RAMJI SINGH & ORS. versus THE STATE OF UTTAR PRADESH on 11 December 2019

[2019] 14 S.C.R. 253

RAMJI SINGH & ORS.

v.

THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 1397 of 2014)

DECEMBER 11, 2019

[MOHAN M. SHANTANAGOUDAR AND

DEEPAK GUPTA, JJ.]

Penal Code, 1860 – ss.147, 149, 452, 449 and 302 – Murder– Prosecution case that six persons (A-1, A-2, A-3, A-4, A-5 and A-6) who were heavily armed, two of them with guns, killed victim inbroad daylight between 12 and 12:30 p.m. – Earlier, when PW-1heard some noises he reached the house and saw victim and theaccused – In the meantime PW-2 also reached the spot – They both(PW-1 and PW-2) were standing at the entrance of house when theoccurrence took place – A written complaint was prepared by PW-1 and was scribed by PW-4 and same was given in the police station– On basis of which police registered FIR – Trial court acquitted allthe accused – During the pendency of the appeal in the High Court,three accused A-1, A-3 and A-6 died and the appeal abated quathem – High Court set aside the judgment of the Trial court and A-2, A-4 and A-5 were found guilty of having committed offencespunishable u/ss.147, 148, 302/149 of the IPC – On appeal beforethe Supreme Court, the appellants contended that reliance cannotbe placed on the statement of the eye-witnesses (PW-1 and PW-2) –Held: The statements of these witnesses (PW-1 and PW-2) were almostidentical and there were no major cosntradictions between them –According to PW-1, he was present at the place of incidence andimmediately after occurrence dictated the complaint to PW-4 andaccording to PW-4, he reached the spot at about 12:45 p.m.–Thereafter, PW-1 was sent to police station – The version of PW-1and PW-2 was corroborated by the version of PW-4, who thoughnot an eye-witness reached the spot at about 12:45 p.m. and thenscribed the complaint – Further, medical evidence fully corroboratedthe prosecution story – According to both the eye-witnesses (PW-1and PW-2) accused A-2 and A-3 had fired three times each – There

253

A

B

CD

E

F

G

H

Awere corresponding 6 fire arm entry wounds as per medical report– The Doctor opined that death occurred between 12 and 12:30p.m. which also supports the prosecution version – The other injuriesmentioned by doctor were also relatable – Therefore, the medicalevidence fully supported the version of the two eye-witnesses withregard to the injuries caused by firearms and sharp-edged weaponsB– The evidence of witnesses were corroborated on all counts – Nomerit in the appeals.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD : 1. The main question which arises for considerationCis whether reliance should be placed on the statement of the eye-witnesses (PW-1 and PW-2). As far as the statements of thesewitnesses recorded in the case are concerned, they are almostidentical and there are no major contradictions between them. Alot of emphasis has been placed by the appellants on the fact thatmany things stated by PW-1 in his examination in court have notDbeen mentioned in the FIR. As far as this aspect is concerned,according to PW-1, he was present at the place of incidence itselfand immediately after the occurrence dictated the complaint toPW-4, who states that Exh.P.1 is in his handwriting and he hadwritten whatever was dictated to him by PW-1. Thereafter, heEand PW-1 had both signed the said complaint (Exh.P.1). Fromthe signature of PW-1 appearing on Exh.P.1 it is apparent that heis barely literate and cannot write. PW-4 is a teacher and thesuggestion put to him in cross examination was that there is somelitigation between his uncle and some persons connected withthe accused, but he said that he was not aware of the same. HeFclearly states that he is not a party to any party politics. Withregard to the complaint the only suggestion put to him was thathe had not prepared any complaint in the village and that thecomplaint was written at the police station. There was noexamination with regard to the contents of the complaint. EvenGwith regard to time this witness clearly states that he reachedthe spot at about 12.45 PM and wrote the complaint and,thereafter, PW-1 was sent to the police station. He further statesthat the investigating officer reached the place of occurrence atabout 3 and 3.45 PM. According to him he remained at the place H

of occurrence for about 4½ hours and the panchayatnama of thedead body was prepared in his presence and he has signed onthe same. This means that the complaint was written immediatelyafter the occurrence. The FIR is based only on this complaintand it does not contain anything more or less than the complaint.If this complaint was scribed by this witness at 12.45 PM andsent along with PW-1 to the police station then the contents ofthe FIR is nothing more than the contents of the complaint andhence cannot be said to be interpolated. [Para 8] [260-G-H;261-A-F]

2. On careful analysis of the medical evidence this Courtfinds that it fully corroborates the prosecution story. Accordingto both the eyewitnesses PW-1 and PW-2 accused A-2 and A-3,had fired three times each. There are corresponding 6 firearmentry wounds which are mentioned at serial no.(viii), (ix), (xv),(xvi), (xvii) and (xviii) in the medical report. As far as the exitwounds are concerned, there are more than 6 exit wounds whichis possible since one of the firearms used was a 12-bore gunhaving pellets. The doctor has opined that long barrel guns werealso used and according to him the death occurred between 12and 12.30 PM on 17.06.1982 which also supports the prosecutionversion. It is important to mention that the other injuriesdescribed by the doctor are all relatable and could have beencaused by axe or by pitchfork, which were the weapons carriedby 3 of the accused. [Para 14] [265-G-H; 266-A]

3. In fact, the medical evidence fully supports the ocularevidence and there is virtually no contradiction. The version ofthe two eyewitnesses with regard to the injuries caused by thefirearms and sharp-edged weapons, find corroboration from themedical report. Direction, as pointed out above cannot bespecifically ascertained from a site plan. The occurrence tookplace in a small area. The deceased was sitting on a cot whichcould at best be 6’ in length. He was surrounded by six accusedout of whom two used firearms. It would not be possible for anywitness to exactly state who was at which place. Even PWs 1 and2 have not stated the exact place from where the firing took place,except that according to both of them the firing took place fromthe entrance of the house and if that is so then the points D and AB

CD

E

F

G

H

AD1 in the site plan showing the points where the accused carryingthe firearms were standing, may not be strictly correct. [Para 16][266-H; 267-A-B]

4. It has been urged that the statements of the twowitnesses PWs 1 and 2 should not be relied upon since they areBclosely related to the deceased and there was enmity betweenboth the sides. It has been urged that PW-2 had a dispute withA-3 and his brother had litigation with A-1. These facts areassumed to be true. There is no manner of doubt as stated in thecomplaint itself that the relationship between the two sides wasstrained. They belonged to different groups and obviously thereCwas enmity between them. As is often said enmity is a double-edged sword. It can be both the motive for a crime and it canalso be a motive to falsely implicate some other people. However,each case has to be decided on its own evidence. In this casethis Court has come to the conclusion that the written complaintDwas recorded immediately after the occurrence. There was notime to concoct a false case implicating those who were notinvolved. The fact that the victim was murdered is not disputed.The only question is whether it was the accused persons whomurdered him or somebody else. Once it is believe that PWs 1and 2 are eye-witnesses, then there is no reason to hold that theEappellants were falsely implicated. They are all named in thewritten complaint as well as in the FIR which was recorded at theearliest. Their version is corroborated by the version of PW-4,who though not an eye-witness reached the spot at about 12.45PM and then scribed the complaint. This complaint depicts whatFactually happened. [Para 17] [267-C-F]

5. True it is that there are some minor variations andcontradictions in the statement of the two witnesses, especiallyPW-2. PW-2 may have improved his version slightly whileappearing in court but the core of his evidence remains intact.GThe essence of his evidence is that he had gone to pray in atemple which is close to the house where occurrence took place,and he heard a noise and saw all the accused armed as statedhereinabove at the door of the house. A-1 pointed towards thevictim and said, “kill this goonda immediately.” On this, accused A-3 and A-2 fired three shots each from their guns upon victim.They were standing at the entrance of the house where occurrencetook place. Though he has been cross examined at length,nothing material has come out of cross examination. Hisstatement supports the statement of PW-1, who has virtuallyrepeated what has happened, in the complaint. The main effortof the defence appears to have been to bring out the fact thatthere was enmity between the two parties. That by itself is notsufficient to discredit the witness. [Para 18] [267-G-H;268-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1397 of 2014.

From the Judgment and Order dated 30.04.2014 of the High Courtof Judicature at Allahabad in Government Appeal No. 816 of 1984.

Rajiv Dutta, Sidharth Luthra, Sr. Advs., Dr. Rajeev Sharma,Bhanwarpal Singh Jadon, Umesh Gupta, Raghuvir Sharma, Advs. forthe Appellants.

Ms. Sansriti Pathak, Krishnanand Pandeya, Advs. for theRespondent.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J.

1. Babu Ram (PW-1) lodged a written complaint (Exh.P.1) withthe Police Station Churkhi to the effect that he had been informed by hisnephew Sarman Singh (deceased) that when he- Sarman Singh wasploughing his field in the morning of 17.06.1982, accused Lakhan Singh(A-1) reached there and hurled abuses at Sarman Singh. Lakhan Singhtold Sarman Singh that he should not till the plot otherwise he would bekilled. Sarman Singh retorted that the plot does not belong to Lakhan’sfather and that though Lakhan Singh had been cultivating the plot byforce, now Sarman Singh would not permit him to do so. Heatedaltercation took place between the two and both of them abused eachother. Thereafter, Lakhan Singh went to his house. Sarman Singh aftercompleting the ploughing came home and mentioned about this incidentto Babu Ram (PW-1.) In the FIR it is also reported that the relationsbetween the two were strained and Lakhan Singh belonged to a different AB

C

D

E

F

G

H

Agroup in the elections for the post of Village Pradhan. Sarman Singhhad fought the election against Lakhan Singh. Lakhan Singh had wonthe election.

2. Immediately, after informing Babu Ram of the incident, SarmanSingh went to get his agricultural implement (datuwa) repaired from theBcarpenter and the informant Babu Ram (PW-1) also accompanied him.It was about noon. As soon as they were crossing the house of DasharathSingh, Sarman Singh told Babu Ram (PW-1) that Babu Ram should getthe datuwa repaired from the carpenter while he (Sarman Singh) wentto collect the price of the bullocks from Dasharath Singh. Sarman Singhentered the courtyard of the house of Dasharath Singh and sat on a cot.CInformant Babu Ram (PW-1) went towards the house of the carpenter.He had just reached the house of the carpenter when he heard somenoise. He immediately ran and reached the house of Dasharath Singhwhere he saw accused Lakhan Singh (A-1), armed with lathi, RamjiSingh (A-2) and Krishna Autar (A-3), armed with guns and LaxmanDSingh (A-4), son of Lakhan Singh, and Lala Ram (A-5), armed withaxes and Virendra Singh (A-6) with kanta - pitchfork. They were outsidethe house of Dasharath Singh and Lakhan Singh pointed out that SarmanSingh is a big gunda, he should not be permitted to escape and he shouldbe killed. Ramji Singh(A-2) and Krishna Autar (A-3) fired three timeseach from their weapons from the entrance of the house of DasharathESingh. Laxman Singh (A-4) and Lala Ram(A-5) gave blows with theiraxes, and Virendra Singh(A-6), attacked him with the pitchfork on hisface and hands. Sarman Singh died on the spot itself. In the meantime,Nand Kishore (PW-2), Gaya Prasad, Takhta Singh and Dasharath Singh’swife Bhagwanta, and other villagers reached the spot. The accusedFthreatened all the persons present there that if anybody interfered, hewould kill them and, thereafter the accused ran away from the spot.

3. A written complaint in this behalf was prepared by Babu Ram(PW-1) and was scribed by Ram Lakhan (PW-4). Thereafter BabuRam (PW-1) went to the police station which is about 8 miles from theGvillage and handed over the written complaint. Crime No.66/82 wasrecorded under Sections 147, 148, 149, 302 and 452 of the Indian PenalCode, 1860 (IPC for short), against the aforesaid 6 accused. Thereafter,investigation was done and the dead body of the deceased Sarman Singhwas sent for post-mortem examination. After completion of theinvestigation charge sheet under Section 173(2) of the Code of CriminalH

Procedure, 1973 (Cr.PC for short) was filed against all the 6 accused.The Magistrate committed the case to the Court of Sessions. The SessionsJudge charged Lakhan Singh under Sections 147, 449, 302/149 of theIPC whereas Ramji Singh, Krishna Autar, Laxman Singh, Lala Ram,and Virendra Singh were charged for having committed offencepunishable under Sections 148, 302/149, 449 of the IPC.

4. The prosecution examined a number of witnesses. The caseof the accused persons was of denial and according to them Babu Ramwas inimical to them and, therefore, they had been falsely implicated byhim. The Trial Court acquitted all the accused mainly on the followinggrounds :-

(1) Medical evidence did not support the oral testimony of thewitnesses and therefore the presence of eye witness was doubtful;

(2) Material witnesses had been withheld by the prosecution;

(3) Independent witnesses had not been produced;

(4) Motive was not proved;

(5) Witnesses examined were inimical against the accused andhighly interested witnesses; and

(6) That the prosecution had failed to prove the case beyondreasonable doubt.

5. The State filed an appeal in the High Court. During the pendencyof the appeal, three of the accused namely, Lakhan Singh (A-1), KrishnaAutar (A-3) and Virendra Singh (A-6), died and the appeal abated quathem. The High Court set aside the judgment of the Trial Court and heldthat :-

(1) there was no material contradiction between the medicalevidence and the statement of the eye witnesses;

(2) that the presence of the eye witnesses on the spot stood proved;

(3) that the prosecution had explained why it had not examinedone of the witnesses and held that the prosecution had provedbeyond reasonable doubt the case against the accused.

Accordingly, Ramji Singh (A-2), Laxman Singh (A-4) and LalaRam (A-5) were found guilty of having committed offences punishableunder Sections 147, 148, 302/149 of the IPC, and for the offence under A

B

C

D

E

F

G

H

ASection 302 read with 149, IPC they have been sentenced to rigorousimprisonment for life and a fine of Rs.10,000/- each. Hence this appealby the convicted accused.

6. We have heard Mr. Rajiv Dutta and Mr. Siddharth Luthra,learned senior counsel appearing for the appellants and Ms. SansritiBPathak, learned counsel for the State of U.P. It is contended on behalfof the appellants that the Trial Court had rightly come to the conclusionthat the medical evidence makes the presence of Babu Ram (PW-1)and Nand Kishore (PW-2) at the scene of occurrence extremely doubtfuland, therefore, it is urged that no reliance should be placed on theirstatements. It is also urged that there are many contradictions in theCstatements of these two witnesses which render their version doubtful.Furthermore, these witnesses are related to the deceased and beinginterested witnesses, no reliance should be placed on their statements.It was also urged that the FIR is ante timed and ante dated and this isevident from the delay in delivery of the special report. It was alsoDsubmitted that material witnesses have not been examined and the ballisticreport was not proved by the prosecution. Lastly, it was submitted thatthe Trial Court had taken a view which was a probable view and thisview should not have been disturbed by the High Court.

7. On the other hand, Ms. Sansriti Pathak, learned counsel for theEState of U.P. urged that the view of the Trial Court was perverse andshe pointed out that there is no contradiction between the medical evidenceand the ocular evidence. She further submitted that the time of recordingof the FIR is correctly recorded and is supported by the evidence onrecord. Lastly, she submitted that all material witnesses have beenexamined. According to her, the judgment of the Trial Court was perverseFwhich was rightly set aside by the High Court.

8. Having heard learned counsel for the parties and having perusedthe original record in detail, we are of the view that the main questionwhich arises for consideration is whether reliance should be placed onthe statement of the eye witnesses. Obviously, if we believe the statementGof the eye witnesses and hold that they are truthful witnesses, then theappeal has to be dismissed. However, if a doubt is cast on the veracityof these two witnesses then the benefit of doubt has to go to the accused.As far as the statements of these witnesses recorded in the case areconcerned, they are almost identical and there are no major contradictions H

between them. A lot of emphasis has been placed by the appellants onthe fact that many things stated by PW-1 in his examination in courthave not been mentioned in the FIR. As far as this aspect is concerned,we may note that according to PW-1, he was present at the place ofincidence itself and immediately after the occurrence dictated thecomplaint to Ram Lakhan (PW-4), who states that Exh.P.1 is in his handwriting and he had written whatever was dictated to him by Babu Ram(PW-1). Thereafter, he and Babu Ram had both signed the said complaint(Exh.P.1). From the signature of Babu Ram appearing on Exh.P.1 it isapparent that Babu Ram is barely literate and cannot write. PW-4 is ateacher and the suggestion put to him in cross examination was thatthere is some litigation between his uncle and some persons connectedwith the accused, but he said that he was not aware of the same. Heclearly states that he is not a party to any party politics. With regard tothe complaint the only suggestion put to him was that he had not preparedany complaint in the village and that the complaint was written at thepolice station. There was no examination with regard to the contents ofthe complaint. Even with regard to time this witness clearly states thathe reached the spot at about 12.45 PM and wrote the complaint and,thereafter, Babu Ram was sent to the police station. He further statesthat the investigating officer reached the place of occurrence at about 3and 3.45 PM. According to him he remained at the place of occurrencefor about 4½ hours and the panchayat nama of the dead body wasprepared in his presence and he has signed on the same. This meansthat the complaint was written immediately after the occurrence. TheFIR is based only on this complaint and it does not contain anythingmore or less than the complaint. If this complaint was scribed by thiswitness at 12.45 PM and sent along with PW-1 to the police station thenthe contents of the FIR is nothing more than the contents of the complaintand hence cannot be said to be interpolated.

9. We may also take into consideration the fact that thecomplainant is an illiterate villager. He dictated the complaint to PW-4who, no doubt, is literate but is not well versed with law. The complaintgives all the necessary facts but obviously it is not drafted by a personhaving legal acumen. An FIR is not supposed to be an encyclopaediadetailing all the facts in extenso. In our opinion, the complaint (Exh. P.1)is complete and the additions, if any, made during the evidence are notsuch which cast a doubt on the correctness of the complaint.

AB

C

D

EF

G

H

AB

C

D

EF

G

H

A10. We shall now deal with the submission with regard to thedelayed compliance of Section 157 of Cr.PC. The version of theprosecution is that the report in terms of Section 157 of Cr.PC and theU.P. Police Regulation was sent at 3.30 PM on 17.06.1982. ConstableAtar Singh (PW-7) who was working as the Head Constable has statedthat on 17.06.1982 special report of the case was sent to all concernedBthrough Constable No.406 Param Sukh Pal (PW-8). He had producedthe original general diary before the court and its true extract is exhibitedas P-20. He clearly states that since Babu Ram had brought writtencomplaint (Exh.P.1), he had not obtained signatures on the FIR. In crossexamination he states that he does not remember whether the copy ofCthe FIR was sent on 17.10.1982 to CJM, Orai or any other Magistrate inOrai. He admits that there is no entry in this respect in the general diary.He has denied that the entries dated 17.06.1982 relating to despatch ofthe copies of the FIR, and 18.06.1982 in respect of arrival of constable(PW-8) in the police station are forged and ante dated. PW-8 furtherstates that he had left the police station at 3.10 PM on 17.06.1982 alongDwith the special report which he handed over to the Ahalmad (courtmaster) of the SDM, Kalpi. He states that since he became unwell, hespent the night at Kalpi and reached Orai the next morning when hehanded over the report to all other officers and came back to the policestation.

E11. The appellant relied upon a document which is in response toa Right to Information (RTI for short) query in which the Ahalmad tothe Court of the SDM, Kalpi has stated that the special report wasreceived on 27.06.1982. However, this RTI report has not been provedby the Ahalmad. We must also remember that this RTI report mustFhave been obtained after the year 2005, more than 22 years after theincident took place. The contents of the report have not been proved inaccordance with law and cannot be relied upon. We may also mentionthat in U.P. there are U.P. Police Regulations which provide that incases of murder, rioting, burglary etc., copies of the report are to be sentimmediately in red envelopes to the Superintendent of Police, the DistrictGMagistrate, the Sub Divisional Magistrate and the Circle Inspector, bypost or whichever quicker mode of conveyance. Even if we assumethat the prosecution has failed to prove that Section 157 Cr.PC wascomplied with then also the effect thereof has to be assessed. Meredelay in compliance of Section 157 by itself is not fatal to prosecution.H

All it does is to raise a doubt that the prosecution story may have beenconcocted at a later stage. In our view, the statement of Ram Lakhan(PW-4) who scribed the report at about 12.45 PM at the instance ofBabu Ram (PW-1), immediately after the occurrence shows that therewas no consultation before writing the complaint. Babu Ram states thathe went to the police station on tractor and reached there before 2.00PM when the report was lodged. Even if the prosecution has failed toprove strict compliance of Section 157 of the Cr.PC there is sufficientmaterial on record to show that copies of the FIR were sent to otherofficials as required under the U.P. Police Regulations and, therefore, inour opinion, there was no false FIR lodged after consultation, as allegedby the appellants. In our opinion the judgment cited by the appellantsMeharaj Singh (L/NK) vs. State of U.P.[1] has no application to thefacts of this case.

12. It was urged that Constable Siya Ram (PW-3) who took thedead body of the deceased from the place of occurrence to the hospitalfor post-mortem had admitted that the dead body was given to him at5.30 PM and he reached the Police Station, Orai at 10.00 AM nextmorning. This witness states that he started from the police station forthe village at 2.00 PM, which supports the prosecution version that theFIR was lodged at about 2.00 PM. He was accompanied by anotherconstable, the SHO and the sub-inspector. According to him, they leftPithuipur where the occurrence took place at 5.30 PM carrying thedead body in the bullock cart and on the way the wheel of the bullock-cart stopped functioning and they spent that night in village Bamohra.He states that he could make arrangement of another wheel at about 6to 7.00 AM in the next morning and, thereafter, covered the distancebetween Bamohra and Orai in 3 hours. The distance is 24 Kms, andaccording to the Trial Court and the appellants bullock cart cannot coverthis distance in 3 hours. In our opinion, the Trial Court had no material tocome to this conclusion that the bullock-cart cannot cover this distancein 3-4 hours.

13. The other main ground relied upon by the appellant is themedical evidence. Since this is very relevant, we are quoting the relevantportion of the evidence in detail. Dr.G.C.Misra (PW-5) was the medicalofficer who carried out the post-mortem at 2.00 PM on 18.06.1982. Onexternal examination he found the following injuries :- 1 (1994) 5 SCC 188

AB

C

D

E

F

G

H

A“(i) Incised wound 12 x 2 cm x bone deep on left side of foreheadextending to left on exilla tailing towards left.

(ii) Incised wound 3 cm x 1 cm x bone deep on left side of face 2cm below injury no.1 tailing towards left.

(iii) Incised wound 13 cm x 3 cm x bone deep starting from boneBof nose going at the side of medial angle of left eye to mandibleleft tailing towards left.

(iv) Incised wound 5 cm x 1 cm x bone deep starting from noseand going left side of face tailing towards left.

(v) Incised wound 14 cm x 3 cm x bone deep tailing towards leftstarting from lateral orbital margins of right eyes and going up tomandible.

C

(vi) Incised wound 5 cm x o.5 cm x muscle deep starting from leftangle and mouth going towards downwards and lateral of cheekleft tailing towards left.

D

(vii) Incised wound 2.5 cm x 2 cm x bone deep on lateral side ofright eye brow.

(viii) F.A. Entry wound 1 cm x 1 cm on anterior axillary fold 2 cmaway the right upper arm. No tattooing charing etc. present.

E

(ix) Fire arm entry wound 1.2 cm x 1 cm on the upper part medialaspect of right upper arm 2 cm lateral to injury no.8. No tattooingcharing etc. present.

(x) Incised wound 2 cm x 0.5 cm x muscles deep on dorsal aspectmiddle joint of index finger of right hand.

F

(xi) Incised wound 6 x 2 cm x muscles deep on dorsal of left handadjacent to wrist joint.

(xii) Incised wound 5 cm x 2 cm x muscle deep on durum of lefthand, 2 cm below an injury no.11.

G

(xiii) Fire arm exit wound 3x2 cm on left scapula region aboutmiddle.

(xiv) Fire arm exit wound 2 x 1.6 cm on right scapular regionmedial border 6 cm above the infangle.

H

(xv) Fire arm entry wound 2 x 1.8 cm on left side of abdomenupper part 20 cm above and lateral to umbilicus intestine comesout.

(xvi) Entry wound fire arm 1.2x1.2 cm on left thigh 10 cm frompenis no tattooing charing etc present.

(xvii) Fire arm entry wound 20 cm x 1.6 cm, 2 cm above andlateral to injury no.16 tattooing charing etc. present.

(xviii) Fire arm entry wound 4 x 2 cm, oblique 1.5 cm lat to injuryno.16 and 1.2 below the injury no.17 tattooing charing etc present.

(xix) Exit wound (fire arm) 6 x 6 cm on left thigh margins adjacentto out sup-Iliac spin.

(xx) Exist wound 8 x 4 cm on lateral side of left thigh 2 cm belowthe injury no.19.

(xxi) Fire arm exit wound4 cm x 4 cm on left lat side of thigh 3 cmbelow the injury no.20.

(xxii) Exit wound 4 x 4 cm on post aspect left thigh 4 cm belowand medial to injury no.21.

(xxiii) Six fire arm exit wound in area of 10 cm x 5 cm x on medialside upper part of left thigh adjacent to the penis size varyingfrom 0.3 cm to 0.8 cm.

(xxiv) 3 fire arm exit wound in an area of 2 x 2 cm size diameter0.4 cm to 0.8 cm on upper lat part of scrotum.

(xxv) 3 fire arms wounds in an area of 6 x 4 cm on right side ofscrotum upper part adjacent to base of scrotum size diameter 0.3cm to 0.6 cm.”

14. On careful analysis of the medical evidence we find it fullycorroborates the prosecution story. According to both the eye witnesses(PWs 1 and 2) accused Ramji Singh and Krishna Autar, had fired threetimes each. There are corresponding 6 fire arm entry wounds whichare mentioned at serial no.(viii), (ix), (xv), (xvi), (xvii) and (xviii). As faras the exit wounds are concerned, there are more than 6 exit woundswhich is possible since one of the fire arms used was a 12-bore gunhaving pellets. The doctor has opined that long barrel guns were also A

B

C

D

E

F

G

H

Aused and according to him the death occurred between 12 and 12.30PM on 17.06.1982 which also supports the prosecution version. It isimportant to mention that the other injuries described by the doctor areall relatable and could have been caused by axe or by pitchfork, whichwere the weapons carried by 3 of the accused.

B15. Heavy reliance was placed by the Trial Court as well as bythe appellants before us on the fact that if the site map prepared by theappellants is correct then most of the injuries should have been causedon the left side of the body. We do not understand as to how the Trialcourt could have come to this conclusion. A site plan is prepared on thebasis of information given by witnesses. A site plan only gives a generalCidea and is not a true to scale map. Even if the deceased was sitting onthe cot it is not necessary that he should have been facing North only.He could have been facing North-East or North-West. He could havealso been sitting at one side of the cot facing towards West. Even thetwo eye-witnesses were present at the entrance of the house, insideDwhich there was a deoria. This is like a thick entrance gate way withoutany doors. They were both standing on the outer side and according tothe statement of these witnesses accused Ramji Singh (A-2) and KrishnaAutar (A-3), fired their fire arms from the entrance. Therefore, directionbecomes virtually meaningless. The High Court was absolutely justifiedin coming to the conclusion that the Trial Court had totally misdirectedEitself in holding that the medical evidence did not support the ocularevidence. This was done only on the ground that the injuries were noton the side on which they should have been if the site plan was 100%right. As has already been observed above, a site plan is not a true toscale map and it generally gives the positions of the various eye-witnesses, Faccused etc., but obviously such site plan cannot give exact positions.Directions cannot be determined from exact position also. The directionof the injury can also vary even if the accused and the deceased are inthe same place as mentioned in the map and one of them is sitting orstanding at an angle. The view taken by the Trial Court was highlytechnical and, in our opinion, this was not a sufficient ground to disbelieveGboth the eye witnesses.

16. In fact, in our opinion, the medical evidence fully supports theocular evidence and there is virtually no contradiction. The version ofthe two eye witnesses with regard to the injuries caused by the fire armsand sharp-edged weapons, find corroboration from the medical report.H

Direction, as pointed out above cannot be specifically ascertained froma site plan. The occurrence took place in a small area. The deceasedwas sitting on a cot which could at best be 6’ in length. He was surroundedby six accused out of whom two used fire arms. It would not be possiblefor any witness to exactly state who was at which place. Even PWs 1and 2 have not stated the exact place from where the firing took place,except that according to both of them the firing took place from theentrance of the house and if that is so then the points D and D1 in thesite plan showing the points where the accused carrying the fire armswere standing, may not be strictly correct.

17. It has been urged that the statements of the two witnessesPWs 1 and 2 should not be relied upon since they are closely related tothe deceased and there was enmity between both the sides. It has beenurged that PW-2 had a dispute with Krishna Autar (A-3) and his brotherhad litigation with Lakhan Singh(A-1). We assume these facts to betrue. There is no manner of doubt as stated in the complaint itself thatthe relationship between the two sides was strained. They belonged todifferent groups and obviously there was enmity between them. As isoften said enmity is a double-edged sword. It can be both the motive fora crime and it can also be a motive to falsely implicate some other people.However, each case has to be decided on its own evidence. In this casewe have come to the conclusion that the written complaint was recordedimmediately after the occurrence. There was no time to concoct a falsecase implicating those who were not involved. The fact that SarmanSingh was murdered is not disputed. The only question is whether itwas the accused persons who murdered him or somebody else. Oncewe believe that PWs 1 and 2 are eye-witnesses, then there is no reasonto hold that the appellants were falsely implicated. They are all namedin the written complaint as well as in the FIR which was recorded at theearliest. Their version is corroborated by the version of PW-4, whothough not an eye-witness reached the spot at about 12.45 PM and thenscribed the complaint. In our view this complaint depicts what actuallyhappened.

18. True it is that there are some minor variations and contradictionsin the statement of the two witnesses, especially PW-2. PW-2 mayhave improved his version slightly while appearing in court but the coreof his evidence remains intact. The essence of his evidence is that hehad gone to pray in a temple which is close to the house of Dasharath A

B

C

D

E

F

G

H

ASingh, and he heard a noise and saw all the accused armed as statedhereinabove at the door of the house of Dasharath Singh. LakhanSingh(A-1) pointed towards Sarman Singh and said, “kill this goondaimmediately.” On this, accused Krishna Autar, and Ramji Singh firedthree shots each from their guns upon Sarman Singh. They werestanding at the entrance of the house of Dasharath Singh. Though heBhas been cross examined at length, nothing material has come out ofcross examination. His statement supports the statement of Babu Ram(PW-1), who has virtually repeated what has happened, in the complaint.The main effort of the defence appears to have been to bring out thefact that there was enmity between the two parties. That by itself is notCsufficient to discredit the witness.

19. We must remember that the prosecution story is that six personswho were heavily armed, two of them with guns, killed the deceased inbroad day light. This itself shows that these accused persons were notscared of the villagers. While leaving the place of occurrence theyDthreatened all gathered there by saying that anybody who tried to interferewould meet the same fate. In such a situation no other villager who mayhave been present would turn up to give evidence. This Court cannotlose sight of the harsh reality that witnesses are scared to depose inCourt. In this case two of the witnesses have spoken up and theirevidence has been corroborated on all counts. It may be true that theirErelations with the accused may not have been cordial but the evidencedoes not show that the enmity or dispute between these two witnessesand the accused was of such a nature that these two witnesses wouldmake false statements only to settle scores with the appellants therebyleaving the real culprits to go scot-free. In our opinion merely becauseFthese witnesses are interested witnesses their testimony cannot bediscarded.

20. Great emphasis was placed by the appellants on the fact thatneither Dasharath Singh, in whose house the occurrence took place, norhis wife Bhagwanta who came immediately after the occurrence, wereGexamined. The Trial Court held that Dasharath Singh must have beeninside his house when the occurrence took place. The Trial Court comesto this conclusion on the ground that in the FIR it is mentioned thatSarman Singh called Dasharath Singh. This finding of the Trial Court istotally incorrect. There is nothing to show that Dasharath Singh wascalled. In fact, both in the complaint as well as in the FIR it is mentionedH

that deceased Sarman Singh told Babu Ram (PW-1) to get the agriculturalimplement repaired while he would collect the money from DasharathSingh. Presence of Dasharath Singh is not established. Bhagwanta,definitely reached immediately after the occurrence. However, she filedan affidavit in the Trial Court in which it was stated that she had seennothing and nothing happened in her presence. Therefore, the prosecutionwas justified in not examining her. Non-examination of the carpenter ismeaningless because he is not a witness to the occurrence. At best hecould establish the presence of PW-1 before the occurrence.

21. The appellants are right when they urge that when the reportof the ballistic experts have not been proved and all the bullets recoveredfrom the spot have not been sent to the ballistic expert, the guns seizedcannot be connected with the offence. Even if that be true, we cannotdiscredit the testimony of the eye-witnesses that two of the accusedused guns. The guns seized may or may not be the guns used. However,when the ocular evidence is direct and clear in this regard, and thisocular evidence is fully supported by the medical evidence, the negligenceof the investigation team cannot be used by the defence in support oftheir case.

22. In view of the above discussion, we find no merit in the appealand the same is dismissed. Pending application(s), if any, shall alsostands disposed of.

Ankit Gyan

Appeal dismissed.

A

B

C

D

E

F

G

H