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TMI Blog2017 (9) TMI 2011X X X X Extracts X X X X X X X X Extracts X X X X ..... W-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. X X X X Extracts X X X X X X X X Extracts X X X X ..... n. After death of Ajay Chourasiya, he took in possession the dead body on 4.10.2002 vide memo Ex.P-12 and sent the dead body for postmortem examination vide memo Ex.P-6. He also took in possession of the clothes of deceased, his chappals and also the pellets vide memo Ex.P-16. He prepared a site plan by visiting the site on 4.10.2002. Earlier, he has recorded the statements of Rajni Chourasiya, Shiv Prasad and Daulat Ram on 3.10.2002 and statements of Lalla alias Lala Chourasiya, Billa alias Dilip Avadhiya, Jugga alias Jogendra Tamrakar were recorded on 4.10.2002. Accused Sukhendra was arrested on 6.10.2002 at about 4.30 p.m. at Nagaud Bus Stand vide memo Ex.P-10. Accused made a disclosure statement of keeping the country-made pistol lying concealed. The statement was recorded vide memo Ex.P-8 and at about 4.45 p.m., the country-made 0.12 bore pistol was recovered, which was taken in possession vide Ex.P-9. From the other pocket, he produced an empty shell and a live cartridge, which was also taken in possession vide memo Ex.P-9. 4. The other accused persons were declared absconding on 17.11.2002 vide memo Ex.P-17 and were arrested on 28.01.2003 when they surrendered in Court vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced the clothes of Satish Kumar Chourasia (PW-1) as he has taken the deceased on his motorcycle to Primary Community Health Centre. If the witness had taken the deceased on his motorcycle, his clothes were bound to be bloodstained. It is also argued that Shivprasad (PW-2) was not present at the place of occurrence and has been falsely introduced by the prosecution. The presence of Lala (PW-3) is also said to be doubtful and not of a reliable witness. Jogendra Tamrakar (PW-9) and Dilip Kumar (PW-10) have been declared hostile; therefore, their testimony can also not be relied upon. It is also argued that the place of occurrence is said to be a market place but none of the independent witness has been examined. The prosecution witnesses are either the relations or acquaintances of the deceased, therefore, the entire prosecution story is doubtful. 9. We have heard learned counsel for the parties and find no merit in the present appeal. 10. In respect of the first argument that the site plan has not disclosed the places from where the witnesses have witnessed the occurrence, therefore, the presence of witnesses is doubtful, is not tenable. In Vijay Singh's case (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the Police during investigation............ 8. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh vs. The State of Punjab, AIR 1956 SC 526. It was held that such a plan drawn to scale was admissible if the witness corroborated the statement of the draftsman that they showed him the places and would not be hit by S. 162 of the Code of Criminal Procedure. In that case there was another sketch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872, the former's evidence would be admissible to corroborate the latter in accordance with Section 157 Cr.P.C (sic Evidence Act). However such a statement made to a Police Officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) Cr PC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not see any reason as to why adverse inference should not have been drawn for nonfiling of the said statements before the Court along with the charge sheet. We have noticed hereinbefore the adverse remarks made as against the Investigating Officer. The High Court may or may not be correct in making those remarks but we only intend to point out that a site plan is not prepared at the instance of the witnesses but is done as a part of the investigation. If a site plan has been prepared and if during investigation it has been brought to the notice of the Investigating Officer that there were some other witnesses whose evidence would be material for the purposes of proving the prosecution case namely, witnessing the occurrence by two independent witnesses; we do not see any reason why evidence of such witnesses should not have been recorded. It is correct that it is the duty of the Investigating Officer to produce the said statements with the charge sheet but, if the same had not been done, the benefit thereof must be given to the defence and not to the prosecution. The High Court therefore in our opinion committed a serious error in this behalf. Non-examination of the seizure witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not led evidence that the pistol was not tampered with when it was in custody of the police, is again not tenable. A.P. Singh (PW-11), the Investigating Officer has deposed that the country-made pistol was taken in possession vide memo Ex.P-9 whereas the empty shell and live cartridge was taken in possession vide memo Ex.P-9. He has also deposed that such pistol was sent for examination by the Armourer vide Ex.P-5A and was sent to Forensic Science Laboratory vide memo Ex.P-20 dated 21.11.2002. In cross-examination he has denied the suggestion that the empty shell and the country-made pistol were recovered from somebody else. He admitted that empty shell and the live cartridge was taken in possession on 06.10.2002 but has been sent for examination on 21.11.2002 but there is no document of keeping the recovered articles in Malkhana. The report of the Forensic Science Laboratory Ex.P-21 and P-22 is to the effect that the packets A, B, E and F were received in the Laboratory in a proper seal. Therefore, mere fact that the prosecution agency has not been able to produce the documents in respect of proper custody in the Malkhana will not create doubt on the prosecution story. The repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the witness box, no question was asked as to why the blood stained clothes were not being produced in the evidence. The failure of the investigating agency to produce the blood stained clothes of the witness will not make the prosecution story doubtful keeping in in view the categorical testimony of Satish Kumar Chaurasiya (PW-1). He is the one who picked up the deceased from the place of occurrence and took him to hospital and in the process his clothes were blood stained. 20. We find that failure of the prosecution to lead any evidence of safe custody of country-made pistol, empty shell or live cartridge does not create doubt on the prosecution story. Firstly for the reason that even in the FSL report, empty cartridge was not found to be fired from the country-made pistol and secondly it is a settled law that the defective investigation by itself cannot be a ground for acquittal. It was so held by the judgment of the Supreme Court reported as (2010) 9 SCC 567 (C. Muniappan and others vs. State of Tamil Nadu) wherein it is held as under:- "55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW-5 as corroborated by the evidence of PW-2 and the FIR establish beyond reasonable doubt that the appellant has committed rape on PW-5 and thus the appellant is not entitled to acquittal." 22. In another three Judge Bench judgment reported as (2013) 10 SCC 192 (Hema vs. State Through Inspector of Police, Madras), Their Lordships held, which reads as under:- "18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth." 23. Similar issue has been discussed by the Supreme Court in its judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of occurrence. 26. Although Jogendra Tamrakar (PW-9) has been declared hostile inasmuch as he has not deposed about the presence of Shiv Prasad (PW-2) and Lala (PW-3) at the time of occurrence in the presence of other co-accused but he has deposed about the presence of Satish Kumar Chaurasiya (PW-1) when appellant fired upon the deceased. He denied that other co-accused persons were also beating Ajay at the time of incident. In cross-examination he has stated that his house is 10-15 steps away from the place of occurrence and he denied the suggestion that in fact Satish (PW-1) fired on Sukhendra but by mistake it hit the deceased. The suggestion in fact proves the presence of Jogendra Tamrakar (PW-9) at the place of occurrence. 27. On the other hand, Dileep Kumar (PW-10) has also been declared hostile but he also deposed that the appellant fired, which hit the deceased on his chest and at that time Sukhendra was alone. In cross-examination he admits that there was altercation between appellant and deceased and thereafter the fire was shot. The testimony of PW-9 and PW-10 is relevant to the extent of firing by the appellant on the deceased Ajay. 28. The argument that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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