused to her on 5.06.2006 at about 7:30 p.m. by fire arms. Further he stated that on the same day, the 'parcha' for the medicine and for referring her for x-ray was also prepared by him which is in his own hand-writing which is Exhibit Ka-24.
46. P.W.10, Dr. P.C. Bajpayee has subsequently examined the injuries of the other injured, Smt. Dulia @ Chamelia at 9:20 a.m. and prepared her injury memo, Exhibit Ka-24 and found following injuries:
(i) Lacerated wound of 3 cm. x 2 cm. x 0.4 cm.; 'y' shaped; skin deep. Margins clear cut gaping middle and tailing at lower end with traumatic swelling of 7 cm. x 7cm. around wound. Injury is 4 cm. above right elbow at outer back of right arm.
(ii) Fire arm injury of 0.2 cm. x 0.2 cm. Muscle deep at right upper arm.
Opinion- Injury no. 1 was caused by some sharp cutting weapon. Injury no.2 was caused by fire arm weapon. Only wound of entry present; referred to district hospital, Chitrakoot for x-ray management and x-ray. Duration about half day old.
47. He expressed the opinion that the injury no. 1 was caused by sharp weapon; he proved the report which is Exhibit Ka-25 and further stated that the said injury was possible to have been received by the injured on 5.06.2006 at 7:30 p.m. by fire arm. As regards injury no.1, he stated that the same was possible to have been received by getting collided by some door containing iron. He further proved the 'parcha' was prepared in respect of medicine and x-ray of the injured which is Exhibit Ka-25.
48. In cross-examination, this witness has stated that the injury no. 2 of Kusama was caused by some blunt object and it was not necessary that the same might have been caused by a fire-arm but further he stated that he was not in a position to tell that injury nos. 1 and 3 were received by how many fires nor could he tell as to from which distance, the same were caused. In the injury received by this witness, there was no penetration of the pallets and the injuries were only superficial. Regarding other injured, Chamelia, he stated that injury no. 1 was 2 cm. wide which was 'Y' shaped. The width of this injury could not be 2 cm. rather the said width is of the upper portion of the wound in middle region. The injury which was 'Y' shaped, the upper two lines of its width were not written, rather at the mid point of two sides of the wound in the lower portion, the width was .04 c.m. and the edges of the wound were clean and this injury was possible to be caused by some sharp edged iron weapon. He further stated that he was not in a position to tell as to from which distance, the injury no.2 was caused to this injured and whether the said injury was possible to be received by the impact of the pallet although no pallet was found beneath the skin.
49. We find that according to first information report, the deceased was fired upon by the appellant when he was accompanied by accused Dinesh Kewat on 05/06/2006 at about 7:30 PM when the deceased was milking the cow in front of Goruhai Bakhari and his wife (PW 3) was holding the calf standing nearby. The informant Gajadhar reached the spot at about 7:30 PM hearing two shots of fire and scream of Kusuma and thereafter the appellant made one more fire upon Kallu (deceased), whereon the informant (PW 2) and Kusuma both screamed out loud, hearing which Basant, Shiv Autar Mishra and various others reached there and challenged the accused, whereafter both made 3-4 fires continuously with pistol, by which the brother of the informant Kallu died on the spot and Chamelia wife Satku and Kusuma wife of deceased also got injured. It is apparent that the F.I.R. was lodged at 8.40 p.m. the same day promptly within one hour and ten minutes of the incident though the distance of the police station from the place of incident was 10 kilometres.
50. Much emphasis has been laid by the learned counsel for the appellant that the F.I.R. was ante-timed, therefore we have to see as to whether in the light of evidence on record the same may be treated to be ante-timed and, if yes, whether it would have any adverse bearing on the case of the prosecution. Also emphasis was laid that the same was got lodged after much consultation, hence its value would be to naught. Let us evaluate the evidence in this regard which has been pointed out by the learned counsel for the appellant.
51. We would like to appreciate the evidence in respect of the F.I.R. being ante-timed and its value in the light of the background that the first informant Gajadhar has turned hostile as he has not supported the prosecution case. Similarly the injured witness Chamelia has also turned hostile and has made statement detrimental to the prosecution that Gajadhar had reached at the place of incident next day when he was called, while FIR is stated to have been lodged by Gajadhar only at 8.40 p.m. on the date of incident itself i.e. on 05/06/2006. Gajadhar (PW 2) himself has stated in cross-examination that he had received a phone call at about 10 PM in the night from his village Bhabhet about murder of Kallu and thereafter he reached the village after having taken along 2 - 4 persons at about 12 in the night and went to the police station, where Arjun Shukla and other persons, who were with him, had got his signature on written report Exhibit Ka 1 by telling him that his brother had been killed and that the case was being got registered on his behalf. In this regard PW 3, wife of the deceased, who is also an injured witness namely Kusuma has stated in cross-examination that Gajadhar had come the next day on being called and at that time she was at police station, where Arjun Shukla was also present and there police inspector, Arjun Shukla and Gajadhar had all consulted each other and thereafter the written report was dictated to Arjun Shukla who had written the same. In this regard the investigating officer, PW 8, Subhash Kumar Yadav has stated in examination in chief that on 05/06/2006, crime no. 24/2006 under sections 302 and 307 IPC was registered at the PS and he had taken over the investigation and on the same day he had recorded the statement of the informant (Gajadhar) after going to his home at the place of occurrence. The defence side has not taken any clarification from PW 8 as to how could he record the statement of PW 2 on the date of incident i.e. on 05/06/2006 when according to PW 1, PW 2 and PW 3 he had reached the place of incident next day on being called. As regards the statement of PW 1 and PW 2 that PW 2 (Gajadhar) had reached the place of incident on the next day on being called or on the date of incident in the night at about 12 O'clock respectively, appear to be contradictory to the statement of investigating officer, PW 8, Subhash Kumar Yadav, hence we conclude that the said statement is probably being given by them so as to spoil the case of the prosecution as both of them have turned hostile. What we find curious to note is the statement of PW 3, who also has stated that PW 2 reached the place of incident the next day because she is the sole witness who has supported the prosecution case to the extent that the appellant had fired upon the deceased as a result of which he died and that he had also made fire upon her and PW 1 when both of them ran to save their lives towards the house of Satku, and in that process she as well as wife of Satku namely Chamelia also got hurt. But we are not inclined to disbelieve her statement in totality as in India the maxim "falsus in uno falsus in omnibus" is not applicable rather it is expected from the courts to sift grain from the chaff to reach the truth. It is very important to note in the present case that PW 3 is mother of the accused- appellant, therefore it is very much essential for us to know the reason as to why would she be giving false statement against her own son just to implicate him falsely. Because of her being an injured eye witness of the incident, her testimony is required to be scrutinised very meticulously because on her sole testimony, the learned trial court has held the accused appellant guilty. Therefore, simply because even PW 3, who is not a literate lady, has made above statement regarding FIR, in the light of no clarification having been taken from PW 8 by the defence side as to how the statement of PW 2 could be recorded the same day when the incident happened and how could he register the F.I.R. when PW 2 was not present on that date, we would not like to discard the truthfulness of the FIR.
52. Next, we would like to a scrutinise the evidence of PW 3 in the light of the site plan, Exhibit Ka 13. In the site plan by ''A' is shown the place where the dead body of the deceased was lying in front of the Goruhai Bakhari, towards South in rectangular shape ''naand' & ''charahi' have been shown. By ''B' has been shown the place from where the first shot was made upon the deceased and a blank cartridge was recovered from there at five steps away from the place shown by ''A'. By ''C' has been shown the place from where the second fire was made upon the deceased and a blank cartridge was also found lying there. By ''F' has been shown the place from where the accused came towards the deceased firing upon him and thereafter fled from there. By ''D' is shown the place where the deceased was milking the cow and the injured Smt. Kusum was standing there holding the calf. By the mark of arrow is shown the direction of injured, PW 3 having run away to defend herself towards the house of Satku. By ''A' has been shown the place from where the appellant had made fire upon PW 3 with an intention to kill her. By ''X' has been shown the place where, when fire was made by the appellant, hit the injured Chamelia. By ''F' has been shown the place where the deceased and injured were talking to the accused appellant for compromise and had also been served with the jaggery and water. PW 3 has stated in examination in chief that the incident happened in front of the door of cattle house at about 7:30 PM at the time when her husband, Kallu was milking the cow and she was holding the calf, when appellant and Dinesh Kewat reached there and appellant Rajbali made 3 - 4 fires upon her husband with an intention to kill, by which her husband alone got injured and died on the spot and at that time she started screaming and ran towards the house of Satku to save her life and as soon as she reached at his door, the appellant made two fires on her, both the fires hit her and wife of Satku namely, Chamelia and both of them got injured. In cross-examination she has stated that to the West of her house is kharanja road, from which side fires were made, which hit her and her husband. The distance of kharanja must be around 30 - 50 steps from Goruhai Bakhari. This assault happened around 5 PM and by the injuries received, her husband died and she became injured. This incident happened around 7:30 PM in the night and on the date of incident, after 6 PM the sun had set and thereafter at about 7:30 PM the assailant was firing from the side of kharanja road. The learned counsel for the appellant had vehemently argued that the version of prosecution is false because the injuries which have been received by the deceased could not have been received from a distance of 30 - 50 steps away from kharanja because in both the wounds of the deceased abraded collar is found. We are not inclined to accept the argument of learned counsel for the appellant because abraded collars are indicative of the entrance wounds from high velocity projectiles and it cannot be ruled out that the weapon which might have been used in causing this injury to the deceased was capable of causing the said injuries. We would discuss with regard to the weapon used in commission of this offence, the recovery of which is alleged to have been made at the pointing out of the appellant, at appropriate stage. If we read the statement of PW 3 mentioned above, we find it to be wholly in sync with the site plan except there being minor discrepancies with regard to the direction, from which the assault was made, which we do not find to be of so great importance so as to discard the statement of PW 3, as regards the appellant making fire upon the deceased, PW 3 as well as on PW 1. It may also be emphasised here that PW 3 is herself an injured witness, therefore her testimony would stand on a much higher footing because she has received as many as three fire arm injuries on her face and chest and she has clearly stated that she ran towards the house of Satku at the time when her husband was shot at as the appellant had also made few fires upon her, which resulted in her getting injured as well as causing injury to Chamelia, wife of Saktu and these injuries are alleged to have been caused by the appellant from the place shown by ''E' when the injured had reached the place shown by ''X'. Since PW 3 is not the scribe of the first information report, but is an injured witness, therefore her testimony, though the same is little different from what has been narrated in the FIR, is found to be believable one by us because her presence on the spot does not appear to be doubtful from the cross-examination made by the defence side, although an extensive cross-examination has been made. One more point towards which the attention was drawn by the learned counsel for the appellant is in respect of the statement of PW 3 that her testimony should be treated to be doubtful because she had tried to implicate co-accused Dinesh Kewat by taking her name subsequently because in the FIR the other co-accused was referred as son of Natthu Chamar and not as Dinesh Kewat and that no plausible reason has been given for not mentioning the name of the Dinesh Kewat at the time of registration of FIR, though according to her she was present at the time when the fire was being made. No explanation appears to have been sought from PW 3 in cross-examination as to why she had not insisted upon the name of Dinesh Kewat being written in the FIR in place of son of Natthu Chamar, however an explanation in this regard has been sought to be elicited in cross-examination of investigating officer, PW 8 who has stated that at the time of lodging the report, the wife of the deceased, Kusuma was present on the police station, but she had made no objection in naming therein son of Natthu Chamar in place of Dinesh Kewat because she was perturbed and was in unconscious condition. It is also stated by PW 8 in cross-examination that Dinesh Kewat was made accused in place of son of Natthu Chamar because when Dinesh Kewat was arrested he confessed the guilt and witness Kusuma also had taken name of Dinesh Kewat. We do not want to be drawn in the controversy of how name of Dinesh Kewat came to be added because he has already been acquitted by the trial court and rightly so, because PW 3 has not assigned any role to Dinesh Kewat in assaulting the deceased as well as the two injured. There are few other minor discrepancies as regards the number of fires made by the appellant, but we do not find such discrepancies to be material because PW 3 is an illiterate lady, therefore such kind of discrepancies might occur in her restatement, that too when the same was being recorded after a considerable gap of time between her statement and the date of incident and we find her restatement with regard to her husband having been shot dead by the appellant as well as she herself and Chamelia being assaulted by fire arm, to be credible.
53. Next, we would like to take up the motive, regarding which the learned counsel for the appellant stated that there was no motive for the appellant to kill the deceased because the partition of the property had already been made by the father-in-law of PW 3 by giving some land to the appellant and some to the husband of the PW 3, by drawing attention towards statement of PW 3 in this regard. She stated in cross-examination that her father-in-law, Jagadish had given 15 bighas of land to her husband for their survival while the remaining 30 bighas of land was given to the appellant Rajbali. Her first husband Surajpal had been murdered with Onkar about 10 years ago and the appellant was given birth by her from her first husband Surajpal. At the time of his murder, the appellant was just 3 months old and after the demise of Surajpal, for her care, Kallu (deceased) was engaged by her father-in-law with whom she fell in love and later on she married him and from him she gave birth to one daughter and a son. After the death of her father-in-law about four years ago, the appellant mortgaged his land and started making efforts to grab the land given to Kallu, due to which Kallu had filed a case in a Consolidation Court by the name of his son Arjun and it was in regard to this case that the appellant had come to the deceased and PW 3 to talk about compromise on the date of incident and later on he gave effect to the occurrence. This shows that there was sufficient motive due to land dispute between the appellant and the deceased which could be the reason for making this kind of assault upon the deceased by the appellant. Further, the learned counsel for the appellant tried to create doubt in the mind of court by stating that in fact, there could be motive to Dadua Brahmin to commit murder of the deceased, because PW 3 has clearly stated that her first husband Surajpal and his real uncle Onkar were murdered together by Dadua Brahmin, because her father-in-law Jagdish Prasad had given land to Dadua Brahmin for the purposes of agriculture and he wanted to usurp the same and when they did not agree for the same, both were eliminated by him and after their murder, her father-in-law went to her matrimonial home in village Bhakharwara, PS Repura and got house constructed there to bring up his son Rajbali in safety and when Jagdish Prasad came to Bhakharwara, PW 3 started living with her second husband Kallu in Ramnagar. Because her husband Kallu wanted that half the land of Ramnagar should go to Rajbali and half the land should go to Arjun, he had filed a case in revenue court. She has denied that the appellant has been falsely implicated by her (PW 3) so that she could usurp the land of appellant after the death of Kallu after consulting others. Referring to this statement of PW 3 it was argued by the learned counsel for the applicant that in these circumstances the murder of the deceased might have been committed by Dadua Brahmin and not by the appellant. We do not find any force in the argument of the learned counsel for the appellant because we find that there was sufficient motive to the appellant as narrated above because the deceased wanted half the land given by father-in-law of the PW 3 to the deceased to go to his son Arjun and the other half to the appellant, for which a case was being contested in revenue court, which probably was not being liked by the appellant.
54. Next, we would like to take up the case under sections 25 of Arms Act against the appellant. In this regard we find that there is only one witness of fact i.e. PW 8, Subhash Kumar Yadav who has stated that after recording statement of Smt. Kusuma on 07/06/2006, he became busy in search of the accused and immediately thereafter he got an information from an informer that the accused of the murder of the deceased were to go somewhere from Tiraha of the road leading towards Bhakharwar. Pursuant to this information the appellant and co-accused Dinesh Kewat were arrested, who admitted their guilt and accused appellant also stated that he could get the weapon used in commission of murder of Rajbali recovered, whereafter both the accused were taken to village Bhakharwara and leaving behind the co-accused Dinesh Kewat in the vehicle, the other accused Rajbali was taken to his house, who with the key opened the lock of his room and gave out three live cartridges and one 315 bore pistol and stated that the said pistol was used in murder of the deceased and the memorandum of its recovery, Exhibit Ka 14 was prepared by him. A case under sections 25 of Arms Act was registered being crime no. 25/2006, investigation of which was assigned to SI Harivansh Singh (PW 9) who prepared the site plan, Exhibit Ka - 18 and after taking prosecution sanction from District Magistrate (Exhibit Ka 20) submitted charge sheet (Exhibit Ka 19) against appellant. In cross-examination this witness has stated that for the arrest of the appellant departure from the PS was made at 12:30 PM on 07/06/2006 and at 23.15 p.m. and the accused appellant was arrested and nothing was recovered from his possession. Further he has stated that the informant (PW 8) had told him that the accused had taken out key from his pocket and had opened the lock of his house and after getting inside the room provided the country made pistol. He did not seek any explanation from the informant that when at the time of his arrest nothing was recovered from him, how he could have a key with him, though he remained continuously in police custody. No independent witness became ready to be a witness of recovery, although the recovery was made from a densely populated area. This witness further stated that he did not ask from the informant as to whether he had told the neighbours to be a witness of the recovery or not and he did not even record any statement of the neighbours so as to verify the recovery of the country made pistol. The above statement would show clearly that the prosecution did not make any effort to take any independent witness to prove the recovery of country made pistol as well as of the cartridges from the appellant and only on the basis of sole testimony of one police witness i.e. PW 8, the learned trial court has held the accused guilty under section 25 of the Arms Act. We also find that the learned trial court did not take into account, while holding the accused guilty under section 25 of Arms Act, that in Forensic Science Lab's report two used cartridges were not found to have been fired by 315 bore pistol nor is there any mention made in the said report whether the used bullet was also found to have been fired from the said pistol. This appears to be an apparent error on the part of the learned trial court because it was not safe to hold the accused appellant guilty simply because there was one police witness's statement that the accused had confessed to have committed the murder of the deceased by the said weapon. Therefore we find that the accused appellant has been wrongly held guilty under section 25 of Arms Act, hence he deserves to be acquitted of the said charge.
55. But, by acquitting the accused appellant under section 25 of Arms Act, we do not intend to exonerate the accused appellant of charges under sections 302 and 307 IPC as well. Although it would be better for the prosecution to have discovered the weapons which were used in commission of the murder of the deceased, but even if the prosecution has failed to recover the actual weapons which were used in giving effect to the incident, does not mean that the accused appellant should be acquitted for these offences. That would be treated to be a lacuna on the part of the investigating agency not to be able to recover the actual weapons used in commission of the offence, benefit of which would not go to the accused. In view of potential testimony of PW 3 who is an injured eye witness before us we do not find any infirmity in the trial court's judgment as regards holding the accused - appellant guilty for offences under sections 302/34 and 307/34 IPC on the sole credible testimony of PW 3 which goes to show that it was the appellant and appellant only who had made fire upon the deceased, injured (PW 3) and (PW 1) and not the co-accused Dinesh Kewat. It is very much apparent that PW 1 and PW 3 both were fired upon by the appellant, hence intention to kill them also could not be ruled out.
56. Therefore the appeal no. 8337 of 2008 is allowed. The appellant is acquitted of charge under Section 25 of Arms Act. The appellant is in jail in this appeal, therefore he shall be released in this case if not wanted in any other case subject to his furnishing bail bonds in terms of section 437 - A Cr. P.C.
57. The appeal no 8335 of 2008 is rejected. The appellant is already in jail.
58. Let a copy of this judgement be transmitted to the court below forthwith along with the lower court record for taking necessary action and to ensure that the accused appellant serves out the remaining sentence in accordance with law.
(Dinesh Kumar Singh-I,J.) (Umesh Kumar,J.) Order date:- 28.01.2019 A.Mandhani