IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 917 OF 2001 (Old No. 480 of 2000) Ramesh alias Mamoo son of Ram Chandra Resident of Mohalla Santo Milaa Kasba and P.S.K. Najibabad, District Bijnor at present reiding Ludhaia Forest Colony Baupatwala Haridwar ………….Appellant. (In Jail) Versus State …..Respondent. Present:- Sri Vivek Shukla, Advocate for the appellant. Sri Amit Bhatt, AGA for the State. Coram: Hon’ble Nirmal Yadav, J. Hon’ble Sudhanshu Dhulia, J. Hon’ble Sudhanshu Dhulia, J. 1. This Criminal Appeal arises out of session trial no. 27 of 1997 under Section 302/34 Indian Penal Code (from hereinafter referred to as “IPC”) and session trial no. 28 of 1997 under Section 25 of the Arms Act, both registered at P.S. Kotwali, Haridwar. The trial court has convicted the present appellant under Section 302 IPC, and has sentenced him for life imprisonment, and acquitted him under Section 25 of the Arms Act, by giving him benefit of doubt whereas the other accomplice Mahendra Singh has been acquitted by the trial court by giving him benefit of doubt as though the First Information Report says that the informant does not know the name of the accomplice and could be identified, yet no identification was done for co-accused Mahendra Singh. 2. Brief facts of the case as per the First Information Report are as follows :- 2 As per the First Information Report which was registered at Police Station Kotwali, Haridwar at 10:45 am on 2-11-1995 by first informant Sri Rakesh Kumar Yadav, on 2-11-1995, it is stated that at about 10 A.M. in the morning the informant i.e. Sri Rakesh Kumar Yadav and his mother Smt. Shanti Devi, his aunt (“Chachi”) Smt. Vinod, his brother Paras alias Sonu and his friend Manik Giri (who is a resident of Nayi Basti Khadkhadi and had stayed in their on the night of 1/2.11.1995) were sitting in the courtyard (“Angan”) of their house when the appellant/accused came in a grey-coloured scooter. He had an accomplice who was sitting on the pillion, whose name was not known to the complainant, but who according to the informant can be identified by him. The two parked their scooter on the road and thereafter Ramesh @ Mamoo called for the brother of the informant i.e. Paras @ Sonu. On hearing the shout, his brother came out of the house and went to the road, where the two were standing. No sooner had his brother come to the road to meet these persons, Ramesh @ Mamoo and his accomplice caught hold of his brother Paras and thereafter Ramesh @ Mamoo fired two shots at his brother from a “Tamancha” (i.e. a countrymade pistol). Having sustained gunshot injuries his brother fell on the ground. On seeing all this, all the persons as referred above, who were sitting in the “Angan” of their house ran to catch these two persons. However, the two persons on seeing the informant and his relatives approaching, kick started their scooter and ran away. The report further states that immediately the informant along with others took his brother Paras @ Sonu to the hospital where he was declared dead. As per the First Information Report, this incident has been seen by the informant, his mother Smt. Shanti Devi, his aunt (“Chachi”) Smt. Vinod, his friend Manik Giri as well as a person namely Ram Sharan, who at the time of incident was standing in front 3 of his house. The informant further states that he has clearly seen the accomplice of Ramesh @ Mamoo and if he is produced, he will be easily identified by him. The informant further states that at the time of “Ramleela” (which could be a few weeks before the incident), his brother had some altercations with Ramesh @ Mamoo regarding a girl and even at that time Ramesh @ Mamoo had come to their house to kill his brother Paras @ Sonu by brandishing a “Kaintchy” (Scissors). However, at that time some persons intervened and got a compromise made between the parties and the matter came to an end. Yet harbouring the same grudge, Ramesh @ Mamoo along with his accomplice have now killed his brother. The report further concludes by saying that the body of his brother is lying in the hospital. 3. The prosecution in support of their case examined as many as nine witnesses. P.W. 1 Rakesh who is brother of the deceased and the first informant and an eye-witness to the incident, P.W. 2 is the mother of the deceased, who is also an eye-witness to the incident, P.W. 3 is the writer of the FIR, P.W. 4, 5, 7, 8 and 9 are police officials who are related to inquiry/investigation in the matter and P.W. 6 is the doctor who conducted autopsy on the body of the deceased. 4. There are two eye-witnesses to the incident i.e. P.W.1 and P.W.2. These two eye-witnesses, though related to the deceased are natural eye-witnesses and their presence on the place of incident cannot be disbelieved. According to P.W. 1 the incident is of 2-11-1995 at about 10 A.M. P.W. 1 in his examination in chief has narrated the incident in the same manner as he has stated in the FIR. In his cross-examination, he 4 has also stated that he had seen the appellant filling second cartridge. P.W. 2 Shanti Devi (mother of the deceased) has also narrated the incident and the sequence of the event in the same manner as narrated by her son. There are no major discrepancies in the two statements. 5. This is a case of eye-witness incident, as referred above. P.W.1 who is the brother of the deceased and also the informant and P.W. 2 who is the mother of the deceased are eye-witnesses to the incident. The incident is of day light at about 10 A.M. and the FIR was promptly lodged at 10:45 A.M. P.W. 2 who is the mother of the deceased was present in the house on the date of incident, who has also seen the incident, as the incident happened just in front of her house. Therefore, the presence of mother and son on the place of the incident is absolutely natural. The “katta” or the country made pistol used in the incident was recovered on the pointing out by the accused/appellant. Apart from this, the empty cartridge was also recovered on the spot. The prosecution further proved in the trial court, on the strength of the ballistic report which states that the recovered pistol and cartridge were the pistol and the cartridge used in the incident, and the cartridge was fired from the same pistol. Sample of soil and blood stained soil were also taken from the spot and sent for examination and it was found that it contained human blood. Moreover, the autopsy report and the statement given before the trial court by P.W. 6 Dr. O.P. Sharma, who had done post-mortem of the body further strengthened the case of the prosecution. According to the statement of P.W. 1 gunshot was fired from a distance of about one foot, and according to the statement given by doctor before the trial court, the distance from which the gunshot was fired could not have been more than six feet at 5 the maximum. Ante-mortem injuries on the body of the deceased were as follows : (1) Fire arm wound of entry 6 cm. x 5 cm. on the right side of the chest towards the back. On some part of the wound there was blackening. (2) Injury no. 2 was again a gunshot injury 1.5 cm x 1 cm x muscle deep. Portion of plastic of cartridge was embedded in muscle and skin 1 cm. above injury no. 1. (3) Third injury is again a gunshot injury 3cm. x 2.5 cm. neck deep. 3 cm. above the ear. Around the wound on face and neck of size 10 cm. x 8 cm some gun powder and blackening was visible. Some portion of cartridge were found in wound and a portion of cardboard and many pellets were also traced in the body below the wound. The injuries are on the neck and chest of the deceased from a close range. In other words, the gunshot injuries are on the vital part of the body from the close range which shows that the intention was to kill the deceased. 6. In all, 30 pellets were recovered from injury no. 2; 50 pellets from injury no. 3; and 23 pellets from right chest cavity. In all from the body of the deceased three parts of cartridge and 103 small pellets were recovered. The autopsy report was done on the body of the deceased on 3:15 P.M. on the same day i.e. on 2-11-1995. The autopsy report as well as the statement of P.W. 6 Dr. O.P. Sharma shows that the incident had taken place between 6 to 12 hours before. In his statement Dr. O.P. Sharma, P.W. 6 has stated that it is possible that the death has taken place at about 10 A.M. 6 7. Therefore, the post-mortem report as well as the statement given by P.W. 6 Dr. O.P. Sharma also strengthens the case of prosecution and the statement given by two eye- witnesses i.e. P.W. 1 and 2. In their arguments for the defence as well as in their cross-examination, the defence could not successfully raise doubts on the case of the prosecution. Before this Court as well, the counsel for the appellant raised various points in order to impress before this Court that the case of the prosecution is unbelievable and strong doubts were raised in the case of the prosecution. 8. The first argument raised by the appellant was that there is no independent eye-witness produced by the prosecution during the trial. In fact, learned counsel for the appellant also pointed out the statement given by the accused Ramesh @ Mamoo under Section 313 of Cr.P.C. wherein he has stated that the prosecution has not produced any independent eye-witness. As it has already been stated above, there can not be any doubt on the admitted position that prosecution has not produced any independent eye-witnesses. Yet, these witnesses (P.W. 1 and P.W. 2) were standing in front of their own house at 10 O’ Clock in the morning, where the incident had taken place and their presence at that place is perfectly natural. It is again true that the eye-witnesses P.W.1 is brother of the deceased and another eye-witness P.W. 2 is mother of the deceased. They both can be called as interested witnesses and, therefore, it becomes the duty of the court to scrutinise their statement even more carefully. Yet, even after doing so and after re-reading the statement given by the two witnesses in examination in chief and in cross-examination, this Court finds that they were consistent and in fact the statement of the two complements to each other, barring one to minor discrepancy 7 which are negligible. It is by now settled that depending upon the nature of the facts of the case even an eye-witness who is related to the deceased can be perfectly reliable and that it is not necessary that there should be an independent witness in every case. In this case also, we find that merely because there is no independent eye-witness the case of the prosecution cannot be disbelieved, as the presence of the eye-witnesses who though related to the deceased is absolutely natural and there deposition in the trial is consistent with each other and in fact complements each other. No doubt could be raised by the defence on the veracity of the statement given by these two eye- witnesses (P.W. 1 and P.W. 2). Therefore, merely because there is no independent witnesses in the case of the prosecution, doubts can not be raised on the case of prosecution. 9. Another argument which has been raised by the counsel for the appellant is that whereas in the First Information Report it has not been specified as to how many gunshots were fired and on a bare reading one can make out as if only one gun shot was fired, in his examination in chief, P.W. 1 who is first informant has also stated that two gunshots were fired. Therefore, the appellant alleged that there is a discrepancy between the FIR and the statement given by P.W. 1. This again is not true, as a bare reading of the FIR also shows that in the FIR it has been stated that two gunshots were fired. Before word “Goli” in Hindi it has been written “2”, although “2” is not written in words but in figure. Counsel for the appellant has pointed out that there is a discrepancy between the statement given by the eye-witnesses (P.W.1 and P.W. 2) and the statement given by P.W. 6 Dr. O.P. Sharma as an expert witness. It is true that P.W. 1 says that the gunshot was fired from a distance of about one foot whereas according to the 8 expert witness Dr. O.P. Sharma, who had done autopsy on the body of the deceased, the maximum distance could be six feet. This cannot be called as discrepancy, as P.W. 1 has not stated the precise distance of one foot but this distance of one foot has been stated by him as approximately so. Moreover, according to the statement given by the expert witness P.W. 6 Dr. O.P. Sharma, it is clear that the gunshot could have been fired by less than six feet of distance as well. Injury No. 1 has blackening around the wound which shows that it was fired from a close range. Therefore, this Court finds that there is no discrepancy between the statement given by P.W. 1 and P.W. 6, as regarding the firing of gunshots. 10. In the statement given by P.W. 6, it has been stated that looking to the number of injuries, these could be caused maximum by three gunshots whereas the case of the prosecution is that two gunshots were fired. Hence, according to the appellant and the defence there is a discrepancy between the case of the prosecution and the evidence given by P.W. 6 before the Court. This argument of the appellant is also not correct in as much as Dr. O.P. Sharma (P.W. 6) has only stated that the injuries could be caused by at least two gunshots wounds or maximum by three gunshots wounds. The precise statement is “for the injuries, minimum two cartridges and maximum three cartridges could have been used”. Another point raised by the counsel for the appellant was that the ballistic report does not strengthen the case of the prosecution and in fact it says that one cartridge which was alleged to have been recovered was not fired from the alleged recovered pistol. This is again not correct. The ballistic report clearly says that Exb. 2 was clearly fired from the same pistol which was recovered by the police, though no definite opinion has been 9 expressed in the ballistic report about another cartridge i.e. Exb. 1. Therefore, it is wrong to say that the ballistic report does not support the case of the prosecution. 11. Accordingly, for the reasons stated supra, we have no hesitation in agreeing with the findings recorded by the trial court. Appeal is dismissed. Conviction and sentence awarded by the trial court against the accused appellant Ramesh @ Mamoo is affirmed. Appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody to serve out the sentence as awarded by the court below. The court below is directed to ensure the compliance of the order. 12. Let the lower court record be sent back. (Sudhanshu Dhulia, J.) ( Nirmal Yadav, J.) 18.2.2011 Avneet