Hon'ble Arvind Kumar Mishra-I,J.
(Judgement Delivered by Hon'ble B.K.Narayana,J.)
1. Heard Sri Amit Tripathi, learned counsel for the appellants, Sri A.N. Mulla, Saghir Ahmad, learned AGAs for the State and Smt. Manju Thakur, brief holder of the State.
2. This criminal appeal has been filed by the appellants Tarun Bhatia and Raju @ Rajesh Bhatia both sons of late Tilak Raj Bhatia against the judgement and order dated 13/14.12.2005 passed by Additional Sessions Judge/Fast Track Court No.5, Kanpur Nagar in S.T. No. 226 of 2005 ( State of U.P. Vs. Tarun Bhatia and others) under Sections 302/34 IPC, P.S. Kakadeo, District Kanpur Nagar arising out of case crime no. 427 of 2004 and Sessions Trial No. 227 of 2005 (State of U.P. Vs. Tarun Bhatia and others), under Section 25/27 Arms Act, P.S. Kakadeo, District Kanpur Nagar (case crime no. 7 of 2005) by which both the appellants have been convicted and sentenced to imprisonment for life and a fine of Rs. 10,000/- and in case of default in depositing the fine, six months additional rigorous imprisonment each under Section 302/34 IPC. The appellant Tarun Bhatia has been further convicted and sentenced to 18 months rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine one months additional rigorous imprisonment under Section 25 of the Arms Act and three years rigorous imprisonment and a fine of Rs. 3000/- together with additional three months rigorous imprisonment in case of default in depositing the fine under Section 27(1) Arms Act.
3. Briefly stated the facts of this case are that on the basis of a written report Ex. Ka-2 lodged by PW-2 Ramdas Yadav at P.S. Kakadeo District Kanpur Nagar on 19.12.2004 at 19.00 hours, case crime no. 427 of 2004 was registered against the appellants under Section 302 IPC. Check FIR Ex. Ka-4 was prepared by PW-4 Suraj Prasad Misra, who also made the relevant G.D.entry Ex. Ka-5. In the written report Ex. Ka-2 lodged by PW-2 Ramdas Yadav at P.S. Kakadeo, it was alleged that while on 19.12.2004 at about 19.00 hours PW-2 Ramdas had come out of his house to see off Kalpnath Yadav and Monu Bhatia who had come to his house on a social visit, he saw his son Ram Ashish coming towards his house from the side of "chakki wali gali" and as soon as they reached the turning near the park he saw both the accused armed with firearms coming out from the "atta chakki" of Anu Gupta and shooting his son with their firearms from behind, as a result of which he fell on the ground and died on the spot. After its registration, investigation of case crime no. 427 of 2004 was taken over by SHO Madhusudan Singh PW-5 who reached the place of incident and after appointing inquest witnesses conducted inquest on the cadaver of the deceased and prepared the site plan of the place of incident. He also recovered an empty cartridge and plain and blood stained earth and from the place of incident and prepared recovery memos and after preparing the relevant documents dispatched the deceased's dead body to the post mortem house for conducting the post mortem. During the course of investigation, the investigating officer after arresting the accused appellant Tarun Bhatia got a country made pistol (Tamanchey) recovered on his pointing out from a paddle factory in Vijay Nagar within the territorial jurisdiction of P.S. Kakadeo, District Kanpur Nagar on 03.01.2005 at 21.30 hours and prepared its recovery memo on the basis whereof case crime no. 7 of 2005 was registered against the accused appellant Tarun Bhatia at P.S. Kakadeo, District Kanpur Nagar under Sections 25/27 Arms Act.
4. The Investigating Officer after completing the investigation submitted charge sheet under Section 302 IPC against both the accused appellant Tarun Bhatia and Raju alias Rajesh Bhatia in case crime no. 427 of 2005 while charge sheet under Sections 25/27 Arms Act was submitted against the accused appellant Tarun Bhatia alone in case crime no. 7 of 2005. Since the offence mentioned in the charge sheet submitted in case crime no. 427 of 2004 was triable exclusively by the court of Sessions, the case was committed for trial of the accused to the Court of Sessions by the concerned Magistrate along with the case under Section 25/27 Arms Act whereupon the case arising out of case crime no. 427 of 2004 under Section 302 IPC was registered as S.T. No. 226 of 2005 while the case under the Arms Act was numbered as S.T. No. 227 of 2005. Both the Sessions trials were made over from the court of Sessions Judge, Kanpur Nagar to the Court of Additional Sessions Judge (Fast Track Court No.5), Kanpur Nagar for the trial of the accused.
5. The Additional Sessions Judge after examining the material on record and hearing the accused on the point of charge, framed charge against the accused-appellants Tarun Bhatia and Raju alias Rajesh Bhatia under Section 302/34 IPC and under Section 25/27 Arms Act against the accused appellant no.1 Tarun Bhatia. Both the accused denied the charges framed against them and claimed trial.
6. The prosecution in it's effort to anoint accused guilt and bring home the charges framed against them examined PW-1 Kalpnath Yadav, PW-2 Ramdas as witnesses of fact. PW-1 was declared hostile after he failed to support the prosecution case in his cross examination and he was cross examined by D.G.C.(Criminal) with the permission of the court. However PW-2 Ramdas apart from corroborating the prosecution case as spelt out in the FIR proved the written report of the occurrence Ex. Ka-2 and inquest report of the deceased Ram Ashish Ex.Ka-1. PW-3 Dr. K.P.Madhesia who had conducted the post mortem on the corpse of the deceased Ram Ashish and prepared the post mortem report Ex. Ka-3 proved the same. PW-4 Suraj Prasah Mishra proved the check FIR under Section 302 IPC Ex. Ka-4 and the copy of the concerned G.D. entry Ex. Ka-5, the check FIR under Section 25/27 Armed Act, Ex.Ka-6 and the copy of the concerned GD entry Ex. Ka-7. P.W.-5 SHO M.S.Singh who had investigated the matter in his evidence tendered before the trial court furnished details of the various steps taken by him during the course of investigation of case crime no. 427 of 2004, under Section 302 IPC and proved the site plan of the place of incident Ex.Ka-8, inquest report Ex.Ka-1 and other relevant documents including letter addressed to CMO Ex.Ka-9 impression of specimen seal Ex.Ka-10, photo lash, Ex.Ka-11 challan lash, Ex.Ka-12 recovery memo of plain and blood stained earth from the place of occurrence Ex. Ka-13, recovery memo of empty cartridge of 315 bore recovered from the crime scene Ex.Ka-15 and the recovery memo of the countrymade pistol recovered on the pointing out of accused appellant Tarun Bhatia on 03.01.2015, Ex.Ka-16 site plan of the place from where the country made pistol was recovered on the pointing out of accused appellant Tarun Bhatia, Ex.Ka-16, charge sheets submitted in case crime no. 427 of 2005, under Section 302 IPC and case crime no. 7 of 2005 under Section 25/27 Arms Act, Ex.Ka17 and Ex. Ka-18, reports of the forensic lab Ex. Ka-19 and Ex.Ka-20 and the material exhibits Ka- 1 to 13 produced before the trial Court by the prosecution during the trial.
7. S.I.-Ram Sanehi who was examined as PW-6 proved the recovery of country made pistol Material Ex.Ka-11 in his presence by SHO Madhusudan Singh on the pointing out of appellant no.1 Tarun Bhatia from a paddle factory where he was taken by them after obtaining his remand. He deposed that recovery memo of the country made pistol was written by him on the dictation of PW-5. He also proved material Ex.Ka-14, the piece of cloth in which the material Ex.Ka-15 was wrapped and sealed.
8. PW-7, the then C.P. Rakesh Kumar Awasthi, who had investigated the case crime no. 227 of 2005 under Section 25/27 Arms Act in his evidence recorded before trial court proved the Ex.Ka-14, the site plan of the place from where the country made pistol was recovered, the charge sheet Ex.Ka-22 filed by him in the aforesaid case after concluding the investigation and Ex.Ka-3, the sanction granted by District Magistrate for prosecuting the accused appellant no.1 Tarun Bhatia under Section 25/27 Arms Act.
9. Accused appellants in their examination by the court under Section 313 Cr.P.C. took a common defense of false implication due to enmity. Accused appellant Tarun Bhatia further denied that the countrymade pistol Material Ex.Ka-15 was recovered on his pointing out and stated that the alleged recovery of countrymade pistol on his pointing out from a paddle factory in Vijay Nagar and as well as the recovery memo Ex.Ka-15 had been fabricated by the police.
10. The accused-appellants did not examine any witnesses in defense.
11. The learned Additional Sessions Judge after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing and appreciating the evidence on record convicted the both the appellants under Section 302/34 IPC and accused-appellant no.1 Tarun Bhatia under Section 25/27 (ii) of the Arms Act and awarded the aforesaid sentences to him.
12. Learned counsel for the appellants has submitted that out of the two witnesses examined by the prosecution before the trial court for proving the charge of murder of Ram Ashish against the appellants, PW-1 Kalpnath Yadav having failed to support the prosecution case and declared hostile, the recorded conviction of the accused appellants on the basis of the sole testimony of PW-2 Ramdas was a highly interested and partisan witnesses being the father of the deceased and whose presence at the place of incident at the time of occurrence is extremely doubtful, cannot be sustained and even if it is presumed for the sake of arguments that PW-2 was present at the place denoted by letter "C" in the site plan Ex.Ka-8, it was not possible for him to have seen and identified the culprits who had shot his son, considering the distance between the place of murder and the place from where he had allegedly witnessed the occurrence and also due to total absence of any source of light at the crime scene. The false implication of the accused appellant in the instant case by PW-2 due to admitted previous enmity between the deceased and the accused appellants in the murder of his son is apparent and writ large on the face of record. He next submitted that it appears that the deceased who as per the evidence of PW-2 Ramdas himself was a habitual criminal and facing several trials relating to different offences including an offence under Section 302 IPC was shot dead by one of his numerous enemies but the accused appellants were falsely accused of his murder by his father PW-2 Ramdas. He next submitted that from the perusal of the site plan of the occurrence which is on record as Ex.Ka-8, it transpires that the distance between the place denoted by letter "D" from where the accused had allegedly fired at the deceased and the place shown by letter "A" where the dead body of the deceased was found lying is about four paces (kadam) which comes to about eight feet, however, the presence of black collar around the two firearm wounds of entry noted by PW-3, Dr. K.P.Madhesia in the post mortem report of the deceased on his dead body indicate in no uncertain terms that the shots which had caused the two firearms wounds of entry on the dead body of the deceased were contact shots and the same were not fired at the deceased from the place denoted by letter "D" in the site plan. Since the medical evidence on record does not corroborate the prosecution case as narrated in the FIR, the claim of the two eye witnesses PW-1 Kalpnath Yadav and PW-2 Ramdas of having seen the incident does not appear to be convincing or reliable. Learned counsel for the appellants next submitted that the FIR in this case is unreliable as neither the name of the scribe of the FIR has been disclosed nor he was produced as a witness during the trial. He lastly submitted that the recorded conviction of the accused appellants and the sentences awarded to them by the trial court cannot be sustained and are liable to be set aside and the accused appellants are entitled to be acquitted of all the charges.
13. Per contra Sri Saghir Ahmad, learned AGA submitted that the prosecution case stands fully proved from the oral testimony of PW-1 and PW-2 which stands further corroborated from the medical evidence on record as well as the recovery of the crime weapon on the pointing out of the appellant no.1 Tarun Bhatia. He further submitted that it is established from the report of the forensic lab Ex. Ka-19 and Ka-20, the empty cartridge which was recovered from the place of incident was and marked as EC-1 was fired from the countrymade pistol Material Ext. Ka-1 recovered on the pointing out of the accused-appellant Tarun Bhatia. Minor discrepancies in the ocular version and the medical evidence on record will not render the entire prosecution case as well as eye witnesses account of the same unreliable or unworthy of credence as finding of guilt recorded by the trial court against the accused appellants is based upon cogent and reliable evidence and the sentences awarded to them are also supported by relevant considerations. He also submitted that although PW-1 Kalpnath Yadav was declared hostile after he denied in his cross examination having seen the accused appellant firing at the deceased but upon an over all appraisal of the facts stated by him in his examination in chief as well as in his cross examination, the factum of the presence of the accused-appellants and their running away from the place of incident after shooting the deceased is fully established. Both PW-1 and PW-2 have further categorically deposed in their testimonies that they had identified the accused-appellants in the light of electric bulb affixed on wall of flour mill of Anu Gupta. The credibility of the FIR in this case cannot be doubted only on the ground of failure of the prosecution to disclose the name of the scribe of the FIR or to produce him during the trial. The impugned judgment and order passed by the learned Additional Sessions Judge/FTC No. 5, Kanpur Nagar does not warrant any interference by this Court.
14. We have heard Sri Amit Tripathi, learned counsel for the appellant and Sri A.N. Mulla, Sri Saghir Ahmad, learned AGAs and Smt. Manju Thakur, brief holder of the State.
15. The accused appellant in the present case were tried and convicted for having committed the murder of Ram Ashish son of PW-2 Ramdas Yadav.
16. The only question which arises for our consideration in this criminal appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubt.
17. Record shows that PW-1 Kalpnath Yadav and PW-2 Ramdas who were examined by the prosecution as witnesses of fact have fully corroborated the prosecution case on all material points in their examination in chief. PW-1 Kalpnath Yadav, however upon being cross examined by the defense counsel he took a u-turn and denied that he had seen the accused appellant firing at the deceased. However, he in his cross examination deposed that he had seen the accused appellants running away from the place of occurrence and later he was told by the persons who were present there that the accused appellants had shot Ram Ashish son of Ramdas complainant PW-2 dead.
18. We have very carefully scanned the statements of PW-1 Kalpnath Yadav and PW-2 Ramdas and we have noted that PW-2 in his examination in chief has proved the following material aspects of the prosecution case; (i) That the incident in question had taken place on 19.12.2004 at about 19 hours near the flour mill of Anu Gupta in Vijay Nagar P.S. Kakadeo, District Kanpur Nagar (ii) At the time of the incident complainant PW-2 Ramdas had come out of his house to see off Kalpnath Yadav and Monu Bhatia who had come to his house on a social visit. (iii) As soon as PW-1 Kalpnath Yadav and PW-2 Ramdas came out of his house, PW-2 saw his son Ram Ashish coming towards his house from the side of the "atta Chakki" of Anu Gupta, (iv) That accused appellant Tarun Bhatia and Raju alias Rajesh Bhatia suddendly came from behind armed with firearms and shot his son Ram Ashish from their firearms from behind as a result of which he fell on the ground and died on the spot; (v) That the occurrence was witnessed and the accused identified by PW-1 Kalpnath Yadav and PW-2 Ramdas and Monu Bhatia and other persons who were present on the spot in the light of the electric bulb of flour mill which had illuminated the place of occurrence, (vi) That after the incident, complainant Ramdas PW-2 while on the way of police station had got the written report of the occurrence Ex.Ka-2 scribed by someone on his dictation and which he had given to the police station after signing the same.
19. From the perusal of the cross examination of PW-2 Ramdas, it transpires that the defense counsel did not challenge the correctness of the following facts deposed by PW-2 Ramdas in his examination in chief; (i) that PW-1 Kalpnath Yadav and Monu Bhatia had come to the house of PW-2 complainant Ramdas on 19.12.2004 before the incident (ii) that immediately before the occurrence Ramdas had come out of his house to see off PW-1 Kalpnath Yadav and Monu Bhatia and on coming out of his house all the aforesaid three persons had witnessed the incident and identified the accused (iii) that the place of incident was illuminated from the light emitting from the electric bulb of the flour mill situate near the crime scene in which the complainant as well as Kalpnath Yadav and others present on the spot had witnessed the incident.
20. In view of the legal principles propounded by this Court in Kunwar and others Vs. State of U.P., 1993 ACR (Allahabad Dand Nirnay) 720, that where any special facts are stated by the witness in his examination in chief and such witness is not cross examined by the defense on the aforesaid facts in that case it will be deemed that the special facts stated by witnesses in his examination in chief are admitted by the other side, it is not open to the learned counsel for the appellants to challenge the reliability and veracity of the testimony of PW-2 tendered by him on the point of the incident having been witnessed by PW-1 Kalpnath Yadav, PW-2 (complainant) Ramdas and Monu Bhatia who had come to the house of PW-2 on the date of the incident and were present there just before the occurrence and had seen the incident in the light emitted from the electric bulb of nearby flour mill which had illuminated the place of occurrence and had identified the assailants as the accused appellants.
21. We now proceed to asses and evaluate the evidence of PW-1 Kalpnath Yadav in the process of examining the legality of the submission made by the learned counsel for the appellant that in view of the PW-1 Kalpnath Yadav having been declared hostile no part of his testimony can be read in support of the prosecution case. Even the most superficial reading of his examination in chief establishes that he has stated that he along with Monu Bhatia had gone to the house of PW-2 Ramdas on 19.12.2004 and when they were leaving his house PW-2 Ramdas had also come out to see them of and on coming out of the house of PW-2 complainant Ramdas, he had seen his son Ram Ashish coming towards his house from the side of flour mill of Anu Gupta and the accused appellants suddenly came from behind and shot the deceased with their firearms from the rear.
22. PW-1 in his examination in chief recorded on 09.06.2005 has fully corroborated the facts stated by him in his statement recorded under Section 161 Cr.P.C.
23. It is interesting to note that after the examination in chief of PW-1 Kalpnath Yadav was concluded the defense sought adjournment to cross examine him and accordingly 22.06.005 was fixed by the learned Additional Sessions Judge for his cross examination, PW-1 in his cross examination denied that he had seen the accused appellant firing at the deceased, however, he admitted having seen the accused appellants running away from the place of occurrence and the persons present on the spot telling him that Ram Ashish son of PW-2 Ramdas had been shot by appellants Tarun Bhatia and Raju alias Rajesh Bhatia.
24. Now the question which next arises for our consideration is that whether the entire testimony of PW-1 including the facts stated by him in his examination in chief in which he has fully supported the prosecution case are liable to be disbelieved merely on the ground of his having denied in his cross examination having seen the accused appellant actually shooting the deceased, which obviously appears to be a false statement given by him under the pressure/influence of the accused appellants and the submissions made by learned counsel for the appellants in this regard, in our opinion are bereft of any merit in view of the trite law that the entire testimony of hostile witnesses is not to be discarded in full, the part of his evidence which supports the prosecution case can be taken into consideration by the Court. The Apex Court in paragraph 15 of its judgment rendered in the case of Veer Singh and others Vs. State of U.P. has held as hereunder :-
"It is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief examination which supports the prosecution case can be taken for consideration"
In the present case in his examination in chief itself PW-1 Kalpnath Yadav has admitted about his going to the house of PW-2 Ramdas along with Monu Bhatia on a social visit on the date of occurrence i.e. 19.12.2004 and Monu Bhatia and PW-1 on coming out of his house along with the PW-2 for returning to their respective houses seeing the deceased's son of PW-2 coming from the side of Atta Chakki of Anu Gupta towards his house and the accused Tarun Bhatia and Raju alias Rajesh Bhatia emerging from behind the accused and shooting him with their firearms causing his instantaneous death on the spot. He has further admitted in his evidence that within a short time, the police had arrived at the place of incident and prepared the inquest report of the cadaver of the deceased after holding inquest on his dead body and his having signed the inquest report Ex.Ka-1. The above testimony of PW-1 lends credence to the testimony of the PW-2.
25. Thus in view of the law laid down by the Apex Court in the aforesaid case, we do not find any reason to discard the testimony of PW-1 which in our opinion fully supports the prosecution case which stands further corroborated from the testimony of PW-2 complainant Ramdas. It is noteworthy that PW-2 Ramdas was subjected to a grueling and lengthy cross examination by the defense counsel/ learned counsel for the appellant but he failed to elicit anything from him which could render the veracity of the facts stated by him in his examination in chief doubtful or unworthy of credence. Thus from the evidence of PW-1 and PW-2, it is clearly established that the accused appellants had fired at the deceased with their respective firearms while he was coming towards his house from the side of flour mill of Anu Gupta at about 7.00 p.m. on 19.12.2004 and the entire episode was witnessed by PW-2 complainant Ramdas father of the deceased Ram Ashish and PW-1 Kalpnath Yadav and Monu Bhatia who had come to visit the house of PW-2 Ramdas and the assailants were identified by them as the accused appellants in the light of electric bulb of flour mill which had fully illuminated place of incident at the time of occurrence.
26. Record further shows that the prosecution has fully established that the empty cartridge material Ex.Ka-16 which was recovered from the place of occurrence was fired from the countrymade pistol Material Ex.Ka-15 recovered from a paddle factory on the pointing out of accused appellant Tarun Bhatia. From the report of the forensic lab dated 28.06.2005 which is on record as Ex.Ka-20. According to the report of the forensic expert, Material Ex.Ka-16 (empty cartridge) recovered from the place of incident which was marked by him as EC-1 was fired from Material Ex.Ka-15 (countrymade pistol) recovered from a paddle factory on the pointing out of accused appellant Tarun Bhatia and which was marked as 1/05 by him.
27. The next ground on which the appellant's counsel has challenged the conviction of the accused appellant, is that the medical evidence on record does not corroborate the ocular testimony vis a vis the time and manner of assault as spelt in the FIR and testified later by prosecution witness. The record shows that the consistent case of the prosecution throughout as spelt out in the FIR and later testified by the two prosecution of witnesses produced during the trial has been that two shots were fired by the accused appellants at the deceased Ram Ashish. The post mortem on the dead body of the deceased was conducted by Dr. K.P.Madhesia PW-3 who had prepared the post mortem report of the deceased Ex.Ka-3. The post mortem report of the deceased shows following ante mortem injury:-
(i) Firearm wound of entry 1 cm x 1 cm x deep brain cavity on left side of head four cm above left ear, margin is inverted hair & dark black collor is present around wound.
(ii) Fire arm wound of exit 4 cm x 2 cm x deep brain cavity communicating to entry no.1 margin everted on right side forehead.
(iii) Fire arm wound of entry 2 cm x 2 cm x deep brain cavity on left side of lower back 8 cm above iliac crest. Margin inverted black collor present around the wound.
(iv) Fire arm wound of exit 2-1/2 cm x 2-1/2 x deep abdomen communicating with injury no.3. Margin averted 2 cm left latin side of umbilicus on left side of abdomen.
28. The deceased according to the post mortem report had died due to hemorrhage and shock due to ante mortem injuries. The time of death was estimated to be about one day from the time at which the post mortem was completed. The post mortem report of the deceased Ex.Ka-3 shows that the post mortem was conducted by PW-3 on the dead body of the deceased at about 2.45 p.m. on 20.12.2004. It is pertinent to note that PW-3 has in his examination in chief categorically deposed that it was possible that the deceased had died on 19.12.2004 at about 7.00 p.m.. Thus the time of death of the deceased mentioned in the FIR stands fully corroborated from the medical evidence on record.
29. Much emphasis has been laid by the learned counsel for the appellant on the presence of black colour around the two firearm wounds of exit found on the dead body of the deceased for persuading us that none of the witnesses had seen the occurrence and the incident had not taken place in the manner described in the FIR. It has been submitted by the learned counsel for the appellant that it is the specific case of the prosecution as is evident from the site plan Ex. Ka-16 that the distance between the place from where the accused appellant had allegedly shot the deceased and the place where the deceased's dead body was found lying is about four paces which comes to at least eight feet and in that case there was no possibility of the firearms wounds of exit found on the dead body of the deceased being surrounded by black colour. Presence of black colour around the two firearm wounds of entry found on the deceased's dead body suggests that the same are contact wounds caused by contact shots and not from shot fired from a distance of eight feet. Thus, it is obvious that although no one had seen the occurrence and after deceased Ram Ashish who was a habitual offender facing several criminal trials, including a murder trial was shot dead by one of his several enemies, the accused appellants were falsely implicated in the present case due to previous enmity and hence in view of the irreconcilable conflict between the medical evidence on record and the ocular testimony no credibility can be attached to the testimony of PW-1 and PW-2 for the purposes of holding the accused appellants guilty of the murder of Ram Ashish. In response to the aforesaid submission of the learned counsel for the accused appellants, Sri Saghir Ahmad argued that there is no mention either in the FIR or in the testimony of PW-1 and PW-2 with regard to the distance from which the accused appellants had shot at the deceased. He has further submitted that the distances between the different points mentioned in the site plan are usually estimated distances based upon personal impression and observation of a witness and more over there is nothing in the site plan Ex.Ka-6 which may show that the accused appellant had shot at the deceased while he was standing at place shown by letter 'A' from the place shown by letter "D" in the site plan Ex.Ka-3. The letter 'A' in the site plan merely denotes the place where the dead body of the deceased was found lying after he had been shot.
30. Having regard to the submissions made by the learned counsel for the parties on the aforesaid aspect, we do not find that there is any material discrepancy in the medical evidence vis a vis the ocular testimony. On the contrary in our opinion the medical report fully corroborates the prosecution case that both the accused appellants had fired at the deceased Ramdas from their firearms and as a result of the firearms wound so sustained by him Ram Ashish had died on the spot.
31. The credibility FIR in this case has been challenged on the ground that neither the name of scribe of the FIR was not disclosed by the prosecution nor he was produced as a witness during the trial. It is true that PW-2 on page 24 of the paper book as in his cross examination stated that he had got the written report of the incident Ex. Ka-2 scribed by an educated person whom he had met while he was going to the police station and signed the same before giving it to the police station and further on page 29 of the paper book in his cross examination that he did not know the scribe that the FIR previously whom he had met on his way to police station and who had agreed to help him by scribing the FIR on noticing his pathetic condition and upon learning about the misfortune which had befallen on him, PW-2 has in his examination in chief proved the written report of the incident Ex.Ka-2 which he had got scribed by an unknown person whom he had met while he was going to the police station. PW-4 Suraj Prasad Mishra who was posted as Constable Clerk in (P.S. Kakadeo, Kanpur Nagar) at the relevant point of time has fully corroborated the evidence of PW-2 on the point that PW-2 had given the written complaint Ex.Ka-2 to him on 19.12.2004 at about 7.40 hours where after he had prepared the check FIR and made the relevant G.D. entry. No suggestion was given by the defense counsel to PW-5 that the Ex. Ka-2 was not given to him by PW-2 Ramdas at the time recorded in the G.D.. The credibility of the FIR in this case can not be doubted even for a moment on the ground of the complainant's failure to disclose the name of the scribe of Ex.Ka-2, written report of the incident or to produce him as witness during the trial.
32. The conviction of the appellant has also been challenged by the learned counsel for the appellants on the ground of failure of the prosecution to prove that the accused appellant had any motive to commit such a ghastly crime. There is no force in the aforesaid submission either. In the FIR it has categorically been stated that there was previous enmity between the accused appellant and the family of the complainant.
33. PW-2 Ramdas has further categorically deposed that the accused appellant wanted to purchase his house to which he was not agreeable and on account of the aforesaid, the accused had become inimical towards him and his son.
34. Thus it cannot be be said that the prosecution has failed to prove the motive for the accused appellants to commit the aforesaid offence. Even otherwise in a case of direct evidence where the motive has little relevance, the entire prosecution case cannot be discarded, even if the prosecution fails to establish the motive beyond doubt. In a case of direct evidence the prosecution is not obliged to prove the motive but the quality of the evidence adduced must be so as to inspire confidence.
35. So far as the quality of evidence and the credibility of witnesses in the present case is concerned, we have already found that from the facts stated by PW-1 Kalpnath Rai in his examination in chief and those PW-2 Ramdas in his deposition made before the trial court it is proved to the hilt that they were present at the place of the occurrence at time of the incident and had witnessed the same and identified the accused in the light emitted by the electric bulb of nearby flour mill which had illuminated the place of incident. Although PW-2 in his cross examination denied having seen the accused appellants shooting the deceased but he had deposed that he has seen the accused appellants running away from the place of incident. We do not find any contradictions, discrepancies omissions, improvements in the evidence of PW-2. Despite his being subjected to a lengthy cross examination by the defense counsel, he stuck to the prosecution case as narrated by him in the FIR. We do not find any reason to discard or disbelieve the testimony of PW-2 Ramdas on the ground of his being a close relative of the deceased in view of the law laid down by the Apex Court in the case of Waman and others Vs. State of Maharashtra reported in 2011 Crl.L.J. 4827, where in it has been observed by Hon'ble Apex Court :- "that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out. If there evidence is found to be consistent and true, the fact of being relative by itself discarded their evidence. In other words, relationship is not a factor to affect the credibility of witnesses and courts have to scrutinize their evidence meticulously with care."
36. In the instant case after having meticulously scrutinized the testimony of PW-2 Ramdas, we find that the same appears to be convincing and trustworthy about the incident which stands further fully corroborated from the facts deposed by PW-1 Kalpnath Yadav in his examination in chief.
37. Learned counsel for the appellant has further failed to demonstrate that the recorded conviction of the appellant no.1 Tarun Bhatia and the sentences awarded to him under Section 25/27(ii) Arms Act are vitiated in any manner.
38. Thus upon an over all and wholesome scrutiny and appraisal of the oral and documentary evidence on record, we do not find any hesitation in holding that the prosecution has succeeded in proving its case against the accused appellant beyond all reasonable doubts. We do not find that finding of guilt recorded by the trial court against the accused appellant and the sentence awarded to them suffer from any illegality, infirmity or perversity warranting any interference by this Court.
39. This appeal lacks merit and is accordingly dismissed.
40. There shall, however, be no order as to costs.
Order Date :- 07.12.2016 Abhishek Sri.