TMI Blog1997 (7) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to estabilize social peace, order and progress. 4. Popatbhai, a sitting member of Legislative Assembly was done to death in the public gaze when full ceremonial Independence Day function was in progress. The chief dignitary of the event, the Deputy Collector and Sub-Divisional Magistrate, Mr. J. P. Dave who was sitting beside the deceased, witnessed the occurrence of shooting of deceased from behind; however, when culprit was caught, it would be obvious that he saw him; yet he has turned hostile to the prosecution and even refused to identify the respondent in the Court sabotaging the prosecution case. Thus, he betrayed his duty as a responsible officer and as a worthy citizen and has denied himself to hold an office of trust and responsibility. His own unworthiness is writ large in the present case. Similar is the case of many a dignitary including the Mamlatdar, PW-36, a leading private doctor and Chief Officer of the Municipality and a host of others numbering 45 in all. It would speak volumes of unworthy conduct forsaking thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude, suddenly at about 9-30 a.m. a sound of cracker was heard from behind the deceased who was sitting next to J.P. Dave. People got panicky and started running helter-skelter. PW-4 who was sitting left to the deceased got up on the chair and looked around and saw the Accused No. 1 attempting to run away. He jumped over the chair and caught him. PW-58, I.B. Shekhawat saw that some arm wrapped in handkerchief was thrown over his head from behind. He ran into that direction and caught hold of it; he found it to be a pistol. He took them into possession. By the time, he came back, Jhala handed over Accused No. 1 to Shekhawat and asked him and A.N. Tiwari, P.W. 46, PSI to go to the police station, lodge a complaint and hand over Accused No. 1 and the pistol (Ex. 1-A) to the police. Since the deceased had fallen by the side with blood pressing from his head, he was taken to Rajkot Hospital where he succumbed due to the head injury, later in the day, Shekhawat, P.W. 58 went to the police station at about 9-55 a.m. and lodged the FIR, Ex-301/1. Therein, he had narrated thus: I was present with my SRP Group along with officers at Sangram singh ji High School where Deputy Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt after considering the entire evidence reached the conclusion that: 1. the prosecution has totally failed to prove that Accused No. 1 was present at the place of incidence with the pistol; 2. the prosecution has failed to prove that Accused No. 1 had thrown the muddammal pistol and handkerchief from the left back side of the sitting eminent persons immediately after the incidence; 3. the prosecution has failed to prove as to at what distance Accused No. I was standing from the chair of the deceased; 4. the prosecution has also failed to produce any circumstantial evidence regarding accused No. 1 firing at the deceased. The learned Judge observed thus: In my opinion, the prosecution has failed to produce any legally believable circumstantial evidence so as to connect the accused No. 1 with the crime. 10. Thus, he has given the benefit of doubt to the accused. Thus, this appeal. 11. The question, therefore, is : whether the prosecution has proved the case against the respondents beyond reasonable doubt? As far as the second respondent is concerned we have carefully considered the evidence. We find that there is absolutely no worth mentioning evidence, conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confession made to them was held to be admissible. 16. In Raj Kumar Karwal v. Union of India , the question arose : whether the officers of the Department of Revenue Intelligence (DR1) invested with powers of officer-in-charge of police station under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are police officers within the meaning of Section 25 and whether the confession made to term is inadmissible in evidence? In this behalf, this Court had held that the officers of the Revenue Department, who have been invested with the powers given to the incharge of the police station were not police officers within the meaning of Section 25 of the Evidence Act and, therefore, the confessional statement recorded by such officers in the course of investigation of the persons accused of an offence under the Act, is admissible in evidence as against him. Officer appointed under Section 53, other than a police officer is not entitled to exercise all the powers under Chapter XII of the Cr. P.C. including the power to submit a charge-sheet under Section 173, Cr. P.C. This Court in paragraph 5 at page 413 (of SCC): (para 4, at p. 47 of AIR) has stated thus: Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the post of a Superintendent and an Assistant Commandant and an Adjutant who shall be persons eligible to hold the post of an Assistant or a Deputy Superintendent. Section 10 enumerates genera! duties of the personnel of the State Reserve Police Service. It postulates that Every reserve police officer shall for the purpose of this Act be deemed to be always on duty in the State of Bombay, and any reserve police officer and any member (number) or body of reserve police officers, may, if the State Government or the Inspector-General of Police so directs, be employed on active duty for so long as and wherever the services of the same may be required . Under Sub-section (3), [A] reserve police officer employed on active duty under Sub-section (1), or when a number or body of reserve police officers are so employed, the officer-in-charge of such number or body, shall be responsible for the efficient performance of that duty and all police officers who, but for the employment of one or more reserve police officers or body of reserve police officers, would be responsible for the performance of that duty, will, to be (the) best of their ability, assist and cooperate with the said rese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution would be safeguarded. Though the argument of Shri Sushil Kumar is prima facie attractive, on deeper probe, we find it difficult to give acceptance to the same. 20. It is undoubted that in Kartar Singh v. State of Punjab , one of us (K. Ramaswamy, J.) in a separate but concurrent judgment, had held thus : moreover, the imbalance between the State and the defendant begins with arrest and detention, for experiences influence the detunes in ways analogous to interrogation, the negative implications of silence, the self-mortification or extreme humiliation at being arrested, the desire to shield the self from potentially, humiliating questioning and the emotional stress caused by the symbols of the law's authority even in persons of higher status would get lost . Similar, observations came to be made that the police interrogation can produce trance like state of heightened suggestibility so that truth and falsehood become hopelessly confused in the suspect's mind and that it will be due to hypnosis the suspect lose initiative and in the heightened fantasy, confabulation and distortion get mixed up due to leading question. As. a result, the power of recording con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled position of law vide this Court's decision in Nisar Ali v. State of U.P. , that the first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under Section 145 of that Act. It cannot be used as evidence against the maker at the trial, if he himself becomes an accused; nor to corroborate or contradict other witnesses. In Dharma Rama Bhagare v. State of Maharashtra , the same principle was reiterated. It was held therein that the first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. The first information report can only discredit the testimony of the maker thereof. It can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent person. Prosecution case cannot be thrown out on the mere ground that in the first information repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 27. In that case, the evidence of a hostile witness was scanned by this Court and found to be accepted and relied on. In State of U.P.v. Ramesh Prasad Misra , it was held thus: It is rather unfortunate most unfortunate that these witnesses, one of whom was an advocate, having given the statements about the facts within their special knowledge, under Section 161 recorded during investigation, have resiled from correctness of the versions in the statements. They have not given any reason as to why the Investigating Officer could record statements contrary to what they had disclosed. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. 28. In view of the above settled legal position, merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nreliable or unworthy of acceptance. It requires to be subjected to careful evaluation like any other witness of occurrence. 30. We have the evidence of PW-4, Jhala, PW-58, I.B. Shekhawat and PW-46, Atma Ram, on duty apart from PW-40, the Chief Officer of the Municipality, who was conducting the proceedings in the flag hoisting ceremony, though he turned hostile, and also the evidence of PW-36, private Medical Practitioner at Gondal and also Ex.-M.L.A., who had also turned hostile. 31. At the outset, we would notice the contention of Shri Sushil Kumar that the entire record of the prosecution has not been prepared and a copy has not been given to the accused and that, therefore, he was handicapped to place before the Court certain aspects relating to the investigation conducted by Rawat and Bhattacharya. In the absence of scene of offence marked in two sketches and the evidence of witness, Kuber Singh in proof of fire-arms; omission to examine other medical evidence and the relevant photographs wherein the first respondent could be properly identified to be the person at the scene of offence. We had given direction to the Designated Judge to send the record duly translated; h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n report was given by the doctor at Rajkot. as to the death of the deceased and it constitutes FIR; and, therefore, the FIR, Ex. 203/1, is not the FIR and, therefore, it is not admissible in evidence. We do not accept the contention of Shri Sushil Kumar as correct. It is seen that under Ex. 203/1, FIR, the offence charged is under Section 307 but not under Section 302 and the FIR has already reached the Judicial Magistrate at 12.15 p.m. The deceased died sometime thereafter in the hospital. The information conveyed by the doctor under Ex.201 was the intimation of the death of the deceased. Consequently, in the FIR the offence under Section 307 was converted into an offence under Section 302 and the converted FIR was issued, which was marked as Ex. 202/3. Under these circumstances, the FIR given by Shekhawat under Ex. 203/1 was the first information report. As extracted earlier, it does contain wealth of material particulars regarding the apprehension of Anirudh singh on the spot. The only omission therein was of the apprehension of the accused by Jhala, PW-4. As regards the factum of apprehension of the first respondent on the spot, his identity and name, being brought by PW-58, PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not even the case of the accused. The omission to examine Dr. Trivedi is not of relevance. In this regard, it is also contended by Shri Sushil Kumar that the prosecution has failed to connect the injury caused by the fire-arm, Ex.1A. There is a dispute whether the pistol produced before the Court is the one that was seized by PW-58, 1. B. Shekhawat when it was alleged to have been thrown and it was not established beyond doubt that it was the same weapon that was used in the commission of the crime. It is also contended that there is no evidence that it was the weapon that was used by Accused No. 1 in commission of the crime. It is also contended that if the prosecution case is accepted that Accused No. 1 hit the deceased from behind his head where the deceased was sitting in the front row, there would have been entry and exit wounds and in the absence of that, it would be difficult to believe that the A-1 had caused such a death within the short range without any exit wound. We find that there is no force in the contention. As regards the identification of the weapon, there is evidence of PW-58, I. B. Shekhawat who is also an officer admittedly on duty at that time and in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind them and immediately they saw the people running helter-skelter and when PW-4 got up on the chair and looked around, he saw Anirudh singh, Accused No. 1 attempting to run away. As a consequence, he immediately jumped from the chair and caught him. He has stated in his evidence thus: I and Shekhawat stood-up and I saw on my left a weapon wrapped in cloth being thrown from my left side to right side. Shri Shekhawat went to the right side where the weapon was thrown towards temple side and I stood up on my chair and to my left side behind where many people were standing, one person was trying to run away, hence, I jumped from the chair and caught hold of this suspected person. At that time, I saw Popatbhai bleeding from his nose and he lay on right side with his head below. In paragraph 7, he stated thus: I and Shekhawat took the apprehended boy next to the stage where P.S.I. Rawat and other police officials were standing. The boy whom I apprehended is present in the Court and is Accused No. 1 whom I identify. Muddamal article No. 1-A pistol, and handkerchief, article No. 2 are shown to me, but if they are two or three I cannot identify. Muddamal article No. 1-A pisto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escapable doubt. In view of the unimpeachable evidence of PW-58 who seized the weapon thrown immediately after the commission of the offence over his head and in view of further corroboration in that behalf received from the evidence of PW-4 and PW-46, another officer on duty, the omission to place on record the sketch of the scene of the offence or Fire-arm Expert, is not of material consequence. As regards photographs, their relevance will be considered while examining the evidence of Anirudh singh having been caught on the spot. 40. From the reading of the evidence of Forensic Expert, PW-55, the evidence of PW-58, PW-4 and PW-46, it can safely be concluded that the pistol with which the murder of Popatbhai was committed was recovered immediately after the occurrence by PW-58 which was thrown wrapped in the handkerchief. It is true that there is no exit wound; but pellet was found inside the brain and the evidence of Dr. Buch clearly indicates that it was on account of the hit from the pistol with which the deceased sustained injuries which resulted in the homicidal death. Therefore, the prosecution has established that the weapon, Ex. 1 -A was the one used for committing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of PW-4. PW-58 and PW-46. It is seen that PW-4, Jhala had no axe to grind by speaking falsehood against Anirudh singh. Being the officer on duty, he swung into action instantly and apprehended Accused No. 1 on the spot immediately while he was trying to run away. We have already noted that in the First Information Report the identity of the first respondent was specifically mentioned and he was produced within 25 minutes after the time of occurrence. The occurrence had taken place at 9.30 a.m. and he was produced before the police at 9.55 a.m. The Report contained the material particulars that Anirudh singh was caught; handed over to and was kept in the custody of the police. FIR was in the custody of the Court at 12.15 p.m. even before Bhattaeharya, D.I.G. had started real investigation into the matter. Thus we hold that Anirudh singh, Accused No. I was caught on the spot at the scene of the crime. In fact, the trial Judge also has accepted his presence at the scene of occurrence. It has been proved beyond reasonable doubt. Shri Sushil Kumar, learned Senior Counsel in fairness has also not seriously disputed in that behalf. From this perspective, the omission to place on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d doubt. 44. When the pistol and the handkerchief were thrown from behind and when Anirudh singh was caught when he was at the back of the deceased, the necessary conclusion to be drawn unmistakably is that it was Anirudh singh who hit the deceased and thereafter he had thrown the pistol over the head of Shekhawat, PW-58 so as to avoid his being identified and he made an attempt to run away from the scene. Therefore, we hold that Anirudh singh, Accused No. 1 alone has done Popatbhai to death. 45. It is then contended by Shri Sushil Kumar that Accused No. 1 had no motive and the prosecution has failed to prove it. We find no force in the contention. The motive gets locked upon into mind of the makers and it is difficult to fathom it. The evidence of Acharya P.A. to the deceased, who too turned hostile to the prosecution speaks of motive. Equally, others have spoken but their evidence is not on record. If motive is proved that would supply a chain of links but absence thereof is not a ground to reject the prosecution case. So we reject the contention of the learned Counsel in that behalf too. 46. Thus considered in the light of the circumstances, we have no hesitation to hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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