REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1397 OF 2014

RAMJI SINGH & ORS.                   …APPELLANT(S)   

Versus

THE STATE OF UTTAR PRADESH        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

Babu Ram (PW­1) lodged a written complaint (Exh.P.1) with

the Police Station Churkhi to the effect that he had been

informed by his nephew Sarman Singh (deceased) that when he­

Sarman Singh was ploughing his field in the morning of

17.06.1982, accused Lakhan Singh (A­1) reached there and

hurled  abuses  at  Sarman Singh.  Lakhan Singh told  Sarman

Singh  that  he should  not till the  plot otherwise  he  would  be

killed.   Sarman Singh retorted that the plot does not belong to

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Lakhan’s father and that though Lakhan Singh had been

cultivating the plot by force, now Sarman Singh would not permit

him to do so. Heated altercation took place between the two and

both of them abused each other.  Thereafter, Lakhan Singh went

to his house.  Sarman Singh after completing the ploughing came

home and mentioned about this incident to Babu Ram (PW­1.) In

the FIR it is also reported that the relations between the two were

strained and Lakhan Singh belonged to a different group in the

elections for the  post  of  Village  Pradhan.  Sarman Singh had

fought  the election against  Lakhan Singh.   Lakhan Singh had

won the election.

2. Immediately, after informing Babu Ram of the incident,

Sarman Singh went to get his agricultural implement (datuwa)

repaired from the carpenter and the informant Babu Ram (PW­1)

also accompanied him.  It was about noon.  As soon as they were

crossing the house of Dasharath Singh, Sarman Singh told Babu

Ram (PW­1) that Babu Ram should get the datuwa repaired from

the carpenter while he (Sarman Singh) went to collect the price of

the bullocks from Dasharath Singh.   Sarman Singh entered the

courtyard of the  house of  Dasharath Singh and sat  on a  cot.

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Informant Babu Ram (PW­1) went towards the house of the

carpenter.  He had just reached the house of the carpenter when

he heard some noise.  He immediately ran and reached the house

of Dasharath Singh where he saw accused Lakhan Singh (A­1),

armed with lathi,  Ramji  Singh (A­2) and Krishna  Autar (A­3),

armed with guns and Laxman Singh (A­4), son of Lakhan Singh,

and Lala Ram (A­5), armed with axes and Virendra Singh (A­6)

with kanta ­ pitchfork.  They were outside the house of Dasharath

Singh and Lakhan Singh pointed out that Sarman Singh is a big

gunda, he should not be permitted to escape and he should be

killed.   Ramji Singh(A­2) and  Krishna  Autar (A­3) fired three

times each from their weapons from the entrance of the house of

Dasharath Singh.   Laxman Singh (A­4) and Lala Ram(A­5) gave

blows  with their axes, and  Virendra  Singh(A­6), attacked  him

with the pitchfork on his face and hands.  Sarman Singh died on

the  spot itself.   In the  meantime,  Nand Kishore (PW­2),  Gaya

Prasad,  Takhta Singh and Dasharath Singh’s wife  Bhagwanta,

and other villagers reached the spot.  The accused threatened all

the persons present there that if anybody interfered, he would kill

them and, thereafter the accused ran away from the spot.   

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3. A written complaint  in this behalf  was prepared by Babu

Ram (PW­1) and was scribed by Ram Lakhan (PW­4).  Thereafter

Babu Ram (PW­1) went to the police station which is about 8

miles from the village and handed over  the written complaint.

Crime No.66/82 was recorded under Sections 147, 148, 149, 302

and 452 of the Indian Penal Code, 1860 (IPC for short), against

the aforesaid 6 accused.  Thereafter, investigation was done and

the dead body of the deceased Sarman Singh was sent for post­

mortem examination. After completion of the investigation charge

sheet under Section 173(2) of  the Code of Criminal Procedure,

1973 (Cr.PC for short) was filed against all the 6 accused.   The

Magistrate  committed  the  case  to  the  Court  of  Sessions.  The

Sessions Judge charged Lakhan Singh under Sections 147, 449,

302/149 of the IPC whereas Ramji Singh, Krishna Autar, Laxman

Singh, Lala Ram, and Virendra Singh were charged for having

committed offence punishable under Sections 148, 302/149, 449

of the IPC.

4. The prosecution examined a number of witnesses.  The case

of the accused persons was of denial and according to them Babu

Ram was inimical to them and, therefore, they had been falsely

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implicated by him.   The Trial  Court  acquitted  all the  accused

mainly on the following grounds :­

(1) Medical evidence did not support the oral testimony of the witnesses and therefore the presence of eye witness was doubtful;

(2) Material witnesses had been withheld by the prosecution;

(3) Independent witnesses had not been produced;

(4) Motive was not proved;

(5) Witnesses examined were inimical against the accused and highly interested witnesses; and  

(6) That the prosecution had failed to prove the case beyond reasonable doubt.

5. The State  filed an appeal  in the High Court.  During the

pendency  of the  appeal, three  of the  accused namely,  Lakhan

Singh (A­1), Krishna Autar (A­3) and Virendra Singh (A­6), died

and the appeal abated qua them.   The High Court set aside the

judgment of the Trial Court and held that :­

(1) there was no material contradiction between the medical  evidence  and  the  statement  of the eye witnesses;

(2) that the presence of the eye witnesses on the spot stood proved;

(3) that the prosecution had explained why it had not examined one of the witnesses and held that

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the  prosecution  had  proved  beyond reasonable doubt the case against the accused.

Accordingly,  Ramji  Singh  (A­2),  Laxman Singh  (A­4)  and Lala

Ram (A­5) were found guilty of having committed offences

punishable under Sections 147, 148, 302/149 of the IPC, and

for the offence under Section 302 read with 149, IPC they have

been sentenced to rigorous imprisonment for life and a fine of

Rs.10,000/­ each.  Hence this appeal by the convicted accused.

6. We have heard Mr. Rajiv Dutta and Mr. Siddharth Luthra,

learned senior counsel appearing for the appellants and  Ms.

Sansriti Pathak, learned counsel for the  State of  U.P.   It is

contended on behalf of the appellants that the Trial Court had

rightly come to the conclusion that the medical evidence makes

the presence of Babu Ram (PW­1) and Nand Kishore (PW­2) at

the scene of occurrence extremely doubtful and, therefore, it is

urged that no reliance should be placed on their statements.  It

is also urged that there are many contradictions in the

statements  of these two witnesses  which render their  version

doubtful.   Furthermore, these witnesses are related to the

deceased and being interested witnesses, no reliance should be

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placed on their statements.   It was also urged that the FIR is

ante timed and ante dated and this is evident from the delay in

delivery of the special report.   It was also submitted that

material  witnesses  have  not been examined  and the  ballistic

report was not proved by the prosecution.   Lastly, it was

submitted that the Trial Court had taken a view which was a

probable view and this view should not have been disturbed by

the High Court.   

7. On the other hand, Ms. Sansriti Pathak, learned counsel for

the  State  of  U.P.  urged that the  view of the  Trial  Court  was

perverse and she pointed out that there is no contradiction

between the  medical evidence  and the ocular evidence.  She

further submitted that the time of recording of the FIR is

correctly recorded and is supported by the evidence on record.

Lastly, she submitted that all material witnesses have been

examined.  According to her, the judgment of the Trial Court was

perverse which was rightly set aside by the High Court.

8. Having  heard learned  counsel for the  parties  and  having

perused the original record in detail, we are of the view that the

main question which arises for consideration is whether reliance

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should be placed on the statement of the eye witnesses.

Obviously, if we believe the statement of the eye witnesses and

hold that they are truthful witnesses, then the appeal has to be

dismissed. However, if a doubt is cast on the veracity of these

two witnesses then the benefit of doubt has to go to the accused.

As far as the statements of these witnesses recorded in the case

are concerned, they are almost identical and there are no major

contradictions between them.  A lot of emphasis has been placed

by the appellants on the fact that many things stated by PW­1 in

his examination in court have not been mentioned in the FIR.

As far as this aspect is concerned, we may note that according to

PW­1, he was present at the place of incidence itself and

immediately after the occurrence dictated the complaint to Ram

Lakhan (PW­4), who states that Exh.P.1 is in his hand writing

and he had written whatever was dictated to him by Babu Ram

(PW­1).  Thereafter, he and Babu Ram had both signed the said

complaint (Exh.P.1).  From the signature of Babu Ram appearing

on Exh.P.1 it is apparent that Babu Ram is barely literate and

cannot write.  PW­4 is a teacher and the suggestion put to him

in cross examination was that there is some litigation between

his uncle and some persons connected with the accused, but he

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said that he was not aware of the same.   He clearly states that

he is not a  party to any  party  politics.  With regard to the

complaint the only suggestion put to him was that he had not

prepared any complaint in  the village and that the complaint

was written at the police  station.  There was no examination

with regard to the contents of the complaint.  Even with regard

to time this witness clearly states that he reached the spot at

about 12.45 PM and wrote the complaint and, thereafter, Babu

Ram was sent to the police station.   He further states that the

investigating officer reached the place of occurrence at about 3

and 3.45 PM.   According to him he remained at  the place of

occurrence for about 4½ hours and the panchayat nama of the

dead body was prepared in his presence and he has signed on

the same.   This means that the complaint was written

immediately after the occurrence.  The FIR is based only on this

complaint and it does not contain anything more or less than the

complaint.   If this complaint  was scribed  by this  witness at

12.45 PM and sent along with PW­1 to the police station then

the contents of the FIR is nothing more than the contents of the

complaint and hence cannot be said to be interpolated.

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9. We may also take into consideration the fact that the

complainant is an illiterate villager.  He dictated the complaint to

PW­4 who, no doubt, is literate but is not well versed with law.

The complaint gives all the necessary facts but obviously it is not

drafted by a person having legal acumen.   An FIR is not

supposed to be an encyclopaedia detailing all the facts in

extenso.   In our opinion, the complaint (Exh. P.1)  is complete

and the additions, if any, made during the evidence are not such

which cast a doubt on the correctness of the complaint.  

10.  We shall now deal with the submission with regard to the

delayed compliance of Section 157 of Cr.PC.  The version of the

prosecution is that the report in terms of Section 157 of Cr.PC

and the U.P. Police Regulation was sent at 3.30 PM on

17.06.1982. Constable Atar Singh (PW­7) who was working as

the Head Constable has stated that on 17.06.1982 special report

of the case was sent to all concerned through Constable No.406

Param Sukh Pal (PW­8).   He had produced the original general

diary before the court and its true extract is exhibited as P­20.

He clearly states that since Babu Ram had brought written

complaint (Exh.P.1), he had not obtained signatures on the FIR.

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In cross examination he states that he does not remember

whether the copy of the FIR was sent on 17.10.1982 to CJM,

Orai or any other Magistrate in Orai.  He admits that there is no

entry in this respect in the general diary.  He has denied that the

entries dated 17.06.1982 relating to despatch of the copies of the

FIR, and 18.06.1982 in respect of arrival of constable (PW­8) in

the police station are forged and ante dated.  PW­8 further states

that  he had  left the police station at 3.10 PM on 17.06.1982

along with the special report which he handed over to the

Ahalmad (court master) of the SDM, Kalpi.  He states that since

he became unwell, he spent the night at Kalpi and reached Orai

the next morning when he handed over the report to all other

officers and came back to the police station.   

11.   The appellant relied upon a document which is in

response to a Right to Information (RTI for short) query in which

the Ahalmad to the Court of the SDM, Kalpi has stated that the

special report was received on 27.06.1982.   However, this RTI

report  has  not  been  proved  by the  Ahalmad.   We  must  also

remember that this RTI report must have been obtained after the

year 2005, more than 22 years after the incident took place.  The

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contents of the report have not been proved in accordance with

law and cannot be relied upon.   We may also mention that in

U.P. there are  U.P. Police  Regulations  which  provide that in

cases of murder, rioting, burglary etc., copies of the report are to

be sent immediately in red envelopes to the Superintendent of

Police, the District Magistrate, the Sub Divisional Magistrate and

the  Circle Inspector, by  post or  whichever quicker  mode  of

conveyance.  Even if we assume that the prosecution has failed

to prove that Section 157 Cr.PC was complied with then also the

effect thereof has to be assessed.   Mere delay in compliance of

Section 157 by itself is not fatal to prosecution.  All it does is to

raise a doubt that the prosecution story may have been

concocted at a later stage.   In our view, the statement of Ram

Lakhan (PW­4) who scribed the report at about 12.45 PM at the

instance of Babu Ram (PW­1), immediately after the occurrence

shows that there was no consultation before writing the

complaint.  Babu Ram states that he went to the police station

on tractor and reached there before 2.00 PM when the report

was lodged.   Even if the prosecution has failed to prove strict

compliance of Section 157 of the Cr.PC there is sufficient

material on record to show that copies of the FIR were sent to

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other officials as required under the U.P. Police Regulations and,

therefore, in our opinion, there was no  false  FIR  lodged after

consultation, as alleged by the appellants.   In our opinion the

judgment cited by the appellants  Meharaj  Singh (L/NK)  vs.

State of U.P.1 has no application to the facts of           this case.

12.    It was urged that Constable Siya Ram (PW­3) who took the

dead body of the deceased from the place of occurrence to the

hospital for post­mortem had admitted that the dead body was

given to him at 5.30 PM and he reached the Police Station, Orai

at 10.00 AM next morning.  This witness states that he started

from the police station for the village at 2.00 PM, which

supports the  prosecution version  that the  FIR was lodged at

about 2.00 PM.  He was accompanied by another constable, the

SHO and the sub­inspector.   According to him, they left

Pithuipur where the occurrence took place at 5.30 PM carrying

the dead body in the bullock cart and on the way the wheel of

the bullock­cart stopped functioning and they spent that night

in village Bamohra.  He states that he could make arrangement

of another wheel at about 6 to 7.00 AM in the next morning and,

thereafter, covered the distance between Bamohra and Orai in 3

1 (1994) 5 SCC 188

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hours.  The distance is 24 Kms, and according to the Trial Court

and the appellants bullock cart cannot cover this distance in 3

hours.  In our opinion, the Trial Court had no material to come

to this conclusion that the bullock­cart cannot cover this

distance in 3­4 hours.

13.   The other main ground relied upon by the appellant is the

medical evidence.  Since this is very relevant, we are quoting the

relevant portion of the evidence in detail.   Dr.G.C.Misra (PW­5)

was the medical officer who carried out the post­mortem at 2.00

PM on 18.06.1982.   On external examination he found the

following injuries :­

“(i) Incised wound 12 x 2 cm x bone deep on left side of forehead extending to left on exilla tailing towards left.

(ii)Incised wound 3 cm x 1 cm x bone deep on left side of face 2 cm below injury no.1 tailing towards left.

(iii) Incised wound 13 cm x 3 cm x bone deep starting  from bone of  nose going at  the side of  medial angle of left eye to mandible left tailing towards left.

(iv) Incised wound 5 cm x 1 cm x bone deep starting from nose and going left side of face tailing towards left.

(v) Incised wound 14 cm x 3 cm x bone deep tailing towards left starting from lateral orbital margins of right eyes and going up to mandible.

(vi) Incised  wound 5  cm x  o.5  cm x  muscle  deep starting from left angle and mouth going towards downwards and lateral of cheek left tailing towards left.

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(vii) Incised wound 2.5 cm x 2 cm x bone deep on lateral side of right eye brow.

(viii) F.A. Entry wound 1 cm x 1 cm on anterior axillary fold 2 cm away the right upper arm.  No tattooing charing etc. present.

(ix) Fire  arm entry  wound 1.2  cm x  1  cm on the upper part medial aspect of right upper arm 2 cm lateral to injury no.8.  No tattooing charing etc. present.

(x) Incised wound 2 cm x 0.5 cm x muscles deep on dorsal aspect middle joint of index finger of right hand.

(xi) Incised wound 6 x 2 cm x muscles deep on dorsal of left hand adjacent to wrist joint.

(xii) Incised wound 5 cm x 2 cm x muscle deep on durum of left hand, 2 cm below an injury no.11.

(xiii) Fire arm exit wound 3x2 cm on left scapula region about middle.

(xiv) Fire arm exit wound 2 x 1.6 cm on right scapular region medial border 6 cm above the infangle.

(xv) Fire arm entry wound 2 x 1.8 cm on left side of abdomen upper part 20 cm above and lateral to umbilicus intestine comes out.

(xvi) Entry wound fire arm 1.2x1.2 cm on left thigh 10 cm from penis no tattooing charing etc present.

(xvii) Fire  arm entry wound 20 cm x 1.6 cm, 2 cm above and lateral to injury no.16 tattooing charing etc. present.

(xviii) Fire arm entry wound 4 x 2 cm, oblique 1.5 cm lat to injury no.16 and 1.2 below the injury no.17 tattooing charing etc present.

(xix) Exit  wound (fire arm)  6  x  6 cm on left thigh margins adjacent to out sup­Iliac spin.

(xx) Exist wound 8 x 4 cm on lateral side of left thigh 2 cm below the injury no.19.

(xxi) Fire arm exit wound4 cm x 4 cm on left lat side of thigh 3 cm below the injury no.20.

(xxii) Exit wound 4 x 4 cm on post aspect left thigh 4 cm below and medial to injury no.21.

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(xxiii) Six fire arm exit wound in area of 10 cm x 5 cm x on medial side upper part of left thigh adjacent to the penis size varying from 0.3 cm to 0.8 cm.

(xxiv) 3 fire arm exit wound in an area of 2 x 2 cm size diameter 0.4 cm to 0.8 cm on upper lat part of scrotum.

(xxv) 3 fire arms wounds in an area of 6 x 4 cm on right side of scrotum upper part adjacent to base of scrotum size diameter 0.3 cm to 0.6 cm.”

14. On careful analysis of the medical evidence we find it fully

corroborates the prosecution story.   According to both the eye

witnesses (PWs  1  and  2) accused  Ramji  Singh  and  Krishna

Autar, had fired three times each.   There are corresponding 6

fire arm entry wounds which are mentioned at serial no.(viii),

(ix), (xv), (xvi), (xvii) and (xviii).   As far as the exit wounds are

concerned, there are more than 6 exit wounds which is possible

since one of the fire arms  used  was  a  12­bore gun  having

pellets.  The doctor has opined that long barrel guns were also

used and according to him the death occurred between 12 and

12.30 PM on 17.06.1982 which also supports the prosecution

version.   It is important to  mention that the other injuries

described by the doctor are all relatable and could have been

caused by axe or by pitchfork, which were the weapons carried

by 3 of the accused.   

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15.    Heavy reliance was placed by the Trial Court as well as

by the appellants  before  us on the  fact that if the site  map

prepared by the appellants is correct then most of the injuries

should have been caused on the left side of the body.   We do

not understand as to how the Trial court could have come to

this conclusion.   A site plan is prepared on the basis of

information given by witnesses.  A site plan only gives a general

idea and is not a true to scale map.  Even if the deceased was

sitting on the cot it is not necessary that he should have been

facing North only.   He could have been facing North­East or

North­West. He could have also been sitting at one side of the

cot facing towards  West.  Even the two eye­witnesses were

present at the entrance of the house, inside which there was a

deoria.   This is like  a thick entrance  gate  way  without  any

doors.   They were both standing on the outer side and

according to the statement of these witnesses accused  Ramji

Singh (A­2) and Krishna Autar (A­3), fired their fire arms from

the entrance.   Therefore, direction becomes virtually

meaningless.   The High Court was absolutely justified in

coming to the conclusion that the Trial Court had totally

misdirected itself in holding that the medical evidence did not

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support the ocular evidence.  This was done only on the ground

that the  injuries were not on the side on which they should

have been if the site plan was 100% right.  As has already been

observed above, a site plan is not a true to scale map and it

generally gives the positions of the various eye­witnesses,

accused etc.,  but obviously such site  plan cannot give exact

positions.  Directions cannot be determined from exact position

also.   The  direction  of the injury can  also vary even if the

accused and the deceased are in the same place as mentioned

in the map and one of them is sitting or standing at an angle.

The view taken by the Trial Court was highly technical and, in

our opinion, this was not a sufficient ground to disbelieve both

the eye witnesses.  

16.   In fact, in our opinion, the medical evidence fully

supports the ocular evidence and there is virtually no

contradiction.  The version of the two eye witnesses with regard

to the injuries caused by the fire arms and sharp­edged

weapons, find corroboration from the medical report.  Direction,

as pointed out above cannot be specifically ascertained from a

site  plan.  The occurrence took place in  a  small  area.  The

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deceased  was  sitting  on  a  cot  which  could  at  best  be  6’ in

length.   He was surrounded by six accused out of whom two

used fire arms.  It  would not be possible  for  any witness to

exactly state who was at which place.  Even PWs 1 and 2 have

not  stated  the  exact  place from where the firing took  place,

except that according to both of them the firing took place from

the entrance of the house and if that is so then the points D

and D1 in the site plan showing the points where the accused

carrying the fire arms were standing, may not be strictly

correct.   

17.   It has been urged that the statements of the two

witnesses PWs 1 and 2 should not be relied upon since they are

closely related to the deceased and there was enmity between

both the sides.  It has been urged that PW­2 had a dispute with

Krishna Autar (A­3) and his brother had litigation with Lakhan

Singh(A­1).  We assume these  facts to be true.   There  is no

manner of doubt as stated in the complaint itself that the

relationship between the two sides was strained.  They belonged

to  different  groups  and  obviously there  was  enmity  between

them.  As is often said enmity is a double­edged sword.  It can

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be both the motive for a crime and it can also be a motive to

falsely implicate some other people.  However, each case has to

be decided on its own evidence.   In this case we have come to

the conclusion that the written complaint was recorded

immediately after the occurrence.  There was no time to concoct

a false case implicating those who were not involved.  The fact

that Sarman Singh was murdered is not disputed.   The only

question is whether it was the accused persons who murdered

him or somebody else.   Once we believe that PWs 1 and 2 are

eye­witnesses, then there is no reason to hold that the

appellants were falsely implicated.   They are all named in the

written complaint as well as in the FIR which was recorded at

the earliest.  Their version is corroborated by the version of PW­

4, who though not an eye­witness reached the spot at about

12.45 PM and then scribed the complaint.   In our view this

complaint depicts what actually happened.

18.    True it is that there are some  minor variations  and

contradictions in the statement of the two witnesses, especially

PW­2.   PW­2 may have improved his version slightly while

appearing in court but the core of his evidence remains intact.

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The essence of his evidence is that he had gone to pray in a

temple which is close to the house of Dasharath Singh, and he

heard a noise and saw all the accused armed as stated

hereinabove at the door of the house of Dasharath Singh.

Lakhan Singh(A­1)  pointed towards  Sarman Singh  and said,

“kill this goonda immediately.”  On this, accused Krishna Autar,

and Ramji Singh fired three shots each from their guns upon

Sarman  Singh.   They  were standing  at the entrance of the

house of Dasharath Singh.   Though he has been cross

examined at length,  nothing material  has  come out  of  cross

examination.   His statement supports the statement of Babu

Ram (PW­1), who has virtually repeated what has happened, in

the complaint.  The main effort of the defence appears to have

been to bring out the fact that there was enmity between the

two  parties.  That  by itself is  not  sufficient to  discredit the

witness.

19.    We must remember that the prosecution story is that six

persons who were heavily armed, two of them with guns, killed

the deceased in broad day light.   This itself shows that these

accused persons were not scared of the villagers.  While leaving

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the place of occurrence they threatened all gathered there by

saying that anybody who tried to interfere would meet the same

fate.  In such a situation no other villager who may have been

present would turn up to give evidence. This Court cannot lose

sight of the harsh reality that witnesses are scared to depose in

Court.   In this case two of the witnesses have spoken up and

their evidence has been corroborated on all counts.  It may be

true that their relations with the accused may not have been

cordial but the evidence does  not show that the enmity or

dispute between these two witnesses and the accused was of

such a nature that these two witnesses would make false

statements  only to settle scores  with the  appellants thereby

leaving the real culprits to go scot­free.  In our opinion merely

because these witnesses are interested witnesses their

testimony cannot be discarded.

20.      Great emphasis was placed by the appellants on the fact

that neither Dasharath Singh, in whose house the occurrence

took place, nor his wife Bhagwanta who came immediately after

the occurrence, were examined.   The Trial Court held that

Dasharath Singh must have been inside his house when the

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occurrence took place.   The Trial Court comes to this

conclusion on the ground that in the FIR it is mentioned that

Sarman Singh called Dasharath Singh.  This finding of the Trial

Court is totally incorrect.   There is nothing to show that

Dasharath Singh was called.  In fact, both in the complaint as

well as in the FIR it is mentioned that deceased Sarman Singh

told Babu Ram (PW­1) to get the agricultural implement

repaired while he would collect the money from Dasharath

Singh.   Presence of Dasharath Singh is not established.

Bhagwanta, definitely reached immediately after the

occurrence.  However, she filed an affidavit in the Trial Court in

which  it  was stated  that  she had seen nothing  and nothing

happened in her presence.   Therefore, the prosecution was

justified in not examining her.   Non­examination of the

carpenter  is  meaningless because he  is  not  a witness to the

occurrence.   At best he could establish the presence of PW­1

before the occurrence.

21.    The appellants are right when they urge that when the

report of the ballistic experts have not been proved and all the

bullets recovered from the spot have not been sent to the

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ballistic expert, the guns seized cannot be connected with the

offence.  Even if that be true, we cannot discredit the testimony

of the eye­witnesses that two of the accused used guns.   The

guns seized may or may not be the guns used.  However, when

the ocular evidence is direct and clear in this regard, and this

ocular evidence is fully supported by the medical evidence, the

negligence of the investigation team  cannot be  used  by the

defence in support of their case.

22. In view of the above discussion, we find no merit in

the appeal and the same is dismissed.  Pending application(s), if

any, shall also stands disposed of.

…..…………………………………….J. (MOHAN M. SHANTANAGOUDAR)

..……………………………………….J. (DEEPAK GUPTA)

New Delhi December 11, 2019

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