A witness who does not disclose the incident to any one before his interrogation by the investigating officer, particularly in a case of murder, lacks credence and should not be relied upon unless plausible explanation is offered by him or the investigating officer. Thus, it is proved beyond all reasonable doubt that Girvardhari PW-4 is a got up witness and his presence on the spot at the time of alleged incident is highly doubtful.
Criminal Appeal No. 4700 of 2005
Jai Singh v state of U P
Citation;2014(2) Crimes 57 ALLAh
Dated 26-7-2013
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
Challenge in these appeals is to the common judgement and order dated 06.10.2005 passed by Additional Sessions Judge, FTC No.21, Allahabad in S.T. No. 826 of 1999 (Crime No. 332 of 1998, P. S. Tharwai, District Allahabad), whereby appellants Jai Singh, Ran Vijay Singh and Devi Prasad Shukla had been convicted under section 148 and 302/149 IPC and had been sentenced to three years' R.I. with fine of Rs. 500/- under section 148 IPC and imprisonment for life with fine of Rs. 5,000/- under section 302/149 IPC with default stipulation. Accused-appellants Dilip Kumar Mallah and Gama Dubey had been convicted u/s 147 and 302/149 IPC and sentence of two years' rigorous imprisonment with fine of Rs. 500/- each and imprisonment for life and fine of Rs. 3,000/- respectively have been awarded to them. Since these appeals arise out of the same incident, so they have been heard together and are being decided by this judgment.
2. Facts germane to these appeals are that on 19.11.1998 at 10.30 P.M. Rajnesh Mishra s/o Ram Surat Mishra, resident of village Kashipur Kumhona, P.S. Tharwai, Allahabad submitted a written report to S.O. P. S. Tharwai stating that today while going to Malaka for taking Chunni-Choker (cattle food) when he reached near triangular crossing Parandih on hearing report of fire he saw that on right side of the road Bal Mukund Shukla having rifle, Jai Singh and Ran Vijay Singh sons of Ram Bali Singh and Devi Prasad Shukla armed with guns were firing shots on a person who was lying on the ground. Two other unknown persons were standing near unnumbered Maruti Van parked on the road. As soon as Bal Mukund Shukla saw him, he asked his companions to run as he (the injured) had died and all the persons made their escape good in the aforesaid Maruti Van. The report further stated that when the complainant reached near the victim he found that he was his brother Chandra Kant Mishra, Advocate. He sent information to his house and when family members and other villagers arrived there he took the injured immediately to Swaroop Rani Medical Hospital, Allahabad where the doctor declared him dead.
3. On the basis of this report case at crime no. 332/1998, under sections 147, 148, 149, 302 IPC was registered at P.S. Tharwai, investigation whereof was taken up by S.O. Shiv Pujan Singh. The Investigating Officer reached at the spot, recorded the statement of the complainant and at his instance prepared site plan. He took samples of plain and blood stained earth from the spot and also seized 7 cartridges of 12 bore which were lying there through separate memos. S.I. U.N. Singh Yadav conducted inquest upon the cadaver of the deceased in the mortuary of Swaroop Rani Hospital and sent the dead body for autopsy in a sealed cover along with related papers. Dr. Harish Chandra conducted post-mortem examination of the deceased on 20.11.1998 at 3.30 P.M. He found that 40-years' old deceased was healthy built, his eyes and mouth were closed and rigor mortis was present. Doctor has found the following ante mortem injuries on the person of the deceased:
1. Fire arm wound of entry 5 cm. x 5 cm. communicating to injury no.5 directing posteriorly and down and to left being on right side of chest in axillary region. Tattooing and scorching present.
2. Fire arm wound of entry 5 cm x 2 cm x cavity deep on left side of chest, 10 cm below axilla. Tattooing and scorching present directing to right anteriorly and upwards.
3. Fire arm wound of entry 13 cm below injury no.2 size 2 cm x 2 cm with features as of injury no.2.
4. Fire arm wound of entry 3 cm x 2 cm being 13 cm below injury no. 3 and slightly posterior, cavity deep. Tattooing and scorching present directing to right upwards and anteriorly.
5. Fire arm wound exit 7 cm x 7 cm left side lower part back of chest communicating with injury no.1 with multiple wounds of exit measuring 2 mm in diameter.
On exploring the injuries, the doctor found that injury no.1 has passed through right lung, pancreas and left kidney. Injuries No. 2 to 4 lacerated left lung, no.3 lacerated heart and no. 4 lacerated stomach and liver right side. Multiple 90 pellets, 3 wadding pieces and one big metallic a typical bullet like piece were recovered from chest and abdomen. In internal examination the doctor found that pleura, both lungs, pericardium, heart and peritoneum of the deceased were lacerated. About 1 litre blood was seen in both lung cavities. The stomach contained 2 Oz semi-digested pulpy food material. Both intestines were filled at places with semi-digested food and gases. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem injuries about half day before.
4. The Investigating Officer thereafter recorded statements of Anand Prakash Mishra and Subhash Shukla on 20.11.1998 and Mithlesh on 21.11.1998. Accused Devi Prasad and Ran Vijay Singh were arrested on 28.11.1998. In the night of 16.12.1998 accused Dileep Nishad told Anand Prakash Mishra that on 19.11.1998 he was standing at the crossing then Bal Mukund Shukla, Jai Singh, Ran Vijay Singh, Devi Prasad and Gama Dubey forced him to take Maruti Van. He took them to triangular crossing of Parandih and parked the vehicle 10 feet ahead of the crossing and they killed Lallu Mishra by firing shots from rifle and guns. He requested Anand Prakash Mishra to save him. On 17.12.1998 witness Anand Prakash Mishra was again interrogated and same day accused Dileep Kumar was arrested and at his instance Maruti Van UMG 1513 used in the crime was recovered from village Nibithariya through memo Ex. Ka-4 in presence of Anand Mishra and Bal Mukund Mishra. On 28.12.1998 the investigating officer interrogated eye witness Bal Mukund Mishra and Girwardhari. On 22.02.1999 test identification parade of accused Gama Dubey was conducted wherein witnesses Rajnesh Mishra and Bal Mukund Mishra identified by him, but Girwardhari Mishra could not identify him. The investigation ended in charge sheet against accused persons.
5. After committal of the case to the Court of Session charges for the offence punishable under section 148, 302/149 IPC against accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla under section 147, 302/149 IPC were framed against accused Dilip Mallah and Gama Dubey. All the accused persons abjured their guilt and claimed trial.
6. In order to prove its case the prosecution examined complainant Rajnesh Mishra as PW-1, Anand Prakash Mishra PW-2, Rajesh Mishra PW-3, Girwardhari Mishra PW-4, Dr. Harish Chandra PW-5, S.I. Shiv Bachan Singh PW-6, Kushal Singh PW-7, S.I.Yogendra Yadav PW-8 and Sri R. S. Pandey PW-9.
7. In their separate statements under section 313 Cr.P.C. all the accused persons have again denied the entire prosecution story and claimed false implication on account of animosity. Accused Gama Dubey has stated that prior to test identification parade the witnesses had seen him because he was not sent to Court from jail bapardah. However, the accused have not examined any witness in defence.
8. After hearing the parties counsel and on perusal of the evidence on record the learned trial court has convicted and sentenced the appellants as noted earlier.
9. We have heard learned counsel for the appellants and learned AGA for the State at length and also perused the original record of the case carefully.
10. Learned counsel for the appellants has argued following points before us:
i) that the FIR is highly belated, had been lodged after due deliberations and concoction and even then the PW-1 could not name any other eye-witness;
ii) that the incident had taken place in late night hours, nobody had seen the actual incidents/assailants and presence of PW-1 and PW-4 alleged eye-witnesses on the spot at the time of alleged incident is highly doubtful;
iii)that the testimony of PW-1 and PW-4 is full infirmities and inconsistencies and there are material discrepancies therein, so they are not reliable at all and the facts which have been elicited from their cross-examination clearly prove that they are got up witnesses and have not seen the incident;
iv)that the incident had not taken place in the manner as alleged by so-called eye witnesses as their narration of the incident is quite inconsistent with the medical evidence;
v) that there is evidence of extra judicial confession of accused Dilip Kumar before PW-2 about a month after the incident, who was not a person in authority before whom the accused could have confessed his guilt;
vi)that no role had been assigned to accused Dilip Kumar in the real incident of shooting and the alleged participation of this accused does not prove his common object along with other co-accused in prosecution of which the deceased was allegedly killed;
vii)that the alleged extra judicial confession made by accused Dilip Kumar said to have been made to PW-2 who was already participating in the investigation from the 1st day of the incident is false and fabricated;
viii)that the recovery of Maruti Van allegedly used in the crime is highly doubtful and is based only on alleged extra judicial confession of accused Dilip Kumar and the application for release of the vehicle filed by its owner in the Court and that too do not connect it with the incident;
ix)that no role had been assigned to accused Gama Dubey except that he was standing at the place of incident without armed with any weapon;
x) that the only evidence against accused Gama Dubey is identification by the PW-1, who has not stated a single word in his examination-in-about having identified this accused in test identification parade held 40-days after his surrender in the Court and 20-days after his release on bail;
xi)that accused Gama Dubey was not kept bapardah at any point of time since after his surrender in the Court and was brought to the Court for remand without any veil on his face, so the test identification parade is vitiated and cannot be relied upon;
xii)that the investigation of the case is not only perfunctory but also tainted and it has seriously prejudiced the accused persons in their defence.
11. Oppugnating the above arguments, learned AGA has argued that the incident had taken place in broad day light which had been witnessed by PW-1 and PW-4 and if the name of any eye witness could not be mentioned in the written report of the first informant it does not adversely affect the prosecution story; that in the first information report four accused were named by PW-1 and there were two other accused, whose names have come during investigation through the extra judicial confession of accused Dileep Mallah and he got the Maruti van used in the crime recovered to the police in the presence of public witnesses and accused Gama Dubey was correctly identified by PW-1 and Bal Mukund Mishra in test identification parade held in jail conducted by PW-9. Lastly it has been contended that any defect in the investigation would not prejudice the case of the prosecution, which is otherwise proved through the testimony of eye witnesses and medical evidence. Thus, the complicity of all the accused in the crime was fully established by the prosecution, the learned trial Court has not at all erred in convicting all of them and the appeals are liable to be dismissed, lastly argued learned AGA.
12. Before we deal with the above points canvassed before us, it would be useful to narrate in brief the statements given by prosecution witnesses. Rajnesh Mishra PW-1 is the complainant of the case and real brother of the deceased. He has stated that the incident took place on 19.11.1998 at 5 p.m. He was going to Malaka from home for taking chunni-choker (cattle-feed) at about 5 p. m. at Parandih @ Panne triangular crossing he heard report of fires and then he saw that Bal Muknad Shukla having rifle in his hand while Jai Singh, Ran Vijay Singh and Devi Prasad Shukla armed with guns were firing shots on a person lying on the ground. Nearby an unnumbered Maruti Van was parked and two persons were standing there. As he moved forward, Balmukund Shukla saw him and hurling abuses asked his companions to move and they all ran away in the Maruti Van. He reached near the person lying, and found that he was his elder brother Chandra Kant Mishra @ Lallu Mishra. Thereafter on his information the family members and few villagers arrived there. They took Chandra Kant Mishra to Swarup Rani Hospital, where the doctor declared him dead. Then he came to P.S. Tharwai and submitted written report. He has proved his written report as Ka-1. He had recognised all the accused persons in the Court stating that the two persons who were standing near the Maruti Van are Gama Dubey and Dilip Nishad. He has further stated that on account of old enmity with the accused persons his brother had been killed. His statement was recorded by the sub-inspector and he had shown the place of incident to him. In re-examination PW-1 has stated that when he reached at the spot Bullet motor cycle URH 1277 was lying there in the ditch.
13. Anand Prakash Mishra PW-2 Pradhan of village Parandih has stated that on 19.11.1998 he along with Chandra Kant Mishra were returning home on motor cycle URH 1277 from Allahabad via Jhusi and Sahso. Chandra Kant leaving him at home in Parandih left for his residence. At about 5 p.m. at Parandih triangular crossing some persons fired shots on Chandra Kant and the miscreants made their escape good in Maruti Van. This incident was conveyed to him by Vijay Yadav and on reaching at the spot he found Chandra Kant Mishra lying in a ditch on left side having sustained fire arm injuries and Rajnesh Mishra was also there. He told him that Bal Mukund Shukla, Ran Vijay Singh, and Jai Singh have killed his brother by fire-arms. There were two other persons, whom he has recognised. The family members and other people had also gathered there. They took Chandra Kant Mishra in a jeep to hospital, where the doctor declared him dead. After keeping the dead body in the mortuary they arrived at police station where Rajnesh Mishra took a paper from the tea-stall, scribed the report and handed over in the police station. Thereafter along with S.O. they came back at the spot. He collected plain and blood stained earth as also the empty cartridges from the spot, prepared separate memo and sealed them. The memos have been proved as Ex. Ka-2 and Ka-3. The witness has further deposed that in the night of 16.12.1998 Dileep Nishad came to him and said that he should save him as he has committed mistake. He continued that on 19.11.1998 he was standing at crossing then Bal Mukund Shukla, Jai Singh, Ran Vijay Singh, Devi Prasad and Gama Dubey forced him to take Maruti. He took them to Parandih triangular crossing and parked the vehicle 10 feet ahead of triangular crossing then they killed Lallu Misra by firing shots from rifle and guns. He has further stated that on 17.12.1998 the sub-inspector recovered the aforesaid Maruti Van from the premises of Ram Babu Kesarwani situated in Nivi Kharia on the pointing out of Dileep Nishad. The recovered Maruti Van was UMG 1513. Thereafter the sub-inspector prepared recovery memo and obtained signatures of the witnesses, which has been proved as Ex. Ka-4.
14. Rajesh Mishra PW-3 is a witness of inquest report. He has stated that on 20.11.1998 the inquest on the corpse of deceased Chandra Kant Mishra was conducted by the sub-inspector after appointing panchas. He has identified his signature on the inquest report Ex. Ka-5.
15. Girwardhari Mishra PW-4 is the uncle of Anand Prakash Mishra PW-2. He has stated that on 19.11.1998 he had gone to Parandih triangular crossing to meet the Operator in connection with irrigating the field. He did not find him. At about 5 p.m. Lallu @ Chandra Kant Mishra was going home on motor cycle and as he reached 15-16 yards ahead of triangular crossing on his Bullet motor cycle, six persons alighted from Maruti Van and Bal Mukund Shukla started firing shot from his rifle. The others namely Jai Singh, Devi Shanker Shukla, Raj Vijay Singh and two other unknown persons were firing from guns. After firing shots they all went away in Maruti Van. As the dickey of the vehicle was open, so he could not see its registration number and it was dark also. After the incident he went near Lallu Mishra, he was smeared with blood and then Rajnesh Mishra, Anand Mishra and his family members took him to the hospital.
16. Dr. Harish Chandra PW-5 has proved his post-mortem notes Ex. Ka-6 describing the ante-mortem injuries and physical condition of the cadaver. It was conducted on 20.11.1998 at 3.30 p.m. and the doctor has opined that the deceased could have suffered death due to shock and haemorrhage on account of ante-mortem injuries about half day before. The deceased has suffered four fire-arm wounds of entry and one of exit. Tattooing and scorching was found on ante-mortem injuries no. 1 to 4. The exit wound no. 5 corresponded to entry wound no. 1, which was on the chest of the deceased. In cross-examination he has stated that tattooing and scorching would be found on entry wound if the fire is made from a distance within two feet.
17. S.I. Shiv Bachan Singh PW-6 was posted as Station Officer, P.S. Tharwai on the date of incident. He has stated that this case was registered at the police station on the basis of written report of Rajensh Mishra in his presence at Crime no. 332/98 u/s 147, 148, 302, 149 IPC and took up the investigation of the case. He has testified about his investigation, which we would refer at the relevant places.
18. HCP Kushal Singh PW-7 has testified about the registration of the case stating that on 19.11.1998 he was posted as Head Constable in P. S. Tharwai and on that day at 22.30 hrs. he has prepared check report on the basis of written report of complainant Rajnesh Mishra and entered the same at Crime no. 332/98 u/s 147, 149, 149, 302 IPC. He has proved the check report and copy of GD regarding registration of the case as Ex. Ka-11 and Ka-12 respectively.
19. SI Yogendra Singh Yadav PW-8 was posted in out-post Swarup Rani Hospital, Allahabad. He has stated that on receiving memo he has conducted inquest upon the cadaver of Chandra Kant Mishra after appointing panchs. He has proved the inquest report and other related papers as Ex. Ka-5 and Ka-13 to Ka-17 respectively.
20. Dr. R. S. Pandey, PW-9 Deputy Commissioner, Entertainment Tax Department has proved the identification proceedings conducted by him as Addl. City Magistrate I, Kanpur Nagar held on 22.2.1999 in respect of accused Gama Dubey. He has also proved the identification memo as Ex. Ka-18.
21. The homicidal death of deceased Chandra Kant Mishra @ Lallu Mishra on account fire-arm injury is well proved through the testimony of witnesses of fact as well as by the deposition SI Yogendra Singh Yadav PW-8 and Dr. Harish Chandra PW-5. In fact the death of the deceased on 19.11.1998 on account of fire-arm injuries is not disputed to the accused-appellants, but they have disputed the time and place of incident as also their involvement in the crime. Their contention is that the deceased was done to death in night hours and no body has witnessed the incident.
22. According to Rajnesh Mishra PW-1, the incident in question took place at about 5 p. m. on 19.11.1998. It has come in his evidence that he saw the incident and after about half an hour with the help of Anand Prakash Mishra, Manoj Mishra and Bal Mukund Mishra he took the deceased in injured condition to Swarup Rani Hospital, Allahabad in a jeep, where the doctor declared him dead. According to this witness it took 1-1¼ hour in reaching the hospital and they reached there at 7.10 p.m. They stayed in the hospital for about 1½ hour, but he could not tell the time taken by them to reach the police station or the distance between the hospital and police station, but straight away had stated that the FIR was lodged at 10.30 p.m. He has denied the suggestion that it takes only twenty minutes in reaching P.S. Tharwai from Swarup Rani Hospital. Anand Prakash Mishra PW-2 who has accompanied the complainant to the police station has stated that after reaching spot they took Lallu Mishra to hospital in 10 minutes in a jeep and in 1½ hours, they reached the hospital and stayed there for 1½ hour and in an hour they arrived at the police station. Thus, from the timings given by these witnesses, they would have reached the police station by 8.30-9.00 p.m., but FIR has been registered at 10.30 p.m. According to complainant he scribed the written report at a shop outside the police station. HCP Kushal Singh PW-7 has noted down the check report Ex. Ka-11 on the basis of written report of the complainant on 19.11.1998 at 10.30 p.m. and has also proved the copy of GD report no. 32, but the original GD could not produced in the Court, as it has been weeded out. In the absence of original GD, this witness could not state whether report of any cognizable offence had been registered at the police station on 19.11.1998 before or after registration of the instant case. Thus, there is delay in reporting the crime to the police, which itself may not be fatal, but appears to have been prepared after due deliberations and consultation.
23. Although PW-4, has stated the time of incident as 5.00 p.m., but in his examination itself that he could not see the registration number of the Maruti as its dicky was open and it has become dark. Thus, the possibility of ante-timing of the FIR cannot be ruled out.
24. The medical evidence on record also does not support the time of incident. Although PW-1 has stated in his cross-examination that after the incident when he recognised the injured as his brother, he was breathing, but he has not stated that the deceased told him anything about the incident. In this connection, the statement of Dr. Harish Chandra, PW-5 assumes importance. He has found four fire arm wounds of entry with one exit wound (injury no. 5 - corresponding to injury no.1) All entry wounds are on chest and stomach of the deceased. The autopsy was conducted on 20.11.1998 at 3.30 p.m. The approximate time of death since post-mortem examination, as stated by the doctor, is half day i.e. 12-hours. In cross-examination Dr. Chandra has stated that according to him the deceased would have suffered death at about 3.30 a.m. or 4-6 hours either way. He has further stated that after sustaining injuries the deceased could have survived for 10-15 minutes to 1½ hours. From the statement of PW-1 we have found that the deceased has not spoken a single word after the incident and when they reached hospital he was declared dead. Thus the time of incident i.e. 5.00 p.m. could not be cogently proved by the prosecution. This conclusion finds support from the statement of PW-4 given in his examination-in-chief itself where he has stated that on account of darkness he could not note the registration number of the Maruti.
25. Learned counsel for the appellants has vehemently argued that PW-1 has not named any eye witness of the incident in his written report; that PW-2 is friend of PW-1 and business partner of the deceased. The name of PW-4 does not find place either in the FIR or in the statement of PW-1 as eye witness of the incident. He is uncle of PW-2 Anand Mishra and resides in the same house with common kitchen. His statement u/s 161 Cr. P.C. had been recorded on 28.12.1998, almost 40 days after the incident. He has stated that he was interrogated by the investigating officer on 28.12.1998 at his house. In this connection statement of SI Shiv Bachan Singh PW-6, the investigating officer assumes importance. He has been cross-examined on this point and has stated as under:
^fxjoj/kkjh o cky eqdqUn feJk dk c;ku 28@12@98 dks fy[kk FkkA 28@12 ds igys bu xokgks ls u rks iwNrkN dh x;h vkSj u bUgsa nLr;kc fd;k Fkk fdlh xokg ds c;ku esa ;g ugha vk;k gS fd cky eqdqUn feJk o fxjoj/kkjh bl ?kVuk ds p'enhn xokg FksA 28@12@98 ds igys eq>s bl ckr dh tkudkjh ugha Fkh fd cky eqdqUn feJk o fxjoj/kkjh bl eqdnesa ds xokg gSA^ "
The above statement of the investigating officer speak volumes about the manner in which PW-4 had been introduced as an eye witness in the case. This witness knew that the deceased is a business partner of his nephew PW-2, who is also friend of PW-1. He has stated in cross-examination that after the incident and before giving statement to the investigating officer, he had not stated anything nor he had any talks with any one about the incident. It is difficult to perceive that for about 40-days PW-4 has not talked about the incident and told PW-2 about his having seen the incident. How the investigating officer came to know that PW-4 is an eye witness of the incident and reached his house to interrogate him is a mystery? Similar is the position with another alleged eye witness Bal Mukund Mishra, although as per copy of GD Ex.Ka-12 regarding registration of the case, he had accompanied PW-1 to the police station but his name has not been mentioned as an eye witness of the incident in the written report Ex. Ka-1. Further Bal Mukund Mishra has not been examined by the prosecution in the case. This witness was also interrogated by the investigating officer on 28.12.1998. His introduction in the case as eye witness of the incident is identical with PW-4. A witness who does not disclose the incident to any one before his interrogation by the investigating officer, particularly in a case of murder, lacks credence and should not be relied upon unless plausible explanation is offered by him or the investigating officer. Thus, it is proved beyond all reasonable doubt that Girvardhari PW-4 is a got up witness and his presence on the spot at the time of alleged incident is highly doubtful.
26. Now as regards the actual incident, we have the testimony of PW-1 and PW-4. PW-1 is the brother of the deceased. Although in his written report PW-1 has stated that his deceased brother was an advocate, but the evidence on record shows that he was carrying on bus transport business in partnershipwith Anand Prakash Misra PW-2. The deceased was having criminal antecedents and a history sheeter. PW-1 has stated that when this incident took place he was at a distance of 40-50 yards in north from Parandih crossing and the place of incident is 10-15 feet from the crossing. The site plan shows that the road nearby the scene of occurrence is straight i.e. without any curve going north-south. However, his further statement in this regard is not in consonance with the site plan and the statement of PW-2 and PW-4. PW-1 has stated - to quote his own words:
"ftl le; ;g ?kVuk ?kVh ml le; eSa ikjuMhg pkSjkgs ls 40&50 xt mRrj dh rjQ FkkA ------pkSjkgs ls 10&15 QhV dh nwjh ls xksyh ekjh x;h FkhA eSa 40&50 xt dh nwjh ij jgk FkkA ------ftl le; vius HkkbZ dks ns[kk ml le; og thfor FksA
--------tgkW ls eSaus xksyh dh vkokt lquh vkSj eSa tgkW [kM+k Fkk ogkW ls og LFkku tgkW esjs HkkbZ fxjs Fks djhc 40&50 xt if'pe rjQ gSA^^
In the site plan the investigating officer has shown the place of occurrence in the field of Ram Dev Pasi which is adjacent to the road (north-south) on western side. The investigating officer has also incorrectly shown the above field to be of Ram Dev Pasi, because PW-2 and PW-4 have stated in their cross-examination that this field belongs to Dev Sharan Bhartiya. If the statement of PW-2 quoted above is taken as correct then he was not in a position to see the incident of firing from the road. Further, if the incident had taken place during day time at about 5 p.m. as alleged by the prosecution, then PW-1 could have very well recognised the victim from a distance of 40-50 yards who was none other than his own real brother. It is interesting to note that the investigating officer has not shown the place from where PW-1 has seen the incident. PW-1 has admitted in cross-examination that he did not tell the investigating officer about the place from where he had witnessed the incident. He has given an alibi by saying that he (the investigating officer) did not ask from him about it. If the place from where the eye witness had seen the incident is not shown in the site plan and the particular witness also states that he did not inform the investigating officer about it, then the natural inference would be that the witness is not an eye witness of the incident. In such a situation during trial his statement about the place from where he saw the incident could not be objectively verified by the Court and then the witness gets liberty to mould his statement according to the requirement of the prosecution case.
27. It has come in the testimony of alleged witnesses that the deceased was shot at while he was going home on his motor cycle after leaving PW-2 at his residence in village Parandih @ Panney. PW-1 has stated that he did not see and recognise his brother prior or during the incident and has further stated that when fire was made then he saw the incident by getting down from the cycle. The witnesses have stated that the motor cycle of the deceased was lying at the spot. The witnesses are not consistent about the place where the motor cycle of the deceased was lying. While PW-1 and PW-4 state that it was lying in the ditch where the deceased was lying after sustaining injuries, however, PW-2 has stated that it was lying on the road 2- 2½ meter away from the field of Ram Dev Pasi in eastern side.
28. Contradicting the statement of PW-1, PW-4 has stated that the motor cycle was lying on the deceased in the ditch. However, the most important fact about this motor cycle is that it has not seen the light of the day during investigation. As per prosecution story, soon after the incident PW-1 with the help of PW-2 and others took his injured brother to hospital where he was declared dead and then he submitted written report at police station at 10.30 p.m. The witnesses of fact and the investigating officer are consistent about the time when PW-6 (the I.O.) reached at the spot. This time had been given as 11.00 p.m. on 19.11.1998, but surprisingly the investigating officer did not find the motor cycle at the spot and that's why no memo about the same was prepared by him. The investigating officer has stated, thus:
"tc eSa ?kVuk LFky ij igWqpk Fkk rks ml le; e`rd yYyw flag dh eksVj lkbZfdy ogkW ugha iM+h FkhA eksVj lkbZfdy ds ckjs esa irk pyk fd;k Fkk fd ;g oknh jtus'k feJk ds dCts esa gSaA "
"eksVj lkbZfdy ds laca/k esa dksbZ fy[kk iHowever, PW-1 and PW-2 have not corroborated this statement of the investigating officer. The statement of PW-1 in this regard is as under:
" /kVukLFky ij cqysV gksus okyh ckr njksxk dks eSaus ugha crk;h Fkh mUgksaus Loa; ogkW ns[kh FkhA ?kVuk ds ckn xkM+h eSa ys x;k FkA xkM+h nqM+dk dj ys x;s FksA lqiqnZ dh x;h FkhA ogha Vky ij eqlyeku dh ij [kM+h dj x;s FksA ;g Vky ?kVuk LFky ls 10&15 ehVj nwj gksxhA cqysV esa NjksZ ds fu'kku ugha fn[k;h fn;sA [kwu oxSjk Hkh mlesa ugha yxk FkkA"
The statement of PW-2 on this point is quite inconsistent. He has stated in cross-examination that when he reached at the spot along with the sub-inspector of police the motor cycle of Chandra Kant was lying there and it was given by him to his family members. The motor cycle in question was an important link in the prosecution story because it must be having marks of bullet or pellets as also the blood stains of the deceased and if it does not find place in the investigation, it creates doubt about the veracity of the prosecution story.
29. PW-1 Rajnesh Misra has stated that there was distance of 6-7 feet between the assailants and his brother and when he reached at the spot, his brother and the motor cycle were lying in the ditch. He has specifically stated that the accused were firing shots from a distance of 7-8 feet. He has further clarified this fact by saying that the distance of guns' barrel was 7-8 feet from his brother. It would be relevant to note here the condition of ante-mortem injuries found by Dr. Chandra at the time of post-mortem examination. He has found tattooing and scorching in all fire-arm entry wounds and has stated that these injuries could be caused if the fires are made within 2 feet. This fact belies the statement of PW-1 with regard to the distance of firing. This witness was not able to say whether at the time of firing the accused were standing in a straight line or were one after the other. He could not even tell as to how many fires were made. It is not the end. The complainant has further stated that when he reached at the spot he found his brother lying in the ditch, but could not state the position of his body i.e whether he was lying flat or face downwards. He had not been able to state as on which part of the body his brother sustained injuries.
30. Certain facts available on record compel us to suspect the presence of PW-1 on the spot at the time of incident. He is not the witness of memos regarding recovery of empty cartridges (Ex. Ka-2) and blood stained and plain earth (Ex. Ka-3), as also the inquest memo prepared on 20.11.1998 at about 10.25 in S.R.N.M. Hospital, Allahabad. The memo sent by the hospital to the police for post mortem examination has not been proved by the prosecution, although it is on record. In this document the name of PW-2 has been mentioned, who brought the dead body to the hospital. The post-conduct witness of this witness is quite unnatural. Besides, the above points, he has stated that before interrogation by the investigating officer, he did not tell about the incident to any body. As per prosecution story till the time FIR was registered, PW-1 was the only alleged eye witness of the incident present on the spot and the people of his village who had assembled at the spot, must be curious to know about the details of the incident as also the assailants. However, PW-1 has been contradicted by PW-2 on this point. As noted earlier, PW-2 is not an eye witness of the incident and he reached at the spot after getting information. He has stated in his examination-in-chief itself that Rajnesh told him that Bal Mukund Shukla, Ran Vijay Singh, Jai Singh and Devi Prasad have killed his brother by fire arms and there were two other unknown persons with them. Thus we find that the statement of PW-1 is full of infirmities and is self contradictory.
31. Now we take up the testimony of other alleged eye witness Girvardhari PW-4. As already stated earlier he is the real uncle of PW-2, a friend of PW-1 and business partner of PW-4. PW-2 and PW-4 reside and dine together in the same house. However, his name has come in prosecution story like a divine light about 40-days after the incident. We have already observed that he is got-up witness. In the case of Kehar Singh Vs. State (Delhi Admn.) AIR 1988 SC 1883, a bench of 3-Hon'ble Judges of the Apex Court has observed as under:
"......It is well settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of a such a witness alone."
PW-4 has stated in cross-examination that the investigating officer had come to his residence to interrogate him. However, in this regard the statement given by the investigating officer PW-6 has been quoted earlier in para-25 of the judgment. The statement of investigating officer confirms our conclusion that introduction of PW-4 as an eye witness is an after thought and improvement in prosecution story to sole the blind murder case. PW-4 claims his presence at Parandih triangular crossing at the time of incident. His statement given in examination-in-chief has already been noted in the earlier part of the judgment, however, he could not withstood the test of cross-examination before the trial Court. If his statement is believed, then for the prosecution he was a better witness than PW-1 because he has allegedly recognised the deceased prior to the incident. In cross-examination he has stated thus:
" IkjuMhg frjkgs ls ?kVuk LFky dh vksj tks lM+d x;h gS og nf{k.k ls mRrj gS o lh/kh gSA eqM+dj ugha x;h gSA
^^------tgkW ls Qk;j gqvk ml LFkku ls tgkW eSa Fkk og nwjh 25&30 xt dh FkhA tgkW eSa Fkk ogkW ls yYyw feJk if'pe fn'kk esa FkkA tgkW yYyw Fks ogkW ls eqyfteku fdl fn'kk esa Fks /;ku ugha gSA yYyw feJk tgkW Fks ogkW ls eqyfteku fdruh nwjh ij Fks /;ku ugha gSA--------^^
^^--------yYyw feJk ij tc igyk Qk;j gqvk Fkk rc og viuh cqysV ij gh FksA mrjs ugha FksA tc igyk Qk;j gqvk rc eSa pk; dh nqdku ij cSBk FkkA igys Qk;j ds 1&1]1@2 feuV ckn nwljk Qk;j gqvk FkkA fdrus Qk;j dqy gq;s Fksa eSa ugha cryk ldrkA eSaus fxus ugha FksA Qk;j fdruh nsj rd gq;s Fks le; eSa ugha crk ikÅxkaA-------^^
^^---------tc eSaus igyh ckj ek:fr dkj ns[kh rc mldk eqWg nf{k.k rjQ FkkA eSusa eqfYteksa dks dkj ls mrjrs gq;s ns[kk FkA mrjrs gh eqfYteksa us Qk;j 'kq: dj fn;s FksA ;g eSa ugha ns[k ik;k fd lHkh Qk;fjax yYyw feJk ij mlds cqySV ij cSBs 2 gq;s ;k vU; fdlh fLFkfr esaA--------^^
^^------Qk;fjax ds ckn eSaus jtus'k feJk dks yYyw feJk ds ikl [kM+s ns[kk Fkk mlds igys ughaA-------^^
^^-------yYyw feJk tgkW fxjs iMs+ Fks muds vklikl dkjrwl vkfn ugha fn[kk;h iM+s FksA--------^^
^^-------?kVukLFky ds ikl if'pe esa nso 'kj.k Hkkjrh; dk [ksr gSa A yYyw feJk tgkW fxjs ogkW x<~^^------tc ek:fr dks eSaus ns[kk rc og mRrj dh rjQ ls vk;h FkhA mlds igys ek:fr dks eSaus ugha ns[kk FkkA----------^^
The above excerpts taken from his cross-examination makes his statement regarding his presence on the spot at the time of incident and eye witness of the case doubtful.
32. It is important to note here that PW-4 has not corroborated the prosecution story regarding place of incident through his testimony. In cross-examination he has stated that the accused fired shots on Lallu Mishra while he was driving the motor-cycle and after sustaining injury he fell down and could not get up. He has categorically stated that Lallu Mishra fell down 100 meter ahead of Pal's machine towards northern side. A perusal of site-plan Ex. Ka-7 shows that the place where the deceased fell down is about 10 yards towards north and the and this place is in southern side from Pal's machine.
33. PW-4 Girvardhari Mishra was called for test identification parade of accused Gama Dubey, but he was not able to identify him. Even he could not say with certainty that Rajnesh Mishra and Bal Mukund Mishra had gone with him for attending test identification parade. The identification memo Ex. Ka-18 shows that the prosecution got the identification of accused Gama Dubey accused conducted from PW-4, Rajensh Misra and Bal Mukund Misra on 22.2.1999. It is important to note that PW-1 has not stated a single word in his examination-in-chief about the presence of PW-4. Even PW-2, who is the real nephew of PW-4 and both reside in the same house has not stated about the presence of PW-4 at the spot. According to PW-2, he and deceased remained together through out the day on 19.11.1998 from 7.30 a.m. and about 10-15 minutes before the incident the later left him at his residence. After about 10-15 minutes he was informed about the incident by Vijay Yadav and immediately he reached at the spot. If PW-4 was present at the spot, then this witness would not have omitted to mention his name in his examination-in-chief and similarly PW-1 could not have forgotten to note his name as eye witness in the FIR which was not penned down soon after the incident. These facts and circumstances, strengthen our earlier conclusion that PW-4 is a got up witness and has been introduced in the prosecution story on account of his nephew PW-2 who is the friend of PW-1 and business partner of the deceased.
34. Like PW-1, the place from where PW-4 saw the incident does not find place in the site-plan. The reason is obvious, because the site plan was prepared on 19.11.1998 while the name of this witness has come in investigation on 28.12.1998. The inherent improbabilities and infirmities pointed out in the statement of PW-4 makes his presence on the spot at the time of incident highly doubtful and coupled with his delayed interrogation without any preface, is liable to be rejected.
35. Now as regards the testimony of PW-2, we have already noted that he and the deceased were doing bus-transport business together. PW-2 has admitted in cross-examination that they jointly operated two buses, which have been sold after the incident. He is not the eye witness of the incident, but is a witness of procedural formalities of investigation and also involvement of accused Dilip Kumar due to his alleged extra judicial confession, which would be dealt later. Suffice it to say that he has not spoken anything about the involvement of accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla and his statement about these accused persons is based on hearsay evidence.
36. The above discussion now lead us to consider the case against accused Dilip Kumar, who has allegedly made extra judicial confession about a month after the incident before Anand Prakash Mishra, PW-2. As regards extra judicial confession of an accused in criminal the Court has to be satisfied that the so-called extra- judicial confession is voluntary and not as a result of any inducement, threat, or promise as envisaged in Section 24 of the Indian Evidence Act, 1872 (in short `Evidence Act') or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. We are conscious of the fact that that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized.
37. In the case of Balwinder Singh Vs. State of Punjab AIR 1996 SC 607 the Apex Court has observed as under :
An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession.
38. In the case of Criminal Appeal no. 831 of 2007 Sk. Yusuf vs State Of West Bengal decided on 14 June, 2011, following observations were made by the Hon'ble Supreme Court.
"The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution.
Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime.
39. In a very recent judgment of Criminal Appeal no. 1450 of 2009 Kumar vs State of Tamil Nadu decided of 9.5.2013, the Apex Court has observed in para-8 as under:
"The law is well settled as to what extent extra-judicial confession can be relied on. If the same is voluntary and made in a fit state of mind, it can be relied upon along with other materials. It is true that the extra-judicial confession is a weak type of evidence and depends upon the nature of circumstances like the time when the confession was made and the credibility of the witnesses who speak to such a confession."
40. In the instant case Anand Prakash Misra PW-2 has spoken about the alleged extra judicial confession of Dilip Kumar in the following words :
"HkS;k eq>ls xyrh gks x;h gS eq>s cpk yhft,A ;g Hkh crk;k Fkk fd 19@11@98 dks eSa pkSjkgs ij [kM+k Fkk eq>dks cky eqdqUn 'kqDyk] t; flag] j.kfot; flag] nsoh izlkn] xkek nqcs us tcjnLrh xkM+h ek:fr oSu ys pyus dks dgkA eSa ysdj ikjuMhg frjkgs ij x;kA frjkgs ls 10 QhV vkxs xkM+h [kM+h fd;k m/kj ls vk jgs yYyw feJk dks bu yksxks us jk;Qy o canwd ls Qk;j dj ekj MkykA"
Keeping above principles in mind, if we analyse the evidence on record we find that PW-2 is a terminated PAC personnel and had a history sheet, which had been expunged under the orders of this Court, as has been admitted by the investigating officer PW-6 and PW-2 as well. We have already seen that he is closely connected with the deceased and is also friend of his brother (PW-1). No doubt PW-2 was Pradhan of the village but he and the deceased had been prosecuted in the criminal cases also. Although he claims that accused Dilip and Gama Dubey were known to him from before, but the facts which have come in his cross-examination show that accused Dilip has no close connection with him so as to make confession before him. The actual words spoken by PW-2 in this regard as quoted below:
" fnyhi fu"kkn dks eSa ?kVuk ds igys ls tkurk FkkA xkek nqcs dks Hkh tkurk FkkA fnyhi fu"kkn esjs ikl ?kVuk ds ckjs esa crkus vk;s FksA ftl fnu ;g ckr crk;h Fkh mlds o ?kVuk ds igys esjh fnyhi ls eqykdkr ugha gq;h FkhA ?kVuk ds yxHkx ,d ekg ckn esjh fnyhi ls eqykdkr gq;h FkhA fnyhi us eq>ls ;g ckr crk;h Fkh fd vki eq>s iqfyl ls cpk ldrs gSa] vki cpkus esa l{ke gSaA eSaus blls igys fnyhi dh enn ugha dh FkhA-------- "
41. The above statement of PW-2 clearly shows that this witness had not met accused Dilip prior to his making alleged confession and he never helped the accused earlier. It is relevant to note that in the investigation prior to 17.12.1998, the complicity of accused Dilip in the instant crime has not come and the police was not looking out for him then why he would approach PW-2 for saving him from the police. Investigating officer PW-6 has admitted in his cross-examination that he did not get the face of accused Dilip covered and nor he moved any application for his test identification by the alleged eye witnesses. If accused Dilip was not known to the alleged eye witnesses, then for fair investigation of the case, it was imperative on the part of the investigating officer to get his test identification parade conducted.
42.Learned AGA has vehemently argued that the extra judicial confession of accused has led to the recovery of the vehicle used in the offence, so it can safely be relied upon. On the other hand, learned counsel for the appellant has submitted that extra judicial confession has been fabricated by the police and except the alleged confession of accused Dilip made to the investigating officer about use of Maruti Van in question there is no other evidence on record to prove that the Maruti Van UMG 1513 was in fact used by the accused persons in killing the deceased. Neither PW-1 nor PW-4 have been able to disclose the registration number of the vehicle on the premise that they could not see it because the dicky was open and it had become dark. No reliance can be placed on this explanation, because according to PWs the incident took place at about 5 p.m. (which had been doubted by us) and further PW-4 was in a position to see the registration number of the vehicle from its front side.
43.The alleged recovery of Maruti Van UMG 1513 was made at the instance of accused Dilip on 17.12.1998 in presence of PW-2 and Bal Mukund Misra. It is pertinent to note that Bal Mukund Misra was also shown as an eye witness of the incident about 40 days after the incident and he is witness of the recovery of Maruti Van allegedly used in the offence, but for reasons best known to the prosecution he has not been examined during trial. He was the best person to say that the aforesaid Maruti Van was used in the commission of offence. Even no effort was made to get the Maruti Van identified from PW-1. Thus, non-examination of Bal Mukund Misra during trial is fatal to the prosecution to connect the aforesaid Maruti Van with the murder of accused. Further in the recovery memo Ex. Ka-4, the colour of the Maruti Van has not been mentioned. The investigating officer has not interrogated the owner of this vehicle. He has stated in cross-examination that except Bal Mukund Misra and PW-2 he did not interrogate any one regarding recovery of Maruti Van. If this vehicle was involved in the commission of the crime, then interrogation of its owner was necessary because he was the best person to say as to how his vehicle reached in the hands of the accused persons. The evidence on record further show that accused Dilip Kumar was not armed with any type of weapon and has not participated in the actual incident at all. Thus the alleged extra judicial confession of accused Dilip Kumar cannot be said to be true and reliable.
44.As regards recovery of Maruti Van on the pointing out of accused Dilip Kumar and its use in committing murder of deceased Lallu Misra, we have already noted that the investigating officer has not interrogated its owner, which was an important link to complete the chain of circumstances leading to its involvement in the crime. There is no public witness of locality about its recovery. Witness Anand Mishra PW-2 is an interested witness and the alleged witness Bal Mukund Misra has not been examined by the prosecution. Moreover, PW-2 has not seen this vehicle at the spot, so he cannot say with certainty that in fact in this vehicle the accused persons have reached and left the place of incident. In the recovery memo even the colour of the vehicle has not been mentioned. Thus, the recovery of Maruti Van UMG 1513 allegedly at the instance of accused Dilip Kumar is of no consequence and does not help the prosecution at all.
45.Now we take up the case against accused Gama Dubey. His involvement in the crime had come through the alleged extra judicial confession of co-accused Dilip Kumar given on 16.12.1998 to Anand Prakash Misra PW-2. The alleged confession of accused Dilip Kumar, as discussed earlier, has not been found trustworthy. Accused Gama Dubey had surrendered in the Court on 12.1.1999, which was taken note by the investigating officer on 16.1.1999 and the investigating officer requested for his test identification on 16.1.1999 and also for keeping him bapardah. The 1st date for his test identification fixed was 20.1.1999, but he was not sent to Court for extension of his judicial custody bapardah on 25.1.1999 He was granted bail by Session's Court on 2.2.1999 and in the test identification conducted by Sri R. S. Pandey PW-9 (the then Addl. City Magistrate 1st) on 22.2.1999, he was identified by PW-1 and Bal Mukund Misra (not examined in the case). However, another alleged eye witness Girwardhari Misra PW-4 failed to correctly identify him in the jail. It is important to note that PW-1 in his examination-in-chief has not stated a single word that he has attended test identification parade on 22.2.1999 and correctly identified accused Gama Dubey. Sri Pandey PW-9 has stated in cross-examination that dates 20.1.1999, 29.1.1999, 1.2.1999, 8.2.1999, 16.2.1999, 22.2.1999 and 5.3.1999 were fixed for identification in jail. However, Sri Pandey has changed the date 5.3.1999 to 22.2.1999 on the application of the investigating officer, as the witnesses would not available. Out of these dates only on 8.2.1999, the identification could not be held as the accused was on bail, but on all other dates namely 20.1.1999, 29.1.1999, 1.2.1999, and 16.2.1999, identification parade could not be conducted because the witnesses were not available. No special features of two unknown accused were mentioned in the written report by PW-1. There was delay of about 40 days in conducting test identification of accused Gama Dubey since his surrender in the Court on 12.1.1999. Girwardhari Misra PW-4 has stated in cross-examination that in the month of January, 1999 he had not gone out of station. The absence of prosecution witnesses on four dates for test identification parade can lead us to the conclusion that the witnesses were not in a position to identify the accused. Although, accused Gama Dubey was allegedly identified by PW-1 and Bal Mukund Misra, but as stated earlier the prosecution has not examined Bal Mukund Misra during trial for reasons best known to the prosecution. Moreover, no overt act has been attributed to accused Gama Dubey in the incident. It has come in the testimony of PW-1 and PW-4 that the two unknown persons remained standing at a short distance by the side of Maruti Van, while the other four named accused persons were firing shots on the deceased. They were unarmed. In these circumstances, the prosecution has not been able to prove that accused Gama Dubey has shared common object with other accused to eliminate the deceased. It is difficult to accept that accused Gama Dubey and Dilip Kumar were members of unlawful assembly and the offence was committed in prosecution of common object of that assembly. Their conviction with the aid of Section 149 IPC cannot be sustained and similarly Section 147 IPC is also not proved.
46.Before we part with the case, it is necessary to observe that investigation in this case is far from being satisfactory. We are not oblivious of the fact that the defective investigation does not lead to the acquittal of the accused. However, in the instant case, the investigating officer has committed glaring mistakes and blunders, which had seriously prejudiced the accused in their defence. The following excerpts taken from his cross-examination would confirm our conclusion:
" ?kVukLFky ij jkenso iklh dk [ksr crk;k x;k FkkA uD'kk esa eSus f'ko pan ukbZ dh nqdku fn[kk;h gSA bl nqdku ij cky eqdqUn feJk dk cSBuk eSaus lh0 Mh0 esa vafdr fd;k gS ysfdu uD'kk esa ckn eqdqUn dk ogkW cSBuk iznf'kZr ugha fd;k gSA ?kVuk ds le; jtus'k feJk dgkW mifLFkr Fkk ;g eSaus uD'kk utjh esa ugha fn[kk;k gSA oknh ?kVuk LFky ls fdruh nwjh ij Fkk ;g Hkh eSaus iznf'kZr ugha fd;k gSA "
"?kVukLFky tgkW e`rd iM+k Fkk ogkW ls ^ch^ LFkku dh nwjh ugha fn[kk;h gSaA ?kVuk LFky ls ^,^ LFku dh nwjh Hkh ugha fn[kk;h gSA if'peh iVjh ds lkbM esa x<~"tc eSa ?kVuk LFky ij igWqpk Fkk rks ml le; e`rd yYyw flag dh eksVj lkbZfdy ogkW ugha iM+h FkhA eksVj lkbZfdy ds ckjs esa irk pyk fd;k Fkk fd ;g oknh jtus'k feJk ds dCts esa gSaA"
At another place in cross-examination the investigating officer PW-6 has stated about the motor cycle of the deceased in the following words:
"eksVj lkbZfdy ds laca/k esa dksbZ fy[kk i"fnyhi feL+=h dks eSaus fxjQ~rkj fd;k FkkA ckinkZ pkyku ugha fd;k FkkA fnyhi dh 'kuk[r ds fy, dksbZ izkFkZuki= ugha fn;k FkkA f'kuk[r ds fy, dksbZ dk;Zokgh ugha dh FkhA----------- fnyhi dh ckinkZ pkyku u djus dh otg ;g gS fd vfHk;qDr }kjk tqeZ bdcky djrs gq;s ?kVuk esa iz;qDr ek:fr oSu dks cjken djk;s tkus dh ckr Lohdkj dh x;h FkhA esjk c;ku lh0ch0 lh0vkbZ0Mh0 fujh{kd us fy;k FkkA eSaus lh0ch0 lh0vkbZ0Mh0 dks ;g c;ku ugha fn;k fd eqyfte izdk'k esa vkus ds ckn fnyhi dks fxjQ~rkj gksus ds i'pkr ckinkZ djds dk;Zokgh f'kuk[r djkuk pkfg;s Fkk ijUrq lgcu jg x;k gSA ;g c;ku dSls fy[k fy;k otg ugha crk ldrkA"
"uD'kk utjh esa og LFkku tgk ls [kwu vkywnk o lknk feV~Vh yh Fkh] ugha fn[kk;k gSA dsl Mk;jh esa fujh{k.k ?kVuk LFky esa og LFkku ugha fn[kk;k gS tgkW xokgku mifLFkr FksA bl fujh{k.k bUnzkt esa [kksdk dkjrwl o [kwu vkywnk feV~Vh dk fy;k tkus okyk LFkku Hkh ugha fn[kk;k gSA cky eqdqUn feJk ukbZ dh nqdku esa nk^^eqyfteku dgkW [kM+s Fks dgkW e`rd dk xksyh yxh ;g c;ku uD'kk utjh o spot inspection esa ugha fn[kk;k gSA oknh eqdnek fdl LFkku ij [kM+k Fkk bldk mYys[k u rks uD'kk utjh esa fd;k vkSj u gh spot inspection esaA
eqyfteku us yYyw feJk dks fdruh nwjh ls xksyh ekjh bl ckr dk Hkh mYys[k uD'kk utjh esa o spot inspection esa ugha fd;k gSA fdl fdl LFkkuks ls [kwu fy;k x;k Fkk mu LFkkuksa dk rLdjk Hkh uD'kk utjh o spot inspection esa ugha fd;k gSA budk mYys[k D;ksa ugha fd;k bldh dksbZ otg ugha crk ldrkAa "
" fxjoj/kkjh o cky eqdqUn feJk dk c;ku 28@12@98 dks fy[kk FkkA 28@12 ds igys bu xokgks ls u rks iwNrkN dh x;h vkSj u bUgsa nLr;kc fd;k Fkk fdlh xokg ds c;ku esa ;g ugha vk;k gS fd cky eqdqUn feJk o fxjoj/kkjh bl ?kVuk ds p'enhn xokg FksA 28@12@98 ds igys eq>s bl ckr dh tkudkjh ugha Fkh fd cky eqdqUn feJk o fxjoj/kkjh bl eqdnesa ds xokg gSA "
The investigation of a murder case is not a fairy tale. The blunders committed by the investigating officer may lead to serious repercussion and destroy the life of any of the party i.e. the complainant or the victim's family and the accused persons which may ultimately cause great hardship and injustice.
47. In view of what has been said and done above lead us to this irresistible conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt against any of the accused-appellant and the learned trial Court has not appreciated the evidence on record in correct and proper perspective. Resultantly all appeals succeed.
48. Criminal appeals no. 4725, 4700, 4481 and 4502 of 2005 are allowed. The judgment and order dated 5.10.2005 in S. T. no. 826 of 1999 is set aside. All the accused-appellants are acquitted of the charges levelled against each of them. Accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla are in jail. They be released forthwith if not wanted in any other case. Accused Dilip Kumar Mallah and Gama Dubey are on bail. They need not surrender to their bail bonds, which are cancelled and sureties are discharged.
49. Let copy of this judgment be immediately sent to the Court concerned for ensuring compliance which should be reported to the Court within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
July 26, 2013
KCS/-
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Criminal Appeal No. 4700 of 2005
Jai Singh v state of U P
Citation;2014(2) Crimes 57 ALLAh
Dated 26-7-2013
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
Challenge in these appeals is to the common judgement and order dated 06.10.2005 passed by Additional Sessions Judge, FTC No.21, Allahabad in S.T. No. 826 of 1999 (Crime No. 332 of 1998, P. S. Tharwai, District Allahabad), whereby appellants Jai Singh, Ran Vijay Singh and Devi Prasad Shukla had been convicted under section 148 and 302/149 IPC and had been sentenced to three years' R.I. with fine of Rs. 500/- under section 148 IPC and imprisonment for life with fine of Rs. 5,000/- under section 302/149 IPC with default stipulation. Accused-appellants Dilip Kumar Mallah and Gama Dubey had been convicted u/s 147 and 302/149 IPC and sentence of two years' rigorous imprisonment with fine of Rs. 500/- each and imprisonment for life and fine of Rs. 3,000/- respectively have been awarded to them. Since these appeals arise out of the same incident, so they have been heard together and are being decided by this judgment.
2. Facts germane to these appeals are that on 19.11.1998 at 10.30 P.M. Rajnesh Mishra s/o Ram Surat Mishra, resident of village Kashipur Kumhona, P.S. Tharwai, Allahabad submitted a written report to S.O. P. S. Tharwai stating that today while going to Malaka for taking Chunni-Choker (cattle food) when he reached near triangular crossing Parandih on hearing report of fire he saw that on right side of the road Bal Mukund Shukla having rifle, Jai Singh and Ran Vijay Singh sons of Ram Bali Singh and Devi Prasad Shukla armed with guns were firing shots on a person who was lying on the ground. Two other unknown persons were standing near unnumbered Maruti Van parked on the road. As soon as Bal Mukund Shukla saw him, he asked his companions to run as he (the injured) had died and all the persons made their escape good in the aforesaid Maruti Van. The report further stated that when the complainant reached near the victim he found that he was his brother Chandra Kant Mishra, Advocate. He sent information to his house and when family members and other villagers arrived there he took the injured immediately to Swaroop Rani Medical Hospital, Allahabad where the doctor declared him dead.
3. On the basis of this report case at crime no. 332/1998, under sections 147, 148, 149, 302 IPC was registered at P.S. Tharwai, investigation whereof was taken up by S.O. Shiv Pujan Singh. The Investigating Officer reached at the spot, recorded the statement of the complainant and at his instance prepared site plan. He took samples of plain and blood stained earth from the spot and also seized 7 cartridges of 12 bore which were lying there through separate memos. S.I. U.N. Singh Yadav conducted inquest upon the cadaver of the deceased in the mortuary of Swaroop Rani Hospital and sent the dead body for autopsy in a sealed cover along with related papers. Dr. Harish Chandra conducted post-mortem examination of the deceased on 20.11.1998 at 3.30 P.M. He found that 40-years' old deceased was healthy built, his eyes and mouth were closed and rigor mortis was present. Doctor has found the following ante mortem injuries on the person of the deceased:
1. Fire arm wound of entry 5 cm. x 5 cm. communicating to injury no.5 directing posteriorly and down and to left being on right side of chest in axillary region. Tattooing and scorching present.
2. Fire arm wound of entry 5 cm x 2 cm x cavity deep on left side of chest, 10 cm below axilla. Tattooing and scorching present directing to right anteriorly and upwards.
3. Fire arm wound of entry 13 cm below injury no.2 size 2 cm x 2 cm with features as of injury no.2.
4. Fire arm wound of entry 3 cm x 2 cm being 13 cm below injury no. 3 and slightly posterior, cavity deep. Tattooing and scorching present directing to right upwards and anteriorly.
5. Fire arm wound exit 7 cm x 7 cm left side lower part back of chest communicating with injury no.1 with multiple wounds of exit measuring 2 mm in diameter.
On exploring the injuries, the doctor found that injury no.1 has passed through right lung, pancreas and left kidney. Injuries No. 2 to 4 lacerated left lung, no.3 lacerated heart and no. 4 lacerated stomach and liver right side. Multiple 90 pellets, 3 wadding pieces and one big metallic a typical bullet like piece were recovered from chest and abdomen. In internal examination the doctor found that pleura, both lungs, pericardium, heart and peritoneum of the deceased were lacerated. About 1 litre blood was seen in both lung cavities. The stomach contained 2 Oz semi-digested pulpy food material. Both intestines were filled at places with semi-digested food and gases. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem injuries about half day before.
4. The Investigating Officer thereafter recorded statements of Anand Prakash Mishra and Subhash Shukla on 20.11.1998 and Mithlesh on 21.11.1998. Accused Devi Prasad and Ran Vijay Singh were arrested on 28.11.1998. In the night of 16.12.1998 accused Dileep Nishad told Anand Prakash Mishra that on 19.11.1998 he was standing at the crossing then Bal Mukund Shukla, Jai Singh, Ran Vijay Singh, Devi Prasad and Gama Dubey forced him to take Maruti Van. He took them to triangular crossing of Parandih and parked the vehicle 10 feet ahead of the crossing and they killed Lallu Mishra by firing shots from rifle and guns. He requested Anand Prakash Mishra to save him. On 17.12.1998 witness Anand Prakash Mishra was again interrogated and same day accused Dileep Kumar was arrested and at his instance Maruti Van UMG 1513 used in the crime was recovered from village Nibithariya through memo Ex. Ka-4 in presence of Anand Mishra and Bal Mukund Mishra. On 28.12.1998 the investigating officer interrogated eye witness Bal Mukund Mishra and Girwardhari. On 22.02.1999 test identification parade of accused Gama Dubey was conducted wherein witnesses Rajnesh Mishra and Bal Mukund Mishra identified by him, but Girwardhari Mishra could not identify him. The investigation ended in charge sheet against accused persons.
5. After committal of the case to the Court of Session charges for the offence punishable under section 148, 302/149 IPC against accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla under section 147, 302/149 IPC were framed against accused Dilip Mallah and Gama Dubey. All the accused persons abjured their guilt and claimed trial.
6. In order to prove its case the prosecution examined complainant Rajnesh Mishra as PW-1, Anand Prakash Mishra PW-2, Rajesh Mishra PW-3, Girwardhari Mishra PW-4, Dr. Harish Chandra PW-5, S.I. Shiv Bachan Singh PW-6, Kushal Singh PW-7, S.I.Yogendra Yadav PW-8 and Sri R. S. Pandey PW-9.
7. In their separate statements under section 313 Cr.P.C. all the accused persons have again denied the entire prosecution story and claimed false implication on account of animosity. Accused Gama Dubey has stated that prior to test identification parade the witnesses had seen him because he was not sent to Court from jail bapardah. However, the accused have not examined any witness in defence.
8. After hearing the parties counsel and on perusal of the evidence on record the learned trial court has convicted and sentenced the appellants as noted earlier.
9. We have heard learned counsel for the appellants and learned AGA for the State at length and also perused the original record of the case carefully.
10. Learned counsel for the appellants has argued following points before us:
i) that the FIR is highly belated, had been lodged after due deliberations and concoction and even then the PW-1 could not name any other eye-witness;
ii) that the incident had taken place in late night hours, nobody had seen the actual incidents/assailants and presence of PW-1 and PW-4 alleged eye-witnesses on the spot at the time of alleged incident is highly doubtful;
iii)that the testimony of PW-1 and PW-4 is full infirmities and inconsistencies and there are material discrepancies therein, so they are not reliable at all and the facts which have been elicited from their cross-examination clearly prove that they are got up witnesses and have not seen the incident;
iv)that the incident had not taken place in the manner as alleged by so-called eye witnesses as their narration of the incident is quite inconsistent with the medical evidence;
v) that there is evidence of extra judicial confession of accused Dilip Kumar before PW-2 about a month after the incident, who was not a person in authority before whom the accused could have confessed his guilt;
vi)that no role had been assigned to accused Dilip Kumar in the real incident of shooting and the alleged participation of this accused does not prove his common object along with other co-accused in prosecution of which the deceased was allegedly killed;
vii)that the alleged extra judicial confession made by accused Dilip Kumar said to have been made to PW-2 who was already participating in the investigation from the 1st day of the incident is false and fabricated;
viii)that the recovery of Maruti Van allegedly used in the crime is highly doubtful and is based only on alleged extra judicial confession of accused Dilip Kumar and the application for release of the vehicle filed by its owner in the Court and that too do not connect it with the incident;
ix)that no role had been assigned to accused Gama Dubey except that he was standing at the place of incident without armed with any weapon;
x) that the only evidence against accused Gama Dubey is identification by the PW-1, who has not stated a single word in his examination-in-about having identified this accused in test identification parade held 40-days after his surrender in the Court and 20-days after his release on bail;
xi)that accused Gama Dubey was not kept bapardah at any point of time since after his surrender in the Court and was brought to the Court for remand without any veil on his face, so the test identification parade is vitiated and cannot be relied upon;
xii)that the investigation of the case is not only perfunctory but also tainted and it has seriously prejudiced the accused persons in their defence.
11. Oppugnating the above arguments, learned AGA has argued that the incident had taken place in broad day light which had been witnessed by PW-1 and PW-4 and if the name of any eye witness could not be mentioned in the written report of the first informant it does not adversely affect the prosecution story; that in the first information report four accused were named by PW-1 and there were two other accused, whose names have come during investigation through the extra judicial confession of accused Dileep Mallah and he got the Maruti van used in the crime recovered to the police in the presence of public witnesses and accused Gama Dubey was correctly identified by PW-1 and Bal Mukund Mishra in test identification parade held in jail conducted by PW-9. Lastly it has been contended that any defect in the investigation would not prejudice the case of the prosecution, which is otherwise proved through the testimony of eye witnesses and medical evidence. Thus, the complicity of all the accused in the crime was fully established by the prosecution, the learned trial Court has not at all erred in convicting all of them and the appeals are liable to be dismissed, lastly argued learned AGA.
12. Before we deal with the above points canvassed before us, it would be useful to narrate in brief the statements given by prosecution witnesses. Rajnesh Mishra PW-1 is the complainant of the case and real brother of the deceased. He has stated that the incident took place on 19.11.1998 at 5 p.m. He was going to Malaka from home for taking chunni-choker (cattle-feed) at about 5 p. m. at Parandih @ Panne triangular crossing he heard report of fires and then he saw that Bal Muknad Shukla having rifle in his hand while Jai Singh, Ran Vijay Singh and Devi Prasad Shukla armed with guns were firing shots on a person lying on the ground. Nearby an unnumbered Maruti Van was parked and two persons were standing there. As he moved forward, Balmukund Shukla saw him and hurling abuses asked his companions to move and they all ran away in the Maruti Van. He reached near the person lying, and found that he was his elder brother Chandra Kant Mishra @ Lallu Mishra. Thereafter on his information the family members and few villagers arrived there. They took Chandra Kant Mishra to Swarup Rani Hospital, where the doctor declared him dead. Then he came to P.S. Tharwai and submitted written report. He has proved his written report as Ka-1. He had recognised all the accused persons in the Court stating that the two persons who were standing near the Maruti Van are Gama Dubey and Dilip Nishad. He has further stated that on account of old enmity with the accused persons his brother had been killed. His statement was recorded by the sub-inspector and he had shown the place of incident to him. In re-examination PW-1 has stated that when he reached at the spot Bullet motor cycle URH 1277 was lying there in the ditch.
13. Anand Prakash Mishra PW-2 Pradhan of village Parandih has stated that on 19.11.1998 he along with Chandra Kant Mishra were returning home on motor cycle URH 1277 from Allahabad via Jhusi and Sahso. Chandra Kant leaving him at home in Parandih left for his residence. At about 5 p.m. at Parandih triangular crossing some persons fired shots on Chandra Kant and the miscreants made their escape good in Maruti Van. This incident was conveyed to him by Vijay Yadav and on reaching at the spot he found Chandra Kant Mishra lying in a ditch on left side having sustained fire arm injuries and Rajnesh Mishra was also there. He told him that Bal Mukund Shukla, Ran Vijay Singh, and Jai Singh have killed his brother by fire-arms. There were two other persons, whom he has recognised. The family members and other people had also gathered there. They took Chandra Kant Mishra in a jeep to hospital, where the doctor declared him dead. After keeping the dead body in the mortuary they arrived at police station where Rajnesh Mishra took a paper from the tea-stall, scribed the report and handed over in the police station. Thereafter along with S.O. they came back at the spot. He collected plain and blood stained earth as also the empty cartridges from the spot, prepared separate memo and sealed them. The memos have been proved as Ex. Ka-2 and Ka-3. The witness has further deposed that in the night of 16.12.1998 Dileep Nishad came to him and said that he should save him as he has committed mistake. He continued that on 19.11.1998 he was standing at crossing then Bal Mukund Shukla, Jai Singh, Ran Vijay Singh, Devi Prasad and Gama Dubey forced him to take Maruti. He took them to Parandih triangular crossing and parked the vehicle 10 feet ahead of triangular crossing then they killed Lallu Misra by firing shots from rifle and guns. He has further stated that on 17.12.1998 the sub-inspector recovered the aforesaid Maruti Van from the premises of Ram Babu Kesarwani situated in Nivi Kharia on the pointing out of Dileep Nishad. The recovered Maruti Van was UMG 1513. Thereafter the sub-inspector prepared recovery memo and obtained signatures of the witnesses, which has been proved as Ex. Ka-4.
14. Rajesh Mishra PW-3 is a witness of inquest report. He has stated that on 20.11.1998 the inquest on the corpse of deceased Chandra Kant Mishra was conducted by the sub-inspector after appointing panchas. He has identified his signature on the inquest report Ex. Ka-5.
15. Girwardhari Mishra PW-4 is the uncle of Anand Prakash Mishra PW-2. He has stated that on 19.11.1998 he had gone to Parandih triangular crossing to meet the Operator in connection with irrigating the field. He did not find him. At about 5 p.m. Lallu @ Chandra Kant Mishra was going home on motor cycle and as he reached 15-16 yards ahead of triangular crossing on his Bullet motor cycle, six persons alighted from Maruti Van and Bal Mukund Shukla started firing shot from his rifle. The others namely Jai Singh, Devi Shanker Shukla, Raj Vijay Singh and two other unknown persons were firing from guns. After firing shots they all went away in Maruti Van. As the dickey of the vehicle was open, so he could not see its registration number and it was dark also. After the incident he went near Lallu Mishra, he was smeared with blood and then Rajnesh Mishra, Anand Mishra and his family members took him to the hospital.
16. Dr. Harish Chandra PW-5 has proved his post-mortem notes Ex. Ka-6 describing the ante-mortem injuries and physical condition of the cadaver. It was conducted on 20.11.1998 at 3.30 p.m. and the doctor has opined that the deceased could have suffered death due to shock and haemorrhage on account of ante-mortem injuries about half day before. The deceased has suffered four fire-arm wounds of entry and one of exit. Tattooing and scorching was found on ante-mortem injuries no. 1 to 4. The exit wound no. 5 corresponded to entry wound no. 1, which was on the chest of the deceased. In cross-examination he has stated that tattooing and scorching would be found on entry wound if the fire is made from a distance within two feet.
17. S.I. Shiv Bachan Singh PW-6 was posted as Station Officer, P.S. Tharwai on the date of incident. He has stated that this case was registered at the police station on the basis of written report of Rajensh Mishra in his presence at Crime no. 332/98 u/s 147, 148, 302, 149 IPC and took up the investigation of the case. He has testified about his investigation, which we would refer at the relevant places.
18. HCP Kushal Singh PW-7 has testified about the registration of the case stating that on 19.11.1998 he was posted as Head Constable in P. S. Tharwai and on that day at 22.30 hrs. he has prepared check report on the basis of written report of complainant Rajnesh Mishra and entered the same at Crime no. 332/98 u/s 147, 149, 149, 302 IPC. He has proved the check report and copy of GD regarding registration of the case as Ex. Ka-11 and Ka-12 respectively.
19. SI Yogendra Singh Yadav PW-8 was posted in out-post Swarup Rani Hospital, Allahabad. He has stated that on receiving memo he has conducted inquest upon the cadaver of Chandra Kant Mishra after appointing panchs. He has proved the inquest report and other related papers as Ex. Ka-5 and Ka-13 to Ka-17 respectively.
20. Dr. R. S. Pandey, PW-9 Deputy Commissioner, Entertainment Tax Department has proved the identification proceedings conducted by him as Addl. City Magistrate I, Kanpur Nagar held on 22.2.1999 in respect of accused Gama Dubey. He has also proved the identification memo as Ex. Ka-18.
21. The homicidal death of deceased Chandra Kant Mishra @ Lallu Mishra on account fire-arm injury is well proved through the testimony of witnesses of fact as well as by the deposition SI Yogendra Singh Yadav PW-8 and Dr. Harish Chandra PW-5. In fact the death of the deceased on 19.11.1998 on account of fire-arm injuries is not disputed to the accused-appellants, but they have disputed the time and place of incident as also their involvement in the crime. Their contention is that the deceased was done to death in night hours and no body has witnessed the incident.
22. According to Rajnesh Mishra PW-1, the incident in question took place at about 5 p. m. on 19.11.1998. It has come in his evidence that he saw the incident and after about half an hour with the help of Anand Prakash Mishra, Manoj Mishra and Bal Mukund Mishra he took the deceased in injured condition to Swarup Rani Hospital, Allahabad in a jeep, where the doctor declared him dead. According to this witness it took 1-1¼ hour in reaching the hospital and they reached there at 7.10 p.m. They stayed in the hospital for about 1½ hour, but he could not tell the time taken by them to reach the police station or the distance between the hospital and police station, but straight away had stated that the FIR was lodged at 10.30 p.m. He has denied the suggestion that it takes only twenty minutes in reaching P.S. Tharwai from Swarup Rani Hospital. Anand Prakash Mishra PW-2 who has accompanied the complainant to the police station has stated that after reaching spot they took Lallu Mishra to hospital in 10 minutes in a jeep and in 1½ hours, they reached the hospital and stayed there for 1½ hour and in an hour they arrived at the police station. Thus, from the timings given by these witnesses, they would have reached the police station by 8.30-9.00 p.m., but FIR has been registered at 10.30 p.m. According to complainant he scribed the written report at a shop outside the police station. HCP Kushal Singh PW-7 has noted down the check report Ex. Ka-11 on the basis of written report of the complainant on 19.11.1998 at 10.30 p.m. and has also proved the copy of GD report no. 32, but the original GD could not produced in the Court, as it has been weeded out. In the absence of original GD, this witness could not state whether report of any cognizable offence had been registered at the police station on 19.11.1998 before or after registration of the instant case. Thus, there is delay in reporting the crime to the police, which itself may not be fatal, but appears to have been prepared after due deliberations and consultation.
23. Although PW-4, has stated the time of incident as 5.00 p.m., but in his examination itself that he could not see the registration number of the Maruti as its dicky was open and it has become dark. Thus, the possibility of ante-timing of the FIR cannot be ruled out.
24. The medical evidence on record also does not support the time of incident. Although PW-1 has stated in his cross-examination that after the incident when he recognised the injured as his brother, he was breathing, but he has not stated that the deceased told him anything about the incident. In this connection, the statement of Dr. Harish Chandra, PW-5 assumes importance. He has found four fire arm wounds of entry with one exit wound (injury no. 5 - corresponding to injury no.1) All entry wounds are on chest and stomach of the deceased. The autopsy was conducted on 20.11.1998 at 3.30 p.m. The approximate time of death since post-mortem examination, as stated by the doctor, is half day i.e. 12-hours. In cross-examination Dr. Chandra has stated that according to him the deceased would have suffered death at about 3.30 a.m. or 4-6 hours either way. He has further stated that after sustaining injuries the deceased could have survived for 10-15 minutes to 1½ hours. From the statement of PW-1 we have found that the deceased has not spoken a single word after the incident and when they reached hospital he was declared dead. Thus the time of incident i.e. 5.00 p.m. could not be cogently proved by the prosecution. This conclusion finds support from the statement of PW-4 given in his examination-in-chief itself where he has stated that on account of darkness he could not note the registration number of the Maruti.
25. Learned counsel for the appellants has vehemently argued that PW-1 has not named any eye witness of the incident in his written report; that PW-2 is friend of PW-1 and business partner of the deceased. The name of PW-4 does not find place either in the FIR or in the statement of PW-1 as eye witness of the incident. He is uncle of PW-2 Anand Mishra and resides in the same house with common kitchen. His statement u/s 161 Cr. P.C. had been recorded on 28.12.1998, almost 40 days after the incident. He has stated that he was interrogated by the investigating officer on 28.12.1998 at his house. In this connection statement of SI Shiv Bachan Singh PW-6, the investigating officer assumes importance. He has been cross-examined on this point and has stated as under:
^fxjoj/kkjh o cky eqdqUn feJk dk c;ku 28@12@98 dks fy[kk FkkA 28@12 ds igys bu xokgks ls u rks iwNrkN dh x;h vkSj u bUgsa nLr;kc fd;k Fkk fdlh xokg ds c;ku esa ;g ugha vk;k gS fd cky eqdqUn feJk o fxjoj/kkjh bl ?kVuk ds p'enhn xokg FksA 28@12@98 ds igys eq>s bl ckr dh tkudkjh ugha Fkh fd cky eqdqUn feJk o fxjoj/kkjh bl eqdnesa ds xokg gSA^ "
The above statement of the investigating officer speak volumes about the manner in which PW-4 had been introduced as an eye witness in the case. This witness knew that the deceased is a business partner of his nephew PW-2, who is also friend of PW-1. He has stated in cross-examination that after the incident and before giving statement to the investigating officer, he had not stated anything nor he had any talks with any one about the incident. It is difficult to perceive that for about 40-days PW-4 has not talked about the incident and told PW-2 about his having seen the incident. How the investigating officer came to know that PW-4 is an eye witness of the incident and reached his house to interrogate him is a mystery? Similar is the position with another alleged eye witness Bal Mukund Mishra, although as per copy of GD Ex.Ka-12 regarding registration of the case, he had accompanied PW-1 to the police station but his name has not been mentioned as an eye witness of the incident in the written report Ex. Ka-1. Further Bal Mukund Mishra has not been examined by the prosecution in the case. This witness was also interrogated by the investigating officer on 28.12.1998. His introduction in the case as eye witness of the incident is identical with PW-4. A witness who does not disclose the incident to any one before his interrogation by the investigating officer, particularly in a case of murder, lacks credence and should not be relied upon unless plausible explanation is offered by him or the investigating officer. Thus, it is proved beyond all reasonable doubt that Girvardhari PW-4 is a got up witness and his presence on the spot at the time of alleged incident is highly doubtful.
26. Now as regards the actual incident, we have the testimony of PW-1 and PW-4. PW-1 is the brother of the deceased. Although in his written report PW-1 has stated that his deceased brother was an advocate, but the evidence on record shows that he was carrying on bus transport business in partnershipwith Anand Prakash Misra PW-2. The deceased was having criminal antecedents and a history sheeter. PW-1 has stated that when this incident took place he was at a distance of 40-50 yards in north from Parandih crossing and the place of incident is 10-15 feet from the crossing. The site plan shows that the road nearby the scene of occurrence is straight i.e. without any curve going north-south. However, his further statement in this regard is not in consonance with the site plan and the statement of PW-2 and PW-4. PW-1 has stated - to quote his own words:
"ftl le; ;g ?kVuk ?kVh ml le; eSa ikjuMhg pkSjkgs ls 40&50 xt mRrj dh rjQ FkkA ------pkSjkgs ls 10&15 QhV dh nwjh ls xksyh ekjh x;h FkhA eSa 40&50 xt dh nwjh ij jgk FkkA ------ftl le; vius HkkbZ dks ns[kk ml le; og thfor FksA
--------tgkW ls eSaus xksyh dh vkokt lquh vkSj eSa tgkW [kM+k Fkk ogkW ls og LFkku tgkW esjs HkkbZ fxjs Fks djhc 40&50 xt if'pe rjQ gSA^^
In the site plan the investigating officer has shown the place of occurrence in the field of Ram Dev Pasi which is adjacent to the road (north-south) on western side. The investigating officer has also incorrectly shown the above field to be of Ram Dev Pasi, because PW-2 and PW-4 have stated in their cross-examination that this field belongs to Dev Sharan Bhartiya. If the statement of PW-2 quoted above is taken as correct then he was not in a position to see the incident of firing from the road. Further, if the incident had taken place during day time at about 5 p.m. as alleged by the prosecution, then PW-1 could have very well recognised the victim from a distance of 40-50 yards who was none other than his own real brother. It is interesting to note that the investigating officer has not shown the place from where PW-1 has seen the incident. PW-1 has admitted in cross-examination that he did not tell the investigating officer about the place from where he had witnessed the incident. He has given an alibi by saying that he (the investigating officer) did not ask from him about it. If the place from where the eye witness had seen the incident is not shown in the site plan and the particular witness also states that he did not inform the investigating officer about it, then the natural inference would be that the witness is not an eye witness of the incident. In such a situation during trial his statement about the place from where he saw the incident could not be objectively verified by the Court and then the witness gets liberty to mould his statement according to the requirement of the prosecution case.
27. It has come in the testimony of alleged witnesses that the deceased was shot at while he was going home on his motor cycle after leaving PW-2 at his residence in village Parandih @ Panney. PW-1 has stated that he did not see and recognise his brother prior or during the incident and has further stated that when fire was made then he saw the incident by getting down from the cycle. The witnesses have stated that the motor cycle of the deceased was lying at the spot. The witnesses are not consistent about the place where the motor cycle of the deceased was lying. While PW-1 and PW-4 state that it was lying in the ditch where the deceased was lying after sustaining injuries, however, PW-2 has stated that it was lying on the road 2- 2½ meter away from the field of Ram Dev Pasi in eastern side.
28. Contradicting the statement of PW-1, PW-4 has stated that the motor cycle was lying on the deceased in the ditch. However, the most important fact about this motor cycle is that it has not seen the light of the day during investigation. As per prosecution story, soon after the incident PW-1 with the help of PW-2 and others took his injured brother to hospital where he was declared dead and then he submitted written report at police station at 10.30 p.m. The witnesses of fact and the investigating officer are consistent about the time when PW-6 (the I.O.) reached at the spot. This time had been given as 11.00 p.m. on 19.11.1998, but surprisingly the investigating officer did not find the motor cycle at the spot and that's why no memo about the same was prepared by him. The investigating officer has stated, thus:
"tc eSa ?kVuk LFky ij igWqpk Fkk rks ml le; e`rd yYyw flag dh eksVj lkbZfdy ogkW ugha iM+h FkhA eksVj lkbZfdy ds ckjs esa irk pyk fd;k Fkk fd ;g oknh jtus'k feJk ds dCts esa gSaA "
"eksVj lkbZfdy ds laca/k esa dksbZ fy[kk i
" /kVukLFky ij cqysV gksus okyh ckr njksxk dks eSaus ugha crk;h Fkh mUgksaus Loa; ogkW ns[kh FkhA ?kVuk ds ckn xkM+h eSa ys x;k FkA xkM+h nqM+dk dj ys x;s FksA lqiqnZ dh x;h FkhA ogha Vky ij eqlyeku dh ij [kM+h dj x;s FksA ;g Vky ?kVuk LFky ls 10&15 ehVj nwj gksxhA cqysV esa NjksZ ds fu'kku ugha fn[k;h fn;sA [kwu oxSjk Hkh mlesa ugha yxk FkkA"
The statement of PW-2 on this point is quite inconsistent. He has stated in cross-examination that when he reached at the spot along with the sub-inspector of police the motor cycle of Chandra Kant was lying there and it was given by him to his family members. The motor cycle in question was an important link in the prosecution story because it must be having marks of bullet or pellets as also the blood stains of the deceased and if it does not find place in the investigation, it creates doubt about the veracity of the prosecution story.
29. PW-1 Rajnesh Misra has stated that there was distance of 6-7 feet between the assailants and his brother and when he reached at the spot, his brother and the motor cycle were lying in the ditch. He has specifically stated that the accused were firing shots from a distance of 7-8 feet. He has further clarified this fact by saying that the distance of guns' barrel was 7-8 feet from his brother. It would be relevant to note here the condition of ante-mortem injuries found by Dr. Chandra at the time of post-mortem examination. He has found tattooing and scorching in all fire-arm entry wounds and has stated that these injuries could be caused if the fires are made within 2 feet. This fact belies the statement of PW-1 with regard to the distance of firing. This witness was not able to say whether at the time of firing the accused were standing in a straight line or were one after the other. He could not even tell as to how many fires were made. It is not the end. The complainant has further stated that when he reached at the spot he found his brother lying in the ditch, but could not state the position of his body i.e whether he was lying flat or face downwards. He had not been able to state as on which part of the body his brother sustained injuries.
30. Certain facts available on record compel us to suspect the presence of PW-1 on the spot at the time of incident. He is not the witness of memos regarding recovery of empty cartridges (Ex. Ka-2) and blood stained and plain earth (Ex. Ka-3), as also the inquest memo prepared on 20.11.1998 at about 10.25 in S.R.N.M. Hospital, Allahabad. The memo sent by the hospital to the police for post mortem examination has not been proved by the prosecution, although it is on record. In this document the name of PW-2 has been mentioned, who brought the dead body to the hospital. The post-conduct witness of this witness is quite unnatural. Besides, the above points, he has stated that before interrogation by the investigating officer, he did not tell about the incident to any body. As per prosecution story till the time FIR was registered, PW-1 was the only alleged eye witness of the incident present on the spot and the people of his village who had assembled at the spot, must be curious to know about the details of the incident as also the assailants. However, PW-1 has been contradicted by PW-2 on this point. As noted earlier, PW-2 is not an eye witness of the incident and he reached at the spot after getting information. He has stated in his examination-in-chief itself that Rajnesh told him that Bal Mukund Shukla, Ran Vijay Singh, Jai Singh and Devi Prasad have killed his brother by fire arms and there were two other unknown persons with them. Thus we find that the statement of PW-1 is full of infirmities and is self contradictory.
31. Now we take up the testimony of other alleged eye witness Girvardhari PW-4. As already stated earlier he is the real uncle of PW-2, a friend of PW-1 and business partner of PW-4. PW-2 and PW-4 reside and dine together in the same house. However, his name has come in prosecution story like a divine light about 40-days after the incident. We have already observed that he is got-up witness. In the case of Kehar Singh Vs. State (Delhi Admn.) AIR 1988 SC 1883, a bench of 3-Hon'ble Judges of the Apex Court has observed as under:
"......It is well settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of a such a witness alone."
PW-4 has stated in cross-examination that the investigating officer had come to his residence to interrogate him. However, in this regard the statement given by the investigating officer PW-6 has been quoted earlier in para-25 of the judgment. The statement of investigating officer confirms our conclusion that introduction of PW-4 as an eye witness is an after thought and improvement in prosecution story to sole the blind murder case. PW-4 claims his presence at Parandih triangular crossing at the time of incident. His statement given in examination-in-chief has already been noted in the earlier part of the judgment, however, he could not withstood the test of cross-examination before the trial Court. If his statement is believed, then for the prosecution he was a better witness than PW-1 because he has allegedly recognised the deceased prior to the incident. In cross-examination he has stated thus:
" IkjuMhg frjkgs ls ?kVuk LFky dh vksj tks lM+d x;h gS og nf{k.k ls mRrj gS o lh/kh gSA eqM+dj ugha x;h gSA
^^------tgkW ls Qk;j gqvk ml LFkku ls tgkW eSa Fkk og nwjh 25&30 xt dh FkhA tgkW eSa Fkk ogkW ls yYyw feJk if'pe fn'kk esa FkkA tgkW yYyw Fks ogkW ls eqyfteku fdl fn'kk esa Fks /;ku ugha gSA yYyw feJk tgkW Fks ogkW ls eqyfteku fdruh nwjh ij Fks /;ku ugha gSA--------^^
^^--------yYyw feJk ij tc igyk Qk;j gqvk Fkk rc og viuh cqysV ij gh FksA mrjs ugha FksA tc igyk Qk;j gqvk rc eSa pk; dh nqdku ij cSBk FkkA igys Qk;j ds 1&1]1@2 feuV ckn nwljk Qk;j gqvk FkkA fdrus Qk;j dqy gq;s Fksa eSa ugha cryk ldrkA eSaus fxus ugha FksA Qk;j fdruh nsj rd gq;s Fks le; eSa ugha crk ikÅxkaA-------^^
^^---------tc eSaus igyh ckj ek:fr dkj ns[kh rc mldk eqWg nf{k.k rjQ FkkA eSusa eqfYteksa dks dkj ls mrjrs gq;s ns[kk FkA mrjrs gh eqfYteksa us Qk;j 'kq: dj fn;s FksA ;g eSa ugha ns[k ik;k fd lHkh Qk;fjax yYyw feJk ij mlds cqySV ij cSBs 2 gq;s ;k vU; fdlh fLFkfr esaA--------^^
^^------Qk;fjax ds ckn eSaus jtus'k feJk dks yYyw feJk ds ikl [kM+s ns[kk Fkk mlds igys ughaA-------^^
^^-------yYyw feJk tgkW fxjs iMs+ Fks muds vklikl dkjrwl vkfn ugha fn[kk;h iM+s FksA--------^^
^^-------?kVukLFky ds ikl if'pe esa nso 'kj.k Hkkjrh; dk [ksr gSa A yYyw feJk tgkW fxjs ogkW x<~
The above excerpts taken from his cross-examination makes his statement regarding his presence on the spot at the time of incident and eye witness of the case doubtful.
32. It is important to note here that PW-4 has not corroborated the prosecution story regarding place of incident through his testimony. In cross-examination he has stated that the accused fired shots on Lallu Mishra while he was driving the motor-cycle and after sustaining injury he fell down and could not get up. He has categorically stated that Lallu Mishra fell down 100 meter ahead of Pal's machine towards northern side. A perusal of site-plan Ex. Ka-7 shows that the place where the deceased fell down is about 10 yards towards north and the and this place is in southern side from Pal's machine.
33. PW-4 Girvardhari Mishra was called for test identification parade of accused Gama Dubey, but he was not able to identify him. Even he could not say with certainty that Rajnesh Mishra and Bal Mukund Mishra had gone with him for attending test identification parade. The identification memo Ex. Ka-18 shows that the prosecution got the identification of accused Gama Dubey accused conducted from PW-4, Rajensh Misra and Bal Mukund Misra on 22.2.1999. It is important to note that PW-1 has not stated a single word in his examination-in-chief about the presence of PW-4. Even PW-2, who is the real nephew of PW-4 and both reside in the same house has not stated about the presence of PW-4 at the spot. According to PW-2, he and deceased remained together through out the day on 19.11.1998 from 7.30 a.m. and about 10-15 minutes before the incident the later left him at his residence. After about 10-15 minutes he was informed about the incident by Vijay Yadav and immediately he reached at the spot. If PW-4 was present at the spot, then this witness would not have omitted to mention his name in his examination-in-chief and similarly PW-1 could not have forgotten to note his name as eye witness in the FIR which was not penned down soon after the incident. These facts and circumstances, strengthen our earlier conclusion that PW-4 is a got up witness and has been introduced in the prosecution story on account of his nephew PW-2 who is the friend of PW-1 and business partner of the deceased.
34. Like PW-1, the place from where PW-4 saw the incident does not find place in the site-plan. The reason is obvious, because the site plan was prepared on 19.11.1998 while the name of this witness has come in investigation on 28.12.1998. The inherent improbabilities and infirmities pointed out in the statement of PW-4 makes his presence on the spot at the time of incident highly doubtful and coupled with his delayed interrogation without any preface, is liable to be rejected.
35. Now as regards the testimony of PW-2, we have already noted that he and the deceased were doing bus-transport business together. PW-2 has admitted in cross-examination that they jointly operated two buses, which have been sold after the incident. He is not the eye witness of the incident, but is a witness of procedural formalities of investigation and also involvement of accused Dilip Kumar due to his alleged extra judicial confession, which would be dealt later. Suffice it to say that he has not spoken anything about the involvement of accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla and his statement about these accused persons is based on hearsay evidence.
36. The above discussion now lead us to consider the case against accused Dilip Kumar, who has allegedly made extra judicial confession about a month after the incident before Anand Prakash Mishra, PW-2. As regards extra judicial confession of an accused in criminal the Court has to be satisfied that the so-called extra- judicial confession is voluntary and not as a result of any inducement, threat, or promise as envisaged in Section 24 of the Indian Evidence Act, 1872 (in short `Evidence Act') or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. We are conscious of the fact that that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized.
37. In the case of Balwinder Singh Vs. State of Punjab AIR 1996 SC 607 the Apex Court has observed as under :
An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession.
38. In the case of Criminal Appeal no. 831 of 2007 Sk. Yusuf vs State Of West Bengal decided on 14 June, 2011, following observations were made by the Hon'ble Supreme Court.
"The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution.
Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime.
39. In a very recent judgment of Criminal Appeal no. 1450 of 2009 Kumar vs State of Tamil Nadu decided of 9.5.2013, the Apex Court has observed in para-8 as under:
"The law is well settled as to what extent extra-judicial confession can be relied on. If the same is voluntary and made in a fit state of mind, it can be relied upon along with other materials. It is true that the extra-judicial confession is a weak type of evidence and depends upon the nature of circumstances like the time when the confession was made and the credibility of the witnesses who speak to such a confession."
40. In the instant case Anand Prakash Misra PW-2 has spoken about the alleged extra judicial confession of Dilip Kumar in the following words :
"HkS;k eq>ls xyrh gks x;h gS eq>s cpk yhft,A ;g Hkh crk;k Fkk fd 19@11@98 dks eSa pkSjkgs ij [kM+k Fkk eq>dks cky eqdqUn 'kqDyk] t; flag] j.kfot; flag] nsoh izlkn] xkek nqcs us tcjnLrh xkM+h ek:fr oSu ys pyus dks dgkA eSa ysdj ikjuMhg frjkgs ij x;kA frjkgs ls 10 QhV vkxs xkM+h [kM+h fd;k m/kj ls vk jgs yYyw feJk dks bu yksxks us jk;Qy o canwd ls Qk;j dj ekj MkykA"
Keeping above principles in mind, if we analyse the evidence on record we find that PW-2 is a terminated PAC personnel and had a history sheet, which had been expunged under the orders of this Court, as has been admitted by the investigating officer PW-6 and PW-2 as well. We have already seen that he is closely connected with the deceased and is also friend of his brother (PW-1). No doubt PW-2 was Pradhan of the village but he and the deceased had been prosecuted in the criminal cases also. Although he claims that accused Dilip and Gama Dubey were known to him from before, but the facts which have come in his cross-examination show that accused Dilip has no close connection with him so as to make confession before him. The actual words spoken by PW-2 in this regard as quoted below:
" fnyhi fu"kkn dks eSa ?kVuk ds igys ls tkurk FkkA xkek nqcs dks Hkh tkurk FkkA fnyhi fu"kkn esjs ikl ?kVuk ds ckjs esa crkus vk;s FksA ftl fnu ;g ckr crk;h Fkh mlds o ?kVuk ds igys esjh fnyhi ls eqykdkr ugha gq;h FkhA ?kVuk ds yxHkx ,d ekg ckn esjh fnyhi ls eqykdkr gq;h FkhA fnyhi us eq>ls ;g ckr crk;h Fkh fd vki eq>s iqfyl ls cpk ldrs gSa] vki cpkus esa l{ke gSaA eSaus blls igys fnyhi dh enn ugha dh FkhA-------- "
41. The above statement of PW-2 clearly shows that this witness had not met accused Dilip prior to his making alleged confession and he never helped the accused earlier. It is relevant to note that in the investigation prior to 17.12.1998, the complicity of accused Dilip in the instant crime has not come and the police was not looking out for him then why he would approach PW-2 for saving him from the police. Investigating officer PW-6 has admitted in his cross-examination that he did not get the face of accused Dilip covered and nor he moved any application for his test identification by the alleged eye witnesses. If accused Dilip was not known to the alleged eye witnesses, then for fair investigation of the case, it was imperative on the part of the investigating officer to get his test identification parade conducted.
42.Learned AGA has vehemently argued that the extra judicial confession of accused has led to the recovery of the vehicle used in the offence, so it can safely be relied upon. On the other hand, learned counsel for the appellant has submitted that extra judicial confession has been fabricated by the police and except the alleged confession of accused Dilip made to the investigating officer about use of Maruti Van in question there is no other evidence on record to prove that the Maruti Van UMG 1513 was in fact used by the accused persons in killing the deceased. Neither PW-1 nor PW-4 have been able to disclose the registration number of the vehicle on the premise that they could not see it because the dicky was open and it had become dark. No reliance can be placed on this explanation, because according to PWs the incident took place at about 5 p.m. (which had been doubted by us) and further PW-4 was in a position to see the registration number of the vehicle from its front side.
43.The alleged recovery of Maruti Van UMG 1513 was made at the instance of accused Dilip on 17.12.1998 in presence of PW-2 and Bal Mukund Misra. It is pertinent to note that Bal Mukund Misra was also shown as an eye witness of the incident about 40 days after the incident and he is witness of the recovery of Maruti Van allegedly used in the offence, but for reasons best known to the prosecution he has not been examined during trial. He was the best person to say that the aforesaid Maruti Van was used in the commission of offence. Even no effort was made to get the Maruti Van identified from PW-1. Thus, non-examination of Bal Mukund Misra during trial is fatal to the prosecution to connect the aforesaid Maruti Van with the murder of accused. Further in the recovery memo Ex. Ka-4, the colour of the Maruti Van has not been mentioned. The investigating officer has not interrogated the owner of this vehicle. He has stated in cross-examination that except Bal Mukund Misra and PW-2 he did not interrogate any one regarding recovery of Maruti Van. If this vehicle was involved in the commission of the crime, then interrogation of its owner was necessary because he was the best person to say as to how his vehicle reached in the hands of the accused persons. The evidence on record further show that accused Dilip Kumar was not armed with any type of weapon and has not participated in the actual incident at all. Thus the alleged extra judicial confession of accused Dilip Kumar cannot be said to be true and reliable.
44.As regards recovery of Maruti Van on the pointing out of accused Dilip Kumar and its use in committing murder of deceased Lallu Misra, we have already noted that the investigating officer has not interrogated its owner, which was an important link to complete the chain of circumstances leading to its involvement in the crime. There is no public witness of locality about its recovery. Witness Anand Mishra PW-2 is an interested witness and the alleged witness Bal Mukund Misra has not been examined by the prosecution. Moreover, PW-2 has not seen this vehicle at the spot, so he cannot say with certainty that in fact in this vehicle the accused persons have reached and left the place of incident. In the recovery memo even the colour of the vehicle has not been mentioned. Thus, the recovery of Maruti Van UMG 1513 allegedly at the instance of accused Dilip Kumar is of no consequence and does not help the prosecution at all.
45.Now we take up the case against accused Gama Dubey. His involvement in the crime had come through the alleged extra judicial confession of co-accused Dilip Kumar given on 16.12.1998 to Anand Prakash Misra PW-2. The alleged confession of accused Dilip Kumar, as discussed earlier, has not been found trustworthy. Accused Gama Dubey had surrendered in the Court on 12.1.1999, which was taken note by the investigating officer on 16.1.1999 and the investigating officer requested for his test identification on 16.1.1999 and also for keeping him bapardah. The 1st date for his test identification fixed was 20.1.1999, but he was not sent to Court for extension of his judicial custody bapardah on 25.1.1999 He was granted bail by Session's Court on 2.2.1999 and in the test identification conducted by Sri R. S. Pandey PW-9 (the then Addl. City Magistrate 1st) on 22.2.1999, he was identified by PW-1 and Bal Mukund Misra (not examined in the case). However, another alleged eye witness Girwardhari Misra PW-4 failed to correctly identify him in the jail. It is important to note that PW-1 in his examination-in-chief has not stated a single word that he has attended test identification parade on 22.2.1999 and correctly identified accused Gama Dubey. Sri Pandey PW-9 has stated in cross-examination that dates 20.1.1999, 29.1.1999, 1.2.1999, 8.2.1999, 16.2.1999, 22.2.1999 and 5.3.1999 were fixed for identification in jail. However, Sri Pandey has changed the date 5.3.1999 to 22.2.1999 on the application of the investigating officer, as the witnesses would not available. Out of these dates only on 8.2.1999, the identification could not be held as the accused was on bail, but on all other dates namely 20.1.1999, 29.1.1999, 1.2.1999, and 16.2.1999, identification parade could not be conducted because the witnesses were not available. No special features of two unknown accused were mentioned in the written report by PW-1. There was delay of about 40 days in conducting test identification of accused Gama Dubey since his surrender in the Court on 12.1.1999. Girwardhari Misra PW-4 has stated in cross-examination that in the month of January, 1999 he had not gone out of station. The absence of prosecution witnesses on four dates for test identification parade can lead us to the conclusion that the witnesses were not in a position to identify the accused. Although, accused Gama Dubey was allegedly identified by PW-1 and Bal Mukund Misra, but as stated earlier the prosecution has not examined Bal Mukund Misra during trial for reasons best known to the prosecution. Moreover, no overt act has been attributed to accused Gama Dubey in the incident. It has come in the testimony of PW-1 and PW-4 that the two unknown persons remained standing at a short distance by the side of Maruti Van, while the other four named accused persons were firing shots on the deceased. They were unarmed. In these circumstances, the prosecution has not been able to prove that accused Gama Dubey has shared common object with other accused to eliminate the deceased. It is difficult to accept that accused Gama Dubey and Dilip Kumar were members of unlawful assembly and the offence was committed in prosecution of common object of that assembly. Their conviction with the aid of Section 149 IPC cannot be sustained and similarly Section 147 IPC is also not proved.
46.Before we part with the case, it is necessary to observe that investigation in this case is far from being satisfactory. We are not oblivious of the fact that the defective investigation does not lead to the acquittal of the accused. However, in the instant case, the investigating officer has committed glaring mistakes and blunders, which had seriously prejudiced the accused in their defence. The following excerpts taken from his cross-examination would confirm our conclusion:
" ?kVukLFky ij jkenso iklh dk [ksr crk;k x;k FkkA uD'kk esa eSus f'ko pan ukbZ dh nqdku fn[kk;h gSA bl nqdku ij cky eqdqUn feJk dk cSBuk eSaus lh0 Mh0 esa vafdr fd;k gS ysfdu uD'kk esa ckn eqdqUn dk ogkW cSBuk iznf'kZr ugha fd;k gSA ?kVuk ds le; jtus'k feJk dgkW mifLFkr Fkk ;g eSaus uD'kk utjh esa ugha fn[kk;k gSA oknh ?kVuk LFky ls fdruh nwjh ij Fkk ;g Hkh eSaus iznf'kZr ugha fd;k gSA "
"?kVukLFky tgkW e`rd iM+k Fkk ogkW ls ^ch^ LFkku dh nwjh ugha fn[kk;h gSaA ?kVuk LFky ls ^,^ LFku dh nwjh Hkh ugha fn[kk;h gSA if'peh iVjh ds lkbM esa x<~
At another place in cross-examination the investigating officer PW-6 has stated about the motor cycle of the deceased in the following words:
"eksVj lkbZfdy ds laca/k esa dksbZ fy[kk i
"uD'kk utjh esa og LFkku tgk ls [kwu vkywnk o lknk feV~Vh yh Fkh] ugha fn[kk;k gSA dsl Mk;jh esa fujh{k.k ?kVuk LFky esa og LFkku ugha fn[kk;k gS tgkW xokgku mifLFkr FksA bl fujh{k.k bUnzkt esa [kksdk dkjrwl o [kwu vkywnk feV~Vh dk fy;k tkus okyk LFkku Hkh ugha fn[kk;k gSA cky eqdqUn feJk ukbZ dh nqdku esa nk
eqyfteku us yYyw feJk dks fdruh nwjh ls xksyh ekjh bl ckr dk Hkh mYys[k uD'kk utjh esa o spot inspection esa ugha fd;k gSA fdl fdl LFkkuks ls [kwu fy;k x;k Fkk mu LFkkuksa dk rLdjk Hkh uD'kk utjh o spot inspection esa ugha fd;k gSA budk mYys[k D;ksa ugha fd;k bldh dksbZ otg ugha crk ldrkAa "
" fxjoj/kkjh o cky eqdqUn feJk dk c;ku 28@12@98 dks fy[kk FkkA 28@12 ds igys bu xokgks ls u rks iwNrkN dh x;h vkSj u bUgsa nLr;kc fd;k Fkk fdlh xokg ds c;ku esa ;g ugha vk;k gS fd cky eqdqUn feJk o fxjoj/kkjh bl ?kVuk ds p'enhn xokg FksA 28@12@98 ds igys eq>s bl ckr dh tkudkjh ugha Fkh fd cky eqdqUn feJk o fxjoj/kkjh bl eqdnesa ds xokg gSA "
The investigation of a murder case is not a fairy tale. The blunders committed by the investigating officer may lead to serious repercussion and destroy the life of any of the party i.e. the complainant or the victim's family and the accused persons which may ultimately cause great hardship and injustice.
47. In view of what has been said and done above lead us to this irresistible conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt against any of the accused-appellant and the learned trial Court has not appreciated the evidence on record in correct and proper perspective. Resultantly all appeals succeed.
48. Criminal appeals no. 4725, 4700, 4481 and 4502 of 2005 are allowed. The judgment and order dated 5.10.2005 in S. T. no. 826 of 1999 is set aside. All the accused-appellants are acquitted of the charges levelled against each of them. Accused Jai Singh, Ran Vijay Singh and Devi Prasad Shukla are in jail. They be released forthwith if not wanted in any other case. Accused Dilip Kumar Mallah and Gama Dubey are on bail. They need not surrender to their bail bonds, which are cancelled and sureties are discharged.
49. Let copy of this judgment be immediately sent to the Court concerned for ensuring compliance which should be reported to the Court within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
July 26, 2013
KCS/-
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