Crl. Appeal No. 2041 of 2001 · Uttaranchal High Court · 2006

gunshot (firearm) injuries about half a day in duration. The injuries were kept under observation.

Thereafter, investigation was started by S.I. Girish Chandra-PW7. After completing the investigation, he submitted the chargesheet.

The accused-appellant was charged u/s 307 I.P.C. and he denied the charge and claimed trial.

The prosecution is support of its case, examined Jagdish Chandra-PW1 who was the Sabhapati of the village and he scribed the report and her is not the eyewitness of the incident. Prem Singh- PW2 is the injured eyewitness of the incident and he had narrated the total eye account of the incident in his evidence. Dr. M.N. Dhodiyal-PW3 had examined the injured on 01.04.1987 in B.D. Pandey Hospital, Nainital and he had opined that the injured sustained the gun shot injuries and these injuries were possibly to be caused on 31.03.1987 at about 8:00 pm. He had further opined that the injuries may be cause by any fire arm including the gun. Bhawan Singh S/o Lal Singh-PW4 is the employer of the injured-Prem Singh. He was also an eyewitness according to the prosecution. The injured-Prem Singh was working in his house and he was cutting the fodder. He had further stated that he had not seen who had fired upon the injured.

Thereafter, the accused-appellant was examined u/s 313 Cr.P.C. and he denied all the allegations made in the evidence and he has stated that he had been falsely implicated due to the enmity. He had not stated anything except he pleaded that he had been falsely implicated. The appellant had not produced any oral and documentary evidence in his defence.

After appreciation of the evidence, the learned Sessions Judge convicted and sentenced the appellant as indicated above.

I have heard learned counsel for the parties and perused the record.

At the outset it need to be mentioned that it is not disputed that the injured-Prem Singh sustained the injures on the date of the occurrence. Prem Singh-PW2 had himself appeared before the court below and he had stated that the sustained the gun shot injuries on

31.03.1987. Dr. M.N. Dhodiyal-PW3 had also stated that the injured sustained the injuries by fire arm on 31.03.1987 at about 8:00 pm. It is not disputed that the injured-Prem Singh sustained the gun shot injures on his person.

Now, I have to consider whether the appellant-Harak Singh was responsible of the injuries sustained by Prem Singh-injured. Prem Singh was cutting the fodder in the baranda of Bhawan Singh-PW4, the appellant came there and he shot fire upon the injured consequently he fell down on the ground and the appellant fled away from the place of incident. Learned counsel for the defence contended that the accused-appellant had been falsely implicated and he had not caused any injures to the injured-Prem Singh. In support of the prosecution case, the prosecution had adduced the evidence of the injured Prem Singh-PW2. Prem Singh had narrated the entire incident in his evidence as indicated in para 2 of my judgment. He is the star witness of the case. The prosecution had also adduced the evidence of Bhawan singh-PW4, the employer of the injured. However, he was declared hostile and he had not stated that he saw the appellant to fire upon the injured.

The evidence of Bhawan Singh-PW4 as indicated above also corroborates the factum that the incident took place but he had denied that he had seen the appellant to fire upon the injured. It is well settled principle of law that the testimony of the hostile witness cannot be discarded in toto. The evidence of hostile witness can also be relied to the extent it supports the prosecution version. It remains admissible in the trial and there is no legal bar to base the conviction on their testimony. In the instant case, the appellant had not made any cross examination with regard to the factum of the incident. Thus the testimony of the witness on the other point is credible and cogent. The very object of taking evidence it to discover the truth as far at it is humanly possible for the court to do so. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, in such a case, the court has power and duty of deciding whether or not to believe the witness. In the instant case the witness has stated that fire was shot and immediately he fell down on the ground and he sustained the gun shot injuries. The factum of the incident has been proved by the Bhawan Singh-PW4. He had not only supported the prosecution that he saw the appellant to fire upon the injured-Prem Singh. It is also pertinent to mention here that the injured himself had stated that Bhawan Singh-PW4 was sitting in the first floor of his house and he could not see the appellant standing on the road form where he fired upon the injured.

Learned counsel for the appellant contended that the sole witness Prem Singh-PW2 had claimed that he had seen the appellant making the fire upon him from the road and it was pointed out the there was no source of light at the spot and the injured could not have recognized the appellant on the road. Learned A.G.A. refuted the contention. It is also in the evidence that the appellant was in the road. It is also in the evidence that fire was shot form a distance of 12-15 paces from where the injured was cutting the fodder. It is also in the evidence of Bhawan Singh-PW4 that there were bulbs in baranda and it is also in the evidence of injured-Prem Singh that there were electric light. It is also in the evidence that there is a forest adjacent to the place of occurrence and it is also in the evidence that there was no light on the road or adjacent to the house. of Bhawan Singh-PW4. There were 4-5 bulbs in the house and baranda of Bhawan Singh-PW4. If the electric light was there and there was a dark in and around the house, it is sufficient to identify the culprit form a distance of 12-15 paces. I do not find any force in the argument advanced by the learned counsel for the appellant.

It was further contended that the prosecution had stated that there is enmity in between Bhawan Singh and the appellant. Bhawan Singh-PW4 had been declared hostile and he had not stated that there is enmity in between them. When he appeared in the witness box rather he tried to support the appellant. The learned counsel for the appellant further contended that the prosecution could not prove the motive against the accused-appellant as such, the appellant is entitled to be acquitted. It is well settled principle of law that if the evidence of witness is reliable, satisfactory and convincing then the absence of motive becomes irrelevant for the decision of the case. It is well settled that establishment of motive is not sine quo non for proving the prosecution case. The prosecution in the present case has not proved the motive. Absence of the motive for crime in my view is of no consequence. The role of the accused persons in the crime stands clearly established. The evidence of the injured is very clear and convincing in this case. it is also well settled law that the establishment of motive is not sine quo non for proving the prosecution case. This court has also held this view in Yunus Vs. State of M.P. SCC 2003 (1) p/429 and 2004 (2) U.D., 232 Kalbe Ali and another Vs. State of Uttaranchal.

It is also pertinent to mention here that the appellant had not stated any enmity with the injured. The injured must be interested to give his evidence so as to convict the appellant for his wrong doing and he was not like to adopt a course by which some innocent person would be convicted in place of a person really guilty of causing injuries. It would not be just and proper to discard the evidence of the injured on account that the motive had not been proved by the prosecution. I do not find any merit in the contention advanced by the learned counsel for the appellant.

It was pointed out that the prosecution had not proved the recovery of the gun and as such, the accused cannot be convicted. It is also in the evidence that the gun was given to I.O. by the S.D.M. the Investigating Officer had not investigated from where the said gun was received by the S.D.M. The Investigating Officer had also sent the gun to the ballistic expert form where it was reported that the spent cartridges were used by the gun. If the investigation is defective that pales not insignificance when ocular testimony is found credible and cogent. In the case of defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer it the investigation designedly defective. In the instant case this may be the remissness on the part of the Investigating Officer/ (See Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654, Chhotu Vs. State of Maharashtra 1997 CRI.L.J. p/4394 (SC), Karnel Singh Vs. State of M.P. 1995 CRL.L.J. p/4173 and Ram Sewak Vs. State of U.P. (2006) 1 SCC (Crl.) 534). At the most, it can be said that there was recovery of the gun. Non recovery of the gun does not detract from the case of the prosecution where the direct evidence is acceptable. The Hon’ble Supreme Court in (2000) 9 SCC p/82 in M/s Lakhan Sao Vs. State of Bihar and another has held as follows:

18. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable. Further, PW8 was not questioned on the non-recovery of the pistol by the accused. It was not even suggested to PW 6 nor have any of the defence witnesses said that there was any enmity between PW 6 and the accused and that PW 6 had any cause for implicating the accused falsely. No inconsistency has been established in his evidence. The naming of the accused and the detailed account of the incident within a short while of the occurrence in the F.I.R. militates against any suggestion of fabrication.

It was further pointed out that the holes of the cartridges were recovered from the place of the occurrence. Learned counsel for the appellant further pointed out that the evidence of the Investigating Officer S.I. Girish Chandra-PW7 who had proved the recovery of spent cartridges had stated that the holes of the cartridges were recovered in presence of the witnesses and it was sealed at the spot and fard was prepared which was read over to the appellant. Learned counsel for the appellant further contended that this recovery cannot be taken into account because the S.I. Girish Chandra-PW7 himself had stated at para 7 of his evidence that he did not know from where the constable brought the box. He further contended that Bhawan Singh-PW4 had not supported prosecution on this point. He was declared hostile. Perusal of the record reveals that S.I. Girish Chandra-PW7 had stated that the said spent cartridges were recovered and fard was prepared. It is a matter of common experience that in the recent times there has been a sharp decline of ethical values in public life. Even in ordinary cases the witnesses are not inclined to depose. One of the reason may be that they do not have the courage to depose against an accused because of threat to their life, or being neighbor of the accused. It is also seen that a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. Thus the public prosecutor in an ordinary case had to face with so many odds. The courts while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach in the matters. The I.O. had proved the recovery of spent cartridges. In this case. S.I. Girish Chandra-PW7 is totally credible and cogent with regard to the recovery of spent cartridges. The recovery of the spent cartridges further corroborates the evidence of the prosecution.

The evidence of the injured is credible and cogent and the medical evidence also corroborates the evidence of Prem Singh-PW2. Bhawan Singh-PW4 also corroborated the evidence on the point that he heard the noise of gun shot and consequently the injured sustained the gun shot injuries and fell down on the ground. The evidence of Bhawan Singh-PW4 also corroborates the factum of evidence which is relevant under Indian Evidence Act. Apart this, the Investigating Officer has stated that the accused has absconded immediately after the incident and attachment order was passed u/s 82/83 Cr.P.C. from the court and his property was attached and the fard of attachment Ex.Ka.8 is on the record. Thereafter Chargesheet was submitted against the appellant before the court below as absconder. It is well settled position of law that absconding itself is not a circumstance to effect the accused but if the other circumstances and evidence proves the factum of story of the prosecution, then the said circumstances cannot be side stepped as an innocuous circumstances. The appellant had a liberty to explain u/s 313 Cr.P.C. as to why he did not appear before the court below or before the Investigating Officer immediately after the incident. During the questioning u/s 313 Cr.P.C., the appellant instead of making at least an attempt to explain or to clarify the incriminating circumstances of absconding, he took a case of denial. The aforesaid feature of the absconding of the accused cannot be side stepped as an innocuous circumstance. This circumstance of absconding has the utility to form the link to complete the full chain. (See Om Prakash Vs. State of Uttaranchal 2003 SCC (Crl) 412). In this case, the accused committed the murder and thereafter absconded. The Hon’ble Apex Court held at para 10 of the judgment that one of the circumstance born in mind is that the appellant absconded and he was apprehended after five years. There was no apparent explanation of this.

Let the record of the court below be sent to the trial court along with a copy of this judgment immediately

All applications pending in this case are stand disposed of in terms of the judgment. 19th May, 2006 Shiv (J.C.S.Rawat, J.)