2017 (9) TMI 2011 - HC - Indian Laws

Murder - Conviction of appellant for an offence punishable under Section 302 of IPC - site plan has not disclosed the places from where the witnesses have witnessed the occurrence - evidence that the pistol was not tampered with present or not - country-made pistol empty shell and live cartridge were sent for forensic science examination after delay - HELD THAT - The failure of the Investigating Officer to produce the bloodstained clothes of Satish Kumar Chourasiya (PW-1) or to produce evidence of safe custody of country-made pistol empty shell and live cartridge will not prejudice the trial as the statements of eye-witnesses such as Satish Kumar (PW-1) and Shivprasad (PW-2) and even the witnesses namely Jogendra Tamrakar (PW-9) and Dilip Kumar (PW-10) who have been declared hostile clearly implicates the appellant as the one who fired the fatal shot from a country-made pistol in his possession. In respect of the argument that Shiv Prasad (PW-2) and Lala (PW-3) were not present at the time of occurrence it is seen that though the said witnesses have suggested that they were not present at the time of occurrence but a cumulative reading of the entire lengthy cross examination does not lead to any doubt on the presence of the witnesses at the time of occurrence. The argument that no independent witness from the market has been examined is again not tenable. Satish Kumar Chaurasiya (PW-1) is the only relative witness. Shiv Prasad (PW-2) and Lala (PW3) are not related to the deceased. Still further the quantity of witnesses is not relevant but the quality thereof. The witnesses including the hostile witnesses have deposed that the accused fired from his pistol upon the deceased. To that extent their testimony stands corroborated by the prosecution story. There are no error in the findings recorded by the learned Trial Court - the findings recorded by the learned Trial Court are based upon correct appreciation of law and facts - appeal dismissed.

Summary

Issues Involved:
1. Conviction under Section 302 of IPC.
2. Conviction under Section 25(1)(b) and (a) of the Arms Act.
3. Reliability of eyewitnesses.
4. Admissibility and credibility of the site plan.
5. Custody and handling of the country-made pistol and other evidence.
6. Delay in sending the pistol for forensic examination.
7. Non-production of blood-stained clothes of a witness.
8. Hostile witnesses and their impact on the prosecution case.
9. Examination of independent witnesses.

Detailed Analysis:

1. Conviction under Section 302 of IPC:
The appellant was convicted for the murder of Ajay Chourasiya under Section 302 of IPC and sentenced to life imprisonment with a fine of Rs. 1000/-. The conviction was based on the eyewitness account of Satish Kumar Chourasiya (PW-1), who witnessed the appellant firing a country-made pistol at the deceased.

2. Conviction under Section 25(1)(b) and (a) of the Arms Act:
The appellant was also convicted under Section 25(1)(b) and (a) of the Arms Act for possessing a country-made pistol without a valid license. The appellant was sentenced to three years of rigorous imprisonment and a fine of Rs. 1000/-.

3. Reliability of Eyewitnesses:
The defense argued that the presence of witnesses at the crime scene was doubtful as the site plan did not indicate their positions. However, the court found the testimonies of Satish Kumar Chourasiya (PW-1) and Shivprasad (PW-2) credible. The court noted that the witnesses were consistent in their statements and their presence at the scene was corroborated by other evidence.

4. Admissibility and Credibility of the Site Plan:
The defense contended that the site plan did not mention the positions of the witnesses, making their presence doubtful. The court rejected this argument, citing precedents that the site plan's primary purpose is to show the physical layout of the crime scene. The court emphasized that the site plan prepared by the Investigating Officer (PW-11) and witnessed by Shivprasad (PW-2) and Munni Lal (PW-7) was admissible and credible.

5. Custody and Handling of the Country-made Pistol and Other Evidence:
The defense argued that the prosecution failed to prove that the pistol was not tampered with while in police custody. The court found this argument unpersuasive, noting that the forensic report confirmed that the pistol and other evidence were received in a sealed and intact condition. The court concluded that the chain of custody was maintained, and there was no evidence of tampering.

6. Delay in Sending the Pistol for Forensic Examination:
The defense highlighted a delay in sending the pistol for forensic examination as a point of contention. The court found that the delay of 45 days was not unreasonable and did not affect the integrity of the evidence. The court noted that there was no statutory time limit for sending evidence for forensic examination.

7. Non-production of Blood-stained Clothes of a Witness:
The defense argued that the prosecution's failure to produce the blood-stained clothes of Satish Kumar Chourasiya (PW-1) weakened their case. The court dismissed this argument, stating that the absence of the clothes did not discredit the consistent and credible testimony of the witness.

8. Hostile Witnesses and Their Impact on the Prosecution Case:
The defense pointed out that some witnesses, including Jogendra Tamrakar (PW-9) and Dilip Kumar (PW-10), were declared hostile. The court noted that despite being hostile, these witnesses corroborated the fact that the appellant fired the shot that killed the deceased. The court emphasized that the hostile witnesses' testimony still supported the prosecution's case to a significant extent.

9. Examination of Independent Witnesses:
The defense argued that the prosecution failed to examine independent witnesses from the market where the incident occurred. The court held that the quality of witnesses is more important than their quantity. The court found that the testimonies of the examined witnesses were sufficient to establish the appellant's guilt beyond a reasonable doubt.

Conclusion:
The court dismissed the appeal, finding no merit in the arguments presented by the defense. The court upheld the trial court's findings, concluding that the prosecution had successfully proven the appellant's guilt beyond a reasonable doubt. The appellant's convictions and sentences were affirmed.