Verma vs State of U.P.

Imtiyaz Murtaza, J.—This jail appeal is directed against the judgment and order dated 2.5.2005 passed by Special Judge (E.C. Act), Shahjahanpur in S. T. 673 of 2001, whereby the Appellant is convicted u/s 302, I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000. In default of payment of fine further imprisonment for 3 months.

The prosecution case in a nutshell is that a first information report was lodged by Ram Bhajan alleging therein that about 4 years back informant had married his aunt Shakuntala with Verma. He was a drunkard and used to gamble. About 3 months back he had sold his house and land as he lost in gambling. His wife was annoyed with him and she went to her parent''s house and did not return despite Verma wanted her to live with him. On account of this reason Verma was annoyed with him and his brother Badshah. On 10.7.2001, his brother Badshah was irrigating the field of Ganga Ram through an engine near a pond. The engine was not working properly and he alongwith his father Sita Ram and Ganga Ram was repairing the pipe. Hardwari was also working there. He also reached near the engine. At about 7 a.m. Verma reached there carrying a pistol and fired upon Badshah, which hit him on the back. He died on the spot. Verma ran away and could not be apprehended. He lodged a report on 10.7.2001 at 10.30 a.m. On the basis of the first information report Case Crime No. 165 of 2001 was registered at 8.30 a.m. by H. C. Hari Singh. He also prepared chik F.I.R. and the G. D. entry on the basis of the first information report which are Exts. Ka-3 and 4. The case was investigated by S.H.O. Rajesh Pathak. He prepared the inquest report, Ext. Ka-5. He also prepared the recovery memo of blood stained and plain earth from near the place of occurrence, which is Ext. Ka-6. He also prepared challan lash, sample seal, photo lash, letter to C.M.O. which, are Exts. Ka-7 and 10. The site plan of the place of occurrence is Ext. Ka-11. After the conclusion of the investigation he submitted the charge-sheet u/s 302, I.P.C. which, is Ext. Ka-12. S.I. Rajendra Singh recovered a country made pistol and empty cartridge and prepared a recovery memo which, is Ext. Ka-13. A case u/s 25, Arms Act was also registered against Verma. S.I., K. P. Gautam had also filed a charge-sheet against Verma which is Ext. Ka. 17.

The post-mortem examination on the dead body of Badshah was conducted by Dr. Anil Sood on 10.7.2001 at 4.45 p.m. He noted following ante-mortem injury:

Gun shot wound of entry 2.5 cm. x 2 cm. chest cavity deep on the left side back just outer to midline and 15 cms. below the base of neck. Margin inverted. Bleeding and tattooing present.

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem firearm injury.

After the submission of charge-sheet the case was committed to the Court of Sessions. The Sessions Judge has framed charges under Sections 302, I.P.C. and 25, Arms Act. The accused had denied the charges and claimed to be tried. His request for amicus curiae was accepted by the Sessions Judge.

The prosecution in order to prove its case had examined 4 witnesses. The Investigating Officer of the case could not be examined on account of his death before the trial could commence.

P.W. 1 Ram Bhajan deposed that deceased Badshah was his real brother. About 2 years and 2 months back at about 7 a.m. he, his brother Badshah, father Sitaram and Gangaram were irrigating the field of Ganga Ram. The engine which was used for irrigating the field was not working properly, Badshah, Sitaram and Ganga Ram were repairing the pipe of the engine. Hardwari was weeding the crop. He was also standing there. Verma reached there and took out a pistol and fired upon his brother Badshah, who sustained injury on his back and he died. He scribed the report by Ram Saran Singh, which is Ext. Ka-1. Prior to the occurrence he got married his relative Shakuntala with Verma. He was a drunkard and gambler. He had sold all his properties and his wife started living with her parents. Thereafter, Verma called her but she did not return. On that account Verma was annoyed with them and he committed murder of his brother Badshah.

The prosecution examined Ganga Ram as P.W. 2 and he corroborated the testimony of P.W. 1. He deposed that about 2 years and 2 months back at about 7 a.m. he was present at his field. He had got engine fixed in his field by Badshah. His younger brother was weeding the crop. Sitaram, Ram Bhajan and Badshah were also present there. Verma reached there and took out a country made pistol and fired upon Badshah and he died on the spot. He further deposed that Ram Bhajan and Badshah got married their aunt Shakuntala with Verma. Verma sold all his movable and immovable properties due to his habit of drinking and gambling. Shakuntala had left him and started living with her parents. Ram Bhajan was inimical with Badshah.

P.W. 3 Dr. Anil Sood conducted the post-mortem examination.

P.W. 4 Constable Nokhey Lal is pairokar of P. S. Nigoha. He proved the police papers which were in the handwriting of the Investigating Officer, S.I. Rajendra Singh and S.I. K. P. Gautam. He also proved chik F.I.R. and G.D. entry of registration of the case.

The Appellant-Verma had also filed his written statement. He denied the prosecution case and stated that he never quarrelled with his wife and on the date of occurrence his wife Shakuntala was living with him. He has been falsely implicated in this case on account of partybandi in the village. He further stated that Ram Bhajan was trying to purchase his properties and he did not sell his property to him and he was annoyed with him due to this reason. He denied the prosecution suggestion that he was a gambler and drunkard. He also admitted that deceased Badshah was very bold and he was prepared to take cudgel with any one and he had several enemies. The wife of Badshah had illicit relation with his nephew Shiv Shankar and both were inimical to each other. After the death of Badshah his wife started living with Shiv Shankar as his wife. Badshah was murdered during the night. The police had wrongly got recovered a country made pistol on his pointing out.

The Sessions Judge after considering the evidence on record convicted the Appellant as aforesaid and acquitted him u/s 25, Arms Act. Hence this appeal.

We have heard Sri Harish Chand Tewari, amicus curiae and Sri R. K. Singh, A.G.A. and perused the entire record.

The first submission of the counsel for the Appellant that no independent witness has been produced to support the case. P.W. 1 Ram Bhajan is the real brother of the deceased and P.W. 2 Ganga Ram was inimical with the Appellant because he wanted to purchase the land of the Appellant.

We have carefully examined the testimony of the witnesses and in our opinion the testimony of P.W. 1 Ram Bhajan cannot be rejected solely on account of the fact that he is related and interested witness. In the case of State of Himachal Pradesh Vs. Mast Ram, the Apex Court held "the law on the point is well-settled that the testimony of relative witness cannot be disbelieved on the ground of relationship. The only requirement is to examine their testimonies with caution."

The counsel for the Appellant had also challenged the presence of the first informant and submitted that there was no occasion for him to be present at the alleged time and place of the occurrence. We have considered the submission and in our opinion there is no substance in the same. P.W. 1 Ram Bhajan is the first informant. He has explained his presence on the ground that Badshah was irrigating the field of Ganga Ram. His father and Ganga Ram were repairing the pipe and he was also present there. He was extensively crossed but nothing was elicited to doubt his presence at the time and place of the occurrence. It is also important to note that the endeavour of the close relative would be to punish the perpetrator of the crime instead of falsely roping the innocent person. P.W. 2 Ganga Ram is an independent witness. He has also corroborated the testimony of P.W. 1 Ram Bhajan.

The next submission of the counsel for the Appellant is that the Appellant had no motive to commit the offence. In the first information report it was mentioned that the deceased was married with the aunt of the informant and she had left the company of the Appellant due to his habit of drinking and gambling and it was also mentioned that he sold all his properties.

P.W. 1 stated that his brother was very bold and he was not afraid by any one. P.W. 2 Ganga Ram deposed that Ram Bhajan and Badshah, deceased, are real brothers and Badshah was mediator in the marriage. Moreover, in a case which turns on direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there being any doubts raised in this regard. If the incident in question as projected by the prosecution supported by eye-witness account is to be accepted then the presence or absence of motive itself also will not make the prosecution case false. It is also important to mention that there is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is adduced to be trustworthy and reliable and find corroboration from the medical evidence the finding of guilt can be recorded even if the motive for the commission of the crime has not been proved. The motive for doing the criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. The motive of the crime is mentioned right from the inception of the case and both the witnesses have deposed about the same in the Court. The role of the Appellant in the crime stands clearly established. The ocular evidence is very clearly convincing in this case. The correctness of conviction cannot be tested on the touch stone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused have committed the crime.

The counsel for the Appellant submitted that the Investigating Officer of the case is not examined in this case and the Appellant was deprived of the opportunity to cross-examine the witnesses of the prosecution to bring out the contradictions in their statements before the police. In this case the Investigating Officer could not be examined because by the time trial started he was dead. P.W. 4 Nokhe Lal has proved the documents prepared by the Investigating Officer. It is no doubt desirable for the prosecution to examine the Investigating Officer but it does not affect the credibility of the otherwise trustworthy testimony of the eye-witnesses. The entire prosecution case cannot be disbelieved only on the ground that the Investigating Officer was not examined during the trial. The Apex Court in the case of Behari Prasad etc. etc. Vs. State of Bihar, ,has held as under :

We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial.

In the case of Bahadur Nayak v. State of Bihar (2000) SCC 1186: 2000 (2) ACR 1515 (SC),the Apex Court has held that "non-examination of an Investigating Officer was of no consequence when it could not be shown as to what prejudice had been caused to the Appellant by such non-examination.

We are of the view that in this case also non-examination of the Investigating Officer has caused no prejudice at all. There were eye-witness who have given credible and believable statement about the occurrence and their evidence cannot be discarded merely because the Investigating Officer was not examined.

The learned amicus curiae further submitted that scribe of the report Sri Ram Saran Singh was not examined in this case and Appellant has been gravely prejudiced. He submitted that an adverse inference must be drawn against the prosecution that if scribe had been examined the Appellant would have been able to establish that he was not present at the time of incident. We are unable to accept this submission because the first informant P.W. 1 Ram Bhajan has been examined in this case. He was extensively cross-examined by the Appellant. The presence of the scribe is not mentioned by the informant at the place of occurrence. It is important to note that the informant did not suppress the name of the scribe but on the other hand he has specifically given the name of the scribe as Ram Saran Singh son of Khan Singh resident of village Vichhauli, P. S. Nogohi, district Shahjahanpur and non-examination of the scribe does not in any way affect the prosecution case. The two eye-witnesses described the occurrence in a highly convincing and straight forward manner.

We have carefully examined the evidence of the eye-witnesses who have fully supported the prosecution case. According to the prosecution case the occurrence took place at 7 a.m. on 10.7.2001 and the report was lodged at 8.30 a.m. The distance of the police station was 5 kms. The first information report was promptly lodged. The Appellant was named in the first information report. The informant had explained his presence at the place of occurrence and matter of firing is corroborated by the post-mortem examination report which shows that the deceased had received firearm injury on his back from a close range. The time of occurrence is also corroborated by the post mortem examination report which shows that stomach contained 50 ml. of fluid. Small intestine contained digested food material and gases and large intestine contained fecal matter and gases. The post mortem on the dead body was conducted on 10.7.2001. The doctor noted probable time since death about half day. Eye-witness account was furnished by testimony of P.W. 1 Ram Bhajan who is the real brother of the deceased Badshah. P.W. 2 is also an eye-witness and he had no direct enmity with the Appellant. It was only suggested that on account of partybandi in the village he has been falsely implicating the accused, it was also suggested that the Appellant has been falsely implicated by P.W. 2 because he wanted to purchase the land. There is nothing on the record to support this suggestion which was denied by P.W. 2 Ganga Ram. The place of occurrence is also proved by the recovery of blood stained earth. The Investigating Officer had also shown place of engine of deceased in the site plan.

We are of the opinion that prosecution has successfully proved its case beyond reasonable doubt and the Sessions Judge has rightly recorded the findings of conviction against the Appellant and we also concur with the same.

In view of the above the appeal is dismissed. The conviction and sentence of the Appellant awarded by the trial court is affirmed. The Appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Office is directed to communicate this order to the concerned trial court for information.