Ashwani Kumar Mishra, J
1. These three appeals are directed against the judgment and order dated 20.01.2017, passed by the learned Additional Sessions Judge Court No. 01, Bijnor in Sessions Trial No. 85 of 2014 (State Vs. Gaurav Sharma @ Sonu and others), arising out of Case Crime No. 22 of 2013, under Sections 147, 148, 302/149 IPC, Police Station – Kotwali Nagar, District – Bijnor; in Sessions Trial No. 86 of 2014 (State Vs. Gaurav Sharma @ Sonu), arising out of Case Crime No. 25 of 2013, under Section 25 of the Arms Act, Police Station – Kotwali Nagar, District – Bijnor; in Sessions Trial No. 87 of 2014 (State Vs. Gautam), arising out of Case Crime No. 142 of 2013, under Section 25 Arms Act, Police Station – Kotwali Nagar, District – Bijnor; and in Sessions Trial No. 88 of 2014, arising out of Case Crime No. 22 of 2013, under Sections 147, 148, 302/149 IPC, Police Station – Kotwali Nagar, District – Bijnor; whereby the appellants Gaurav Sharma @ Sonu, Gautam Sharma, Uttam Kumar Sharma, Sandeep Bhardwaj and Ankit Bhardwaj have been convicted under section 302 read with 149 IPC and sentenced to life imprisonment along with fine of Rs.25,000/-, each, and in default of payment of fine to undergo one year’s additional imprisonment; rigorous imprisonment for three years alongwith fine of Rs.3,000/- each, coupled with a default sentence of three months, under Section 148 I.P.C; and rigorous imprisonment for two years alongwith fine of Rs.2,000/- each, coupled with a default sentence of two months, under Section 147 I.P.C. Accused Gaurav Sharma @ Sonu and Gautam Sharma have also been sentenced to rigorous imprisonment for seven years alongwith fine of Rs.5,000/- each, coupled with a default sentence of six months, under Section 25 Arms Act. All the sentences are directed to run concurrently.
2. The prosecution case is based upon a written report (Ex.Ka.1) of the informant (PW-2), who happens to be the wife of the deceased, as per which, the maternal brother of her husband ,namely Gautam and Gaurav, sons of Parasuram Sharma, came to her house and talked to her husband for taking him to Surendra Nagar, near Awas Vikas, whereafter her husband informed that he is going with Gaurav and Gautam and would return soon. Amount running into lacs were due and payable to informant’s husband by these two persons (Gaurav and Gautam). When the husband of PW-2 did not return, the informant got anxious and asked her brother-in-law (PW-1) to go to Surendra Nagar and look for him. PW-1, accordingly, left for Surendra Nagar where the accused Gautam, Gaurav and Uttam sons of Parasuram Sharma and Sandeep Bhardwaj and Ankit Bhardwaj, brother-in-law of Gaurav, were assaulting her husband with iron-rods. PW-1 raised an alarm, whereafter the aforesaid accused fired on her husband and fled. PW-1 had seen the assailants who killed her husband and, therefore, a report be lodged. On the basis of this information a first information report came to be lodged under Sections 147/148/149/302 as Case Crime No. 22 of 2013.
3. Investigating Officer proceeded to the spot and collected plain and bloodstained sand, grits, etc. which were kept in separate boxes and sealed vide recovery memo marked as Ex.Ka-4. The Investigating Officer also recovered a 315 bore empty and bloodstained flat bullet which were sealed vide recovery memo marked as Ex.Ka.5. The police also recovered from the spot the Scooty belonging to deceased bearing Registration No. UP-20 J-3492 and Glasses with golden frame, mobile, a receipt of water tax and silver anklet which were sealed vide recovery memo marked as Ex.Ka-6.
4. On the date of incident itself the accused Gautam was arrested. He confessed his guilt and took the police to the place where he had hidden the weapon of assault. He took out a 315 bore tamancha from the bushes on the Bairaj Road, nearly 40 steps from the bridge. The recovered firearm was opened and a 315 bore live cartridge was found in the barrel. A memo of recovery of tamancha was consequently prepared vide Ex.Ka.9. On the basis of such recovery of firearm another first information report (Ex.Ka.17) came to be lodged as Case Crime No. 142 of 2013, under Section 25 of the Arms Act at 15.30 pm on the date of incident.
5. Yet another FIR was lodged at Kotwali Sadar, Bijnor on 13.1.2013 at 18.05 PM in respect of the alleged incident of the same day at 4.15 PM, wherein on the pointing out of the accused Gaurav Sharma a firearm with empty stuck in the barrel was recovered from the shrubbery in a dry canal. Recovery memo has also been prepared of this 315 bore tamancha (Ex.Ka.7) which allegedly was used by the accused for firing on the deceased. Smell of gun powder in the barrel was found.
6. Inquest was conducted on 12.1.2013 (Ex.Ka-10), wherein the time for commencement of inquest proceeding contains an overwriting to make it 19.30. There is also a clear overwriting on the time of completion of panchayatnama to make it look 20.30 hours on 12.1.2013. The inquest witnesses were Dr. Mitu Kant Sharma, Shivam Awasthi, Rajat Awasthi, Manikant Sharma and Lavi Sharma. The dead body on the Activa Scooter was found in front of an under construction house of M.P. Singh.Houses were under construction in Surendra Nagar Colony. Blood was oozing out from his head and 315 bore empty was also found near the place of incident. The deceased had worn a sando vest, a white woolen vest, white jersey, gray shirt and other clothes on the lower part of the body. Inquest witnesses found bloodstained wound on the head and the back as well as his wrist was fractured. In order to ascertain the cause of death the witnesses opined that the postmortem be conducted on the body of the deceased. The dead body was sealed and given in the custody of Constables 1516 Amit Kumar and 702 Parmendra Singh.
7. Postmortem was conducted on the dead body of the deceased on the next day i.e. 13.1.2013. Following examinations have been reported in the postmortem, which has been proved by Dr. Bhojraj Singh (PW-5):-
“Age- 54 years.
External examination
Eyes, mouth closed
Ante-mortem Injuries
1. Gunshot wound of entry 2.0 x 1.0 cm on skull 10.0 cm above left eyebrow and margines are inverted, cavity deep.
2. Gunshot wound of exit 6.0 x 2.0 cm bone deep on left side of skull 12 cm below left ear.
3. Lacerated wound 6.0 x 1.0 cm bone deep on skull 12 cm on right eyebrow.
4. Lacerated wound 4.0 x 1.0 cm, bone deep, 3 cm behind to injury no. 3.
5. T.S. 6.0. x 3 cm on left elbow with fracture of both bone.
6. T.S. 10.0 x 6.0 cm with fracture of middle phalynx of left index finger with fracture of metacarpal.
7. M. AS with TS in area of 4.0 x 2.0 cm on right forearm with fracture of both bone.
8. Gunshot wound of entry 5.0 x 2.0 cm on left side of back just below scapula.
Cause of Death
Shock and haemorrhage due to ante-mortem injuries.”
8. The investigating officer after recording statement of the witnesses under Section 161 Cr.P.C. and preparation of site plan on the information received from the wife of the deceased (PW-2) and another witnesses proceeded to file four separate charge-sheets on 15.1.2013 (Ex.Ka.24), 18.2.20213 (Ex.Ka.27), 9.4.2013 (Ex.Ka.30) and 17.4.2013 (Ex.Ka.31). The prosecution has also brought on record the FSL report dated 16.12.2014 (Ex.Ka.35/1, 35/2) as well as FSL Report dated 4.8.2014 (Ex.Ka.35/3, 35/4). Permission was also obtained from the District Magistrate Bijnor to launch prosecution under Section 25 of the Arms Act against the accused Gaurav Sharma and Gautam Sharma.
9. On taking cognizance of the charge-sheets, the Magistrate committed the case to the Court of Sessions where it got registered as Sessions Trial No. 85 of 2014 against Gaurav Sharma @ Sonu, Gautam Sharma, Uttam Kumar Sharma, Sandeep Bhardwaj and Ankit Bhardwaj, arising out of Case Crime No. 22 of 2013, under Sections 147, 148, 302/149 IPC; Sessions Trial No. 86 of 2014 against Gaurav Sharma @ Sonu, arising out of Case Crime No. 25 of 2013, under Section 25 Arms Act; Sessions Trial No. 87 of 2014 against Gautam Sharma, arising out of Case Crime No. 142 of 2013, under Section 25 Arms Act, Police Station – Kotwali Nagar, District – Bijnor.
10. The prosecution in order to establish the guilt of the accused adduced documentary evidence in the form of FIR dated 12.01.2013 (Ex.Ka-19), FIR dated 13.01.2013 (Ex.Ka-21), FIR dated 12.02.2013 (Ex,Ka-17), written report (Ex.Ka-1), recovery memo of ‘Tamancha’ & empty cartridge (Ex.Ka-7), recovery memo of country made pistol 315 bore & live cartridge 315 bore (Ex.Ka-9), recovery memo of iron rod (Ex.Ka-32), recovery memo of blood stained and plain sand and concrete (Ex.Ka-4), recovery memo of empty cartridge & blood stained bullet (Ex.Ka-5), recovery memo of scooty, glass, mobile phone & Payal (Ex.Ka-6), postmortem report (Ex.Ka-2), report of forensic science laboratory dated 16.12.2014 (Ex.Ka-35/1, 35/2), report of forensic science laboratory dated 04.08.2014 (Ex.Ka-35/3, 35/4), Panchayatnama (Ex.Ka-10), charge-sheet dated 17.04.2013 (Ex.Ka-31), charge-sheet dated 09.04.2013 (Ex.Ka-30), charge-sheet dated 15.01.2013 (Ex.Ka-24), charge-sheet dated 18.02.2013 (Ex.Ka-27), order of District Magistrate dated 29.01.2013 (Ex.Ka-25), order of District Magistrate dated 04.03.2013 (Ex.Ka-28), Site plan with Index dated 17.03.2013 (Ex.Ka.29), Site plan with Index dated 17.01.2013 (Ex.Ka.8), Site plan with Index dated 15.01.2013 (Ex.Ka.23), Site plan with Index dated 15.03.2013 (Ex.Ka.33), Site plan with Index dated 18.02.2013 (Ex.Ka.26), Site plan with Index dated 12.01.2013 (Ex.Ka.3).
11. Prosecution has also adduced oral evidence of Shrikant Atrey (PW-1), eye witness of the incident (brother of the deceased); Meera Atrey (PW-2), complainant, wife of deceased and witness of last seen; Yuvraj Singh (PW-3), witness, who saw the accused persons having the weapon in their hands near the flour mill of Awas Vikas; Bramha Dutt (PW-4), who has proved the confession made by Gautam Sharma, Uttam Kumar Sharma, Sandeep Bhardwaj and Ankit Bhardwaj before him; Dr. Bhojraj Singh (PW-5), who had conducted the autopsy. S.I. Abdul Salam (PW-6), Ist I.O. of Crime No. 22/2013 (since 12.1.2013 to 17.1.2013) proved the chick, spot inspection and Fard of recovery memo recovered from the place of incident and proved Blood Stained earth and empties; S.I. Brijpal Singh Tomar (PW-7), proved the recovery of Tamancha 315 Bore, Challan Lash, Photo Lash, Letter of C.M.O., Letter of R.I.; Constable Ramdhan Singh (PW-8), proved the chik FIR on record and carbon copy of G.D. under Section 25 of Arms Act; Head Constable Indradev (PW-9), proved chik and carbon copy of G.D. of Section 25 of Arms Act; Constable Parvendra Singh (PW-10), proved the fact that he brought the dead body from the place of incident to Police Headquarter and from Police Headquarter to Mortuary along with the police paper and letter to C.M.O.; Head Constable Santosh Vishnoi (PW-11), I.O. of Case under Section 25 of Arms Act proved the chik and recovery memo; Incharge Inspector Sunil Kumar Singh (PW-12), Iind I.O. in Crime No. 22/2013, took investigation on 25.1.2013; S.I. Surya Nath Singh Yadav (PW-13), IIIrd I.O. proved the arrest of Gautam and recovery of Tamancha 315 Bore and too kover the investigation on 8.2.2013 in Crime No. 22/2013; and Retired S.I. V.K. Baliyan (PW-14), took over investigation on 29.4.2013, proved the recovery of Iron Rod on the pointing out of Sandeep Bhardwaj and Ankit Bhardwaj.
12. PW-1 is the sole eye-witness in this case, who happens to be the brother of the deceased. He knows all the accused out of whom Gaurav, Gautam and Uttam are his maternal brothers and accused Sandeep and Ankit are the brother-in-law of accused Gaurav. This witness claims that he had come to the shop of his brother at around 4.45 pm on the date of incident. The shop and the residence of the deceased is one and the same. While he was at the shop (situated on the ground floor) PW-2 came down stairs and informed him that the deceased had left alongwith accused Gaurav and Gautam at about 4.00 to Patel Nagar and have not returned so far. She asked him (PW-1) to go and see for him. PW-1 stated that he immediately came to Surendra Nagar and saw that his brother (deceased-Chandra Kant Atrey) was being assaulted by accused Uttam, Sandeep, Ankit, Gaurav and Gautam with iron-rod. The assault was in newly constructed house situated in Surendra Nagar. Sand, Grit, etc., were lying on the floor. PW-1 claims to have raised an alarm on which the accused Gautam and Gaurav fired on Chandra Kant Atrey due to which he fell and died instantly. The accused fled from Surendra Nagar towards Awas Vikas. PW-1 returned and informed of the incident to his sister-in-law, who lodged the report at the police station. As per PW-1 his brother had given money on loan. Huge amount was taken as loan. A house at Awas Vikas was given to live on which accused had their possession. For this reason PW-2 was fearful of going with the accused. The incident of murder has also been committed for this reason. This witness claims to have gone to the place of incident alongwith Investigating Officer from where he took bloodstained and plain sand and grits. Empty and a bloodstained flat bullet had been recovered from the place of occurrence. Signatures of PW-1 were obtained on the memos of recovery. Memo of recovery has also been prepared in respect of the recovered Activa, Glasses, etc. Accused Sandeep and Ankit claims to have absconded for long and had also extended threats to settle the matter or they too would be sent to the place of the deceased, in respect of which an NCR No. 71/2013 was got registered on 12.3.2013.
In the cross examination PW-1 has stated that his brother indulged in work of giving and taking loan. Business of the deceased included giving loans to public. 10-20 people were given loan and the witness did not know whether any security in the form of land or gold etc. were kept by the deceased for disbursing loans. He is not aware whether deceased had any fight with Dr. Prashant in respect of the shop situated in Civil Lines. PW-1 claims that he is not aware of litigation pending between the deceased with others. Deceased had a mobile but he does not remember his phone number. PW-2 also had a mobile on which PW-1 used to talk. Before leaving for Surendra Nagar, PW-1 did not inquire about the location of deceased on his phone number. He had also not asked PW-2 to contact him on phone. PW-1 was also not informed by PW-2 whether she had tried to contact her husband on phone. He has denied the suggestion that he was called later by PW-2 by calling on his mobile. The witness also claimed ignorance about the fact that the deceased had bought a house from accused Gaurav and the details of payments were maintained or not. PW-1 lives at a distance of 2 and half kilometer from the house of the deceased. The incident occurred at a distance of 2 kilometers. There is a police beat near the place of incident namely Bega Kala. There is also a police beat on the way from his house to the place of occurrence. He claims to have come straight to the police station but later said that he went via his home. He narrated the entire incident to PW-2. Statement of PW-1 was recorded by the Investigating Officer after fifteen days of the incident. It is stated that he saw all five accused assaulting the deceased with iron-rod (sariya). The entire incident occurred within 1-2 minutes and he neither tried to intervene nor tried to apprehend the accused. He had also not thrown grits at the accused. He also did not take his brother to the doctor since his skull had opened and he died on the spot. He also did not take the dead body with him. He did not touch the dead body and, therefore, question of blood clots appearing on his clothes did not arise. As per this witness two fires were shot. The road near the place of occurrence goes from the north to south. Towards the west which was the place of occurrence. Construction was going on in a house and mason and labours were working inside but none of them came out. He later stated that the house of incident was 5-7 steps away from the road. He further stated that the place of incident is the road which is nearby the house. This witness has been confronted with his previous statement under Section 161 Cr.P.C. wherein he had disclosed that the accused were assaulting the deceased with iron-rod in a new house and that if such facts have been written by the Investigating Officer then they are wrong. He also claims to have gone to the place of occurrence with the Investigating Officer. He had shown the place of occurrence on the west side of the road going north to south. He cannot explain if any other place is shown as the place of occurrence. His brother’s scooty had fallen and he left the dead body in the contact of the persons who were present at the spot but he does not remember the name of any of those persons nor was he known to them. There is no independent witness of the incident from nearby the place of occurrence. He stated that the accused had placed the tamancha on the temple of deceased and fired from close range. Similarly the other fire was shot near the back of the deceased by placing the tamancha on the body of the deceased. This witness has admitted that there had been complaints but he is not aware of criminal case launched against his brother. However, he knew that he had remained in Jail for two months. There are various cases relating to landed property. The deceased had a shop of submersible pump which he used to open at 10.00 and then closed 3-4 pm. The witness later stated that he used to close the shop at 6.00 pm. There were servants in the shop but none of them had been sent to locate the deceased. His brother had left at about 4.00 whereas he had gone to locate him at quarter to 5.00. This witness has denied the suggestion that he had not seen the incident and that the dead body of the deceased was found later and a false case has been set up to implicate the accused.
13. PW-2 is the wife of the deceased. She has stated her husband called her that at 4.00 pm. House and shop of deceased is at one place. Shop is on the ground floor whereas the house is on the first floor. On hearing the call of the deceased she came on the balcony and saw that accused Gaurav and Gautam were standing with her husband. Husband of PW-2 (deceased) informed that he is going with Gaurav and Gautam to Awas Vikas Surendra Nagar. These persons are taking him to Surendra Nagar and that he is going with them. The deceased left alongwith the accused Gaurav and Gautam. PW-2 claims that she got engaged with domestic work. She was concerned and was loitering around in the balcony. She saw that her brother-in-law PW-1 was at the shop. PW-2 then came down the stairs to the shop and informed PW-1 that the deceased had gone with Gaurav and Gautam to Surendra Nagar and has not returned and, therefore, he may go in search of him. PW-1 left and later informed that her husband was shot dead by the accused. Written report of the incident was got scribed by her Nandoi Dhananjay Awasthi on which she signed. The written report has accordingly been proved and she has explained the relationship. She has stated that there was outstanding loan of lacs of rupees of deceased on the accused Gaurav and Gautam and that is why they have killed her husband. Whenever her husband used to go with accused Gaurav and Gautam she used to fear of any fight and as the deceased has left with them, therefore, she was disturbed and had asked PW-1 to search him out. After the death of her husband she received a cheque dated 16.1.2013 of Rs. 5,60,000/- signed by Gaurav Bhardwaj payable at Axis Bank which has been produced during her cross examination and marked as Exhibit 1.
PW-2 has been cross examined. She has explained the location of her house and the shop. On the date of incident her husband had called her and when she came out her husband told that Gaurav and Gautam are with him and are taking him to Surendra Nagar. After saying this the deceased left with them. The deceased had not stated anything else. She denied the suggestion that there is no house above the shop. Behind the shop there is a godown above which is her house where she used to reside. There is a small balcony on the east. She has denied the suggestion that the shop is not visible from the balcony. Her husband had told her that he is going with the accused to Awas Vikas Surendra Nagar. In the report is mentioned as Awas Vikas near Surendra Nagar. The witness is not aware whether Awas Vikas and Surendra Nagar are two separate and distinct localities and there are residential houses between the two colonies. She has denied having bought any house from Gaurav in Shalini Enclave. She does not know anyone with the name Archana. Anita Sharma is her Nanad (husband’s sister) and that she has not purchased any house with Anita from Gaurav, rather house was purchased from Abhijit. This house is in Shalini Enclave. She is not aware whether Shalini Enclave falls between Surendra Nagar and Awas Vikas. This witness has denied the suggestion that she had to pay some money to Gaurav and he has been implicated so as to avoid payment of balance amount.
There is no enmity between accused and her husband. Her husband was not involved in property business but from time to time used to purchase plots and in case of need used to sell them. Her husband was not involved in money lending business. On the date of incident her husband had gone at 4.00. She had not started his search till quarter to 5.00. She informed PW-1 that her husband has been taken by the accused and she fears of some fight between them and, therefore, he may visit him while going back home.
PW-2 in his further cross-examination has stated that on hearing news of murder she came first to police station and thereafter came to Surendra Nagar. PW-1 had informed at about 05.15 – 05.30 that her husband has been done to death. She had not asked PW-1 to scribe the report as he had seen the incident and that she may go to her husband. She also does not remember as to who brought Dhananjay. She had not gone near the dead body with police but came to stay with PW-1 by when the police already arrived. She has denied the suggestion that she had no gone to Surendra Nagar as the dead body was not there. She has also denied the suggestion that the first information to her was that of her husband’s body was lying in the mortuary.
PW-2 has admitted that there were several litigations going on between her husband and other persons. These cases were in respect of agricultural land. She has agricultural land in village Rasoolpur. She has further not aware about cases pending with Kadwa son of Kisan. She was also not aware that there are 8-10 cases of deceased with Ramesh son of Buddha. She knew doctor Prashant who is neighbour and with whom case was pending for vacating the shop. He husband also had litigation for the last 27 years in respect of a house with a boy of Annapurna Hotel. She denied the suggestion that her husband had relations with other ladies and that the police visited her house in this connection. She denied that at the time of occurence there was no PNT Landline number in her house and shop. PW-2 has further stated that she has no written proof of the fact that loan of lacs of rupees was due from the accused Gaurav and Gautam. She was also not aware of any witness of this transaction. She also denied the suggestion that the story of loan is narrated on legal advise. Cheque (paper no.37ka) was not filled in her presence. He husband died on 12.01.2013 and the date on the cheque is of 16.01.2013. She had not informed the police after receiving of cheque. She is not aware as to who had filled the cheque or who had signed it. This witness has denied the suggestion that on legal advise she has produced cheque with forged signatures. She was not aware about bank passbook and cheque book of Gaurav got lost in respect of which newspaper item was publised on 20.06.2012. This witness has further admitted that there is a SRS Mall near his house. She has three daughters and a son. She has denied that she had gone to SRS Mall to watch a movie between 3 PM to 6 PM. She also denied the fact that the incident of murder of deceased was intimated to her while she was seeing the movie.
14. PW-3 is friend of the deceased. He has stated that while he was returning through Avas Vikas he met the five accused who where armed with country made pistol (tamancha) and iron rod and were in perplexed state and were running away by saying that they have finished the person. This witness enquired from them as to what happened on which the accused asked him to be concern with his own work. In the cross-examination PW-3 has admitted that he has no document to show that he is a contractor or that his version going to office was incorrect since 12.01.2013 was a second Saturday. PW-1 is his closest friend. He informed PW-1 of what he saw 15-16 days after the incident and that he had not disclosed him about it earlier. His statement was recorded after 18 days. This witness is an accused of a case under section 302 IPC. He has denied the suggestion that he had not seen anything but giving a false statement.
15. PW-4 has stated that on 21.01.2013 he was at Moradabad in the house of his brother-in-law (Sadu) where the accused came and confessed their offence. The accused also stated that he would vacate the house and would honestly return the amount.
16. PW-5 to PW-14 are the formal witnesses and, therefore, their statements shall be referred as and when require.
17. The prosecution relies upon following evidence to implicate the accused appellants:-
(i) The oral testimony of PW-1 as eye witness to the incident of assault and murder of the deceased;
(ii) Testimony of PW-2 who has lastly seen the deceased in the company of accused Gaurav and Gautam with whom the deceased left and later the news arrived of his brutal murder;
(iii) The recovery of two firearms and iron road on the pointing out of the accused as well as the FSL report on the strength on which the prosecution alleges that implication of accused appellants in the matter is clearly established;
(iv) The testimony of PW-3 and PW-4 who have seen the accused in perplexed state soon after the incident and the alleged admission of the accused of their committed the offence so that the matter be amicably resolved.
18. The evidence on the above counts have been taken note of by the court below in order to return a finding of guilt against the accused appellants. The existence of motive; ocular testimony of PW-1; ocular testimony of last seen of first informant and the recovery of weapon of assault are primarily the circumstances which have been factored in by the court below in order to return a finding of guilt beyond reasonable doubt.
19. The judgment of conviction and sentence is challenged by the accused appellants, who contend that they are innocent and have been falsely implicated in the matter. The defence contends that in fact an unknown dead body was found and was deposited in the mortuary by Constable 1516 Amit Kumar, in respect of which relevant entries were made in the relevant registers and such information was also sent to concerned police station. It is alleged that these entries have subsequently been scored off and no other incident was reported around the same time. It is thus alleged that police papers were manipulated to give different colour to the incident in connivance with the prosecution witnesses so as to falsely implicate the accused appellants and that none has seen the incident and the unknown body found was that of the deceased. The defence has further setup a case that in fact PW-2 had gone with her children to see a movie and it was at the theater that information about murder of the deceased was received by her. Newspaper report dated 13.01.2013 has been brought on record in order to substantiate it. The defence has, therefore, questioned all facets of prosecution story in order to contend that the accused appellants have been falsely implicated.
20. Sri Vimlendu Tripathi, learned counsel for the accused appellants submits that PW-1 was neither present at the spot nor has he seen the incident. This contention relies upon the following circumstances: (a) statement of PW-1 was recorded after 15 days of the incident; (b) PW-1 has not lodged the report nor is he witness to the inquest and, therefore, his presence at the place of occurrence is highly doubtful; (c) the conduct of PW-1 in not making any attempts to save the deceased or to rush in hospital or even lodging a report are the circumstances which creates a doubt on his presence and; (d) there are numerous cuttings in the police papers as also the register to show that police papers were manipulated and the signatures on the recovery of empties from spot are fabricated. It is also pointed out that the FIR has been sent to magistrate after a week.
21. The second limb of argument essentially questions the testimony of PW-2, who is alleged to have lastly seen the two accused taking the deceased. It is urged that the shop of deceased was on the ground floor and was not visible from first floor of the house, which was situated after the open field behind the shop. It is urged that in fact PW-2 was at the SRS Mall seeing a movie and her presence in the house is not proved. The testimony of PW-2 is impeached on various other factual aspects also.
22. Countering the evidence relating to recovery of firearms and empties, it is urged that the flat bullet found at the place of occurrence has not matched with the recovered tamancha. It is also urged that there is no independent witness of recovery and the report of FSL cannot be read as a corroborative piece of evidence to implicate the accused appellants.
23. It is lastly urged on behalf of the accused appellants that the testimony of PW-3 and PW-4 are wholly unreliable and cannot constitute any basis for implication of the accused appellants in the matter. It is argued that the testimonies produced by the prosecution are of interested witnesses and though existence of independent persons at the place of occurrence is admitted, yet none of them is produced, which questions the prosecution story.
24. On behalf of the prosecution and the informant the contentions are strongly opposed and it urged by Sri V. M. Zaidi, learned Senior Counsel for the informant alongwith Sri Ambar Khanna and learned A.G.A. for the State that the prosecution evidence is trustworthy and reliable and, therefore, the court below has rightly convicted and sentenced the accused appellants. It is further argued that there is no reason to falsely implicate the maternal brother in the offence and, therefore, the appeal lacks merit.
25. We have heard learned counsel for the parties and perused the record of appeals as well as original records of court below.
26. Prosecution on the strength of testimonies of witnesses as also documentary evidences has attempted to establish that the deceased has been assaulted and shot dead by the accused appellants, in prosecution of their common object as members of unlawful assembly, since they owed huge amount of money to him which they wanted to avoid repaying. The court below has analysed the evidence on record to come to the conclusion that prosecution has established its case beyond reasonable doubt. We, therefore, are required to examine as to whether the prosecution has succeeded in proving its case beyond reasonable doubt and the conclusion of court below is sustainable or not? We are also required to examine as to whether sentence awarded by the court below to the accused appellants commensurates with the guilt established on their part?
27. The evidence on record goes to show that the deceased was assaulted and shot dead. The postmortem report dated 31.01.2013 has been proved by the Autopsy Surgeon Dr. Bhojraj Singh (PW-5). There is a gunshot wound of entry of 2cm x 2cm on the left side of skull with corners inverted with corresponding gunshot wound of exit of 6cm x 2cm, 12cm below the ear. The second gunshot wound of entry is on the left side of the waist of size 5cm x 2cm. In addition to the above two gunshot injury the injury nos.3 and 4 are lacerated wound and injury nos.5 and 6 are traumatic swelling. A flat bullet is recovered from the stomach of the deceased and his seventh and eighth ribs were found fractured. The left lung was also lacerated. The inquest report (panchayatnama- Ex.Ka.10) also shows that the body of deceased Chandra Kant Attrey was found on his activa scooty in front of an under-construction house. Gunshot injury was noticed on the head of the deceased as also on his back and his ribs were found fractured. The inquest witnesses opined that the deceased died on account of ante-mortem injuries sustained by him. The evidence on record, therefore, conclusively proves that the deceased died a homicidal death.
28. The prosecution evidence to implicate the accused appellants is primarily three fold. (i) Ocular testimony of PW-1, who allegedly has seen the incident; (ii) ocular testimony of the first informant (PW-2) who lastly saw the deceased going alongwith accused Gaurav and Gautam and soon thereafter the dead body was found and; (iii) the recovery of firearm on the pointing out of the accused Gaurav and Gautam as well as FSL report connecting empty cartridge found at the place of occurrence with the recovered firearm. We shall now take up the abovenoted prosecution evidence, one by one.
29. PW-1 is the sole eye witness of the occurrence. He is the real brother of the deceased and is thus a related witness. He claims to have come to the shop of deceased at about 04.45 PM on the date of occurrence and his sister-in-law (PW-2) came downstairs after seeing him at the shop and informed him that the accused Gaurav and Gautam had taken his brother to Patel Nagar at about 04.00 PM and has not returned. Informant, therefore, asked PW-1 to go and look for his brother. PW-1 claims that he immediately came to Surendra Nagar and saw the accused assaulting his brother with iron rods. In the examination-in-chief PW-1 has stated that his brother was being assaulted in an under-construction new house at Surendra Nagar. Grit, sand etc. were lying nearby. He claims that when he raised alarm the accused shot at his brother and he died. The accused then fled from Surendra Nagar to Avas Vikas Colony.
30. The testimony of PW-1 has been carefully examined by us and we find following aspects intriguing in it i.e. (a) PW-1 is the brother of deceased and although he was present at the place of occurrence but neither he tried to save his brother nor made any attempt to rush him to a hospital or a doctor. Though it is settled that there is no fixed norm of the manner in which the witness may react and people may react differently, in such circumstance, but some resistance is expected on part of PW-1 on seeing his brother being assaulted. Attempt to take the injured to the hospital or to a doctor is ordinarily expected even if chances of survival of injured are bleak; (b) PW-1 neither touched the body of his brother lying on his scooty nor called anyone for help and left the body on the spot in care of others present on the spot without even knowing their identity so as to ensure the safety of corpse; (c) interestingly, PW-1 admits that he crossed the police station and allegedly halted there but did not lodge any police report. Being the real brother of the deceased the least that was expected of PW-1 was that he would lodge a report with the police of the incident and not doing so renders his conduct open to suspicion; (d) PW-1 is not even a witness of inquest though he claims to have seen the incident and was available at the spot. The defence argument questioning the presence itself of PW-1, at the place of occurrence, finds some support from such omission of PW-1 in important events; (e) the presence of PW-1 at the place of occurrence is seriously questioned on the ground that though he is the solitary eye witness of the incident yet his statement was not recorded on the date of incident by the police or on the next day but was recorded by the Investigating Officer after 15 days of the occurrence. There is absolutely no justification putforth by the Investigator for such inordinate delay in recording of statement of PW-1 under section 161 Cr.P.C.; (f) PW-1 in his examination in chief has specified the place of occurrence as the under-construction house whereas in his cross-examination PW-1 has stated that the place of occurrence is towards the end of road on the western side. He has been specifically confronted on this aspect during cross and his explanation that he had not made such disclosure in the examination in chief is not convincing; (g) the place of occurrence disclosed to Investigating Officer as per PW-1 is on the west of north-south road whereas the site plan shows the incident on north side of east-west road. This also is a ground to generate suspicion on the veracity of the witness; (h) PW-1 has denied having stated in his examination-in-chief that he saw the accused assaulting his brother with iron rod inside the under-construction house. He has also denied knowing name of any of the person who arrived at the place of occurrence though he was familiar with them and; (i) PW-1 has categorically stated that the accused fired on the deceased by placing the firearm on his head and the other accused placed the firearm on his back. However, the postmortem report does not show any blackening or charring on the deceased, which is expected when one is shot from such close distance. The argument of Sri Zaidi and Sri Khanna that blackening did not occur as the deceased was wearing several layers of clothes does not appeal to us, as the clothes worn by the deceased were not on the head but even there also the blackening and charring was missing. We have our doubts whether blackening and charring could otherwise be extinguished on account of wearing of clothes. This aspect also raises a doubt on the presence of PW-1 at the place of occurrence or his having seen the incident.
Learned counsel for the parties have addressed us at length on the above aspects with reference to various case laws on the point. We have given our thoughtful consideration to the above aspects and we find substance in the argument of appellants’ counsel Sri Vimlendu Tripathi that it would not be safe to place reliance upon the testimony of PW-1, particularly as he is an interested witness and his conduct is not found natural on many counts. This witness otherwise does not have clean antecedents as he had been to jail. He is facing various cases also. His testimony therefore requires a careful scrutiny. Viewed in the above background the delay of 15 days in recording of his statement, despite him being the sole eye witness is troubling. The fact that he neither lodged the FIR though being the closest male relative of the deceased nor is the witness of inquest and his statement that gunshots were fired by placing the firearm on the deceased without any blackening and charring shown in the postmortem report remains unexplained by the prosecution even before us. His conduct otherwise is not found natural on several counts, as noticed above. We are thus not persuaded to accept the testimony of PW-1 as being a credible and reliable evidence to implicate the accused appellants.
31. PW-2 is the first informant and is the wife of deceased. Her testimony shows that she was informed by the deceased that he is going with accused Gaurav and Gautam. It was in her presence that her husband left with the accused Gaurav and Gautam. She got concerned after her husband did not return for long and she was moving in the balcony awaiting arrival of her husband. She saw that PW-1 had come to the shop and she came downstairs and asked him to go and look for his brother. Her testimony is primarily challenged on two counts; (a) that she was not present as she had gone to see a movie in SRS Mall and; (b) her house is away from the shop and is not in line of sight such that it is not possible for anyone to see the front of shop or the persons standing or coming to the shop.
32. So far as the defence argument of PW-2 having gone to see a movie is concerned, reliance is placed upon a local newspaper which has been produced by the defence and is marked as paper no.Kha-107 This newspaper report does refer to the incident in question and records that information of the incident was given to PW-2 while she was in the movie theater. Law is settled that newspaper report cannot be used as a piece of primary evidence and the fact mentioned therein will have to be independently proved on the strength of evidence led by the parties. We have examined the evidence and except for some suggestions given to the PW-2 or hearsay information of Investigating Officer there is no evidence on record to show that either PW-1 was seen in the movie theater by anyone or any ticket etc. has been produced to prove that she was watching 3 pm to 6 pm show. We are, therefore, not impressed by the defence argument that PW-2 was not present at her house at around 4 pm and hence could not have seen the arrival of accused Gaurav and Gautam on her shop or the fact that her husband left with them to Surendra Nagar. The defence argument, in that regard, is thus rejected.
33. PW-2 has stated that there is an open area of 2-3 meter between her shop and the road. She claims that her husband called her and when she came out her husband told her that Gaurav and Gautam are standing with him and are taking him to Surendra Nagar. Her version is challenged on the ground that there is no house above the shop and that the front of shop is not visible from the balcony on the house situated on the first floor. PW-2 has been specifically confronted during her cross examination on this aspect and her testimony, in this regard, is reproduced hereinafter:-
“मेरी दुकान 21 फिट लम्बी व 8 फुट चौडी है। इस दुकान में मेरे पति समरसेबिल पम्प का काम करते थे इस दुकान के अन्दर भी बैठते थे और कभी धूप में बाहर बैठते थे।
दुकान के अन्दर का एक दरवाजा है। दुकान के पीछे खाली मैदान है। जहाँ सामान पडा रहता है। उसके पीछे गोदाम है उसमे एक तहखाना है। इस गोदाम के ऊपर मेरा रिहायशी मकान है जिसमे मै उस समय रहती थी। इस मकान में एक छोटा सा छज्जा पूर्व की तरफ है और कोई छज्जा नहीं है।
यह कहना गलत है कि उस छज्जे से दुकान के बाहर न दिखायी देता हो और दुकान का मैन गेट दिखायी न देता हो।”
34. The above statement clearly goes to show that ,as per PW-2, the submersible pump shop of deceased was narrow i.e. 8 ft. wide and long i.e. 21 ft. This shop had a door inside after which there was an open field where goods were kept. There exists a godown thereafter, having a basement, above which is the residence of PW-2. There is a small balcony on the east of the house. As per PW-2 she saw the two accused with the deceased in front of the shop from her balcony and it from there only that her husband informed her that he is going with the two accused. It is from here that she also saw the arrival of PW-1 at the shop.
35. The question for our consideration is as to whether it was possible for PW-2 to have seen the deceased leaving with the two accused, from her balcony or the arrival of PW-1 at the shop etc.
36. PW-2 has admitted that her shop is 21 ft. long whereafter there exists open field to be followed with a godown above which exists her residence. There is no site plan prepared by the Investigating Officer of the shop or the godown or residence of PW-2. We are, therefore, required to visualize from the evidence on record as to whether PW-2 could have seen her husband standing with the two accused or leaving with them.
37. The residence of PW-2 is not above the shop. After the 21 ft. long shop there exists an open field. Size of this field is not specified but the use of expression ‘open field’ in normal parlance does suggest that it is not a very small area. It is after this open field that there exists a godown above which is the house of PW-2. The locality appears to be urbanized and structures around the shop are expected. It is not shown that the shop is not surrounded by any structures on either sides. The house on the first floor of godown situates after the open field after which situates the 21 ft. long shop. We find it difficult to accept that someone from the balcony of the house could see the front of the shop despite the obstructions in the form of constructed shop etc.
38. 4 PM in the month of January, in a market area, is generally a busy place. We do not find it convincing to believe that someone would shout from the front of his shop to inform his wife that he is standing with Gaurav and Gautam or that they are taking him to Surendra Nagar, particularly as we are not convinced that the balcony is in the straight line of sight from the front of shop.
39. PW-2 claims that her husband left at around 4 PM and did not return till 4.45 PM. This delay of 45 minutes is not unusually long. The deceased and PW-2 both had mobile phones on which PW-2 could have talked to her husband to ascertain his well being. However, PW-2 admits that she did not call her husband on the mobile. There were servants in the shop who are not produced and were also not sent to look for the deceased.
40. PW-2 similarly states that she saw PW-1 standing in front of the shop from the balcony. As we have already observed that balcony in the house on the first floor is not in straight line of sight from the front of shop as such the statement of PW-2 that she saw PW-1 arriving at the shop and so she came downstairs also does not appear to be convincing.
41. PW-2 although has claimed that the accused Gaurav and Gautam owed lacs of rupees to her husband but no details in that regard have been furnished during trial. PW-2 has also admitted that there is no witness to such monetary transactions. The only material to show the financial transaction is a cheque allegedly found in the shop, date 16.01.2013, of Rs.5,60,000/- signed by accused Gaurav Bhardwaj. It is not shown as to why and how a cheque of subsequent date would be issued by the accused or could reach the shop of the deceased. The ink used on the cheque is different and the cheque has also not been given to the police nor the Investigating Officer was informed about it. It is only at the stage of trial that this cheque has been produced for the first time. The manner in which this cheque has been produced raises more questions then what it answers.
42. PW-2 has also admitted that her husband was facing multiple litigation with regard to property disputes. Following passage from her statement is relevant and is extracted hereinafter:-
“मेरे पति व कुछ लोगों के बीच दीवानी के मुकदमें चल रहे हैं। यह मुकदमे मेरी खेती की जमीन की बावत चल रहे है । रसूलपुर गाँव में भी हमारी खेती की जमीन है। मुझे नहीं मालुम है कि कडवा एस/ओ किशन से मुकदमा है या नही। मुझे जानकारी नहीं है कि रमेश एस/ओ बुद्ध से 8-10 मुकदमे है डा० प्रशान्त को जानती हूँ पडौस में रहते है। काफी समय प्रशान्त दुकान खाली कराने का मुकदमा चला था। अन्नापूर्ण होटल वाले के लडके से मेरे पति की मुकदमे बाजी 27 सालों की पुरानी है जो एक मकान को लेकर है। यह कहना बिल्कुल गलत है कि मेरे पति का औरतों से सम्बन्ध हो। यह कहना भी बिल्कुल गलत है कि पुलिस इस सम्बन्ध में मेरे घर आई हो।”
43. The testimony of PW-2 otherwise goes to show that the deceased had bought and sold various properties and disputes with different persons were pending at various forums. PW-2 has specifically stated that there is no enmity between the accused with the deceased. She although has stated that her husband was not in the business of selling or buying properties but from time to time he used to buy plots or sell them in case of need. The place of incident is also an under-construction colony where various houses were being constructed. It appears that the deceased had multiple disputes with various persons and apparently some of the properties had changed hands in recent past. PW-2 has admitted that her husband’s sister Anita Sharma had bought a house in Shalini Enclave which situates between Surendra Nagar and Avas Vikas Colony. A suggestion has also been given that some money was paid to Gaurav on account of which he has been falsely implicated after the deceased was shot dead due to some property dispute.
44. The close scrutiny of statement of PW-2 clearly reveals that she is not an eye witness of incident and is at best a witness of last seen. Her statement in that regard is not found reliable, particularly as we find it difficult to believe her statement that she could see the front of her shop from her balcony, which is at a distance behind the shop. We, therefore, do not find the testimony of PW-2 to be convincing and the evidence of last seen thus is also not worthy of acceptance.
45. We now come to the last limb of prosecution case i.e. the recovery of firearm as also the FSL report. The FSL report is on record as Ex.Ka.35/1 & Ex.Ka.35/2, which relates to the bloodstained and plain earth as well as clothes worn by the deceased. The report in respect of such recovery is contained in Ex.Ka.35/2 as per which human blood has been found on bloodstained earth as well as clothes worn by the deceased. However, the bloodstains were not capable of any classification and, therefore, this part of the FSL report is not of much relevance. It is the second part of FSL report contained in paper marked as Ex.Ka.35/3 and 35/4 which is relevant. A flat bullet has been taken out from the body of deceased which is marked as EB-1 and EB-2. This bullet has been compared with the two firearms recovered from the accused appellants Gaurav and Gautam, which are marked as item 1/14 and 2/14. The two firearms have been matched with the recovered bullet and as per the FSL report the recovered bullet lacks individual characteristics for being compared with the two recovered firearms. The bullet which has thus been recovered from the body of deceased has not matched with the firearm allegedly recovered from the accused appellants.
46. The two firearms recovered from the accused appellants are from open place and there are no independent witnesses to establish the recovery itself. The witnesses of recovery of firearm are only the police personnel.
47. The 315 bore firearms recovered from the accused appellants Gaurav had a cartridge stuck in its barrel. This has been marked as EC-1 and as per FSL report it has been fired from the tamancha marked as 1/14. Since the recovery of firearm itself is not reliable, we are not inclined to attach much importance to the FSL report as it is but natural that the cartridge in the barrel would be shown to be fired from such firearm.
48. The police has also recovered empty cartridge from the place of occurrence which is marked as EC-2 which has matched from the recovered firearm marked as 2/14 from the accused Gautam.
49. The fact that empty cartridge EC-2 has matched with the recovered firearm as 2/14 from the accused Gautam is prima facie a material produced by the prosecution to implicate the accused Gautam in this case. On behalf of the informant much reliance has been placed upon this aspect of the matter. On behalf of the defence, however, detailed argument has been advanced to discredit the recovery of EC-2 from the place of occurrence and the submissions in that regard needs to be noticed, at this stage.
50. There is also a recovery of iron rod vide Ex. Ka-32. As per the statement of accused Ankit Bhardwaj this iron rod was hidden next to a Bael tree and little below the soil. So far as this recovered iron rod is concerned, it is admitted to the prosecution that it neither had any bloodstains on it, nor there is any independent witness to this recovery. The recovery otherwise is from an open place.
51. The fairness of investigation is seriously questioned by the defence in this case on the ground that the dead body of the deceased was actually brought to mortuary as unknown and such receiving of unknown body was also proved from the records. As per such records an unknown dead body was brought by Constable 1516 Amit Kumar. The register maintained in the mortuary has been produced as per which such a dead body was received at 6.10 PM about which intimation was also sent to Station House Officer, Kotwali City. Later on this entry was deleted. There was no reference to this dead body anywhere else in the records. According to defence it was the deceased, whose dead body was initially brought as unknown person in the mortuary by Constable 1516 Amit Kumar and later, by interpolating the records the informant has come out with a new story only to settle the score with accused as the deceased had secured certain amount from the accused. Our attention has been invited to the testimony of Head Constable Indradev (PW-9), who has stated that Amit Kumar was posted in police beat at Awas Vikas and he had not returned to the police station prior to registration of this case. Following passage from the statement of PW-9 is relevant and is reproduced hereinafter:-
“दिनांक 12.1.13 को का० 1516 अमित कुमार की तैनाती चौकी आवास विकास पर थी आवास विकास क्षेत्र की ही यह घटना है। इस मुकदमे के कायम होने से पहले कां० 1516 अमित कुमार की थाने में वापसी नहीं है। चिकित्सा अधिकारी जिला की रिपोर्ट के अनुसार का० 1516 अमित कुमार ने दि० 12.1.13 को 6.10 पी०एम० पर अज्ञात शव अस्पताल में दाखिल किया जिसकी सूचना थानाध्यक्ष को०शहर को भेजी गई।
दि० 12.1.13 के रोजनामचे में सिर्फ एक ही पंचायतनाम भरने का तस्करा है। यह कहना गलत है कि एफ०आई०अार० एन्टीटाईम करके बाद में लिखी गई हो”
52. The original register of mortuary has been produced during trial, which clearly contains an endorsement, as per which an unknown dead body was brought to the mortuary by Constable 1516 Amit Kumar. The statement of Dr. Bhojraj Singh (PW-5) in that regard is reproduced hereinafter:-
“दिनांक 12.1.13 को 6.10 पी०एम० पर सी०पी० 1516 अमित कुमार एक अज्ञात व्यक्ति को लेकर आया जिसे अस्पताल में देखने के बाद (sic) डैथ कहा गया उसके शरीर को मोरचरी में रखकर पुलिस को सूचना की गई थी। असल रजिस्टर मेरे सामने है जिस पर दि० 12.1.13 की सम्बन्धित एन्ट्री श्री गजेन्द्र कुमार शर्मा की फारमेसिस्ट की लिखी हुई है। दाखिल करता हूँ। फोरमेसिस्ट गजेन्द्र को मैने लिखते पढते देखा है। मै गजेन्द्र कुमार शर्मा का लेख पहचानता हूँ फोटो कापी पर प्रदर्श ख-1 डाला गया।
उसी दिन इस अज्ञात शव की सूचना थाना को०शहर को दी गई अस्पताल की पुलिस इन्फोरमेशन बुक मेरे सामने है। जिस पर डाक्टर प्रेम प्रकाश के द्वारा सूचना भेजी गई जो थाने पर प्राप्त हुई जिस पर थाने की मोहर लगी है। डा० प्रेम प्रकाश को मैने लिखते पढते देखा है इसकी फोटो प्रति दाखिल करता हूँ। इस पर प्रदर्श ख-2 डाला गया।”
PW-5, on his re-examination, has stated as under:-
“रजिस्टर ख-1 फार्मेसिस्ट भरता है जो अभी जीवित है। प्रदर्श ख-1 के मूल रजिस्टर में क्रम सं० 188 के पश्चात क्रम सं० 189 पर ब्रोट डेड अननोन लिखा गया तथा बाद में एन्ट्री नं० 189 को काट दिया गया यह मेरे सामने नहीं काटा गया किसने काटा मुझे पता नहीं न मै बता सकता। उसके बाद 189 पर दूसरी प्रवृष्टी है। प्रदर्श ख-2 में पेपर सं० ख-55/5 भी मेरे द्वारा जारी नहीं किया गया है यह भी फोरमेसिस्ट के हस्ताक्षर में है जो नौकरी में है सूचना के पश्चात डेड बॉडी मोरचरी में रखने का प्रावधान है थाने को सूचना तभी दी जाती है जब डेड बॉडी को अस्पताल स्टाफ अपने कब्जे में ले लेता है।
x x x
प्रदर्श ख-2 के भाग 55/2 पर चिकित्सा अधिकारी के कालम में डा० प्रेम प्रकाश के हस्ताक्षर है। ख-55/5 पर भी डा० प्रेम प्रकाश के हस्ताक्षर है जो इसी अज्ञात से मुत्लिक है।”
53. The Investigating Officer Abdul Salam (PW-6) has admitted that no disclosure statement was made in this case, nor any separate recovery memo was prepared. Both the firearms had been recovered from open place. The statement of PW-6 in that regard is reproduced hereinafter:-
“प्रकृति कारण (Disclose statement) इस केस में नहीं लिखा गया न ही उसका कोई अलग से मेमो बना।
दोनों बरामदगिया खुले स्थान से हुई दोनों में कोई पब्लिक का गवाह नहीं था बरामदगी स्थल पर कोई भी आ जा सकता था दिल्ली पौडी रोड हाईवे है हर समय हर तरह की सवारी दिन भर चलती है रावली रोड पर भी आसपास गांव है उस पर भी सवारी चलती है रावली रोड पर भी आसपास गांव है उस पर भी सवारी चलती है किसी कर्मचारी को गवाह मुरर्तव करने हेतु नहीं भेजा। यह कहना गलत है कि दोनों तमंचो की बरामदगी फर्जी दिखाई हो। यह सही है कि तमंचे की बरामदगी होना महत्वपूर्ण साक्ष्य था।”
54. It is, therefore, apparent from the evidence on record that a dead body was brought in the mortuary at 6.10 PM as unknown, and later this entry was scored off. There is no corresponding explanation by the prosecution as to why such entry was scored off and what happened to this unknown dead body. Just beneath this entry is the entry relating to the body of the deceased having been brought to the mortuary. Absence of any explanation with regard to the dead body brought in the mortuary as unknown, and just thereafter the entry occurring in respect of dead body of deceased having been brought to the mortuary, does create a doubt in the prosecution case and the argument of defence that in fact it was the deceased’s body which was brought as unknown, and later after his identity was established that the entire story has been developed cannot be lightly brushed aside. It is in this context that we find that there is a clear interpolation in the timing of holding the inquest in panchayatnama on which there is neither any initial nor the prosecution has explained as to why such interpolation became necessary. The FIR has also been sent to the Magistrate almost after a week. We also find from the statement of first Investigating Officer (PW-6) that while investigation remained with him (investigation of PW-6 was about 15 and odd days), none came forward to depose as an eye-witness of the incident. The statement of PW-6 in that regard assumes significance and is reproduced hereinafter:-
“जब तक तफतीश मेरे पास रही तब तक कोई चश्मदीद साक्षी मेरे सामने यह कहने नही आया कि मैने घटना देखी। मैने चश्मदीद साक्षी के बयान लेने चाहे पर किसी ने नहीं दिये यह कहना गलत है कि मेरे तफतीश रहने के दौरान तक कोई चश्मदीद साक्षी तैयार ही न हो”
55. What is also important to note that after the inquest was concluded the dead body of the deceased was handed over to Constable 1516 Amit Kumar and Constable Parvendra Singh (PW-10). In his cross-examination PW-10 has admitted that the dead body was handed over to him at 8.30 pm on 12.1.2013 but the dead body was brought to the mortuary at 7.30 in the morning. There is no clarity as to what happened to the body from 8.30 pm on 12.1.2013 to 7.30 am on 13.1.2013. The statement of PW-10 in that regard is reproduced hereinafter:-
“मै सिर्फ लाश लाया हूँ मुझे लाश 12.1.13 को शाम 8.30 बजे मिली थी। लाश लाने वाले स्थान से पी०एम० हाऊस करीब 1-1/4 KM दूर है। लाश लाने वाला स्थान शहर में है इस प्रकार की सवारी उपलब्ध है। लाश हमने 13.1.13 को सुबह 7.30 बजे लाकर दाखिल की। यह कहना गलत है कि लाश हमे 13.1.13 को मिली हो लाश सुबह 7.30 बजे दाखिल की थी तथा रपट आदि की नकल 11.30 बजे दिन लाकर दाखिल की थी मोटर साईकिल से अस्पताल थाने से आने व जाने में लगभग 10 मिनट का समय लगेगा। यह कहना गलत है कि मै गलत ब्यानी कर रहा हूँ।”
56. It is in the above background that when we examine the recovery of two firearms recovered from the accused without any disclosure statement; without any public witness and from the open place, we do not find it safe to rely upon the recovery of firearms or the recovered cartridge from the place of occurrence, so as to implicate the accused appellants in the offence.
57. The testimony of PW-3 and PW-4 also needs to be noticed hereinafter. PW-3 is a Contractor alongwith PW-1 and has studied with him from Class 6th to 10th. His statement that accused stated before him that they have finished the deceased while rushing towards Awas Vikas does not appear to be credible. His statement has been recorded 18 days after the incident. He states that this fact was disclosed by him to PW-1 after about 15-16 days at Bijnor. We do not find such statement to be credible, as it is unnatural to expect such important fact not to be informed to the family members or the Investigating Officer. The testimony of PW-3, therefore, is not of much help to the prosecution case.
58. So far as PW-4 is concerned, he too is a related witness and has stated that all the accused came and confessed having eliminated the deceased and assured that they will vacate the house of deceased, so that the matter may be settled between them. The statement of PW-4 has also been recorded after several days and there are material contradictions in his version, which remains unexplained. We are not inclined to give much weightage to the testimony of PW-4 nor can it constitute any material to implicate the accused appellants.
59. The court below has erred in accepting the prosecution case without subjecting the evidence on record to a careful scrutiny as there are anomalies found in the testimonies of witnesses and the evidence regarding recovery of firearms has also not been carefully examined. The judgment of the court below on material aspects is, therefore, found wanting. Since the available evidence on record has not been subjected to a careful scrutiny by the court below, therefore, the finding of guilt returned in the judgment cannot be sustained and is liable to be reversed.
60. For the discussions and deliberations held above, we find that the accused appellants are clearly entitled to benefit of doubt as the prosecution has not been able to prove their guilt beyond reasonable doubt.
61. Consequently, the present appeals succeed and are allowed. The impugned judgment and order dated dated 20.01.2017, passed by the learned Additional Sessions Judge Court No. 01, Bijnor is hereby set aside. The appellants, who are reported to be in jail for more than ten years, shall be released, forthwith and set free, if they are not wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
