Ajay Bhanot, J.
1. The jail appeal arises out of the judgment and order dated 16.01.2002 passed by the learned Special Judge (E.C.Act), Rampur in S.T. No.7/97 under Section 302/34 of the IPC. The learned Trial court has convicted the appellant-accused for an offence under Section 302 of the IPC and has imposed a punishment of life imprisonment along with a penalty of Rs.5,000/-, in default of payment of such penalty, an additional term of six months imprisonment has been imposed upon the appellant.
2. In the instant case, the criminal law process was set in motion after a F.I.R. lodged in regard to the incident of crime.
3. The FIR was lodged by an eye witness to the crime one Zahid. The FIR contains a brief but a clear account of the prosecution case. The FIR was lodged on 10.09.1996 at Patwai Police Station.
4. The prosecution case as set out in the FIR asserts that Shahjahan, daughter of Manjoor Husain, (wife of one Shakeel), was staying with her father in village Patwai for the past two years. Shahjahan had illicit relations with one Wahid-appellant, resident of Senfani. Ahmed Nabi was the brother-in-law of Wahid. Ahmed Nabi belonged to the village of the complainant-Jahid. The complainant-Jahid and his cousin-Dilawar, son of Badalu, Kayum, son of Dhoomi and Shakeel, son of Gulami, all residents of village Ajitpur, P.S.-Civil Lines, District-Rampur had arrived at village Patwai to take Shahjahan, wife of Shakeel back to her marital home. The members of the community intervened and held a panchayat where it was resolved that Shahjahan would be sent back to her marital home with her husband. The panchayat of the community members convinced Shahjahan to live with her husband Shakeel in her marital home at Ajitpur. The decision of the community panchayat was honored and Shahjahan left along with the aforesaid person after bidding farewell at 8.30 p.m. The party of the aforesaid persons was waiting at the Patwai crossing for the last bus, when at 8.45 p.m., Wahid of Senfani Bale arrived and told the aforesaid party that he would not allow Shahjahan to go to Ajitpur. Shahjahan told him that Dilawar will not let me go with you and he has to be removed from the path/their midst. At this point, Wahid took out a tamancha (country made pistol) and shot at Dilawar. At the time of incident nearby shops were lit up. Dilawar was felled to the ground by the bullet injury. Out of fear none of the members of the party chased Wahid. The complainant party took deceased-Dilawar to the police station in an injured state.
5. To bring home the charge nine witnesses were examined by the prosecution. In addition the prosecution tendered documentary and expert evidence. The following witnesses were examined by the prosecution, namely, P.W.1-Jahid, P.W.2-Kayum, P.W.3-H.C.88 Udaiveer Sharma, P.W.4-Salim Mian, P.W.5-Krishna Kumar Tyagi, Sub-Inspector, P.W.6-Roopram, P.W.7-Ram Avtar Arun, P.W.8-Dr. Kafil Ahmad Khan and P.W.9-Rajesh Babu. The complaint was marked as Exh. Ka-1, chik report marked as Exh.Ka-2, general diary report marked as Exh. Ka-3, inquest report marked as Exh.Ka-4, challan of the dead body marked as Exh.Ka-5, letter/majrubi to the C.M.O. marked as Exh. Ka-6, photograph of the dead body marked as Exh.Ka-7, death memo marked as Exh.7Ka/7, letter to the R.I. marked as Exh.Ka-8, site plan marked as Exh.Ka-9, original documents and handwriting marked as Exh.10 and post mortem report marked as Exh.Ka-12.
6. The F.I.R. was lodged with promptitude on 10.9.1996 at Patwai Police Station under Section 307 of the IPC. After the death of Dilawar section 302 I.P.C. was incorporated in the F.I.R. The incident occurred at 8.45 p.m. on 10.09.1996. The scribe of the FIR was one Salim Mian-P.W.4 and the scribe of the chik was Head Muharir-Udaiveer Sharma-P.W.3 were duly examined. The witnesses duly proved the respective documents. The distance between the place of incident and the police station is about 22-30 steps. There is no slippage of time from the incident to the lodgment of the FIR. This is good reason to rule out any afterthought or post facto embellishment in the prosecution version as set out in the FIR. The FIR on account of the aforesaid facts is a credible document which was duly proved.
7. P.W.1-Jahid, one of the eye witness to the incident and the informant of the case, deposed as P.W.1 before the trial court. In his testimony before the trial court, Jahid asserted that two years and five months prior to his deposition, he along with Dilawar bhai, Kayum and Shakeel went from his village i.e. from village Ajitpur to the residence of Manjoorbhai at Patwai. Daughter of Manjoorbhai was Shahjahan, was married to Shakeel of village Ajitpur. Since two years prior to the date of the incident, Shahjahan was residing in her paternal home in Patwai along with her father. Shahjahan had illicit relations with accused-Wahid, hence, she did not reside with her husband. On the date of the incident, this group of persons went to Patwai to bring Shahjahan back to her
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marital home. On the date of incident, the community panchayat had decided that Shahjahan would go with her husband and live in her marital home. At 8.30 p.m. on the aforesaid date, Shahjahan left her paternal home after bidding farewell with the said party of Jahid and others. When this group of persons came to the Patwai crossing and were awaiting for the bus, at about 9.00 p.m., accused-Wahid arrived and told Shahjahan that he would not let her go to Ajitpur. Shahjahan told the accused that Dilawar has to be removed from their midst as Dilawar will not let her go with him (accused). At this, accused-Wahid took out a country-made pistol and shot at Dilawar. Dilawar was felled to the ground by the impact of the bullet injury. The accused escaped from the place of crime. Due to fear of the weapon being carried by the accused, the said group of persons did not chase the accused-Wahid. At the time of incident, nearby shops were lit up by lanterns. The incident was seen by the said Zahid and others persons in the light of the lanterns. Thereafter, P.W.1 deposed that he got the complaint written down by one Salim Mian. Zahid dictated the complaint to Salim Mian who transcribed the same on paper. Zahid in his deposition duly confirmed that what he had dictated was correctly transcribed in the complaint. P.W.1 affixed his thumb impression to the complaint after it was transcribed. A complaint was then lodged in the police station. The police authorities thereafter sent Dilawar to the hospital. Dilawar died on the way to the hospital. P.W.1-Jahid also testified that he had an earlier acquaintance with the accused-Wahid since the sister of Wahid is married to a person who resides in his village Ajitpur. The accused Wahid was a regular visitor to the village of the P.W.1 since earlier times.
8. P.W.-1-Zahid was cross-examined by the defence. Under cross-examination, P.W.1-Jahid confirmed that the other persons including P.W.1-Jahid, Shakeel, Kayum and Dilawar were present at the panchayat. Apart from them, Shahjahan's father-Manjoor, Basaru and Ali Husain were also present at the panchayat, which was held at 5.30 p.m. The fact of illicit relation of Shahjahan with accused-Wahid was revealed by persons of the locality. Shakeel was also distantly related to him. At the panchayat, Basaru, Ali Husain and Shahjahan's father Manjoor had proposed that Shahjahan would go with Shakeel. Shahjahan did not make any complaint against Shakeel in the panchayat, that she was not willing to go to the house of Shakeel. Apart from the decision of sending Shahjahan to the house of Shakeel, no other issue was discussed in the panchayat.
9. On the date of incident, P.W.1-Jahid has reached the house of Shahjahan of village patwai at 11.00 a.m. They stayed at her residence till 5.30 p.m. The said party left Shahjahan house at 7.15 p.m. They had arrived at the road side to catch the bus at 8.00 p.m. The last bus from Patwai to Rampur leaves at about 8.45 p.m.
10. In the cross-examination, P.W. 1-Zahid also gave a detailed description of the place where the accused-Wahid arrived and confronted them. P.W.1-Zahid stated that the south of road from Patwai to Rampur are hills. West of the Patwai road are small shops/khoka. P.W.1-Zahid and his party were standing near the small shops/khoka. After Dilawar was shot he fell near the fields at a distance of 1 to 2 steps from where the accused shot at the deceased. Zahid and others did not have any conversation with accused. P.W.1 in the course of his cross-examination confirmed his version of the incident as disclosed in the examination-in-chief and stated that Wahid told Shahjahan that he would not let her go to the Ajitpur at about 8.45 P.M. Dilawar was shot on the left side of his stomach. At the time of shooting a petromax lantern was lit in the vicinity. He also confirmed in the cross-examination that he had known the accused-Wahid since much prior to the incident. The sister of the accused was married in the village Ajitpur and the accused was frequent visitor there. The complaint was dictated by P.W.-1 while Salim Mian arranged the paper and pen. P.W.1-Zahid also stated that he did not have knowledge from where the said Salim Mian obtained the pen and paper. P.W.1 affirmed that the complaint was dictated by him. The P.W.1 affixed his thumb impression at the police station as there was no ink pad at the Patwai crossing. Salim Mian faithfully recorded his dictation Salim Mian correctly transcribed the complaint on paper. The complaint was dictated by P.W.1 to Salim Mian. The said party reached the police station within 15 minutes.
11. P.W.1-Jahid did not know that there was altercation between accused-Wahid and husband of Shahjahan one month prior to the incident at their village. P.W.-1 categorically denied the suggestion that he did not witness the accused-Wahid, shooting at the deceased. He further denied the suggestion that there was complete darkness at the place of incident, due to which he could not have recognized the accused. In the cross-examination P.W.1-Jahid stated that he did not remember colour of the trouser and shirt worn by the accused. But P.W.1-Jahid re-affirmed the fact that the accused drew the revolver from his trouser and fired his shot. Apart from the said party, one or two shop-keepers as well as temporary shop/khokha owners were present. After the shot was fired P.W.1 could not recall where the people in the vicinity were.
12. P.W.1-Jahid took Dilawar from the place of incident to the police station in a rickshaw. Salim Mian arrived at the place about 10 to 12 minutes after the incident. He transcribed the Tahrir thereafter.
13. P.W.2-Kayum in his examination-in-chief before the trial court in trial proceedings stated that about 2 years and 4 months prior to his deposition, P.W.2 along with Dilawar, Jahid and Sakeel left their villageAjitpur for village Patwai to bring back Shahjahan, daughter of Manjoor bhai (wife of Shakeel). Manjoor Bhai was a resident of village Patwai. Shahjahan was staying with her father since past two years. On the date of incident, some persons of village Patwai met, where it was decided that Shahjahan would be sent with Shakeel. At about 8.30 p.m. the said group of persons along with Shahjahan reached the Patwai road crossing to board the bus. When they were waiting for the bus, at about 8.45 p.m., the accused-Wahid appeared and told Shahjahan that he would not let her go. On hearing this Shahjahan said Dilawar has to be removed from their midst. At this Wahid-accused drew a country-made pistol and shot at Dilawar. Dilawar was felled to the ground by the impact of bullet injury. Wahid escaped from the site of the incident. The group of persons including P.W.2 did not chase the accused-Wahid for fear of the country-made pistol, he was carrying. The said group of persons took a rickshaw and brought Dilawar to the police station. The police sent Dilawar to Rampur Hospital. Dilawar died on the way, before he could reach the hospital. At the time of incident, the place was lit up by lanterns in the vicinity, i.e. at the hotel and the shops. The P.W.2 saw the incident in the light. P.W.2 further stated that he had earlier acquaintance with Jahid since they belonged to the same village. He further deposed that he was also well acquainted with accused-Wahid since the sister of the accused is married in the village of P.W.2. P.W. 2 duly identified the accused in the Court. P.W.2 was asked by Shakeel and Dilawar to bring Shahjahan from her paternal home. They reached the residence of Shahjahan at 11.30 a.m. They stayed at her residence till 8.00 p.m. They reached Patwai crossing at about 8.45 p.m. In the panchayat, it was decided that Shahjahan would be sent with her husband and other differences were also resolved at the panchayat. P.W.2 in the examination-in-chief could not recall the other differences which were resolved. But there was no pre-condition for sending Shahjahan. He disputed the fact that the last bus from Patwai to Rampur left at about 7.00 p.m. At about 8.45 p.m. the accused-Wahid had told Shahjahan that he would not let her go. Dilawar was shot on his right side near the stomach. Wahid came from the back side of the khokha/small shop. Khokhas/small shops are towards the east of the road. P.W.1 went to get a rickshaw. It took about 8-9 minutes to get the rickshaw. Wahid-accused held the weapon in his right side. Apart from the said party two other persons were also present near the site of the incident.
14. P.W.2-Kayum also claimed that the complaint was not written in his presence. Salim informed them that the report had been written. At the time of incident, two shops were open and rest were closed. In these two shops gas cylinders were glowing. These shops were to west of the road. The shops were about 8 to 10 steps from the place of the incident. There is tree of pakhad to the east of the place of incident. There is a hotel to the west side of road where the incident happened. The accused was standing next to P.W.2 when he fired the shot. The issue as to why Shahjahan was not staying with her husband for the past two years, was not discussed at the panchayat. P.W.2 claimed that he did not attend the wedding of Shakeel. Under cross-examination, he stated that he did not know whether there was an altercation between Shakeel and the accused one month prior to the date of the incident. Under cross-examination, P.W. 2 further stated that did not know who lodged the report at the police station. On query from the court, he stated that the distance between the police station and the place of incident was about 20 to 30 steps. He further stated that P.W.2 and his party took Dilawar to the police station and thereafter, to Rampur hospital. He stayed with Dilawar till they reached the hospital. He clarified his statement by saying that he did not go to the police station to lodge report but he accompanied Dilawar to the police station. On further cross-examination he stated that he did not know whether Jahid had affixed his signatures to the complaint. He denied the suggestion that he did not go to the police station.
15. P.W.2-Kayum categorically stated that one shot was fired and he saw the shot being fired. The P.W.2 also claimed that he was illiterate and he did not know whether there was an office of the Congress Party at the site of the incident. He did not recall the exact time they reached Rampur hospital. He was accompanied by Shakeel and a police official. He denied the suggestion that he had any enmity with the accused-Wahid. He further denied the suggestion that there was complete darkness at the site of the incident due to which the accused could not be identified. He further categorically denied the suggestion that he was making a false statement only because of his personal relations. The P.W.2 also disclosed in his deposition that the accused was wearing a black pant and a white shirt.
16. P.W.3-Head Constable-88, Udaiveer Sharma in his deposition before the trial court in the trial proceedings asserted that he was posted at P.S. Patwai as head constable on 10.09.1996. The complainant got a chik registered on the foot of the complaint. The P.W.3 identified the complaint submitted by the complainant, which was marked as Exh.Ka-1. He stated that on the foot of the said complaint, the chik report was prepared by him and he identified his signatures on the same. The chik report was proved by P.W.3, which was marked as Exh. Ka-2. P.W.3 further stated that he made the entry of the case on the same day at 21.05 in the general diary report No.36. P.W.-3 proved the general diary entry in the court which was made by him in his hand writing and also bore his signatures. It was marked as Exh. Ka-3. He further stated that carbon copy of the original was prepared in the process, which is part of the misl. He duly made an endorsement of true copy on the same. On 10.09.1996, the injured expired on his way to the hospital due to his injuries. This fact was entered in the general diary and the offence under section 307 IPC was changed to one under section 302 IPC. This entry was made in the report of general dairy No.37 at 22.07 p.m. The true copy of the general diary was proved by P.W.-3 in the court. He further claimed that the recitals in the general diary were made in his handwriting and bore his signatures. The carbon copy of the original was processed at the same time and is part of the misal. He made an endorsement of the true copy and affixed his signatures to the same. The document was proved by him and was marked as Exh. Ka- 4.
17. P.W.3-Udaiveer Sharma stated that the written report was provided to him at 21.05 at the police station. The incident allegedly happened at 20.45 p.m. The information regarding the death of the injured Dilawar was provided to him by the home guard Dhyan Singh. Dhyan Singh accompanied the injured to the hospital. The complainant of the case Jahid, Gumani and Shakeel also accompanied the injured in the vehicle. He further stated that information of the death of Dilawar at the police station was given at 22.07. Dhyan Singh gave an oral information of the death. P.W.-3 also stated that majroob/letter was provided to the home guard when he accompanied the injured to the hospital. The letter/majroob was returned by the home guard. The letter/majroob was in the record, as per the testimony of P.W.3.
18. P.W.-3-Udaiveer Sharma denied the suggestion that he had ante timed the report. He also affirmed the fact that the complaint was not written in the police station. The complaint was written prior to arriving at the police station. The complainant came with the written complaint to the police station. He affixed his thumb impression. The report also contained a thumb impression which had been affixed earlier.
19. P.W.4-Salim Mian in his examination-in-chief stated that the complaint marked as Exh. Ka-1 was written in his own hand and signed by him. The P.W.-4 further stated that the complaint was dictated to him by Jahid at Patwai crossing. He also claimed that he had faithfully transcribed whatever Jahid had dictated. After transcribing the report the P.W.-4 Salim Mian made over the same to Jahid. After hearing the contents of the report, Jahid affixed his thumb impression on the same. Thereafter, he handed over the report to Jahid.
20. P.W.4-Salim Mian in his deposition stated that at the time of incident, he was not present at the site of the incident. No one came to call for him. He further stated that he runs the shop near the place of incident. Jahid and three other persons came to him and asked him to write the report since Jahid was illiterate. The three persons who informed him about the incident had approached him at about 10.00 p.m. Some of the shops were open and one or more shop-keepers were present. There was not much of a crowd. He could not recall the persons who accompanied Jahid. He did not have any earlier acquaintance with the said persons. There was a piece of paper with Jahid. P.W.-4 also stated that Jahid provided the paper while he used his own pen. The persons who accompanied Jahid did not say anything to him. In his shop he did not have an ink pad for making a thumb impression. Jahid did not affix the signatures in his presence. He simply transcribed the report and made over the same to him. After transcribing the report, he recited the contents of the same to Jahid. Under cross-examination, he stated that he did not know the source of light in the vicinity. He wrote the report in candle light. After transcribing the report he put his signatures to the same. None of the aforesaid three persons put their signatures or thumb impression in his presence. He was not present at the time of the incident.
21. P.W.4-Salim Mian denied the suggestion that he did not transcribe the report. He also refuted the suggestion that Jahid was dictating the report along with other persons. He denied the suggestion that he did not write the true facts. He did not get Jahid to fix his thumb impression because he did not try to search for an ink pad. He did not tell Jahid to get an ink pad. He was under the impression that he did not ask Jahid whether he had an ink pad or not. In the cross-examination, he submitted that he did not remember whether Jahid had affixed his signatures to the complaint or not. He categorically denied the suggestion that he wrote the complaint at the police station.
22. P.W. 5-Krishan Kumar Tyagi, Sub-Inspector in his deposition before the trial court in the trial proceedings stated that he was posted as Sub-Inspector in the police station Kotwali Rampur in September, 1996. On 11.09.1996, he reached district hospital and prepared an inquest report on the body of the deceased-Dilawar. The inquest report was prepared after appointing panchas. He also stated that he prepared the letter addressed to the C.M.O. The letter addressed to the R.I. was made in his handwriting and he put his signatures to the same. He also put his signatures to the photograph of the dead body. He duly proved the inquest report which was marked as Exh.Ka-4 and the challan of the dead body which was marked as Exh. Ka-5. He proved various documents which were then marked as exhibits. The letter to the C.M.O. which was marked as Exh. Ka-6, photograph of the dead body which was marked as Exh.Ka-7, letter to the R.I. which was marked as Exh. Ka-8. P.W. 5 also deposed that the body was handed over for the post mortem to the constable Rajesh Babu. The death memo of the deceased was sent from the hospital to the police station. On the basis of the death memo on 11.09.1996, he went to the district hospital to prepare the inquest report. The death memo was proved by him and marked as paper 7ka/7. The death memo records that the time of the death was 9.30 p.m. The panchas, who were witnesses to the inquest report, were present at the hospital. There was some overwriting on the panchnama which was pointed out by the P.W.5. Krishna Kumar Tyagi-P.W.5 stated that the overwriting was made by him, but he put his signatures to the same. There was one signature for both overwritings. P.W.5-Krishna Kumar Tyagi denied that he had deliberately made the overwriting, and clarified that the overwriting was due to inadvertence.
23. P.W.6-Constable, Roopram in his deposition before the trial court in the trial proceedings stated that he was posted as a constable in Patwai on 16.10.1996. On the date of incident, he took plain samples of the soil and bloodstained samples of the soil in a sealed bundle and took the same with related documents to the Forensic Laboratory, Agra. On 17.10.1996, the sealed bundle was deposited by him in the Forensic Laboratory Agra. The receipt was obtained from the Forensic Laboratory, Agra and the same was deposited by him on 22.10.1996 at Police Station Patwai. He stated that the sealed bundle and the sample of the soil was in his safe custody. No one tampered with the same while it was in his custody. On orders of the learned Chief Judicial Magistrate, Rampur, he took the sealed bundle and the sample soil to Agra.
24. Under cross-examination P.W.-6 stated that the bundle containing the sealed samples of the plain soil as well as bloodstained sample of the soil was received by him at about 3 to 4 p.m. on 16.10.1996. The aforesaid sealed bundle and the sample stamp was given to him by the head muharir (H.M.). The same was taken out from the malkhana and provided to him. The entries were made in the rojnamcha/register in this regard. There was an entry made by the head rojnamcha recording the handing over the aforesaid sealed bundle and the sample to him. He deposited the receipts issued by the Agra Forensic Laboratory in the police station. There were two separate bundles in which different articles were kept. In one bundle, bloodstained samples of the soil and the plain sample of the soil were kept. In the second bundle the clothes of the deceased and documents were kept. In the cross-examination, he stated that he could not recall as to who had sealed the bundle but he categorically denied the suggestion that the bundles were not duly sealed. He deposited the bundles at the Forensic Laboratory, Agra at about 11.00 a.m. at 17.10.1996. He went from Patwai to Rampur via Road and from Rampur to Agra. He returned from Agra on 17.01.1996. He deposited the receipt issued by Forensic Laboratory, Agra in the police station on 22.10.1996. On 17.10.1996 while returning from Agra, he came via Mathura and Aligarh where he had to deposit certain articles sent from police station Patwai. He completed his task of providing the said articles to the concerned persons. On 21.10.1996, he left Aligarh for Rampur. At the time of his departure from P.S. Patwai, an endorsement was made in the general diary that he was tasked to deposit some articles at Aligarh and Mathura. He categorically denied the suggestion that he tampered with the articles during the course of his journey.
25. P.W.7-Ram Awtar Arun, Inspector in his deposition before the trial court, stated that he was S.O., Police Patwai as on 10.09.1996. The case was registered in his presence on the basis of the complaint made by the complainant, marked as Exh. Ka-1. The case was registered under section 307 IPC. P.W.-7 conducted the investigation into the crime.
26. P.W. 7, further recounted before the trial court that the deceased-Dilawar was sent to the district hospital Rampur, immediately, on account of serious injuries sustained by him. On the date of lodgement of the complaint, he recorded the statement of Jahid and Chik Lekhak H.M. Udaiveer Sharma. Thereafter, he left for the place of the incident. During the course of the investigation, on the same date the general diary entry report no.37 was received. On account of the same, the offence was changed from one under section 307 IPC to Section 302 IPC after the death of the Dilawar. On 11.09.1996, at the pointing out by the complainant/informant, he inspected the site of the incident. The site plan was prepared by him. The site plan contains the numbers and details of the plots. He proved the site plain which was marked as Exh. Ka-9. At the time of inspection of the site of the incident, samples of the bloodstained soil and plain soil were taken from the site. These samples were taken in the presence of one Abdul Hasan and Ghasi. After drawing the said samples, they were put in separate boxes. The survey mohar stamp and sample stamp were duly prepared. The recovery memo was also prepared in the presence of the said witnesses. The thumb impressions and the signatures of the said witnesses were taken on the boxes containing the samples. The Recovery Memo was prepared by one Indramani Gunwant, Sub-Inspector. P.W.-7 dictated while Indramani Gunwant took the dictation and transcribed it faithfully. PW-7 identified the handwriting and the signatures of Indramani Gunwant. The said documents and handwriting marked as Exh.Ka-10 after they were duly proved and identified by P.W.7. On 11.09.1996 Shahjahan was arrested by P.W.-7 and he took her statement. On 12.09.1996, search was made for accused-Wahid. The statements of other witnesses, namely, Satish, Kayum and Tahrir Writer Salim Mian were recorded. On 20.09.1996 the information was received that Wahid-accused had surrendered before the trial court on 17.09.1996. The post mortem report was received on 21.09.1996 along with the inquest report. On 27.09.1996, he recorded the statements of the panchas, who constituted the panchayat were recorded. Thereafter, statements of S.I.-Krishna Kumar and Constable-Rajesh Kumar, who took the dead body for the post mortem, and of Ghasiram were recorded. The statements of the witnesses were also recorded. On 5.10.1996, he recorded the statement of accused-Wahid. P.W.-7 further stated that on 16.10.1996 the soil samples in sealed cover were sent to the Forensic Laboratory, Agra. The soil samples remained in safe custody and the sealed cover was intact as long as it remained custody of the police station. There was no tampering of the soil samples in the sealed cover. The statement of Kayum was recorded on 16.10.1996. Immediately thereafter the statement of Shakeel was recorded at 3.30 p.m. Due to this reason, the time of recording the statement of Kayum was not endorsed. The statement of Shakeel was taken after Kayum's statement on the same date. The statement of the said witnesses were taken at Patwai in the bazar. The site plan was drawn up in the presence of the complainant. When the site was inspected by him the shops in the vicinity were open. On the date of incident after lodgement of the FIR, he visited the site by which time shops had closed. Since on the date of incident, no shop-keepers was present, he could not record the statement of the shop-keepers on that date. On the date of inspection, he visited site of the incident again at 07:30 PM. On that date, he made inquiries from Rakesh Kumar Gupta, Safi Mian, Bhagwandas, etc. The place of incident was marked as 'A' in the site plan. The shops are situated at about 5 to 7 feet from the place of incident. There was a tree at a distance of about 3 to 4 steps from the place of the incident. Two separate samples of bloodstains soil and plain soil were taken and placed in separate boxes in the presence of witnesses. The boxes were duly sealed in the presence of the witnesses and the recovery memo was prepared in the presence of the witnesses. Their signatures and thumb impressions were taken on the recovery memo. He returned to the police station at about 9.15 PM. On 16.10.1996, the bloodstains samples and the clothes were sent to the Forensic Laboratory, Agra for examination. In his cross-examination, he could not recall the bullet injuries on the clothes. P.W.7 categorically denied the suggestion that he prepared the report without visiting site or place of incident or he gave a false statement in court. The witness was recalled on the application of the additional district counsel. A fresh oath was administered was P.W.-7 on 13.2.2001. The sealed bundle was opened in the court room during the trial proceedings. The P.W.-1 identified the bloodstained clothes. On the items being proved they were marked as Exhs. 1, 2 and 3 respectively. The two boxes which were sealed were also opened in the court. The plain soil and box contained which was marked as Exh.4. The samples of plain soil and the boxes containing bloodstained soil sample was marked as Exh.5. The pieces of cloth in which the boxes were sealed were marked as Exh.6. The sealed cover was marked as Exh.7. The P.W.-7 identified his signatures on the tin boxes and the signatures of S.I. Indra Mani on the other box. P.W.7 stated in the cross-examination that there were no other signatures. He, however, stated that the public witnesses were available but their signatures were only obtained on the recovery memo but not the boxes. The clothes of the deceased were stained in blood.
27. P.W. 8-Dr. Kafil Ahmad Khan deposed before the trial court in the course of trial proceedings. In his examination-in-chief, P.W.8-Dr.Kafil Ahmad Khan stated that on 11.09.1996, he was posted as Medical Officer in District Hospital, Rampur. On 11.09.96 the dead body of Dilawar, son of Badalu, resident of Ajitpur, P.S. Civil Lines, Rampur, was sent by the S.H.O. Kotwali along with eight police documents. They were delivered by constable Rajesh. He conducted the post mortem at about 4 p.m. on 11.09.96.
28. P.W.8-Dr.Kafil Ahmad Khan conducted the post mortem and medical analysis of the body. The deceased was about 45 years of age. He had died one day prior to the post mortem. The body had stiffened at various points including the hands and the feet. There was no signs of decay on the body. The right eye was closed. The left eye and the mouth were open. He confirmed the injuries which were described in the post mortem report. He concluded that on the basis of aforesaid post mortem examination, the deceased died due to ante mortem injuries caused by the bullet shot. He proved the post mortem report and identified his signatures and handwriting on the same. P.W.-8 stated that the post mortem report was prepared in his handwriting his signatures were affixed to the post mortem report on the same day. He identified the signatures on the post mortem report.
29. The post mortem report was proved which was marked as Exh. Ka-12. P.W.-8 further stated that after the post mortem, 15 pellets found on the body of the deceased which were put in the sealed bundles and sent to the S.P Rampur. The second sealed bundle containing clothes were sent to S.O. and the third sealed containing post mortem report and eight police documents were sent to S.P. Rampur. Another envelope containing a carbon copy of the post mortem was sent to the S.O Kotwali.
30. Under cross-examination, P.W.-8-Dr.Kafil Ahmad Khan stated that the injury was caused by country-made pistol. An injury of this nature can be caused if pistol is fired from a distance of about 5 to 6 meters. The injuries were not simple in nature. P.W.-8 also stated in the cross-examination that had prompt medical attention and facilities been provided to the deceased, he could have been saved. The food was fully digested at the time of death. He further opined under cross-examination, that the deceased must have consumed food 4 to 5 hours prior to the incident. P.W. 8 in his cross-examination also stated that if the shot was fired from the distance greater than six meters, the entry wound would have been bigger but injury would have been less grave. Further, the blackening and tattooing would have been less. P.W. 8 Dr. Kafil Ahmad Khan affirmed the conclusions of the post mortem report in his testimony. P.W. 8 duly testified that the deceased died on account of excess bleeding and injury caused by the bullet shot. The time of death of the deceased was estimated by P.W. 8 to be 08:45 P.M. on 10.09.1996.Under cross-examination P.W.8 categorically asserted that he himself conducted the post mortem. He saw the injuries and then recorded the nature of injuries.
31. P.W.9-Constable, Rajesh Babu deposed in his cross-examination-in-chief in the trial court that on 11.09.1996, he was posted as Constable. In the course of his duty he went to hospital with S.I.-Krishna Kumar. After body was seen and the inquest report was prepared, the body was handed over to his custody for post mortem. He received all the documents relating to the dead body. He took the body for post mortem to the mortuary. The body was not tampered with nor did he allow any tampering of the body, as long as it was in his custody.
32. During the proceedings under Section 313 Cr.P.C. various incriminating evidences which emerged during the course of the trial and indicated the culpability of the accused were pointed out to the accused. The fact of the panchayat wherein the panchayat had resolved that Shahjahan would go and live with her husband. The parties had acceded to the decision of the panchayat. Shahjahan along with Shakeel and others had gone to the bus stop to board the bus for Ajitpur. At about 8.45 p.m. when the deceased along with Shahjahan and others were waiting for the bus, the accused Wahid came and told Shahjahan he would not let her go. Shahjahan told that Dilawar has to be removed from their midst. He drew out his country-made pistol and shot Dilawar. Dilawar was felled by the impact of the bullet injury. Similarly, the post mortem report and other evidences like inquest report, bloodstains sample reports sent by the Forensic Laboratory, the statements of various prosecution witnesses were duly brought to the notice of the accused. The accused in his defence merely denied the same. He did not tender any valid defence of his case apart from a bald denial.
33. The prosecution story unfolded with the introduction of the prosecution witnesses. P.W.1-Jahid as we have seen was an eye witness. A perusal of his testimony shows that the same was consistent with the version of the incident in the FIR. The testimony of P.W.1 was also in conformity with the other elements and evidences of the prosecution case, including the post mortem report, CFL report produced in the course of the trial. The P.W.1 accompanied the deceased to the police station. The P.W.1 was cross-examined by the defence. The cross-examination elicited more details regarding the incident but yielded no contradiction. The testimony of P.W.1 remained unshaken. The trial court had the benefit of seeing and examining the witness first hand. The trial court did not return any finding of unreliability in regard to the said witness. The P.W.1 was a credible witness who cemented the story of the prosecution.
34. P.W.2-Kayum was also an eye witness. His testimony was reliable and in confirmity with the case of the prosecution disclosed in the FIR. During the cross-examination his testimony could not be disturbed. No contradiction emerged from his cross-examination. The version of the P.W.2 also inspires confidence. P.W.2-Kayum is a reliable witness, who re-inforced the prosecution story as an eye witness.
35. The cumulative effect of testimonies of the eye-witnesses, namely, P.W.1 and P.W.2 will now be considered. Both the P.W.1 and P.W.2 are credible eye-witnesses. The eye-witnesses witnessed the accused-Wahid shooting the deceased dead. The actions and conduct of the P.W.1 and 2 after the fatal shot was fired, were normal human reactions, in the proven facts and circumstances of the case. The said witnesses did not chase the accused for fear of being harmed. The accused-Wahid was carrying a weapon on his person. P.W.1 got a complaint written down regarding the incident. Thereafter, both the prosecution witnesses took the injured (subsequently deceased-Dilawar) to the police station and then to the hospital. This conduct does not raise any suspicion. Both the prosecution witnesses fully justify their presence at the site. Both the prosecution witnesses unequivocally stated that they had identified the accused. The source of light in which the incident was seen was adequately described. Prior acquaintance with the accused was also asserted. The identity and the presence of the accused at the scene of crime was fully established.
36. The testimonies of the prosecution witnesses are further corroborated by other prosecution witnesses as well as the documentary and expert evidence introduced by the prosecution.
37. P.W.4-Salim Mian was the scribe of the complaint. He was approached by the eye witness for reducing the complaint to writing as P.W.1-Jahid was an illiterate person. After cross-examination P.W.4-Salim Mian comes across as a reliable witness. The substance of his story as emerging from the cross-examination cannot be faulted with. There are some minor inconsistencies which are natural gaps of memory. Such natural gaps in memory at times enhances the credibility of eye witnesses and do not reduce it. As humans do not have the same photographic memory and the like recollection of the same events. However, the testimony of P.W.4 fits in to the larger prosecution case. P.W.4-Salim Mian is reliable witness at whose testimony reliance is to be believed.
38. The Head Moharir-Udaiveer Sharma was also examined. He duly proved the chik report and his testimony also remain untainted even after cross-examination. The chik was duly proved by him. The letter/majrubi was created at the police station when the injured (later deceased) was being dispatched to the hospital. The letter/majrubi was drawn up by P.W.-3-Head Constable 88 Udaiveer Sharma. The letter/majrubi was made over to the Home Guard-Dhyan Singh who accompanied the injured (subsequently deceased) to the hospital. The letter/majrubi was handed over to the Head Constable-Udaiveer Sharma-P.W.3 by the said Home Guard-Dhyan Singh upon his return from the hospital. The letter/majrubi attests to the dispatch of the injured (subsequently deceased)along with the Home Guard-Dhyan Singh from the police station to the hospital. This fact as we have seen was confirmed by P.W.3-Head Moharir in his deposition.
39. The P.W.3-Head Moharir-Udaiveer Sharma was also a credible witness to prosecution. P.W.3-Udaiveer Sharma has transcribed the chik report and also created the documentary trail which included entries in the general diary and letter/majrubi. The entire documentary trail from the chik report, letter majrubi, entries in the general diary are a continuous link in the prosecution story. The version depicted in the documentations neatly fits with the prosecution story. The trail of all the relevant documents was established as authentic and corroborated the prosecution case. P.W.3 also faced cross-examination. His testimony could not be shaken and the authenticity of the said documents created by him stood further reinforced by his testimony.
40. The post mortem depicted the following injuries on the body of the deceased. Firearm wound of entry, 2 x 1 cm, on the back of chest on the rigtht side, 8 cm below the inferior angle of scapula. Marks of blackening, tattooing and scorching are present and margins of the wound are inverted.
41. The cause of death was recorded to be bleeding and ante mortem injuries caused by a bullet shot in the post mortem report. The post mortem report was duly proved by P.W.8-Dr. Kafil Ahmad Khan.The contents of the post mortem reports were duly confirmed by the PW.8-Dr.Kafil Ahmad Khan in his testimony. The post mortem was conducted on 11.09.96 at about 4.00 p.m. Dr.Kafil Ahmad Khan. The post mortem report and the cause of death stated therein fully corroborate the version of the incident in the FIR and duly supported by the eye witnesses. There is no contradiction between the post mortem report and the ocular evidence.
42. Other critical links in the chain of the events are the site plan, the CFL, Agra report dated 01.11.1996 on the blood samples and the plain blood samples drawn from the site of the incident. P.W.-7 was the investigating officer of the case who inspected the site of the incident who pointed out the informant. He made a detailed site plan at the spot. The blood samples were duly sealed in the presence of the witnesses. The CFL, Agra report dated 01.11.1996 records that the bloodstains samples were chemically examined. The report of the CFL, Agra concludes that the bloodstains in one of the samples were of human origin. The prosecution had fully established that the bloodstains samples drawn were duly sealed at the site of the incident in the presence of the witnesses. They were kept in safe custody. They were sent with a police official to the CFL, Agra and at no stage, the soil samples were tampered with. The CFL, Agra report dated 01.11.1996 records that the soil samples contained human blood. Thus the site of the incident was duly established.
43. The inquest report was another critical piece of evidence which was proved by the investigating officer.
44. One feature which is remarkable in the prosecution story is the continuity of the version and unbroken links of unimpeachable evidence. The trial of documentary evidence runs parallel to the version in the oral evidence and both reinforce each other.
45. The injured (subsequently deceased) was taken to the police station immediately after the incident. The FIR was lodged with promptitude. The injured was dispatched along with the Home Guard-Dhyan Singh and other witnesses to the hospital with full and complete legal documentation. The same included the inquest report, a death memo, photograph of the dead body. It was also proved that the body was not tampered with at any stage while it was being brought from the police station to the hospital and then to the mortuary for the post mortem. Similarly, the investigation of the case was also reliable and conducted professionally. The site plan, the bloodstained samples of the soil, supported by the CFL report dated 1.11.1996 duly proved the site of the incident.
46. The trial court had the benefit of observing the demeanor of the witnesses first hand. The trial court in its judgment and order assailed in the jail appeal, concluded that despite exhaustive cross-examination of the prosecution witnesses, the defence could not elicit any response which could lead to the conclusion that the occurrence did not take place in the manner described by the prosecution witnesses and that the deceased Dilawar did not die from the bullet shot injury. The trial court also noticed that in the proceedings under Section 313 Cr.P.C., the accused only made a bald denial of the charges. In the telling of the accused, he was falsely implicated. However, the trial court noticed the deficiency in the defence by holding that the accused had failed to provide details and reasons for false implication in the criminal case. The trial court disbelieved the defence of the accused. The trial court also independently examined the statements of the witnesses and concluded that the testimonies of the witnesses were credible and witnesses themselves inspire confidence. The theory of defence that such witnesses had falsely implicated the accused, was discredited after an elaborate consideration of the testimonies and the credibility of the prosecution witnesses, P.Ws. 1 and 2 as well as the documentary evidence including the F.I.R., marked as Exh. 1. The failure to examine Shakeel who was an eye witness did not dent the prosecution case as per the findings of the trial court. The failure to examine any independent witnesses at the site of the incident was also canvassed during the trial and duly considered by the trial court. The trial court found that the witnesses P.Ws. 1 and 2 who were eye-witnesses, had prior acquaintance with the accused. The sister of the accused was married in the village of the prosecution witnesses. The accused frequently visited the village.
47. In view of the credibility of the prosecution witnesses, absence of any independent witnesses from the site of the incident could not impair the case of the prosecution. The site of the incident was duly identified by the prosecution witnesses and samples of the bloodstained soil were drawn by the Investigating Officer. The Forensic Laboratory Report confirmed that the bloodstained in the soil were of human origin. The location of the site of the incident was also meticulously considered by the trial court from the deposition of the witnesses in this regard. The trial court concluded that the site of the incident was correctly identified and there was no dispute in regard to the same. Similarly, the objections to various documentary evidences, like the post mortem report and the F.I.R. were duly considered. The reports were found to be authentic and objections in that regard were rejected.
48. On these facts and after such consideration of evidence, the trial court found him guilty of the offence and convicted the appellant.
49. Heard Sri Radhey Shyam Yadav, learned Amicus Curiae for the appellant and learned A.G.A. for the State.
50. It is argued on the behalf of the defence that the Home Guard-Dhyan Singh was not examined and the spot witnesses had also not been examined by the investigating officer. Independent eye-witnesses from the site of the incident were not introduced by the prosecution. He contends that Shahjahan was not examined. The failure of the prosecution to examine Shahjahan was fatal.
51. Learned A.G.A. on behalf of the State has supported the judgment of the trial court. Learned A.G.A. has drawn the attention to the Court to various findings of the learned trial court and pointed out the testimonies and various documentary evidences and facts and circumstances of the case which brought home the guilt of the accused. Learned A.G.A. supported the trial court's judgment and stated that it squarely and rightly established the guilt of the accused on the basis of the evidence.
52. The failure to examine the Home Guard-Dhayn Singh does not in any way jeopardize the case of the prosecution. It is not the quantity of the witnesses which is important. The facts in the knowledge of the Home Guard-Dhyan Singh were duly established by other witnesses who too were in the know of such facts.
53. The non-examination of Shahjahan was not fatal to the case of the prosecution. Other eye-witnesses to the incident were duly examined. The said witnesses were found to be credible and their testimonies were accepted by the trial court.
54. Similarly, the non-examination of spot witnesses does not make the prosecution story vulnerable. Firstly, the shops were closed at the time of incident. Secondly, it is well known that the public witnesses are reluctant to join any criminal investigation for fear of involvement in court cases. In such view of the matter, the infirmities pointed out by counsel for the accused do not impair the credibility of the prosecution case. The alleged infirmities are not fatal to the prosecution case. The prosecution has proved its case beyond reasonable doubt. There is no infirmity in the prosecution case.
55. Consequently, the appeal is dismissed. The judgment of the trial court dated 16.01.2002 passed by the learned Special Judge (E.C.Act), Rampur, and the conviction returned therein is upheld. The appellant shall serve out the rest of his sentence in jail.