IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Pintoo @ Kamal Kishore & Anr. Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.99/2005) 2. Kalua @ Koshal Kishore Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.10/2005) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 13-12-2004 in Sessions Case No.26/2003 (10/2000) passed by Shri Bhagwan Das Agrawal, RHJS, Additional Sessions Judge (Fast Track) No.3 Bharatpur Camp Bayana. Date of Judgment: August 18, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. S.R.Bajwa, Sr. Advocate with] for the appellants. Mr. V.R. Bajwa ] Mr. M.K. Kaushik ] Mr. R.P. Kuldeep, Public Prosecutor for the State. Mr. N.C. Sharma, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Can the court depend solely on the probity of investigation? Can criminal justice be made casualty for the wrongs committed by Investigating Officer? These are the pivotal questions springing up for consideration in the instant appeals, which have been preferred against the judgment dated December 13, 2004 of the learned Additional Sessions Judge (Fast Track) No.3 Bharatpur Camp Bayana by Pintoo @ Kamal Kishore, Susya @ Lokesh and Kalua @ Koshal Kishore, who were convicted and sentenced as under:- Susya @ Lokesh: U/s.302 IPC: To suffer imprisonment for life and fine of Rs.2000/-, in default to further suffer rigorous imprisonment for three months. Pintoo @ Kamal Kishore and Kalua @ Koshal Kishore: U/s.302/34 IPC: Both to suffer imprisonment for life and fine of Rs.2000/-, in default to further suffer rigorous imprisonment for three months. BACKGROUND FACTS: 2. The prosecution story is woven like this:- On September 17, 1999 around 6.45 PM informant Prem Shankar (Pw.9) submitted a written report (Ex.P-15) at Police Station Bayana stating therein that on September 17, 1999 around 5.00 PM while his cousin Lakhan was busy in the main market Bayana in inspection work of the employees of Municipal Council, he was surrounded by Susya @ Lokesh, Pintoo @ Kamal Kishore, Laddu @ Mool Chand, Dinesh, Kalua, Satish and 2-3 other persons, who were armed with weapons. Pintoo and Kalua, in order to strike terror in the market opened fire in the air. Laddu @ Mool Chand pulled Lakhan from his collar and rest of the persons also caught hold of Lakhan. It was then stated in the report that Susya @ Lokesh made fire from his Katta at Lakhan, hitting Lakhan on the left side of the abdomen. It was also stated that the informant and his friends namely Mahendra and Rakesh Tiwari witnessed the incident, as they were purchasing some articles from the nearby shop in the market. After the firing, the miscreants fled away. Informant and his companions removed injured Lakhan to hospital in a rickshaw from where, since the condition of injured Lakhan was serious, he was referred to Bharatpur. On the basis of said report, a case was registered for offence punishable under sections 147, 148, 149, 323 and 307 IPC. The investigating agency embarked upon investigation of the impugned crime. During the course of investigation injured Lakhan succumbed to his injuries, resulting in addition of an offence under section 302 IPC. The dead body of deceased was subjected to post mortem examination. After doing the needful, charge sheet came to be filed only against Pintoo, Dinesh and Satish, in the court of concerned Magistrate. However, appellants Susya @ Lokesh as also Kalua @ Kaushal Kishore were not charge sheeted by the police. The case was committed for trial to the court of Sessions. Charges were framed. During the course of examination of evidence, 17 witnesses were examined. At that point of time appellant Susya @ Lokesh as also Kalua @ Kaushal Kishore were arrayed as accused persons, by resorting to the provisions contained in Section 319 CrPC by the learned trial Judge. After the addition of the two accused persons, qua all the five accused persons charges were framed. As against appellant Susya @ Lokesh charges were framed for the offences under sections 302 in the alternative 302/149 IPC. As against appellant Pintoo @ Kamal Kishore, charges were framed for offences under sections 302 in the alternative 302/149 IPC and section 3/25 Arms Act. The accused persons denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Three witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Death of Lakhan was undeniably homicidal in nature. As per post mortem report(Ex.P-35) following ante mortem injuries were found on the dead body:- 1. Punctured lacerated wound 2¼” x 2cm x chest cavity & abdomen cavity deep with callus 2. Abrasion & bleeding in 4 x 3cm area around wound on Lt. mid axillary line below 1/3rd chest and outer wall near costal edge with 33 x blood margins in valeted suggesting wound of entry caused by fire arm. In the opinion of Dr.Udai Singh (Pw.17) the cause of death was hemorrhagic shock due to injury to spleen, Lt.kidney and liver. ARGUMENTS ON BEHALF OF APPELLANTS: 4. In assailing the impugned judgment learned counsel for the appellants made following submissions:- (i) Informant Prem Shankar (Pw.9) besides being highly interested witness is also an unreliable witness. Similarly testimony of Rakesh (Pw.12) does not inspire confidence. The statements of these two witnesses do not get any independent corroboration. Their testimony is riddled with numerous incongruencies, embellishments and contradictions rendering the same to be highly doubtful. (ii) The prosecution failed to produce independent witness of the incident. (iii) No weapon has been recovered from the appellant Susya @ Lokesh. (iv) There is no ballistic report available on record to fortify the forensic worth of testimony of eye witnesses. (v) The recovery of weapon at the instance of Pintoo @ Kamal Kishore besides being from an open place has also not been proved with the aid of cogent and convincing evidence. (vi) The site plan of place of incident does not render corroboration to the ocular testimony. (vii) The medical evidence stands in conflict with the ocular evidence. (viii) Appellant Susya @ Lokesh was not charge sheeted by the Investigating Agency and he was arrayed during the course of trial by resorting to the provisions of Section 319 CrPC. Since prosecution led two sets of evidence each one of which contradicts the other, the appellants could not have been convicted. (ix) Cognizance of fresh offence against newly added accused Susya @ Lokesh could not be taken in the same trial. The trial court ought to have tried two cases separately one after the other and pronounced judgments separately. 5. We have given our thoughtful consideration to the above submissions. ANALYSIS OF PROSECUTION EVIDENCE: 6. At the outset it may be noticed that as per the written report (Ex.P-15) Pintoo and Kalua, in order to strike terror in the market opened fire in the air and Susya @ Lokesh made fire from Katta (country made gun) at Lakhan on the left side of abdomen, which proved fatal. However it was IO Gordhan Singh (Pw.18), who at his whims did not choose to file charge sheet against Susya and Kalua despite the allegations made against them by witnesses Prem Shanker, Rakesh and Mahendra in their police statements. The Investigating officer discarded the evidence of these witnesses and ranked them interested witnesses. The charge sheet was filed only against Pintoo, Dinesh and Satish and Susya and Kalua, according to written report were main culprits, were left. Gordhan Singh in his deposition stated thus:- बादतफतीशमɇनेǒपÖ टूउफ[ कमलǑकशोर, Ǒदनेश, सतीशकेǒवǾƨ धारा-302, 34 भा.दं.सं. व 3/25, आयुधअिधिनयमअपराधबननापायेजानेपरउनकेǔखलाफ आरोपपऽÛ यायालयमɅ पेशǑकयाथा.... गवाहमहेÛ िकुमार, ूेमशंकरवराकेश केबयानजोबालǑकशनए.एस.आई. नेिलएथेउनकेबयानɉ परमɇनेǒवँ वास नहȣंǑकयाथाÈ यɉǑकयेǑदलचः पगवाहथेऐसामɇनेडायरȣ मɅ नोटअंǑकतǑकया था (After investigation I filed charge sheet in the court against Pintoo @ Kamal Kishore, Dinesh and Satish because charges under section 302, 34 IPC and 3/25 Arms Act were found established against them. Since statements of witnesses Mahendra Kumar, Prem Shankar and Rakesh were recorded by Bal Kishan ASI, I did not rely on their statements because they were interested witnesses and I put note in this regard in case diary.) (Emphasis Supplied) 7. Further look at the material on record reveals that after the case was committed, learned trial court on August 17, 2000 framed charge against Pintoo under section 302 IPC and 3/25 Arms Act whereas accused Dinesh Chand and Satish were charged for having committed offence under sections 302/ 149 IPC. It appears that till April 6, 2002 as many as 17 witnesses were examined by the prosecution. An application thereafter was filed under section 319 CrPC for proceeding against Susya and Kalua. Learned trial court allowed the application on July 8, 2002 and proceeded against Susya and Kalua under Sections 302/149 and 148 IPC. After appearance of Susya and Kalua learned trial court amended the charges on November 22, 2003 and charges under sections 302 in the alternative 302/149 and 3/25 Arms Act were framed against Pintoo @ Kamal Kishore whereas Dinesh Chand, Satish Chand, Susya @ Lokesh, and Kalua @ Koshal Kishore were charged under sections 148, 302 in the alternative 302/149 IPC. The prosecution thereafter examined as many as 19 witnesses, out of whom informant Prem Shankar (Pw.9), Rakesh (Pw.11) and Mahendra Kumar (PW.4) are the eye witnesses. Mahendra Kumar, when recalled after proceeding against Susya and Kalua under Section 319 CrPC, did not support the prosecution case and was declared hostile. 8. In his deposition Prem Shankar (Pw.9) stated that on the date of incident while he was purchasing some articles in main market of Bayana near Panchayati Mandir, Lakhan Lal (son of maternal uncle) who was a contractor of sweepers in Municipal Council Bayana, was inspecting the work of sweepers, at water-hut he was surrounded by Susya @ Lokesh, Pintoo @ Kamal Kishore, Kalua @ Kaushal Kishore, Dinesh Joshi, Satish, who were armed with Kattas (country made guns). Pintoo and Kalua opened fire at Lakhan and they also dragged Lakhan towards the shop of Dr.Ved Prakash by holding him from the collar. When Lakhan stood, Lokesh made fire from his Katta at abdomen of Lakhan, as a result of which Lakhan fell down. Believing Lakhan as dead the miscreants fled away. 9. Rakesh (PW.12) stated in statement that he alongwith Mahendra and Prem Shanker on the date of incident went to purchase some hosiery items at Gupta General Stores Bayana. When they were standing outside the shop Lakhan came near water hut from Mandi side and Susya, Pintoo, Kalua, Dinesh, Satish and two three other persons came from opposite side. Kalua and Pintoo opened fire at Lakhan which did not hit him and they dragged Lakhan towards the shop of Dr. Ved Prakash. Susya pick out Katta (country made gun) and fired at Lakhan's abdomen, on account of which Lakhan fell down and the miscreants fled away. 10. Having closely scanned the testimony of Prem Shankar (Pw.9) and Rakesh (Pw.12), we find that their presence at the time of incident was natural. These witnesses gave sufficient reasons for their presence at the time of incident, which occurred around 5 PM in the market and written report was lodged by Prem Shankar at 6.45 PM. Prem Shankar named Rakesh in the report with whom he was purchasing goods from the nearby shop. In the market every passerby is a chance witness and it is well settled that in the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. The incongruencies, embellishments and contradictions pointed out by the learned counsel in the testimony of Prem Shankar and Rakesh do not render the same to be doubtful. On examining the statements of these witnesses from the point of view of trustworthiness, we find them truthful. The shop- keeper examined by the appellants in defence, could not shatter the testimony of Prem Shankar and Rakesh. It was also not necessary to fortify the forensic worth of testimony of Prem Shankar and Rakesh by exhibiting ballistic report since Dr.Udai Singh (Pw.17) stated in the post mortem report (Ex.P-35) that wounds were caused by firearm. 11. It is well settled that evidence of kith and kin of the deceased may be relied upon. The Apex Court in Krishna Ram Vs. State of Rajasthan (AIR 1993 SC 1386) held as under:- (Para 4) “We have gone through the evidence of the eye witnesses. No doubt Pws 1,2,3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex.P-1 all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noted already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between PW.6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eye witnesses. The evidence adduced in defence is not at all material and the courts below have rightly rejected the same. The trial court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly.” 12. In Ram Lakhan Vs. State of UP (AIR 1996 SC 3429) held that the evidence of close relatives of deceased is not liable to be rejected on ground of interested witnesses. What is necessary is that Court should scrutinize evidence of such witness carefully. 13. In Baitullah Vs. State of UP (AIR 1997 SC 3946) Hon'ble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons. 14. In Tapubha Bhagwanji Vs. State of Gujarat (AIR 2002 SC 2794) the Apex Court held as under:- (Para 12) “The witnesses examined on behalf of the prosecution are witnesses who in normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper.” (Emphasis supplied) 15. In Angnoo Vs. State of UP (AIR 1971 SC 296) the Apex court held that the fact of relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. 16. In Bolineedi Venkataramaiah Vs. State of Andhra Pradesh (AIR 1994 SC 76) the Apex Court considered the case where there was bitter enmity between prosecution party and accused party, group of persons chased deceased and inflicted injuries. The presence of witnesses at place of occurrence was not found doubtful. It was held that being interested witnesses their evidence was subjected to greater scrutiny. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific overt acts had been attributed consistently by all witnesses were convicted. The plea that some of the accused were acquitted, the same evidence cannot be accepted against other accused, was not found tenable. 17. In Kartik Malhar Vs. State of Bihar (1995) 8 JT (SC) 425, the Apex Court indicated that “we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this court as early as in Dalip Singh's case (AIR 1953 SC 364) in which this court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness Speaking through VIVIAN BOSE J., the Court observed para 25 of AIR 1953 SC 364): “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.” 18. In Thangaiya Vs. State of Tamil Nadu (2005 Cri.L.J. 684) the Apex Court observed as under:- “In a murder trial by describing the independent witnesses as `chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere `chance witnesses'. The expression `chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. In instant case, the plea of the accused that PW-3 was chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. Therefore, there is no substance in the plea that evidence of independent witness which is clear and cogent is to be discarded.” 19. From the testimony of Prem Shankar and Rakesh it is established beyond reasonable doubt that Pintoo and Kalua in order to strike terror in market opened fire in the air and thereafter Susya made fire from Katta at Lakhan hitting on the left side of his abdomen. In their police statements Prem Shankar and Rakesh made the same allegations against Susya, Pintoo and Kalua, but Gordhan Singh IO (Pw.18) whimsically discarded their statements. MACHINATIONS DEMONSTRATED BY INVESTIGATING OFFICER: 20. Section 161 CrPC does not authorise Gordhan Singh IO to ignore the statements of Prem Shankar and Rakesh recorded by Bal Kishan ASI on the ground that they were interested witnesses. Section 161 CrPC reads as under:- “161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of the statement of each such person whose statement he records.” Section 161 makes no distinction between one person acquainted with facts and circumstances of a case and another. It does not divide them into the classes of complainants, accused persons and witnesses, instead they are all interrogatees. A statement made under section 161 can only be used for the purpose of contradicting the evidence of a prosecution witness. It cannot be used for corroborating the evidence of a prosecution witness. Section 173 however provides for a final report after completion of investigation and showing the results of such investigation. The report shall accompanied by all documents or relevant extracts on which the prosecution proposes to rely and the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as the witnesses. 21. The criminal law in India and the Police Organisation, which is based upon it, are both founded on the principle that public order depend, essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. This fundamental principle must be thoroughly understood and borne constantly in mind by Police Officers of all ranks. In a criminal case the Investigating Officer should behave like an impartial friend of the victim and there should be no room for entertaining a doubt about the fair investigation of the case. Since in the case on hand the evidence of Prem Shankar and Rakesh, on scrutiny, is found credible and acceptable, we cannot be influenced by the machinations demonstrated by Gordhan Singh, IO in conducting investigation and in preparing the records so unscrupulously. In a similar situation, their Lordships of the Supreme Court in State of Karnataka Vs. K. Yarappa Reddy [1999 CrLR (SC) 723] indicated thus:- (Para 19) “... It can be guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinised independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casulty for the wrongs committed by the investigating officer in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true, the court is free to act on it albeit investigating officer's suspicious role in the case.” (Emphasis Supplied) COGNIZANCE UNDER SECTION 319 CrPC: 22. That takes us to the next submission of learned Senior counsel that cognizance of fresh offence against newly added accused Susya @ Lokesh could not be taken in the same trial. According to learned counsel the trial court ought to have tried two cases separately one after the other and pronounced judgments separately. In Balbir Singh Vs. State of Haryana (2000)1 SCC 285 on which reliance is placed by learned Senior Counsel, following legal point was formulated by the Supreme Court:- (para 2) “The question of law which has arisen for determination rests in discovering the course to be steered by a Court of Session when two commitments are made before it pertaining to the same offence and pertaining to the same victim, one giving one version against one accused, and the other giving another against a different accused. In what manner should the Court of Session proceed when taking cognizance of the offence is the subject matter of debate in this appeal. Added thereto is the quest