AI Structured Summary
Not yet generated for this judgment
Judgment
The present appeal is directed against an order passed by
the learned Fourth Additional Sessions Judge, Chhatarpur (M.P.) on
05.07.2005 in Sessions Trial No.129/2001 convicting the appellant
No.1 - Virendra for the offence punishable under Section 302 with the
aid of Section 34 of IPC and also convicting him for an offence
punishable under Sections 25(1B)(a) and 27(3) of the Arms Act,1959
whereas appellant No.2 - Suresh has been convicted for an offence
punishable under Section 302 of IPC and further convicted under
Sections 25(1B)(a) and 27(3) of the Arms Act, 1959. Vide separate
order, both the appellants have been sentenced to undergo life
imprisonment and to pay a fine of Rs.100/- each; in default, to further
suffer simple imprisonment for three months each for the offence
under Section 302 and/or 302/34 of IPC and both the appellants have
been further sentenced to undergo rigorous imprisonment for 1-1 year
and to pay a fine of Rs.100/- each, in default of payment of fine to
further suffer simple imprisonment for three months each for two
counts under the offences punishable under the Arms Act ; substantive
sentences to run concurrently.
The prosecution case was set in motion on the statement of
Diwari Ram, father of deceased Mainbabu, made to ASI, S.K. Tiwari,
In-charge Station House Officer, Police Station Orchha Road on
27.04.2001 at about 8.30 a.m. in respect of an incident, which had
occurred at 7.30 a.m. The statement is that he has four sons whereas
Mainbabu is his third (Sajla) son. He is owner of land admeasuring
128 Acres. There is a dispute regarding the said land and one such
matter is pending before the High Court at Jabalpur. At about 7.45 a.m.
when he was sitting at the door of his house, one Chandra Bhan came
running that Suresh has fired upon Mainbabu in front of Dal Mill of
Raju Sindhi. He was accompanied by Baijnath and Virendra. Suresh
was having a gun and that Mainbabu is lying in front of Dal Mill. After
saying so, Chandra Bhan went towards the road and he also followed
him. On reaching the spot, he saw that his son was unable to speak and
that on account of injury in his hand and back, blood was oozing out.
He along with Chandra Bhan Dubey, Hindupat Dubey and Manoj Dixit
took the injured to the hospital in a tempo but the doctor told them on
reaching hospital that Mainbabu is dead.
On the basis of such statement, S.K. Tiwari (PW-6) started
investigation. After recording the FIR (Ex.P-27), he sent the
information to the Court soon after the same was lodged. Carbon copy
of FIR with endorsement of the Court is Ex.P-29. Thereafter, he went
to the place of occurrence and prepared a site plan, which is Ex.P-30.
The memorandum of statement of accused Suresh was recorded under
Section 27 of the Evidence Act, which is Ex.P-25. The articles were
recovered from the place of occurrence vide memo Ex.P-28 including
the blood-stained earth, empty cartridges of .12 bore and one small
steel vessel (Lota). He identified such recovered articles as the one,
which were seized by him. The Arms licence of a single barrel gun was
also taken in possession vide recovery memo Ex.P-24. On 28.04.2001,
one country-made .12 bore pistol was taken in possession vide memo
Ex.P-24 along with two live cartridges. On the same day i.e. on
28.04.2001, one licensed single barrel gun of accused Virendra Kumar
Dubey was recovered from co-accused Suresh vide recovery memo
Ex.P-26. Two live cartridges were also taken in possession vide the
same recovery memo. On 28.04.2001, he recorded the statement of
Diwari Ram, witnesses Chandra Bhan Dubey and Hindupat Dubey. He
also recorded the statement of Banarsi Babu, Manoj Dixit, Shakuntala,
Pushpa, Chhikaudi as well as statement of Mohanlal Chourasiya at the
place of occurrence. The accused along with their father Baijnath were
arrested on 28.04.2001. On account of not having arms licence,
Virendra was charged for the offence under Section 25 and 27 of the
Arms Act whereas offence under Section 30 was lodged against Suresh
(sic - Virendra). He further stated that Taparia (hut) of the deceased is
about 150 feet from the place of occurrence and that there is no colony
behind Dal Mill of Raju Sindhi. The report of the Forensic Science
Laboratory is Ex.P-35 in response to the request of the police to
examine the firearms, live cartridges, empty shells, and the
bloodstained earth vide communication dated 28th May, 2001. The
report is dated 12.06.2001.
After completion of the investigation a report under Section
173 of Cr.P.C. was filed. The accused pleaded not guilty and were
made to stand trial. However, during pendency of the trial, Baijnath -
father of the appellants died. After examining the prosecution''s oral
and documentary evidence, the learned Trial Court convicted and
sentenced the appellants for the offences as mentioned above.
The prime witness of the prosecution case is Chandra Bhan
Dubey (PW-15), who has seen the occurrence and informed the father
of the deceased in the morning at about 7.45 a.m. Chhikaudi (PW-1)
and Mohanlal Chourasiya (PW-3) are the persons, who were near the
place of occurrence and their attention was drawn only after they heard
the firing of bullet.
Dr. B.M. Chourasia (PW-7) is the doctor who performed
postmortem examination on the body of the deceased. The injuries as
per the postmortem report (Ex.P-7) are as under:-
(i) a wound 3 cm x 2 cm over lower right arm medially present near elbow region oval in shape with lacerated margin and tattooing around it. Collar of abrasion present. Singed hair are seen around it. Approximately another wound over same site. Underlying muscles, bone have laceration present in depth; (ii) a disfigured and fragmented lacerated wound 5 cm x 4 cm over poster-lateral position on the right elbow region. Underlying muscles, tissue blood vessels lacerated and related part of lower end of humerus is # in pieces, related muscles propped out, and (iii) oval wound 3 cm x 2 cm with inverted margins, abdominal cavity deep. On probing, situated over right lower trunk, 3 inch from vertebral column, just below level of 12th rib.
According to Dr. Chourasia (PW-7), all wounds are ante-
mortem in nature and have been caused by firearms. On internal
examination, he recovered one metallic body embedded over lower
aspect in left iliac fossa; a black ring like body from clots; and, one
plastic object from the abdominal cavity. The mode of death was shock
due to excessive hemorrhage as a result of firearm injuries caused
within duration of twelve hours.
Chhikaudi (PW-1) has stated that at about 7.30 a.m. when
he was cooking his food, he heard the firing of a gunshot and on
opening the gate he found that the person who was standing near the
gate had been hit by the bullet. He did not see anybody. He went to
inform Raju but when he came back he did not see the dead body. In
the cross-examination, he stated that the dead body was near the tea
stall (kiosk) of Mohanlal Chourasiya and that he could not see any
person within a distance of 50 steps. In cross-examination by accused
Virendra, he stated that the persons selling the milk come around 7
a.m. near the kiosk of tea and on that day the milk-vendors were
present. In further cross-examination by Baijnath he stated that he has
not seen any person running away with the gun. He stated that Chandra
Bhan came after 15 minutes of his coming out of his room.
Mohanlal Chourasiya (PW-3) deposed that at the morning
time when he was at his tea shop, he heard the firing of a gun. He saw
a person running from the place of occurrence. He saw Mainbabu was
lying there. A person was seen running towards Saunra. He can
identify the person, who was running with the gun but the accused
were not one of the person, who ran from the place of occurrence. In
cross-examination, he stated that his kiosk is at about distance of 20-25
steps from the place where Mainbabu was lying. When he reached,
none from the family of Mainbabu was there.
On the basis of evidence of these two witnesses; Chhikaudi
(PW-1) and Mohanlal Chourasiya (PW-3), the argument of the learned
counsel for the appellants is that none of the persons, who were in the
close vicinity of the place of occurrence have seen Chandra Bhan (PW-
15), therefore, the testimony of Chandra Bhan is not of a reliable
witness. He is a chance witness; therefore, his statement cannot form
the basis for conviction of the appellants. In support of the contention
that the testimony of chance witness unless corroborated in material
particulars cannot be relied upon, learned senior counsel for the
appellants has placed reliance upon the judgments reported as AIR
1941 Privy Council 11 ( Ismail Ahmed Peepadi vs. Momin Bibi and
others ) and AIR 1976 SC 2032 ( Bahal Singh vs. State of Haryana ).
Chandra Bhan (PW-15) is the eyewitness examined by the
prosecution. Chandra Bhan has deposed in Court that on 27.04.2001 at
about 8 a.m., he had gone to meet Mainbabu as Mainbabu had
promised him to give money. When he reached near the Taparia (hut)
of Mainbabu, his mother-in-law was sweeping the floor. She told him
that Mainbabu has gone to Naugaon road for milk. He paddled the
bicycle to Naugaon road and on reaching there he saw Mainbabu
sitting with Lota (milk container) near Dal Mill of Raju Sindhi. He sat
with Mainbabu. Mainbabu told him that he will arrange the money and
that he should go back. After such promise, he started going back but
soon after he heard firing of gunshot. When he turned around, he saw
that all three accused including Baijnath had encircled Mainbabu. He
stopped bicycle and kept on looking towards them. He saw Mainbabu
was making attempt to get up but Suresh fired upon Mainbabu and
thereafter, Mainbabu fell on the ground. As soon as Mainbabu fell on
the ground then the accused persons ran towards the pond. He went
towards Mainbabu and tried to find out from Mainbabu as to who were
the persons who assaulted him but Mainbabu could not speak. In that condition, he came running to Diwari Ram, his uncle. He shouted that
Mainbabu has been assaulted by Virendra, Suresh and Baijnath and
that they have run towards the drain. On hearing the noise, his family
members such as Hindupat, Manoj Dixit and others went towards the
place of occurrence. Mainbabu was writhing in pain. They stopped a
tempo and took Mainbabu to hospital. The doctor at the hospital
informed that Mainbabu has died. The police came at the spot and
from the place of occurrence lifted a .12 bore cartridge, a steel vessel
(Lota) and bloodstained earth. In cross-examination, he stated that he
does not remember as to whether the requirement of money for the
wedding of his daughter was mentioned in Ex.D-5 or not. He cannot
explain the reason as to why such fact was not recorded in his
statement. The police station is 1? kilometers from the place of
occurrence. He admitted that there is lot of rush on Chhatarpur-
Naugaon road but he has no knowledge that whether any Chowkidar
resides in Dal Mill. There is a thrasher in front of kiosk of tea. He also
deposed that he does not remember as to whether he has given
statement Ex.D-5 that he asked Mainbabu that who were the assailants.
In cross-examination, he deposed that he was accused in a double
murder case of Dr. Johns though he was falsely implicated. He was an
accused in the murder of Lallu Kurmi. He was also accused in the theft
of buffaloes and also in a case of Narcotics. Another case was pending
against him for an offence under Sections 107, 116 (sic) but he does
not remember that Baijnath etc. were opposing party. He had no case
pending with father of Virendra. His family and Diwari Ram have
cases pending against father of Virendra pertaining to land. He was
dismissed from police service on account of criminal case registered
against him. He denied the knowledge that Chhikaudi was Chowkidar
in Dal Mill as he did not meet any person at the place of occurrence.
There was Chourasiya Industry, 60 to 70 feet away from the place of
occurrence but he cannot say whether such Industry works 24x7. He
cannot say whether Chowkidar stays in a Tendu leave Godown
opposite Dal Mill. Mainbabu used to live with his wife, mother-in-law
and children in his Taparia (hut). His hut was at a distance of 1.25
furlong downwards the fields of village Saunra. The place of
occurrence was about 1.5 furlong from the hut on the road leading
towards Saunra village. He went to Chourasiya Industry to seek help
but not to Dal Mill or Tendu leave Godown. He deposed that he left his
home around 7.15 a.m. and must have taken 10-15 minutes to reach the
hut of Mainbabu. He came in front of the pond where ladies were
bathing but did not inform anybody and came towards the house of
Mainbabu. He stopped at the road for 5-7 minutes. When people asked
him, he said that firing has taken place. In the tempo 7-8 people had
taken Mainbabu to hospital which, apart from him, included Hindupat,
Diwari Ram, Brijkishore, Banarsi Babu and other family members. In
10-15 minutes after reaching hospital, Superintendent of Police came
to the hospital. Soon after the Superintendent of Police came, the
police team also came. He deposed that Mainbabu is his cousin and
Pushpa is wife of Mainbabu. He denied that on the date of occurrence
Virendra was on duty of his depot. He himself has seen Virendra at the
place of occurrence. He denied the suggestion that on 12 th May, 2003,
he, Hindupat and Banarsi Babu had attacked Baijnath with knife
though he admitted that a case has been registered. He denied the
suggestion that on 6th February, 2003 there was a Panchayat where he
demanded Rs.3 Lac for giving a statement in favour of the accused.
On the basis of the statement of Chandra Bhan (PW-15),
learned senior counsel for the appellants argued that such witness has a
criminal background and has been involved in many cases including
the one against the accused themselves. Still further, he has improved
his statement than what was given by him in his statement recorded
under Section 161 Cr.P.C. (Ex.D-5) inasmuch as he has not deposed in
his statement that he had gone to meet Mainbabu for the purposes of
money. He has also not stated that he asked Mainbabu to disclose the
name of the assailants but he has not given such name. It is also argued
that normal human conduct is to take the injured to the hospital but in
the present case, the witness is stated to have left Mainbabu in injured
condition and gone to call Diwari Ram, the father of the deceased.
Such is not a normal human conduct. Therefore, statement of Chandra
Bhan is not that of a reliable and trustworthy witness whose statement
can be made sole basis of conviction of the appellant.
Banarsi Babu (PW-12) is the witness of recovery of dead
body taken in possession vide memo Ex.P-3.
Hindupat (PW-13) is the witness of recovery of country-
made pistol from Virendra and two cartridges. He is also a witness of
recovery of gun from Suresh vide memo Ex.P-24 on the basis of his
disclosure statement.
Diwari Ram has been examined as PW-14. He is the father
of the deceased and the informant on whose statement the FIR was
lodged.
The accused in their defence examined Ramkishore Mishra
as DW-1. He is a milk vendor, who is said to have witnessed the
occurrence. He deposed that one tall fair complexion person, who has a
mark under right eye has fired upon Mainbabu. In cross-examination,
he states that Chandra Bhan came to the place of occurrence after the
police came. He could not tell as to whether Mainbabu was wearing
pant-shirt and of which colour at the time of incident.
Sushil Kumar Patel has been examined as DW-2. He is also
said to be standing near the kiosk of Mohanlal Chourasiya (PW-3) and
that thereafter he has gone to the place of occurrence.
Subalal Yadav (DW-3) was working as TCT in State Road
Transport Corporation, Chhatarpur on 27.04.2001 engaged in
management and supervision of tyres. According to this witness,
Mahoba Sub-depot is under Chhatarpur depot. Virendra was posted in
Chhatarpur depot and was doing the duty at Mahoba Sub-depot under
him as Tool Keeper. He deputed Virendra on 26.04.2001 to visit
Mahoba on 27.04.2001. On 27.04.2001, Virendra left for Mahoba at
about 5 a.m. and came back at 3 O''clock. He admitted that there is
overwriting in the document Ex.D-10 at serial No.26 and such cutting
has not been initialed. In further cross-examination, when asked that
whether he has seen any vehicle going out of the depot at 5 a.m., the
Court has recorded the demeanor that the witness is evading the
question. He denied the suggestion that he is giving false statement
being a co-employee of Virendra.
Nand Kishore has been examined as DW-4. He is said to
have been posted at Mahoba Sub-depot as Security Guard. He deposed
that Virendra came to the Sub-depot at about 7 a.m. and worked in Sub
depot till 12 noon. In cross-examination, he admitted that his duty was
from 6 a.m. to 2 noon. The witness evaded the question as to whether
entry and exit time of the vehicle is recorded in the register. The Court
has recorded that no such entry was recorded.
Atmaram Yadav (DW-5) was working as Store Keeper at
Mahoba Sub-depot on 27.04.2001. Accused Virendra was working as
Tool Keeper at Chhatarpur depot. He deposed that Virendra came to
Mahoba Sub-depot at 7 a.m. Virendra used to come to Mahoba Sub-
depot every month for collecting the record of the tyres. Virendra came
to Mahoba Sub-depot at 7 a.m. and left at 12 noon. He deposed that the
movement order of Virendra is Ex.D-10. In cross-examination, he
admitted that the movement orders are recorded in the register of depot
but he has not kept that record. It is also correct that what work is done
is mentioned in the register. He also admitted that in memo Ex.D-10
there is no dispatch or serial number. The duty of the Store Keeper is
for 24 hours. There is no provision for residence at Mahoba Sub-depot
but he resides close to depot. He denied the suggestion that Virendra
did not come to Mahoba Sub Division on 27.04.2001 and not
performed any work relating to tyres. In response to the Court question
as to why Ex.D-10 was written and as to whether entry of document
Ex.D-10 is made in the records of the Corporation, he deposed that no
such entry is made though such entry is done so that nobody raises
false claim.
Mahaprasad has been examined as DW-6. He is said to be
in relation of accused Baijnath. He deposed that on 28.04.2001, he,
Baijnath, Suresh and Ram Bahadur reached bus-stand, Chhatarpur.
Radhacharan Mishra was waiting for them at the bus-stand. They went
to bungalow of Superintendent of Police, who told them that he is
calling Station House Officer of Orchha Road. One Tiwari came and
took all of them to Orchha. Baijnath and Suresh were arrested.
DW-7 is K.K. Tripathi, a Clerk from the Registration
Office, Chhatarpur, who had brought the registration register of
26.02.1998 pertaining to record of land of Khasra No. 1240 area 0.85
Hectare, 1247, 1248, 1251, 1254 and 1255 total area 3.16 Hectare
situate at village Saunra and other land of the same village bearing
Khasra No.1303, 1304, 1343, 1340 and 1345 area 6.19 Acre and
Khasra No.1429, 1430, 1431, 1432 and 1435 having area of 2.49
Hectare. He has deposed in respect of the sale deeds by which different
parts of the land were purchased on 18.06.1996, 07.08.1991,
23.12.1997 and 22.06.1995. On 5.9.2000, Mathura Prasad alias
Mainbabu has entered into an agreement for purchase of land whereas
on 8.9.1999, Sona Devi w/o Sohan Prasad Dubey executed an
agreement Ex.D-17. Similar documents Ex.D-11, D-14, D-15, D-16
and D-17 were executed.
On the basis of the defence evidence, the argument of the
learned senior counsel for the appellants is that there were property
disputes between the parties, therefore, the victim party has a motive to
implicate the appellants falsely. It is also argued that Subalal Yadav
(DW-3), Nandkishore (DW-4) and Atmaram Yadav (DW-5) have
deposed regarding discharging of duty by appellant Virendra at
Mahoba Sub-depot, therefore, he could not be present at the time of
occurrence.
We have heard learned counsel for the parties and find no
merit in the present appeal.
Chhikaudi (PW-1) and Mohanlal Chourasia (PW-3) have
deposed that they have not seen any person soon after the incident at
the place of occurrence. Therefore, the statement of Ramkishore
Mishra (DW-1) that he was at the place of occurrence with milk and
that of Sushil Kumar Patel (DW-2) cannot be relied upon. Such
witnesses have not been suggested that Ramkishore Mishra or Sushil
Kumar Patel were present at the time of occurrence and that they have
been wrongly not associated by the Investigating Officer. Therefore,
the presence of Ramkishore Mishra (DW-1) and Sushil Kumar Patel
(DW-2) at the time of occurrence is wholly unbelievable. Similarly, the
statement of Mahaprasad (DW-6) is a statement of the events after the
occurrence and therefore, not relevant. Admittedly, no grievance was
made before the higher officials complaining about the manner of
investigation. Though Mahaprasad (DW-6) is said to have met with
Superintendent of Police on 29.01.2001 but still not raised any
grievance of false implication of the accused.
The entire defence is based upon Ex.D-10 i.e. the
movement of appellant Virendra to Mahoba Sub-depot but there is a
clear interpolation in the date of issuance of such movement order. The
date appears to have been changed to 26.04.2001 from 21.04.2001.
Still further, there is no dispatch number for which there is provision in
the document. In absence of any dispatch number, such piece of paper
could be created and introduced at any point of time. The dispatch
register of the Chattarpur or Mahoba Sub-depot has not been produced.
Thus, such document Ex.D-10 cannot be relied upon in support of a
plea of alibi that Virendra was not at the place of occurrence on
27.04.2001. The witnesses who have been examined, are working in
the same office, therefore, some interpolation in the documents can be
made by them to help their co-employee. Thus, such document does
not inspire confidence as that of impeccable integrity.
Coming to the prosecution evidence, witnesses Chhikaudi
(PW-1) and Mohanlal Chourasia (PW-3) have been relied upon to
contend that Chandra Bhan Dubey (PW-15) was not present at the time
of occurrence but such inference is not clearly possible on the basis of
their testimony. Chhikaudi (PW-1) has deposed that he opened the door
of his house after he heard firing of a bullet but soon thereafter he has
not seen the dead body at the place of occurrence. Therefore, before he
could reach the place of occurrence, the police has arrived and
removed the dead body. His testimony is not helpful to the appellants
as he could not notice when the dead body was taken away. His
statement is of an indifferent person to the events happening around
him. The argument raised is that he is not a hostile witness, therefore,
the prosecution is bound by his statement. The statements of the
witnesses are to be appreciated in their entirety. Admittedly, he is not
the witness of occurrence but in respect of the events subsequent to the
occurrence. The statement of the witness is not that of a trustworthy
witness who has even failed to notice, as to when the dead body was
removed from the place of occurrence, therefore, he cannot be relied
upon either by the prosecution or by the defence.
Similarly, Mohanlal Chourasia (PW-3) has deposed that he
has seen the person running with the gun but none of the accused
persons are the person who was running from the place of occurrence.
His testimony is again not relevant for determining as to whether the
accused were not the persons who assaulted the deceased. The witness
deposed that he has seen the person running away with the gun and he
can identify him but since he has seen the person running away, it is
just possible that it may not be possible for him to identify the assailant
as he was running.
On the other hand, the statement of Chandra Bhan (PW-15)
is assailed on the ground that he is a chance witness and that he has
improved upon his statement (Ex.D-5) made to the police. Further
contention is raised that the witness is involved in many criminal cases
and that he is the near relative of the deceased and therefore, his
testimony cannot be made basis of conviction of the appellants.
Though the argument raised by learned senior counsel
seems to be attractive but on a close analysis, we find that none of the
arguments to discard the statement of Chandra Bhan (PW-15) can
come to the rescue of the appellants. Different people react differently
in the same set of circumstances. In the given circumstances, a person
may tend to help the injured to take him to hospital but if the witness
has not taken the injured to hospital but has run to call the family of the
injured, cannot be said to be wholly improbable conduct. The fact
remains that the police station is located more than one kilometer away
from the place of occurrence and the FIR is recorded within one hour
of the occurrence with the clear description that Chandra Bhan has
seen the occurrence and informed the father of the deceased. There was
not much of time with the prosecution to introduce Chandra Bhan as a
witness unless the sequence of the events has not happened as deposed
by the witness.
Their Lordships of Privy Council in Ismail Ahmed Peepadi
(supra) have held that though the ''chance witness'' is not necessarily a
false witness, it is proverbially rash to rely upon such evidence.
Similarly, the Supreme Court in Bahal Singh (supra) has held that
evidence of chance witness is not necessarily incredible or
unbelievable but it requires cautious and close scrutiny. Same view has
been reiterated recently in another judgment reported as (2016) 10
SCC 220 ( Mahavir Singh vs. State of Madhya Pradesh ).
Thus, the above analysis of the statement of Chandra Bhan
(PW-15) shows that firstly, he cannot be called as a chance witness
because he had a purpose to contact the deceased for arrangement of
money for the wedding of his daughter and secondly, even if he is
construed to be a chance witness, the testimony of such witness is
proved to be a reliable and trustworthy witness, though his past
conduct may not be above-board.
In respect of improvements in the statement (Ex.D-5) than
the statement given in the Court, the said argument is also not tenable.
Mrs. Agarwal, learned counsel for the State has pointed out that the
witness has stated even in the initial statement that he had gone to the
deceased in respect of arrangement of money. Although the said
statement finds mention, not in the opening line but in the later part of
the statement, but the fact remains that he had gone to meet the
deceased for the arrangement of money. This fact has been mentioned
in the statement Ex.D-5.
In the statement Ex.D-5, Chandra Bhan (PW-15) has
deposed that after the assailants ran away from the place of occurrence,
he went upto Mainbabu but he did not speak. The argument of the
learned counsel for the appellants that such part of the statement that
he has not stated in the statement that he lifted his head and asked from
him the name of the assailants is a contradiction. Reliance was placed
by the learned senior counsel for the appellants on the explanation to
Section 162 of Cr.P.C. We find that in the statement Ex.D-5 the witness
has deposed that he has seen the appellants and Baijnath as the
assailants but in the statement in the Court he has stated that he lifted
his head and tried to find out the assailants. It is not a contradiction to
the statement made to the police under Section 161 Cr.P.C. but an
additional explanation. It is not a statement which contradicts in any
way the statement made to the police. In terms of explanation to
Section 162 Cr.P.C., an omission to state a fact or circumstance in the
statement referred to in Sub-section (1) may amount to contradiction if
the same appears to be significant and otherwise relevant having regard
to the context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context is a
question of fact. The statement that Chandra Bhan (PW-15) asked the
deceased to disclose the name of the assailants was in a way to take a
dying declaration but if the dying declaration could not be given, that
cannot make a contradiction in the statement when such statement is
neither significant nor contradicting any part of the earlier statement.
May be, the witness has many criminal cases against him
and including locked-up with the appellants in a criminal case but the
said involvement will not be sufficient to discard the testimony of the
witness. When his entire statement is read in entirety, it inspires
confidence. Still further, the licensed .12 bore gun of Virendra was
recovered on the basis of disclosure statement of Suresh. As per the
report (Ex.P-35) of Forensic Science Laboratory, such gun is marked
as Ex.A-2 and that the empty cartridge Ex.EC-1 has been fired from
such gun. The fired cartridges marked as Ex.W-1 to W-3 have been
fired from .12 bore gun and .12 bore pistol. The clothes of the deceased
have the corresponding cuts from the projectiles which were fired.
Keeping in view the absence of blackening, the firearm must have been
fired from a distance of more than three feet. Such report Ex.P-35
supports the prosecution version that the two separate weapons were
used by Virendra and Suresh at the time of occurrence.
The empty cartridges recovered from the place of
occurrence have been found to be fired from .12 bore gun and .12 bore
pistol recovered from appellants Suresh and Virendra respectively.
The argument that statement of the witness that he has seen
Suresh firing, therefore, there is no evidence as to who fired first shot
out of Virendra or Baijnath. The said argument is again not tenable.
The witness looked back after firing of the first shot. The second shot
was fired by Suresh as deposed by him. The argument is again not
tenable for the reason that there is no recovery of any weapon from
Baijnath. There is a recovery of country-made pistol in pursuance of
disclosure statement suffered by Virendra. The licensed weapon of
Virendra was with Suresh. Therefore, since the firearm was recovered
from appellant Virendra, he is the one who is bound to fire from his
country-made pistol in his possession.
Considering the entire facts and circumstances, we do not
find any illegality in the judgment passed by the learned Trial Court
convicting the appellants for the offence as mentioned above.
Resultantly, the appeal fails and is dismissed.