Case: Raisaheb Vs. State of Harayana

in what manner she touched the body or did not touch at all. At any rate these are all very minor things. The fact remains that the FIR was given in a short and reasonable time and nobody could have imagined and planned to set up these witnesses particularly PW 6 who is a student studying in the school. Therefore we are fully satisfied that these two witnesses were present in the bus at the time of occurrence.8. Now coming to the so-called inconsistencies between their evidence and the medical evidence, the foremost thing that has to be borne in mind is that the medical evidence established that the deceased died because of the firearm injuri es. The Doctor, PW 9, who conducted the postmortem, noted the following injuries: "1. Lacerated wound oval-shaped measuring 3 cm x 2 cm was present over left temporal region just lateral to left eye. Mar gins were inverted. The surrounding area of the face was tattooed. 2. Lacerated wound 2 cm x 4 cm with averted margins, was present over right side of face just lateral to up per lip. On probing, the probe passed from injury 1 to 2. On dissection, the orbital bone was pierced, the left eyeball was crushed, the palate roof was pierced, artificial denture of both jaws was broken. 3. Lacerated wound oval shaped measuring 5 cm x 3 cm was present over right side of chest, just above clavicle at mid-clavicular point. The margin s were blackened and inverted. The surrounding skin was tattooed. There were corresponding holes in the shirt and banyan and were blackened. 4. Lacerated wound with coverted margins measuring 2 cm x 2.5 cm with abrasions on lateral and lower borders, was present on the right side of chest of anterior axillary line and was 10 cm below the armpit. 5. Lacerated wound measuring 2 cm x 1 cm was present over front of right upper arm 15 cm below armpit. Margins were averted. 6. Lacerated wound 1 cm x 5 cm was present back at upper end of the scapula and was 15 cm lateral to midline. The margins were averted. On probing the wound, the probe passed from injury 3 in all directions of injuries 4, 5 and 6. The probe also passed into the chest wall at- upper border of second rib. On dissection, the tracks of the probe were confirmed. On opening the chest, there was lacerated wound in the chest wall. The upper apex was lacerated, there was a lacerated wound in the diaphragm. The liver was lacerated at its anterior border. There was a lacerated wound in the posterior chest wall and embedded pellet was recovered from the wound. The pellet was sealed. The thoracic cavity was full of blood andabdominal cavity also contained blood. The clavic le bone was broken into pieces at its lateral 1/3rd level. The brachial plexuses and vessels were badly lacerated." In the cross-examination, PW 9, the Doctor has clarified that injury I was the entry wound and injury 2 was its exit wound. Injury 3 was another entry wound and the injuries 4, 5 and 6 were the exit wounds of injury 3. He also found a bullet lodged in the body and removed the same. The report of the ballistic expert would show that two of the metallic pieces which were examined by him could have been fired from a country-made pistol. Therefore his report corroborates the prosecution version that a country made pistol could have been used and the evidence of the eyewitnesses shows that A- 5 used a country-made pistol. Their evidence also is to the effect that accused 1, 3 and 4 used their guns. The mere fact that there are no three entry wounds by itself is not a ground to show that three guns were not used. Maybe some of the shot s fired by the accused did not hit the deceased. Even otherwise there is evidence to show that all the accused came in a body and boarded the bus and when A-2 threw the deceased on the ground all the accused surrounded him and two or three of them fired at the deceased. Then all of them ran away together from the place of occurrence.These circumstances are enough to attract Section 149 or even Section 34 IPC. The other discrepancies pointed out are in respect of some omissions or contradictions elicited from PWs 5 and 6 after confronting them with their earlier statements. We have carefully examined them and we find them to be not at all material. One of the discrepancies pointed out is that PW 5 stated that the Inspector was writing her statement on papers and not in a book and on that statement she affixed her thumb impression on two papers. The question is whether the statement was written on papers or in a book. We are unable to see as to how this would be very material. It may be that she mistook the sheets of the book to be loose papers. She deposed that she reached police station, Fatehabad at about 9.15 p.m. after the occurrence and she further deposed that she has given all the details namely what time they started from Fatehabad and how they were sitting in the bus. It appears that in the FIR some of these minor details are not there. The earliest report need not contain all these minute details and on the other hand we find that all the material facts are mentioned in the earliest report. Their travelling in the bus and the accused getting into the bus and later attacking the deceased and the details of the occurrence, the presence of PW 6 and other necessary materials are all there. We have carefully scrutinised the evidence of PWs 5 and 6 and we find no traces of any false implication and we are satisfied that they were present at the scene of occurrence and have given a truthful version.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]5. So far as the motive is concerned, there is evidence of PW 8 to show that there were cases pending and there was also bitter enmity between the deceased and his close relations on one side and the accused on the other side. However, when there are direct witnesses, the motive is not very important. The next submission that other important independent witnesses were not examined by itself, in our view, is not fatal to the prosecution case. In a case of this nature and particularly in these areas where firearms are being used freely and indiscriminately, nobody would dare to come and give evidence. On the mere ground that the others who were in the bus, were not examined, the evidence of PWs 5 and 6 cannot be rejected. Since they are inte rested witnesses their evidence has to be scrutinised with great care andby itself is not a ground to doubt their presence.However, the investigating officer has recovered threefrom PW 6 which would go to show that PWs 5 and 6 traveled along with the deceased in the bus having purchased the tickets on the fateful day. That apart, the place and time of occurrence cannot be doubted. The fact that the deceased was traveling in the bus also is not in dispute and even in th e earliest report which was given at about 9.45 p.m. i.e. within reasonable time, all these facts are mentioned. We are unable to agree with the learned counsel that there was inordinate delay in giving the FIR. According to the prosecution witnesses they boarded the bus at Fatehabad and some time later the occurrence took place in the bus. The police station was at some distance from the place of occurrence and after the members of the family of the deceased came to the scene of occurrence in a tractor, PW 5 was sent immediately to the police station in the same tractor and she gave the report to the police by 9.45 p.m. Therefore there is no undue delay..7. Now we shall consider whether the version given by the two eyewitnesses is consistent with the medical5 and 6 have deposed that when the bus covered a distance of one mile from the place from where the accused boarded the bus, it stopped and that accused 1, 3 and 4 alighted from the bus andtook the deceased in his grip and threw him from the bus and as soon as the deceased fell on the ground, accused 1, 3 and 4 fired at him andwho was carrying a pistol also fired at the deceased and that the deceased died on the spot because of the firearm injuries.Both of them have deposed thattook away the gun of the deceased which fell on the ground. The first criticism against the evidence of these two witnesses is that no blood was found on their clothes. It is submitted that if PWs 5 and 6, who are no other than the wife and son of the deceased, were present when the occurrence took place, they would have fallen on the body of the deceased and touched the same and their clothes would have got blood stain s but noclothes were seized and their evidence also did not disclose that there were any blood stains. PW 5, when questioned in this context, categorically stated that she remained in the bus raising cries and did not fall upon her husband to rescue him. Even after the occurrence, it cannot definitely be said as to in what manner she touched the body or did not touch at all. At any rate these are all very minor things. The fact remains that the FIR was given in a short and reasonable time and nobody could have imagined and planned to set up these witnesses particularly PW 6 who is a student studying in the school. Therefore we are fully satisfied that these two witnesses were present in the bus at the time of occurrence.8. Now coming to theinconsistencies between their evidence and the medical evidence, the foremost thing that has to be borne in mind is that the medical evidence established that the deceased died because of the firearm injurin, PW 9, the Doctor has clarified that injury I was the entry wound and injury 2 was its exit wound. Injury 3 was another entry wound and the injuries 4, 5 and 6 were the exit wounds of injury 3. He also found a bullet lodged in the body and removed the same. The report of the ballistic expert would show that two of the metallic pieces which were examined by him could have been fired from apistol. Therefore his report corroborates the prosecution version that a country made pistol could have been used and the evidence of the eyewitnesses shows that A5 used apistol. Their evidence also is to the effect that accused 1, 3 and 4 used their guns. The mere fact that there are no three entry wounds by itself is not a ground to show that three guns were not used. Maybe some of the shot s fired by the accused did not hit the deceased. Even otherwise there is evidence to show that all the accused came in a body and boarded the bus and whenthrew the deceased on the ground all the accused surrounded him and two or three of them fired at the deceased. Then all of them ran away together from the place of occurrence.These circumstances are enough to attract Section 149 or even Section 34 IPC. The other discrepancies pointed out are in respect of some omissions or contradictions elicited from PWs 5 and 6 after confronting them with their earlier statements. We have carefully examined them and we find them to be not at all material. One of the discrepancies pointed out is that PW 5 stated that the Inspector was writing her statement on papers and not in a book and on that statement she affixed her thumb impression on two papers. The question is whether the statement was written on papers or in a book. We are unable to see as to how this would be very material. It may be that she mistook the sheets of the book to be loose papers. She deposed that she reached police station, Fatehabad at about 9.15 p.m. after the occurrence and she further deposed that she has given all the details namely what time they started from Fatehabad and how they were sitting in the bus. It appears that in the FIR some of these minor details are not there. The earliest report need not contain all these minute details and on the other hand we find that all the material facts are mentioned in the earliest report. Their travelling in the bus and the accused getting into the bus and later attacking the deceased and the details of the occurrence, the presence of PW 6 and other necessary materials are all there. We have carefully scrutinised the evidence of PWs 5 and 6 and we find no traces of any false implication and we are satisfied that they were present at the scene of occurrence and have given a truthful version.