TMI Blog1991 (4) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 302 read with Section 34, I.P.C. for causing deaths of D-l to D-4 and sentenced to undergo imprisonment for life. A-2 and A-3 were convicted under Section 307 read with Section 34 I.P.C. for attempt to murder of PW-4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently. 2. Ram Avtar, PW-3 and D-3 Ram Nath, first cousin, had liquor contract in the village Kotli Ablu from 1983 and 1984. D-2 and PW-4 were working in the liquor shop. The wives of D-2 and D-4 are sisters. D-4 came to see D-2. D-l was working in the liquor shop at Ablowhad. Since the liquor therein had exhausted he came to Kotli Ablu to sell the liquor in the shop of D-3. A-l and A-2 are brothers and are residents of Kotli Ablu and Sohna Singh, A-3 is their maternal uncle (mother's brother) and a resident of Rameana situated at a distance of 8 km. to Kotli Ablu. These are the admitted facts. It is the case of the prosecution that at about 9.00 p.m. on June 4, 1984, A-l and A-3 came to the liquor shop of D-3 wherein PW-3, D-1, D-2 and PW-4 were also present and were vending the liquor. They sold one bottle of liquor to A-l and A-3 on credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement to the inquest reports Ex.P-4, P-6, P-8 and P-10 and sent the dead bodies with the reports for post-mortem by PW-2, Doctor. He also prepared rough sketch of the scene under Ex-Pl/A. He recovered the blood stained earth and cots etc. under Ex.P-16. He recovered 7 empty and two live cartridges Ex.M 0/1 to MO/9 under panchnama Ex.P-18. He remained on the spot till 10.30 p.m. and saw the light emanating from the house of surtax Singh and falling at the scene of occurrence. He sent requisition twice to the hospital to find whether PW-4 was in a fit condition for recording his statement. On June 7, 1984 at about 7.00 a.m. he received an endorsement that PW-4 was in a fit condition to make the statement. Accordingly he recorded the statement. He sent M.O.S 1 to 9 cartridges and pallets recovered from body of D-4 under Ex.P-25 to ballistic expert for report. On June 15, 1984 when he was picketing on the drain of village Chand Shan at about 3.30 a.m. he arrested the appellants and recovered from the person of A-l. Ex. M O/l 1 rifle, 351 bore (semi automatic) of U.S.A. make loaded with two cartridges M O/12 and M 0/13 under panchnama in the presence of panch. Pursuant to a statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d PW-4 is highly artificial, unbelievable and untrustworthy; barring their evidence, there is no other evidence to connect the appellants with the commission of the crime. The story that PW-3 and PW-4 climbed on the terrace 'and were sleeping is false as they cannot climb to a height of 8-1/2 ft. PW-3 did not disclose his witnessing the occurrence to any one till noon. DW-3 the Sarpanch of madhok spoke that PW-3 alongwith the panch witnesses were brought from Madhok in a Jeep by the police, so he is a planted witness. In support thereof he contends that the specific evidence of DW-3 in this regard was not challenged in cross-examination. PW-4 was not examined at the inquest though he was conscious. The police requisitioned the dog squad to sniff the scene of offence to identify the unknown accused. PW-5 and PW-2 the Doctor admitted that the omission of the names of the accused in the case diary and names would belie the theory of witnesses. The omission of the names of the accused in the cause title (Banam) would clearly show that PW-3 and PW-4 were not direct witnesses and PW-3 was introduced at a later stage and he was not examined at the inquest and that PW- 4 did not identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -4 came to see D-2 as they married sisters. D-l came and was vending on the fateful day in the shop. D-l to D-4 were killed in the intervening night of June 4-5, 1984 is practically admitted from the evidence of DW-3. During the course of the same transaction PW-4 sustained 7 lacerated gun-shot injuries and one incised injury is also admitted through the evidence of DW-2 and DW-3, PW-2, the Doctor's evidence conclusively established that D-l and D-2 died and to gun-shot injuries D-l and D-2 each had two entry and exit wounds due to gun-shots. D-3 and D-4 also had gunshot lacerated as well as incised injuries. They also died on the spot due to the injuries which are sufficient to cause death in the ordinary course of nature. Seven empty and two live cartridge fired from MO 11 rifle of 351 bore of U.S.A. make belonging to A-l were recovered from the scene of occurrence. Therefore, the deaths of D-l and D-2 due to gunshot injuries and D-3 and D-4 due to gunshot and incised injuries are proved beyond doubt. Equally PW-4 sustained injuries is also established. 5. The only question is whether the appellants are assailants. The conviction of the appellants hinges upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he became unconscious as soon as, he came and tapped the door of DW-3, and fell down, by operation of Section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW-4 continued to remain unconscious till the report was given. Therefore, the F.I.R. could be used as relevant existing state of fact namely the continuous unconscious condition of PW-4 till PW-5 S.H.O. reached and saw him within the meaning of Section 11 read with Section 6 of the Evidence Act. When PW-4 received 7 gun-shot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW-3 and knocked the door he fell down unconscious appears to be quite natural and probable. The evidence of PW-5, that on seeing PW-4 in critical unconscious condition he sent him to the Doctor for medical examination and the doctor administering sedation appear, to be human probabilities and there is nothing intrinsic to suspect their evidence. Thus PW-4 was not in a fit condition to give statement till June 7, 1984 at 7.00 a.m. 4's evidence that he was residing at Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the box and perjured the evidence. Therefore, the claim that the light was not working for three months prior to the date of occurrence, cannot be believed. Even assuming that there was no light, even then, PW-4 could identify his own assailants when he was attacked and chased in the course of the same transaction. Nothing worthwhile was brought out in the cross-examination to disbelieve his testimony. He had no axe to grind against any of the accused. No motive to make false implication of the accused was even suggested. He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons. Moreover the medical evidence of PW-2 fully corroborated the evidence of PW-4. 8. It is settled law that corroboration is not a rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre-disposition towards the accused, are some of the circumstances to be kept in view to weigh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), -shall apply. 11. It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be signed. So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by Section 145 of the Evidence Act or with the permission of the court the prosecution could use it for re-examination only to explain the matter referred to in his cross-examination It is settled law that Section 162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever. The obvious reason is that the previous statement under the circumstances was not made inspiring confidence. It enables the accused to rely thereon only to contradict the witnesses in the manner provided by Section 145 drawing attention of the witness of that pan of the statement intended to be used for contradiction. It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a defence or a court witness. The investigating officer is enjoined 'to forward the inquest report to the Magistrate alongwith the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o out from his custody for being used, in committing the crime by third parties. From its recovery from the person of A-l, it is clear that it continued to remain in his custody from the time of user in the crime till it was recovered from him. These circumstances coupled with oral evidence of PW-4 and PW-3 clearly establish the complicity of A-l in committing the offences of murder of D-l to D-4. As equally A-3 accompanied A-l to the liquor shop and had quarrel. When A-l and A-3 left the shop in anger, it is clear that they left the shop in huff smarting from humiliation at the hands of the contractor from out side the state and their staff. To avenge the humiliation heaped upon them they animated to finish the prosecution party. Obviously they chose past mid-night to be sure that all would be asleep and no evidence of their crime would be available. Thus they have strong motive to kill the deceased and to make murderous attack on PW-4. Moreover gandasa was recovered pursuant to A-3's statement under Section 27 of Evidence Act leading to its discovery and it contained human blood though blood group could not be detected due to disintegration. The two incised injuries each on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 34, Section 307 read with Section 34 I.P.C. A-3 was given the minimum sentence of imprisonment of life. The sentences were directed to run concurrently. On finding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be. No doubt the accused declined to adduce oral evidence. But it does not prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
