Lavkush vs State Of U.P. on 20 December, 2024

Allahabad High Court

Lavkush vs State Of U.P. on 20 December, 2024

Author: Manoj Kumar Gupta

Bench: Manoj Kumar Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2024:AHC:199404-DB
 
   Reserved On: 27.08.2024
 
Delivered On: 20.12.2024
 

 
Court No. 21
 
Case :- CRIMINAL APPEAL No. - 602 of 2019
 
Appellant :- Lavkush
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dinesh Kumar Gupta,Pragyan Kumar Mishra,Sharad Mayank Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Manoj Kumar Gupta,J.
 

Hon’ble Manish Kumar Nigam,J.

(Per: Manish Kumar Nigam,J.)

1. This criminal appeal has been filed against the judgment dated 28.08.2017 and order of conviction dated 30.08.2017 passed by learned Addl. Sessions Judge, Court no.2, Muzzafarnagar (hereinafter referred as ‘trial court’) whereby the learned trial court in Sessions Trial No. 279 of 2012 (State Vs. Lavkush and another) arising out of Case Crime No. 468/2011, has convicted Lavkush (appellant-accused) s/o late Bhagmal for the offence punishable under Section 302 I.P.C. and sentenced him for life imprisonment and has ordered him to pay a fine of Rs. 20,000/-. It has further been provided that in case of default of payment of fine, the appellant has to further undergo imprisonment for a period of six months. In Sessions Trial No. 280/2012 (State Vs. Lavkush) arising out of Case Crime No. 470/2011, under Section 25 of Arms Act, the court sentenced the appellant to undergo two years of rigorous imprisonment with fine of Rs. 3,000/- and in default of the payment of fine, to suffer additional imprisonment of three months. All the sentences were directed to run concurrently. By the same judgment dated 28.08.2017, learned trial Court acquitted the other co-accused, namely, Smt. Meena, under Sections 302/34 and 120-B of I.P.C.

2. The factual matrix of the case, which are relevant for present criminal appeal are that informant, namely, Sonu s/o late Bhagmal submitted a written complaint Ex.Ka-1 on 16.11.2011 on which the First Information Report Ex.Ka-2 was registered in Case Crime No.468 of 2011 under Section 302 I.P.C. at P.S. Bhopa, Jansath, District- Muzzafarnagar against one Lavkush. On the same day at 22:30 hours another F.I.R. bearing Case Crime No. 470 of 2011, Ex.Ka-4, was also lodged by Sri Sanjay Verma, Station Officer, P.S.- Bhopa, against Lavkush under Section 25 of Arms Act, 1959.

3. As per the First Information Report Ex.Ka-2, the informant stated that his brother, namely, Lavkush, was a vagabond and drunkard. He was having illicit relationship with Mrs. Meena, wife of his neighbour Ajeet, resident of Rahmatpur, P.S.-Bhopa. His mother used to dissuade Lavkush from having relationship with Meena, and for this reason his brother shot his mother dead in the night of 16.11.2011. Ravinder, s/o Jaipal and Gajendra Kumar s/o Dharampal had seen his brother running away from the spot after shooting his mother. 

4. After the First Information Report was lodged, the police investigated the crime and after collecting the evidence, charge sheet Ex. Ka-6 was submitted under Section 173(2) Cr.P.C against Lavkush and Smt. Meena under Sections 302 and 120- B I.P.C. in Case Crime No. 468 of 2011. Another charge sheet Ex. Ka 18 was submitted against Lavkush under Section 25 of Arms Act.

5. The learned Magistrate after taking cognizance and complying with the provisions of Section 207 Cr.P.C. committed the case for trial to the court of Sessions. On commencement of trial, learned Sessions Court on 27.04.2012 framed charges against Smt. Meena under Sections 302/34 and 120-B I.P.C. and Lavkush under Sections 302, 120-B of I.P.C. and Section 25 of Arms Act. The charges were explained and read over to accused persons, who denied the charges and pleaded not guilty.

6. During trial, statement of eight persons were recorded by the prosecution, namely, Ravindra Kumar P.W.-1, Gajendra Kumar P.W.-2, Sonu (informant/ brother of accused-appellant) P.W.-3, Rakesh Kumar (Constable Clerk, P.S.-Bhopa) P.W.-4, Vijendra Singh Bhadana (Station Officer, P.S.-Bhopa) P.W.5, Sanjay Verma (Station Officer, P.S.-Bhopa) P.W.-6, Yashpal Singh (Sub Inspector, P.S.-Bhopa) P.W.-7 and Dr. Arun Kumar (Medical Officer, District Hospital, Muzzafarnagar) P.W.-8. The statements of the accused persons Smt. Meena and Lavkush were recorded under Section 313 Cr.P.C.

7. The prosecution produced Written Report Ex. Ka-1, chik F.I.Rs. Ex.Ka-2 and Ex.Ka-4, memo of possession of country made pistol and empty cartridges Ex.Ka-15, memo of possession of blood stained & plain earth Ex.Ka-14, memo of possession of blood stained ‘chadar’ from cot Ex.Ka-13, post- mortem report Ex.Ka-19, Panchayatnama Ex.Ka-7, charge sheets Ex.Ka-6 & Ex. Ka-18, order of District Magistrate Ex. Ka-19 A, and site plans with index Ex.Ka-17, Ex. Ka-16 and Ex.Ka-12 as documentary evidence during the trial.

8. After considering the entire evidence, the learned Sessions Judge acquitted Smt. Meena under Sections 302/34 and 120-B I.P.C. and convicted Lavkush (accused-appellant) under Section 302 I.P.C, whereby he was sentenced with life imprisonment along with fine of Rs. 20,000/- and in case of default, six months additional imprisonment. He was also convicted by the learned trial court under Section 25 of Arms Act whereby he was sentenced to undergo two years of rigorous imprisonment with fine of Rs. 30,000/- and in default of the payment of fine, to suffer additional imprisonment of three months.

9. Heard Sri Sharad Mayank Pandey, learned counsel for the accused-appellant, Ms. Manju Thakur, learned A.G.A. for the State and perused the material on record.

10. Learned counsel for the accused-appellant vehemently assailed the order of conviction and made the following submissions:-

(i) Accused-appellant is innocent and has not committed the alleged offence.

(ii) The order of conviction is based on conjecture and surmises.

(iii) P.W.3, the informant, Sonu, has turned hostile and has not supported the prosecution case.

(iv) P.W.1 Ravindra Kumar and P.W. 2 Gajendra Kumar are inimical witnesses, whose testimonies are not reliable.

(v) Statements of P.W. 1 and P.W. 2 are also not reliable for the reason that there are contradictions in their evidence.

(vi) The prosecution case as well as evidence of the eye-witnesses are not supported by the medical evidence and therefore, cannot be relied upon.

(vii) The recovery of Tamancha (country made pistol) on the pointing out of the accused is hit by Section 27 of the Evidence Act and as such cannot be relied upon.

(viii) There is no evidence of the ballistic expert to connect the Tamancha (country made pistol) which was recovered on the pointing out of the accused with the pellets found in the body of the deceased.

(ix) The prosecution has failed to examine Vijay Pal, the scribe of the First Information Report, especially when P.W. 3 has not supported the prosecution version.

(x) The prosecution has failed to prove that the accused-appellant has committed offence beyond reasonable doubt.

11. Per contra, learned AGA for the State refuted the submissions made by the learned counsel for the appellant and made the following submissions:-

(i) Trial Court rightly relied upon the statements of P.W. 1 and P.W.2, the eye-witnesses of the incident for convicting the accused as P.W.3, Sonu, the informant, who was not an eye-witness to the incident was won over by the defence.

(ii) Recovery of 12 bore country made pistol and cartridges, Ex. Ka-15, on information given by the accused-appellant Lavkush supports the statement given by P.W. 1 and P.W. 2.

(iii) Post mortem report of deceased Saroj, Ex. Ka-19, shows entry wounds of bullet which corroborates the prosecution version.

(iv) Prosecution has proved the guilt of the accused beyond reasonable doubt and accused has been rightly convicted by the courts below.

(v) And it was lastly submitted that the trial court rightly passed the judgment convicting the accused-appellant after considering the entire evidence and the appeal has no merits and is liable to be dismissed.

12. With the help of learned counsel for the appellant and learned A.G.A. for the State, we have perused the record of the case.

13. P.W. 1- Ravindra Kumar had stated in his examination-in-chief that complainant-Sonu and his brother Lavkush were known to him. The incident was of 16.11.2011. At about 04:00 A.M., P.W.-1 went to the house of one Raju to call him. House of complainant was near the house of Raju. Name of Sonu’s mother was Saroj and son of Saroj, Lavkush was a drunkard man and was having illicit relationship with Meena. Mother of Lavkush Saroj used to discourage Lavkush from meeting Meena, but Lavkush never cared and used to beat his mother for this. Husband of Meena was working with his younger brother Dheeraj Pal. P.W. 1 further deposed that when he came down from the house of Raju, he heard a sound of firing and thereafter he went to the house of Saroj and witnessed that Lavkush was holding a Tamancha (country made pistol), Meena was holding hands of Saroj and Lavkush had shot Saroj in the presence of the witness and thereafter, Lavkush ran away and Saroj died immediately after she was shot. It was also stated by P.W. 1 that Gajendra, son of Dharam Pal (P.W. 2) was along with him at the time of the incident. Lavkush killed his mother as she forbade Lavkush to go to Meena. P.W. 1 stated that Investigating Officer (Daroga Ji) recorded his statement and he told everything to him. In cross-examination, P.W.-1 stated that his statement was taken by the Investigating Officer in the afternoon on 16.11.2011. At the time when his statement was taken by Investigating Officer, other witness Gajendra was not present. Investigating Officer recorded his statement and thereafter, the Investigating Officer read over the same to the witness. P.W. 1 stated in his cross-examination that the house of the deceased-Saroj was South facing and the witness had not seen the house from inside and had seen only the Verandah, which was visible from outside. The house of Raju son of Ram Singh was near the house of the deceased. P.W. 1 stated that in front of the house of the deceased, there was a Gali, which on southern side merged with the main road, the width of the Gali was 5-6 feet and the length of the Gali was 50 meters. At the time of incident Sonu (complainant) was working at Haridwar. He had not given information of the incident to Sonu and he did not know who had given this information to Sonu. P.W. 1 deposed he heard the sound of fire at about 04:15 to 04:30 A.M. Total two fires were shot and he heard the first shot and the second shot was fired in front of him and the duration between the two shots was about one minute. When he heard the first shot, he was on the east-south gate of the house of the deceased. After hearing the shot, he did not go inside the house. At the time of second shot, P.W. 1 stated that he was at the gate of the house of the deceased and the distance of the charpai (bed) was about 3 to 4 meters. Meena was on the northern side of the charpai whereas Lavkush (accused) was on the southern side. The head of the deceased was towards west and the legs on the eastern side. After the shots were fired, the accused ran away from the site and thereafter other persons from village came. When the second shot was fired, it was only P.W.1 and Gajendra (P.W. 2) who were present at the spot and there was no other person. It had also been stated by P.W. 1 that he did not know whether the deceased was in the Sahen (courtyard) or in the Verandah, later on he said that she was in the Verandah. House of the deceased consisted of two rooms and a Verandah, rooms were west facing and the Verandah was also west facing. Near the house of the deceased there was no electricity pole, in the neighbouring house an electric bulb was lit. It had also been stated by P.W.1 that he had not seen Meena and Lavkush in any compromising situation. There were only rumors in the village regarding the same. P.W. 1 admitted that accused- Lavkush had lodged an F.I.R. against P.W.1, Gajendra, the other witness, P.W.2 and against one Ram Pal at P.S.- Bhopa on 14.04.2007 for forceful entry into his house and for beating his mother and the accused. The said allegation was found to be false later on in investigation. P.W.1 stated that he had not told the Investigating Officer that at 04:00-05:00 A.M. he was going towards his agricultural field. How the Investigating Officer wrote this he could not tell. P.W. 1 had further stated that Meena was waiting outside the Gali and after the incident Meena went to her home. P.W. 1 stated he had not stated to the Investigating Officer that Meena went along with Lavkush. P.W. 1 stated that Meena was holding the hands of the deceased and Lavkush was holding Tamancha and if this fact had not been written by the Investigating Officer, then he did not know the reason. It had also been stated by P.W. 1 that he had stated to the Investigating Officer that Lavkush shot Saroj and if this fact was not noted by the Investigating Officer in his statement, he could not tell the reason. It was also stated by P.W. 1 that after the incident, he remained at the spot for 10 to 15 minutes and thereafter, went for his work.

14. P.W. 2- Gajendra Kumar stated in his examination-in-chief that on the date of incident at about 04:00 to 04:30 A.M., he along with Guddu had gone to call the driver. House of Raju was near the house of the deceased-Saroj. P.W.2 and Guddu had gone to the house of Raju. P.W. 2 stated when he along with Guddu came out from the house of Raju, then they heard a sound of fire from the house of Saroj (deceased). P.W. 2 stated that when P.W. 2 reached the house of Saroj, then at that time, Meena was holding the hands of Saroj and Lavkush had fired a shot from the Tamancha, which he was holding in his hand. P.W. 2 stated that after the incident, they remained there for 5 to 7 minutes. Lavkush ran away with the Tamancha (country made pistol) and Meena went to her house. P.W. 2 and Guddu had also gone for their work. P.W. 2 stated that the house of the deceased was west facing and towards the east, the house of Raju and that of other persons were situate. P.W. 2 stated that he cannot tell the month and date of incident. P.W. 2 stated that he was working with P.W.1- Ravindra, 14 months back but now he did not work with P.W. 1. P.W. 2 stated that total two fires were shot and when the first fire was shot, then P.W. 2 as well as P.W. 1 started from the house of Raju, second shot was fired three minutes after the first shot and at that time, they were in front of the house of the deceased. P.W. 2 stated where they were standing; Saroj was at a distance of about 5 to 7 steps in the Verandah. There was boundary wall around the house of the deceased and also a gate but the height of the boundary wall was not 10-12 feet but was of the height of a person. P.W. 2 stated that he heard the sound of the first shot and the second shot was fired in front of him and at the time of incident, there was nobody except P.W. 1 and P.W. 2. He did not know the names of the neighbours, who came immediately after the incident. P.W. 2 stated that P.W. 1 and P.W. 2 had seen the incident from outside the house of the deceased and they did not go inside the house. At the time of incident Lavkush and Meena were inside the house of the deceased. P.W. 2 stated that both P.W. 1 and P.W. 2 had seen the incident in the light of electric bulb, which was in the Verandah of the house of the deceased. When the shot was fired, Lavkush was on the east of the charpai and Meena was on the west. Meena did not have any firearm but she caught hold of both hands of the deceased from the back. He did not remember at what distance the shot was fired. The incident was of winters; deceased was not having any Lihaf (quilt) and was lying on her back. P.W. 1 and P.W. 2 had no talk with Saroj. It had also been stated by P.W. 2 that P.W. 1 and P.W. 2 touched the deceased with their hands and found that she was dead. After the incident, Lavkush ran away towards the south, Meena went to her house and the persons there tried to apprehend Lavkush, but could not catch him. P.W. 2 stated that P.W. 1 and P.W. 2 told Sonu (complainant) of the incident when they met him in the afternoon of the date of the incident. P.W. 2 stated that he had not given statement to the Investigating Officer (Daroga Ji) that on 16.11.2011, in the morning he was going towards his agriculture field. P.W. 2 stated that he had not stated to the Investigating Officer that he heard sound of fire while he was on his way to his field. It was also denied by P.W. 2 that he had not given statement to the Investigating Officer that both P.W. 1 and P.W. 2 had seen Lavkush coming out of the house with Tamancha (country made pistol) in his hand. P.W. 2 stated that he never saw Lavkush and Meena in compromising position and this he stated on the basis of rumors in the village that they were having illicit relationship. P.W. 2 stated that he told the Investigating Officer that at the time of incident, bulb was on in the house of the deceased. P.W. 2 stated that he stated to the Investigating Officer that he along with Ravindra-P.W. 1 had seen the shot being fired.

15. P.W. 3 Sonu (complainant) had not supported the prosecution version and was cross-examined by A.D.J.C. In his cross-examination, P.W. 3 stated that the time consumed in coming from house of Raju to his house is approximately 20 minutes and it was also stated that there was no electricity in the neighbouring houses. At the time of incident P.W. 3, was at Haridwar and came to know about the incident at about 08:00 A.M. He started from Haridwar at about 09:00 A.M. and reached his village at about 12:00 Noon. The complaint which was given at the police station was not written by P.W. 3 and he put thumb impression on the Tehrir (complaint) written by Vijay Pal (scribe).

16. P.W.-4 Rakesh Kumar, was the clerk and had prepared the First Information Report.

17. P.W.- 5 Vijendra Singh Bhadhna, Inspector, was the Investigating Officer who had done investigation from 19.01.2012.

18. P.W.- 6 Sanjay Verma (S.I.) was the Investigating Officer. In his statement, P.W. 6 stated that he recorded the statement of Ravindra on 16.11.2011. Aforesaid witnesses informed him that (accused) Lavkush was having illicit relationship with Smt. Meena. Deceased, who was the mother of the accused used to dissuade the accused from having such relationship. Witness informed P.W. 6 that on the date of incident, witnesses were going to their agriculture field when they heard at about 04:30 A.M., the sound of fire from the house of the deceased and when they reached the house of the deceased, they saw Lavkush along with Meena. Lavkush having Tamancha along with Meena had gone to the house of Meena and from there, they ran away. P.W. 6 stated that the witnesses found Saroj was dead on the charpai (bed) in her Verandah. P.W. 6 proved the recovery of Tamancha on pointing out of the accused and proved the Fard Baramdagi (memo of recovery). On cross-examination by the accused, P.W. 6 stated that he had taken statement of witness- Ravindra on 16.11.2011. P.W. 6 stated that witness Ravindra gave the statement that in the morning, he was going towards his agriculture field and heard sound of fire from the house of Saroj (deceased) and when he went near the house, he saw Lavkush coming out with Tamancha in his hand and Meena was waiting for Lavkush outside his house in the Gali. P.W. 6 stated that Ravindra gave the statement that Gajendra, son of Dharam Pal, also came and both of them had seen Meena and Lavkush going from the place of incidence. P.W. 6 stated in his cross-examination that witness Ravindra had not given statement that on date of incident at about 04:00 A.M he had gone to call Raju to his house. Witness had not given the statement that when the witness came out from the house of Raju then they heard the sound of fire from the house of the deceased and hearing the same, when he went to the house of the deceased, he saw Lavkush was having Tamancha in his hands and Meena was holding hands of Saroj and Lavkush had fired shot in his presence. P.W. 6 stated that P.W. 1 Ravindra had not given the statement that Meena was holding hands of Saroj and Lavkush was having a Tamancha. P.W. 1 had not given the statement that Lavksuh fired in his presence. P.W. 6 further stated that witness Gajendra had given statement that on 16.11.2011, he was going to his agricultural field in the morning. It was further stated that the witness stated that on his way, he heard two shots of fire coming from the house of the deceased. Witness stated that Ravindra (P.W. 1) was walking in front of him and this witness stated that when they reached house of the deceased, they saw Lavkush coming out from the house along with fire arm. It was also stated by P.W. 6 that witness Gajendra stated that Meena asked Lavkush “Kam ho gaya” (work has been done?) to which Lavkush replied in the affirmative and after seeing them, they ran away from the spot. P.W. 6 stated that Gajendra had not stated that on the date of incident, he along with Guddu at about 04:00 A.M. went to call Raju, driver, to his house. This witness also did not state that when they came out from the house of Raju, they heard the sound of fire from the house of Saroj and when they reached the house of the deceased, they saw Meena holding hands of Saroj and Lavkush was having fire arm in his hand and shot Saroj in their presence. P.W.-6 also stated that witness Gajendra had not stated that at the time of incident, Lavkush and Meena were present in the house of deceased and the incident was seen by both P.W. 1 and P.W. 2, in the light of bulb and this witness had also not stated that there was a bulb in the Verandah of the house of the deceased. P.W. 6 also stated that Gajendra, P.W. 2 had not stated that when the fire was shot at that time, Lavkush was on the east of the Charpai (bed) and Meena was on the west. Witness Gajendra had not stated that Meena was holding hands of Saroj from the back and the witness had not given statement that they touched Saroj. P.W. 6 stated witness Ravindra came to the place of the incident after the police reached the spot. It was stated by P.W. 6 that site plan was prepared by P.W. 6 as per the actual situation. House of the deceased was south facing and there was a Gali in the South. In the western side, there is an open space which had not been shown in the site plan. It was also stated by P.W. 6 that there was a boundary wall which was about 10 feet high and surrounded the house of the deceased. There was light in the house of the deceased but the same was not shown by P.W. 6 in site plan. It was also stated by P.W. 6 that the house of Raju was not nearby to the house of the deceased. It was also stated by P.W. 6 ,when the witnesses reached spot ‘W’ at that point, the shot was fired and saw the accused coming out of the house along with Tamancha. Spot ‘W’ is about 20-25 steps away from the place of incident. It was also stated by P.W. 6 that he had not seen the house of Raju and Ram Singh and nor recorded their statement. It was also stated by P.W. 6 at the place of occurrence no Khokha Kartoos (empty shells) or chhare (pellets) were found. It was also stated by P.W. 6 that the Tamancha (country made pistol) and Kartoos (cartridge) which was recovered were not sent by P.W. 6 to the expert for examination.

19. P.W. 7 Yashpal is also a police witness, who stated that the Tamancha and cartridges recovered were sent for the examination to expert but the report of expert was not on record.

20. P.W. 8 Arun Singh has conducted the post-mortem and has proved the post-mortem report.

21. The accused-Lavkush in his statement recorded under Section 313 Cr.P.C. denied the incident and stated that P.W. 1 and P.W. 2 in year 2007 had beaten the accused and his mother and had looted Rs. 30,000/- from the house of the accused regarding which an application was given with the police and medical examination was also done.

22. Learned counsel for the appellant submitted that there were gross contradictions in the testimony of P.W.1 and P.W.2, who were the only eye-witnesses of the incident. The so called eye-witnesses were not eye-witnesses at all, rather, they were interested witnesses having previous enmity with the appellant. Learned counsel for the appellant further submitted that the version as mentioned in the First Information Report, in the statements recorded under Section 161 Cr.P.C. and the statements which were made before the Court by the P.W. 1 and P.W. 2 are altogether inconsistent. There are several material omissions which were not explained by the prosecution witnesses in their testimony.

23. The defence had proved the contradictions and omissions in the testimony of the eye-witnesses i.e P.W. 1 and P.W. 2 but the same were brushed aside by the trial court as minor contradictions.

24. Per contra, learned A.G.A. submitted that the contradictions if any in the evidence of P.W. 1 and P.W. 2 were minor and which were due to lapse of time and human error. It has also been submitted by learned A.G.A. that there are no material omissions which could lead to the conclusion that the evidence of the eye-witnesses was not trust worthy.

25. Elaborating his submissions, learned counsel for the appellant referred to the First Information Report and submitted that the only allegation in the First Information Report was that Ravindra and Gajendra (P.W. 1 and P.W. 2, respectively) had seen the accused coming out of the house of the deceased after Saroj was shot dead. Learned counsel for the appellant has further drawn attention of this Court to the statement of P.W. 1- Ravindra Kumar given before the Investigating Officer under Section 161 Cr.P.C., wherein he stated that in the morning, he was going towards his agriculture field at about 04:30 to 05:00 A.M. and heard the sounds of firing from the house of Saroj (deceased) and when he reached the house of the deceased Saroj, he saw Lavkush (accused) coming out of house holding a Tamancha in his hand and thereafter he went inside the house of Meena and thereafter, Meena and Lavkush went together whereas in his statement before the Court, P.W. 1 stated that P.W. 1 had gone to the house of Raju along with Gajendra to call Raju and while returning from there he heard the sounds of firing and thereafter, he went to the house of the deceased where he saw that Lavkush was holding a Tamancha (country made pistol) in his hand and Meena was holding the hands of the deceased and Lavkush had shot the deceased, in his presence and thereafter, Lavkush ran away from the scene. Learned counsel for the appellant has further submitted that P.W. 2 gave statement in the same line as P.W. 1. It is submitted by learned counsel for the appellant that before the Investigating Officer, P.W. 1 only stated that he had seen the accused coming out of the house of the deceased and had not disclosed this fact to Investigating Officer that he had seen the accused firing the deceased. This is a material contradiction which had not been explained by P.W. 1. Learned counsel for the appellant also invited the attention of this Court to the statement of P.W. 1 as given before the court wherein he had stated that the Investigating Officer (Daroga Ji) had taken his statement and the same was read over by the Investigating Officer to P.W. 1. In his cross-examination when the P.W. 1 was confronted regarding this omission, he only stated that he gave the statement before Investigating Officer that Meena was holding the hands of the deceased and Lavkush was having a Tamancha in his hand, but why this fact was not written by the Investigating Officer, he could not tell any reason for the same. He also stated in his statement that he had stated before the Investigating Officer that accused Lavkush shot Saroj but if such statement was not recorded by the Investigating Officer, he could not give any reason for the same. It is further submitted by learned counsel for the appellant that at the stage of trial, the entire prosecution story had changed and there were a lot of improvements as to what had been stated in the First Information Report, in the statement under Section 161 Cr.P.C. and in the statement made before the court and that too without any proper explanation and such an omission would amount to material contradiction in the evidence of the witness and therefore, same cannot be relied upon. Learned counsel for the appellant drew the attention of this Court to the statement made by P.W. 2 before the Investigating Officer under Section 161 Cr.P.C., wherein P.W. 2 stated that he along with P.W. 1 had seen, after hearing the sound of fire, accused coming out of the house of the deceased but in statement in-chief before the Court, the P.W. 2 deposed that when they reached the house of the deceased after hearing the first shot, they found Meena was holding hands of the deceased and the accused shot the deceased and thereafter they ran away. P.W. 2 had not explained why he had not informed the Investigating Officer regarding this fact that he had seen the accused firing upon the deceased. This omission on the part of the witnesses to state before the Investigating Officer about the fact that they had seen the accused firing the deceased is a material contradiction and therefore, cannot be relied upon by the prosecution.

26. Per contra, learned A.G.A. has submitted that by merely not stating before the Investigating Officer by P.W. 1 and P.W. 2 that they had seen the accused shooting the deceased is not such an omission which may shake their testimony, especially, when they have deposed before the court and their statements were consistent as to the fact that they had seen the deceased being shot by the accused. It is further submitted by learned A.G.A. that in the cross-examination, P.W. 1 and P.W. 2 have not been confronted with their statements made before the Investigating Officer as contemplated under Section 145 Cr.P.C. and therefore, the same is not relevant.

27. Replying to the submissions made by learned A.G.A., it has been submitted by learned counsel for the appellant that though the witnesses were confronted with their previous statements recorded under Section 161 Cr.P.C. regarding the material omission and even if, the same is not in true compliance of Section 145 Cr.P.C. it was the duty of the court in view of Section 165 of Evidence Act to find out the truth by himself and this duty cannot be abdicated by the Judge, specially when the defence had failed to cross-examine the witnesses properly in accordance with the mandate of Section 145 Cr.P.C. It has also been submitted that Section 172(2) of Cr.P.C. enables the Court to send for police diaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid in the trial and in this regard, learned counsel for the appellant relied upon a judgment of Andhra Pradesh High Court in Sessions Judge Nellore Referring and Others vs Intha Ramana Reddy; reported in ILR (1972) AP 683 (1972) CRILJ1485.

28. Learned counsel for the appellant has drawn the attention of this Court to the statement of P.W. 6, the Investigating Officer, who stated that on 16.11.2011, he recorded the statement of P.W. 1, Ravindra s/o Jai Pal, and Vijay Pal s/o Charan Singh and witnesses had stated that on the date of the incident, witnesses were going towards their agricultural field and heard the sound of fire at about 04:30 A.M. from the house of the deceased and when they reached the house of the deceased, then they saw Lavkush holding Tamancha in his hand and Meena coming out of the house of the deceased and they went to the house of Meena and from there they ran away. Witnesses had also stated that when they saw Saroj, she was lying dead on the charpai (bed). In the cross-examination, P.W. 6 had stated that witness Ravindra (P.W.1) stated when he heard the sound of fire from the house of Saroj, he came nearby to the house of deceased, he saw the accused Lavkush coming out of the house along with a Tamancha and Meena was waiting for him in the Gali. Witness stated that Gajendra s/o Dharam Pal (P.W. 2) also came along with P.W. 1 Ravindra and both of them saw Meena and Lavkush going from the place of incidence. P.W. 6 stated that the witness Ravindra had not stated before him that on the date of incident at about 04:00 A.M., he had gone to call Raju to his house. P.W. 1 had also not stated that when he came out of the house of Raju, he heard the sound of fire from the house of Saroj and on hearing the sound, witnesses went to the house of Saroj where they saw Lavkush holding Tamancha (country made pistol) and Meena was holding the hands of the deceased and that Lavkush shot the deceased in his presence. P.W. 6 also stated that P.W. 1 had not stated that Meena was holding hands of Saroj and Lavkush was holding Tamancha. P.W. 6 further stated that P.W. 1 had not stated that Lavkush shot Saroj in front of him.

29. P.W. 6 in his statement stated that Gajendra (P.W. 2) stated that on 16.11.2011, he was going towards his agricultural field in the morning but no time was mentioned by the witness P.W. 2. P.W. 6 also stated that P.W. 2 stated that on the way to agricultural field, he heard sound of two fires from the house of deceased Saroj. P.W. 2 stated that Ravindra (P.W. 1) was going few steps ahead of P.W. 2 and further stated as both P.W. 1 and P.W. 2 reached the house of Saroj, they saw Lavkush coming from the house of deceased with Tamancha in his hand and Meena was standing a few steps outside the house and thereafter, they ran away. P.W. 6 stated that P.W. 2 had not stated that on the date of incident at about 04:00 A.M., he along with Guddu (Ravindra-P.W. 1) went to call Raju. P.W. 2 had also not stated that when P.W. 2 and Guddu came out from the house of Raju, then they heard the sound of fire and thereafter, they saw inside the house of Saroj and saw Meena holding the hands of Saroj and Lavkush shot Saroj with Katta (country made pistol) in their presence. P.W. 2 had also not stated that at the time of incidence, Lavkush and Meena were present in the house and both the witnesses had witnessed the incident in the light of an electric bulb. P.W. 6 further stated that P.W. 2 had not given the statement that there was a bulb in the Verandah of the house of the deceased and the bulb was on. P.W. 2 had also not stated that when fire was shot Lavkush was on the east of charpai (bed) and Meena was on the west. P.W. 2 had also not stated that Meena was not having any weapon and was holding hands of the deceased Saroj from the back. P.W. 2 had also not stated that both the witnesses touched the deceased Saroj and found her dead. P.W. 6 stated that P.W. 1 Ravindra reached the place of incidence after sometime when P.W. 6 reached the spot.

30. Relying upon the statement of P.W. 6, learned counsel for the appellant contended that both the eye-witnesses have improved their statements before the court, as they deposed that they had seen accused shooting the deceased in their presence, that co-accused Meena was holding the hands of the deceased when Lavkush shot the deceased, they had gone to the house of Raju to call him and while coming out of house of Raju, they heard the sound of fire and after hearing the same, they reached the spot where they saw accused Lavkush shot the deceased. In their statement before the police under Section 161 Cr.P.C., it had only been stated by P.W. 1 and P.W. 2 that while going to their agricultural field in the morning of the date of incident they heard sound of fire coming from the house of deceased and when they reached the house of deceased, they saw accused Lavkush coming from the house with a Tamancha (country made pistol) in his hand and the accused Lavkush along with Meena, who was standing in the Gali ran away from the spot. It is also contended by counsel for the appellant that when P.W. 1 was contradicted with his statement under Section 161 Cr.P.C. to the statement made in the court, he only said that he had informed the Investigating Officer, but if the same was not written, he cannot give any reason for the same. It is further contended by counsel for the appellant that in his statement, P.W. 1 had admitted that his statement was recorded by the Investigating Officer and was read over to him after recording the same, therefore, the statement of P.W. 1 to the effect that he had informed the Investigating Officer of the facts which were for the first time stated in his statement before the court and if they are not recorded by the Investigating Officer, he cannot give any reason for the same, cannot be believed.

31. It is further contended by counsel for the appellant that there is no explanation by the witnesses as to the facts, which were stated for the first time before the court why the same were not stated before the Investigating Officer and this will amount to material contradiction and will be fatal to the prosecution case. In this regard, learned counsel for the appellant relied upon judgment of Apex Court in case of Shri Gopal and Another Vs. Subhash and Others; reported in 2004 (13) SCC 174, wherein it has been held by the Apex Court that omission by the prosecution witnesses to state before the police about exhortation by all accused in the facts and circumstances of the case, such omission would amount to contradiction. Paragraph Nos. 17, 18 and 19 of the judgment in case of Shri Gopal and Another (supra) are quoted as under:-

“17. Keeping in view the aforementioned principles, the question is required to be considered for arriving at a conclusion as to whether there had been a common object on the part of the respondents in committing the alleged offence.

18. In Tahsildar Singh and another Vs. State of U.P. [AIR 1959 SC 1012], this Court held that in terms of Section 145 of the Indian Evidence Act attention of witnesses can be drawn to such statements which would amount to contradiction. It was held: “The right of both accused and the prosecution is limited to contradictions.” It was, thus, held that omission to make a statement in terms of Section 161 of the Code of Criminal Procedure would not attract the provisions of Section 145 of the Indian Evidence Act. However, by reason of Code of Criminal Procedure explanation has been inserted to Sub-Section (2) of Section 162 which is in the following terms:

“An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

19.From the records, it appears that PW 1, PW 5 and PW 10 did not make any allegation as regard the alleged exhortation on the part of all the accused. It further appears that PW 3, PW 4 and PW 8 stated before the police that there had been such exhortations by the respondents herein. Such omission on the part of PW 3, PW 4 and PW 8, in the facts and circumstances of the case, being very material would amount to contradiction.”

32. In case of State of Rajasthan Vs. Rajendra Singh 1998 SCC (Cri) 1605 in paragraph No. 7 of the judgment, the Hon’ble Supreme Court has held as under:-

“7. It was submitted by the learned counsel for the State that as many as six witnesses were found injured and that would establish their presence at the place of the incident. In our opinion this contention is of no help to the appellant because their evidence has not been discarded on the ground that they were not present. Their evidence was discarded because they were found not telling the truth before the court. It was also submitted by the learned counsel that the evidence of PWs 1 to 4 stood corroborated by two independent witnesses, namely Ramjilal and Jeevan Singh. P.W.8 Ramjilal had stated that he had gone to the spot on hearing sound of a gun shot and tried to snatch away the gun from the respondent. But he was contradicted by his police Statement wherein he had not stated anything regarding snatching of the gun. this omission on such a vital point has to be regarded as a contradiction and it creates a serious doubt about the truthfulness of his version. P.W. 9 Jeevan Singh had stated that he had also rushed to the spot on hearing the sound of a gun shot. He further stated that he had made an attempt to save Harveer and in doing so he had received an injury. He had not so stated before the police. This also shows that this witness had made a material improvement before the Court in order to make his evidence acceptable.”

33. Per contra, learned A.G.A. submitted that in cross-examination, it has been stated by P.W. 1 that the facts referred above in the preceding paragraphs were stated by P.W. 1 to the Investigating Officer and if he has not recorded the same in his statement under Section 161 Cr.P.C., he cannot give any reason for the same. It has been further contended by learned A.G.A. that even assuming the said facts were not stated by P.W. 1 before the Investigating Officer, the omission to state such facts is not material as in his statement-in-chief, he had categorically stated the detail of the manner of assault by the accused and the same had also been corroborated by the evidence of other eye-witness P.W. 2.

34. Learned counsel for the appellant further submitted that in case, there were omissions which were material to the prosecution case, the same ought to have been explained by the prosecution and it was the duty of the prosecuting agency to get an explanation for the said omissions from the witness and even if the prosecution failed to perform his duty, it was incumbent upon the trial court to have called for an explanation from the prosecution witnesses, in the interest of justice, as to the important material facts and also with what the witnesses of prosecution had said during the police investigation.

35. In this connection, it will be useful to refer the judgment of the Hon’ble Supreme Court in case of Munna Pandey Vs. State of Bihar; reported in 2023 SCC Online SC 1103. Paragraphs Nos. 40, 41, 42, 43 and 48 of the judgment in case of Munna Pandey (supra) are quoted as under:-

“40. Neither the defence counsel nor the public prosecutor nor the presiding officer of the Trial Court and unfortunately even the High Court thought fit to look into the aforesaid aspect of the matter and try to reach to the truth.

41. It was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record. We are sorry to say that the learned defence counsel had no idea how to contradict a witness with his or her police statements in accordance with Section 145 of the Evidence Act, 1872 (for short, ‘Evidence Act‘).

42. The lapse on the part of public prosecutor is also something very unfortunate. The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile.

43. The presiding officer of the Trial Court also remained a mute spectator. It was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation. Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation. Had he done so, he could without any impropriety have caught the discrepancies between the statements made by these witnesses to the investigating officer and their evidence at the trial, to be brought on the record by himself putting questions to the witnesses under Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to prosecution witnesses the questions otherwise permissible, if the justice obviously demands such a course. In the present case, we are strongly of the opinion that is what, in the interests of justice, the Trial Judge should have done but he did not look at the record of the police investigation until after the investigating officer had been examined and discharged as a witness. Even at this stage, the Trial Judge could have recalled the officer and other witnesses and questioned them in the manner provided by Section 165 of the Evidence Act. It is regrettable that he did not do so.

48. In our opinion, in a case of the present description where the evidence given in a Court implicates persons who are not mentioned in the first information report or police statements, it is always advisable and far more important for the Trial Judge to look into the police papers in order to ascertain whether the persons implicated by witnesses, at the trial had been implicated by them during the investigation.”

36. The Hon’ble Supreme Court in Case of Rahul Vs. State of Delhi, Ministry of Home Affairs and Another reported in (2023) 1 SCC 83 in paragraph Nos. 44 and 45 has held as under:-

” 44. This Court while not accepting the submission that it was improper for the Court to have interjected during the course of cross-examination of the witness, had observed in the case of State of Rajasthan vs. Ani and Others thus: – (SCC pp. 166-167 paras 11-13)

“11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts. The said section was framed by lavishly studding it with the word “any” which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words “relevant or irrelevant” in Section165. Neither of the parties has any right to raise objection to any such question.

12. Reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth. The corollary of it is that if a Judge felt that a witness has committed an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remain active and alert so that errors can be minimised.

13. In this context it is apposite to quote the observations of Chinnappa Reddy, J. in Ram Chander v. State of Haryana [(1981) 3 SCC 191 : 1981 SCC (Cri) 683 : AIR 1981 SC 1036] : (SCC p. 193, para 2)

“2. The adversary system of trial being what it is, there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.”

45. In the instant case, material witnesses examined by the prosecution having not been either cross-examined or adequately examined, and the trial court also having acted as a passive umpire, we find that the Appellants-accused were deprived of their rights to have a fair trial, apart from the fact that the truth also could not be elicited by the trial court. We leave it to the wisdom and discretion of the trial courts to exercise their powers under Section 165 of the Indian Evidence Act for eliciting the truth in the cases before them, howsoever heinous or otherwise they may be. ”

37. Under Section 161 of the Criminal Procedure Code, 1973 (for short, ‘CrPC‘), the police have the power to record statements of the witnesses during the investigation. Section 162 of CrPC deals with the use of such statements in evidence. Section 162 reads thus:

“162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation. An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether anv omission amounts to a contradiction in the particular context shall be a question of fact.”

The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, ‘Evidence Act‘). Thus, what is provided in sub-Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved.

38. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross -examination.

39. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:

“145. Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness’s attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross- examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.

40. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:

“155. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him-

(1)………………………

(2)……………………….

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”

It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness’s version. Only when there is a material contradiction or omission can the Court disbelieve the witness’s version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case.

41. In our opinion, the defence has confronted P.W. 1 and P.W. 2 as to the improvements made by the eye-witnesses but the explanation submitted by them is not trust worthy coupled with the fact that Investigating Officer-P.W. 6 in his statement before the court below had clearly stated that such statements were not given by P.W. 1 and P.W. 2 before him at the time of recording of their statements under Section 161 Cr.P.C. Both P.W. 1 and P.W. 2 in their statements made before the court for the first time stated that when they reached the house of deceased after hearing the sound of fire, they saw accused-appellant holding Tamancha (country made pistol) in his hand, co-accused Meena (acquitted by the trial court) was holding the hands of the deceased from the back and accused-appellant shot Saroj (deceased) in their presence. No such statement was made by P.W. 1 and P.W. 2 before the Investigating Officer under Sections 161 Cr.P.C. This omission is very significant which amounts to contradiction. Only explanations offered by P.W. 1 and P.W. 2 is that they stated these facts before the Investigating Officer (P.W.6) but if the same was not recorded, they cannot give any reason for the same. P.W. 6 i.e. Investigating Officer in his statement stated that no such statement was given by P.W. 1 and P.W. 2 to Investigating Officer in their statements recorded under Section 161 Cr.P.C. Thus, there are material omissions which amounts to contradiction and affect the reliability of the eye-witnesses i.e. P.W. and P.W. 2.

42. Learned counsel for the appellant further submitted that there are material contradiction in the statement of P.W. 1 and P.W. 2 regarding the manner of assault, time of assault and place of occurrence. P.W. 1 in his statement has stated when he heard the sound of fire while coming out from the house of Raju, he went to the house of deceased and saw accused having Tamancha in his hand and Meena holding hands of the deceased and thereafter accused shot the deceased and ran away from the place. It had also been stated by P.W. 1 that he heard the sound of fire at about 04:15 to 04:30 A.M, total two shots were fired, of which he heard one and the other shot was fired in his presence and the time difference between the two shots was one minute. It was also stated by P.W. 1 that when he heard the first shot, he was at the east-south gate of the house of deceased and after hearing the shot he did not go into the house and had seen the incident from outside. P.W.1 further stated that at the time of second shot, he was present at the gate of the house of the deceased and charpai (bed) of the deceased was 3 to 4 meters away from the witness. P.W. 1 also stated that at that point of time, Meena and Lavkush were in the house, Meena was on the north of the charpai whereas Lavkush on the south. The head of the deceased was on the western side and legs were on the eastern side. It had also been stated when the second shot was fired then, P.W. 1 and Gajendra P.W. 2 were there at the place of occurrence and there was no other person. P.W. 1 further stated that after the firing he and Gajendra P.W.2 had not gone inside the house, light was on at the time of incident and they witnessed the incident from outside. Regarding source of light, P.W. 1 stated that there was no electric pole outside the house of the deceased, bulb was lit in the neighbouring house. P.W. 2 stated that after hearing the shot when they reached the house of Saroj, they saw that Meena caught hold of hands of the deceased and Lavkush shot the deceased. P.W. 2 stated that total two shots were fired and when the first shot was fired, we (P.W.1 & P.W. 2) started towards the house of the deceased from the house of Raju, the second shot was fired after three minutes when they were in front of the house of deceased Saroj. It was stated by P.W. 2 where we (P.W.1 & P.W. 2) were standing, Saroj was at a distance of 5 to 7 steps in the Verandah. It has also been stated that there was a boundary wall and a gate around the house of the deceased and the height of the wall was of a height of a man. Regarding source of light, P.W. 2 deposed that the bulb was there in the Verandah of the house of the deceased and in the light of bulb they saw the incident. It was also stated by P.W. 2 when the fire was shot, Lavkush was on the east of the charpai whereas Meena was on the west. Meena was not having weapon in her hand and she was holding hands of the deceased from the back. It was also stated by P.W. 2 that Saroj was lying on her back and her face was towards the sky. It had also been stated by P.W. 2 that Saroj died and they had no talks with the Saroj. It was also stated by P.W. 2 that “hamne” (both P.W. 1 and P.W. 2 ) touched the deceased and found that she was dead. Learned counsel also invited our attention to the statement made by P.W. 1 wherein in his cross-examination he admitted that the accused had lodged a case against Ram Pal s/o Dhanu, Gajendra (P.W.2) and P.W. 1 on 14.04.2007 for entering in his house and beating deceased Saroj and the accused. It was also stated that on investigation, the said incident was found to be false on the other hand, P.W. 2 totally denied that Lavkush lodged the case on 14.04.2007 against P.W. 2 and Ram Pal.

43. Learned counsel for the appellant submitted that from the statements referred above, it is clear that there are material contradictions in the testimony of both the eye-witnesses and apart from these witnesses there is no other eye-witness. P.W. 3, who was the complainant had turned hostile and had not supported the prosecution version.

44. Per contra, learned A.G.A. has submitted that though there are certain contradictions in the testimony of the P.W. 1 and P.W. 2 but they are minor and on the basis of same, their evidence cannot be discarded.

45. Considering the statements of P.W. 1 and P.W. 2, in the light of the arguments made by respective counsel, we are of the opinion that there are material contradictions in the testimony of the eye-witnesses. Further the eye-witnesses have improved the statement made before the court below with the statements made by them before the Investigating Officer. The material contradictions are not being explained by the eye-witnesses, the prosecution has also failed to explain the material contradictions in the statement of eye-witnesses as to what the eye-witnesses had stated before the Investigating Officer while their statement was recorded under Section 161 Cr.P.C. The trial court has also not taken any pain to discover the truth and had relied upon the statements of the eye-witnesses and brushed aside the contradictions saying them to be minor.

46. It is submitted by learned counsel for the appellant that the prosecution story as well as statement of the witnesses did not corroborate with the medical evidence.

47. It is further submitted by learned counsel for the appellant that the ocular evidence do not support the medical evidence and as such cannot be relied upon. In the post-mortem, two gun shot injuries were found on the body of the deceased. Injury No. 2, 3 cm x 2 cm brain cavity deep on left side of head. 2 inches above. So far as injury No. 2 is concerned, learned counsel for the appellant submitted that as per P.W. 1 the accused was on the south of the charpai (bed) on which the deceased was lying. The head of the deceased was towards the west and the legs are toward east and in such a situation, pellet injury on the north side of the head is not possible. In this connection, he has relied upon the statement of doctor also who had conducted the post-mortem i.e. P.W. 8 who had stated in his statement that in case the head of the deceased was in the west and the legs towards east and the shot is fired from the south direction, in such a situation injury No. 2 was not possible. It has been further contended by learned counsel for the appellant that injury No. 3 was on the right side of the chest which was a entry wound of a fire. It has been submitted that according to P.W. 2, the deceased was lying with the head towards east and the legs towards west and in such a situation, the said injury cannot be caused by a person, who is on the southern side of the deceased.

48. Learned counsel relied upon statement of P.W. 8, the doctor who had conducted the post-mortem, that such an injury is not possible from a person standing on the same level of the deceased and this injury is only possible if the fire is shot from the up-side down. Learned counsel appearing for the appellant further submitted that from the evidence as has come, it is apparent that it is a case of firing from very short distance as according to both the witnesses, the accused was standing near the cot where the deceased was lying and in such a situation there must be a blackening and tattooing present on the person of the deceased wherein as per the post-mortem report which has been proved by P.W. 8 there is no blackening and tattooing present on the person of the deceased. This fact is further fortified by the fact that the incident has taken place in a Verandah and prosecution has failed to prove the dimension of the Verandah. Prosecution has also failed to prove the approximate distance from which the actual firing was done.

49. Per contra, learned A.G.A. submitted that from the ocular evidence as adduced before the court below, it is clear that the second shot was fired by the accused Lavkush and if there is some inconsistency with the post-mortem, the same will not be fatal and on this score, the ocular evidence cannot be rejected.

50. Learned counsel for the appellant further contended that there are material contradictions in the evidence of P.W. 1 and P.W. 2. P.W. 1 in their statement before the court stated that at the time of incident Meena was on the north of the charpai whereas Lavkush was on the south. The head of the deceased Saroj was towards west and the legs towards east. P.W. 2 in his statement has stated that when the accused Lavkush shot Saroj, Lavkush was on the east of the charpai (bed) and Meena was on the west. It was stated by P.W. 2 that the charpai was lying from east to west. It is further contended by counsel for the appellant that P.W. 2 in his statement had changed the direction where the accused was standing at the time of incident from south of charpai(bed) to east of charpai (bed) because prosecution realized after evidence of P.W. 1 that injury Nos. 2 and 3 which were fire arm injuries were not possible in case, accused-appellant was on the South of the charpai while deceased was lying west to east on the charpai(bed) therefore, there is a material contradiction and improvement in the statement of P.W. 2 vis a vis statement of P.W. 1.

51. Considering the statements of P.W. 1 and P.W. 2 and P.W. 8 and the arguments of the counsel for the parties, we are of the considered view that prosecution case is not consistent with the medical evidence and there are material contradictions and improvement in the testimony of P.W. 1 and P.W. 2 regarding the same.

52. Learned counsel for the appellant also submitted that as per the prosecution case the country made pistol was recovered on the pointing out of the accused at about 20:30 hours on the date of incident itself. It is further submitted that the alleged recovery cannot be relied upon as the same was not in consonance with the law laid down by the Supreme Court in cases of Subramanya Vs. State of Karnataka; reported in A.I.R. 2022 SC 5110 and Ramanand alias Nandlal Bharti Vs. State of U.P.; reported in A.I.R. 2022 SC 5273.

53. Learned counsel for the appellant further submitted that the recovery of Tamancha (country made pistol) and the cartridges on the pointing out of accused is also inadmissible in evidence in view of Section 27 of the Evidence Act. In this regard, counsel for the appellant invited the attention of this court to Fard Baramadgi ( recovery memo) Ex. Ka-15, wherein it has been stated that on 16.11.2011 Investigating Officer Sanjay Verma, along with S.I. Rajendra Singh Bhadana and Ram Chander, Virendra Singh and Constable Mange Ram, driver of the jeep along with the accused Lavkush proceeded in the official jeep towards place where as per the accused, he had buried the Tamancha and cartridges used in the incident for recovery of same, on there way they tried to take witness from the public nearby but nobody was ready for the same and therefore, under compulsion they have searched each other and ensured that none of the persons have any illegal material with them and came to the spot and recovery of Tamancha and two cartridges was made.

54. Learned counsel for the appellant submitted that the recovery as made is not in accordance with the procedure as prescribed and held to be mandatory by the Supreme Court in case of Subramanya Vs. State of Karnataka(supra). Counsel for the appellant relied upon paragraphs Nos. 76, 77 and 78 of the judgment in case of Subramanya (supra) which are quoted as under:-

“76. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:

“27. How much of information received from accused may be proved.– Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.

78. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch­witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch­witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.”

55. Same view has been reiterated by the Supreme Court in Case of Ramanand @ Nandlal Bharti Vs. State of U.P (supra).

56. It has been contended by counsel for the appellant that as per the law laid down by the Supreme Court there was no effort by the Investigating Officer, once the alleged confession made by the accused in the police custody at the police station to procure the independent witness and to record the statement of accused in presence of independent witnesses at the police station itself, which has been held mandatory by the Supreme Court. From the perusal of the recovery memo, it appears that the police while going along with accused as stated in recovery memo tried to procure witnesses on the way and not before when alleged confession was made by the appellant at the police station and therefore, the alleged recovery cannot be relied upon. It is also pointed out by the counsel for the appellant that the alleged confession of the accused before the police was recorded on 16.11.2011, whereas the statement of accused-appellant recorded by Investigating Officer on 17.11.2011 while sending the accused-appellant for remand, wherein it has been stated that the accused denied the commission of offence.

57. Learned counsel for the appellant further contended that the alleged recovery has been made from an open place accessible to all and therefore, the same cannot be relied upon. Learned counsel for the appellant also contended that the fire arm allegedly used in the offence and the cartridges which were found along with the fire arm were never sent to ballistic examination and if sent, there was no report on record of a ballistic expert and there was no examination of ballistic expert by the prosecution to connect the weapon with the pellets found on the body of the deceased and in view of the same, it is contended that there was no material before the trial court that the accused shot the deceased with fire arm which was recovered on the pointing out of the accused to connect the same with the pellets found on the body of the deceased.

58. Per contra, learned A.G.A. submitted that in view of the judgment of the Supreme Court in cases of Gurcharan Singh and another Vs. State of Punjab, reported in 1963 AIR (SC) 340 and Ram Singh Vs. State of U.P. reported in 2024 AIR (SC) 1176, in case where there is ocular evidence of an incident, mere non examination of the ballistic examiner or even where the fire arm has not been sent for ballistic examination will not be fatal to the prosecution.

59. Replying the above submission of the learned A.G.A., learned counsel for the appellant relied upon the same judgment and submitted that in case the ocular evidence is trust worthy, mere non-examination of ballistic expert or where the fire arm has not been sent for ballistic examination may not be fatal but in case, where testimony of the eye-witnesses is not trust worthy, the opinion of the ballistic examiner and omission on the part of the prosecution not to get an opinion from the ballistic expert shall be fatal.

60. In case of Gurcharan Singh and another Vs. State of Punjab (supra) , the Supreme Court in paragraph No. 19 has held as under:-

“19. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this court in Mohinder Sinqh v. The State 1950 SCR 821. In that case, this court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the photo must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observation were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of ‘these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examind. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushotam is right in contending as a general proposition that in every case where a fire-arm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.”

61. In case of Ram Singh Vs. State of U.P. (supra), the Supreme Court in paragraph Nos. 24 to 29 has held as under:-

“24. On the aspect of non-examination of ballistic expert and its impact on the prosecution case, one of the earliest decisions of this Court was rendered in Gurucharan Singh Vs. State of Punjab, AIR 1963 SC 340. This Court observed that there is no inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused by a gun and those prima facie appeared to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. However, in what cases the examination of a ballistic expert is essential for the proof of the prosecution case must naturally depend upon the circumstances of each case. This Court held as under:

41…. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case….

25. This issue was again examined by this Court in Sukhwant Singh Vs. State of Punjab, (1995) 3 SCC 367. In that case, this Court observed that though the police had recovered an empty cartridge from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution did not send the recovered empty cartridges and the seized pistol to the ballistic expert for examination and expert opinion. This Court was of the view that if such opinion would have been called for, comparison could have been made which in turn could have provided link evidence between the crime and the accused. It was noted that this again was an omission on the part of the prosecution for which no explanation was furnished. It was thereafter that this Court declared as follows:

21…. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.

25.1. Thus, in the aforesaid case, this Court emphasized that in cases where injuries are caused by firearms, the opinion of the ballistic expert becomes very important to connect the crime cartridge recovered during the investigation to the firearm used by the accused with the crime. Failure to produce expert opinion in such cases affects the creditworthiness of the prosecution case to a great extent.

26. However, in State of Punjab Vs. Jugraj Singh, (2002) 3 SCC 234, this Court opined that when there are convincing evidence of eyewitnesses, non-examination of the expert would not affect the creditworthiness of the version put forth by the eyewitnesses.

27. This Court considered the issue as to failure of the prosecution to recover the crime weapon and also non-examination of ballistic expert in Gulab Vs. State of U.P., (2022) 12 SCC 677. In that case, the deceased had sustained a gunshot injury with a point of entry and exit. In that case, prosecution had relied on the eyewitnesses’ accounts of three eyewitnesses which were found to be credible. Therefore, non-recovery of the weapon of the offence would not dis-credit the case of the prosecution. After referring to the previous decisions, this Court opined that in the facts and evidence of the case, the failure to produce the report by a ballistic expert who could testify to the fatal injuries being caused by a particular weapon would not be sufficient to impeach the credible evidence of the direct witnesses.

28. In Pritinder Singh Vs. State of Punjab, (2023) 7 SCC 727, this Court in the facts and evidence of that case held that conviction could not be sustained. That apart, from not collecting any evidence as to whether the gun used in the crime belonged to the appellant or not, even the ballistic expert had not been examined to show that the wad and pellets were fired from the empty cartridges of the appellant. In that case which was based on circumstantial evidence, it was held that when there was serious doubt as to credibility of the witnesses, the failure to examine ballistic expert would be a glaring defect in the prosecution case.

29. Thus, what can be deduced from the above is that by itself non-recovery of the weapon of crime would not be fatal to the prosecution case. When there is such non-recovery, there would be no question of linking the empty cartridges and pellets seized during investigation with the weapon allegedly used in the crime. Obtaining of ballistic report and examination of the ballistic expert is again not an inflexible rule. It is not that in each and every case where the death of the victim is due to gunshot injury that opinion of the ballistic expert should be obtained and the expert be examined. When there is direct eye witness account which is found to be credible, omission to obtain ballistic report and non- examination of ballistic expert may not be fatal to the prosecution case but if the evidence tendered including that of eyewitnesses do not inspire confidence or suffer from glaring inconsistencies coupled with omission to examine material witnesses, the omission to seek ballistic opinion and examination of the ballistic expert may be fatal to the prosecution case.”

62. It has been further contended that it appears that after the recovery of Tamancha and the cartridges, the same were sent for examination to Forensic Science Laboratory. Before the court below, it has come in the statement of P.W. 6 that the packets received from Forensic Science Laboratory was opened before the court on 03.12.2016, which was proved by P.W. 6 and wherein the Tamancha and the cartridges were there. It is further contended by counsel for the appellant that though the prosecution had sent the recovered Tamancha and cartridges to Forensic Science Laboratory for the ballistic examination but no report of the same was brought in evidence before the court below and in absence of such ballistic report, there is no evidence before the trial judge which connects that the weapon used in the crime was the same which was sent for examination. The prosecution has not produced the ballistic report and has deliberately suppressed the same and therefore, an adverse inference be drawn that the report if any,was against the prosecution and for this reason, the same was not produced.

63. Considering the evidence on record, arguments of counsel for the parties and the case laws relied upon by them, we are of the considered view that the alleged recovery of Tamancha (country made pistol) on the pointing out of the accused cannot be relied upon as the same was not done in accordance with the provisions of Section 27 of the Evidence Act and the law laid down by the Supreme Court referred above. We are of the considered opinion that though, the Tamancha (country made pistol) and the cartridges were sent for ballistic examination and which was proved by statement of P.W. 6 but the report of the ballistic examination was not placed before the court below. In view of the inconsistencies and improvement in the statements of the eye-witnesses, the ballistic examination of Tamancha and its report was very important but the prosecution has not brought the same before the court below and the counsel appearing for the appellant is right in saying that the said material has been withheld by the prosecution leading to a presumption that if it was there, the same was not helpful for the prosecution in its case.

64. Learned counsel for the appellant further submitted that as per the ocular evidence, co-accused Meena was holding the hands of the deceased from the back side and the fire was shot from a close range on the deceased by the accused and several pellets have been found in the wound but there is no injury on the body of the co-accused. It is highly improbable in case of shooting by a country made pistol that any person will dare to hold the deceased as there is every possibility of being hit by the pellets, which are fired by a country made pistol from close range. It is also submitted by learned counsel for the appellant that on the one hand, the ocular evidence of P.W. 1 and P.W. 2 is to the effect that Meena was holding hand of the deceased, on the other hand it has been stated by both the witnesses that they saw deceased was lying on the bed when they reached the spot. There is no evidence to the fact that after firing the deceased fell on the bed. As per the evidence of P.W. 1 and P.W. 2, the co-accused Meena was holding the hands of the deceased from the back when the fire was shot by the accused-appellant. It is further contended that as per the testimony of eye-witnesses i.e. P.W. 1 and P.W. 2 they saw Saroj lying on the bed and it had not been stated by eye-witnesses that the deceased was standing or sitting at the time of incident. If the deceased was lying on the bed, then there is no occasion or opportunity for the co-accused Meena to hold the hands of the deceased from the back at the time when she was shot and this creates a serious doubt as to manner of assault by the accused from the evidence of P.W. 1 and P.W. 2. It is not possible to catch hold of hands of a person lying on a bed. Hands can be held only while the person is standing or sitting.

65. Learned counsel for the appellant further submitted that the trial court has committed a fundamental error in convicting the appellant on the one hand and acquitting the co-accused Meena on the other hand. Evidence against both were the same. When on the same set of evidence, accused was acquitted; the trial court ought to have acquitted the appellant as well.

66. It is pointed out by learned counsel for the appellant that it was only for the first time in the examination before the court, the eye-witnesses deposed that both the accused Meena and Lavkush were present at the spot at the time of incident, Meena was holding hands of the deceased from the back when Lavkush shot the deceased and thereafter, they ran away. The trial judge has admitted this position in his judgment while recording a finding that it is true that P.W. 1 and P.W. 2 in their examination-in-chief has stated that co-accused Meena was present at the spot at the time of incident and was holding hands of the deceased but in this regard the F.I.R. has to be looked into wherein P.W. 3 has stated that his brother Lavkush was having illicit relationship with Smt. Meena and his mother used to forbid Lavkush for such acts, therefore, Lavkush has shot his mother in the night of 16.11.2011. In the F.I.R., there is no mention of accused Meena to be part of the conspiracy or being present at the time of incident and therefore, the statement of P.W. 1 and P.W. 2 to this effect cannot be relied upon that Meena was present at the spot at the time of incident or was involved in the conspiracy. It is further submitted by counsel for the appellant that both the facts that Meena was present at the spot and was holding the hands of deceased when the accused Lavkush shot the deceased came for the first time in the evidence of P.W. 1 and P.W. 2 before the court but the part of the evidence regarding presence of Meena has been disbelieved by the trial judge while acquitting Meena and has believed the statement of P.W.1 and P.W. 2 regarding shooting by Lavkush. Once a part of the statement was disbelieved, the other part ought to have been disbelieved by the trial judge and the trial judge has committed error in convicting the accused on the same set of evidence on which he has acquitted the other co-accused, Meena.

67. It is also submitted by counsel for the appellant that P.W. 3 Sonu (complainant) had not supported the prosecution version and was cross-examined by A.D.J.C. In his cross-examination, P.W. 3 stated that the time consumed in coming from house of Raju to his house is approximately 20 minutes and it was also stated that there was no electricity in the neighbouring houses. At the time of incident P.W. 3, was at Haridwar and came to know about the incident at about 08:00 A.M. He started from Haridwar at about 09:00 A.M. and reached his village at about 12:00 Noon. The complaint which was given at the police station was not written by P.W. 3 and he put thumb impression on the Tehrir (complaint) written by Vijay Pal (scribe). It is further submitted by counsel for the appellant that since P.W. 3, first informant has not supported the prosecution version, the prosecution ought to have examined the scribe of the F.I.R. but the same was not done by the prosecution for the reasons best known, especially, when the first informant has turned hostile.

68. Lastly, it was submitted by counsel for the appellant that the F.I.R. was ante-timed as the F.I.R. was sent to C.J.M. six days after the incident whereas as per Section 157 Cr.P.C., the same has to be sent forthwith.

69. Considering the rival submissions of the respective counsel and considering the evidence on record, we hold that the evidence of eye-witnesses P.W. 1 and P.W. 2 is not reliable as there are improvements in their statements made before the court below and the statements made before the Investigating Officer and that too without any explanation from the prosecution side for the same. The omission on the part of the eye-witnesses i.e. P.W. 1 and P.W. 2 to state before the Investigating Officer the facts, which were deposed by them before the court amounts to material contradiction. Further the ocular evidence is not supported by the medical evidence and the prosecution has failed to bring on record, the report of the ballistic expert to whom the recovered Tamancha (country made pistol) and the cartridges were sent for examination and proved the same by examining the ballistic expert and as such there is no evidence to connect the weapon allegedly used by the accused with the pellets recovered from the body of the deceased. The recovery of Tamancha (country made pistol) is also not in accordance with provisions of Section 27 of the Evidence Act and the law laid down in this regard by the Supreme Court. Further the trial court committed an error in relying upon a part of the same evidence which was produced for the first time before the trial court for acquitting the co-accused Meena and has erroneously relied upon the other part of the same evidence for convicting the accused-appellant. Material witnesses such as ballistic expert, scribe of the F.I.R. were not examined by the prosecution. From the material on record, we are absolutely not satisfied with the truthfulness of the ocular evidence i.e. the statements of P.W. 1 and P.W. 2 and therefore, we find and hold that the prosecution has failed to substantiate the charges levelled against the accused-appellant beyond all reasonable doubts by adducing consistent, cogent and reliable evidence. Except for the statement of P.W. 1 and P.W. 2 which cannot be said to be trustworthy, there is no evidence against the accused and therefore, we hold that the accused-appellant is legitimately entitled to avail the benefit of doubt.

70. Hence the judgment dated 28.08.2017 and order of conviction dated 30.08.2017 passed by learned Addl. Sessions Judge, Court no.2, Muzzafarnagar in Sessions Trial No. 279 of 2012 and Sessions Trial No. 280 of 2012 could not withstand the legal position and requires to be reversed by acquitting the accused from the charges levelled against him.

71. Consequently, the appeal deserves to be allowed by setting aside the impugned judgment and order of conviction.

72. In view of that following order is passed:-

(i) Appeal stands allowed.

(ii) Judgment dated 28.08.2017 and order of conviction dated 30.08.2017 in Sessions Trial No. 279 of 2012 and Sessions Trial No. 280 of 2012 passed by learned Addl. Sessions Judge, Court no.2, Muzzafarnagar stands quashed and set aside.

(iii) The accused-appellant- Lavkush is acquitted of offence punishable under Section 302 I.P.C. as well as under Section 25 of Arms Act.

(iv) The accused-appellant be released from jail forthwith, if not required in any other offence.

(v) The amount of fine, if deposited, be refunded to the accused-appellant.

Order Date: 20.12.2024

Nitika Sri.

(Manish Kumar Nigam, J.) (Manoj Kumar Gupta, J.)