Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Ther~ is no dispute with regard to the place of 8 commission of th~ crime. It was committed at the Dharamraj Service Station. If we critically examine the evidence of PW 1, there is nothing to doubt the correctness of the version given ~y him. PW-1, complainant in the present case has prayed the FIR (Ext. Ka-5) lodged by him. He has stated the contents of Ext. Ka-5 verbatim in his statement a11d in cross examination C also there is no contradiction between the facts stated in the FIR and his evidence in the trial Court which has been corroborated by the evidence of PW-2 and PW-3. PW-3 in his deposition before the trial court has categorically stated that he " reached at 'bhita' in the morning at about 8 a.m.for grazing D his cattle and after sometime while he was still there, he saw that the Accused No. 3 was having an altercation with PW-2. All the accused persons then started beating PW-2. PW-3 further stated that at that time PW-1 and one Adya Singh came there and tried to intervene but Accused No. 2 fired a shot at E PW-1 from his double barrel gun which, however, did not hit PW-·1.' Upon this, sons of PW-1 namely, Rajesh and Brijesh, reached the spot on their motorcycle and they were also fired upon by Accused No. 2. The gunshots struck both th~ deceased persons who fell down from their motorcycle and F died on the spot.
13. Thus, it is quite clear that PW-1, PW-2 and PW-3 who were .eye-witnesses to the occurrence have fully proved the incident and corroborated the statements mentioned in the FIR and there is no inconsistency in the statements of all the three G witnesses. There is no- material contradiction in the cross examination and the entire.facts of the FIR which has been fuily , supported by the statements of all the three aforesaid witnesses.
14. Another submission of the counsel appearing on behalf of the accused is that PW-3, being an employee of PW- 1, could not be said to be· an independent witness and therefore his testimony could not be relied upon. We cannot accept this contention as it neither finds any support from the prosecution evidence nor has been proved by any defence witnesses. Counsel for the Respondent relied upon the statement of PW- 3 wherein he stated PW-1 as master for submitting that PW-3 is a servant of PW-1. But a careful perusal of his statement would indicate that PW.-3 called PW-1 as master as PW-1 was a teacher and therefore he was described as master. From the c said evidence, it therefore, cannot be deduced that PW-3 was a servant of PW-1.
15. From the perusal of the pdst mortem report and the statement of the doctor it is clearly evident that the injuries on the deceased persons were found to be on the chest which is ~y a vital part of the body and the death was natural as the bullet had hit them. According to the statement of PW-7, the cause of death was the gun shot ante-mortem injury on the vital part of the body and from excessive bleeding and shock. According to the statement of PW-7 at the time of firing of the gun its barrel must have been at a distance of 3 to 6 feet from the dead bodies. As a result of which the deceased Brijesh and Rajesh had suffered injuries from the gun shots fired within 6 feet from JI; the place where they were hit by the bullet and the same caused their instant death.
16. It is the case of the accused that the shot was fired by the defence in their right of private defence. In the written statement of Accused No. 2 recorded under Section 313, Cr.PC, this fact has been accepted that there was quarrel regarding petrol. Both deceased Brijesh and Rajesh came to the petrol pump on motor cycle. Shots were fired indiscriminately by Accused No. 2 from the licensed gun of Accused No. 3. The shots hit Rajesh and Brijesh. They have A also accepted the recovery of licensed gun of A3 from the petrol pump.
17. The defence towards the end of the trial tried to put up a version that the two deceased came there to the petrol 8 pump to commit robbery by hurling bomb and in the process also caused damage to the petrol pump. Unfortunately, however, no proof in support of the said contention could be produced by the defence. There is nothing on record which can even remotely. suggest that the act of the accused persons was in c exercise of their right of private defence. The investigation, at .,._ th~ place of occurrence, soon after the incident did not reveal any remains of bomb or recovery of any firearm from the hands of the deceased or any damage to the petrol-pump. No inju·ry was also found on the bodies of the accused. It is pertinent to mention here that no suggestion regarding recovery of any bomb materials or detection of any signs of damage to the petrol pump by the deceased persons and PW-2, was put by -( 'Y}= the defence to either PW-10 or PW-11, both of whom were present at the place of occurrence at the time when the showroom of the accused persons was searched and weapons, E cartridges and other articles were seized. Thus, the submission of the defence with regard to the alleged exercise of right of priva~e-defence by the accused persons being without any basis, the same also fails.
18. As far as the allegation of delay in lodging of FIR· is concerned, it was been stated on behalf of the prosecution that the incident had taken place at 8.30 a.m. and as per the FIR the police station Mariyahun is about 7 km from the place of occurrence. It is the case of the defence that as the report was G lodged at the police station at 9.10 a.m., the same being very prompt, therefore, there is bungling regarding report and time of FIR. It was contended that the deceased Brijesh and Rajesh were the sons of PW-1and they died on the spot and in such a ,i. situation, the natural conduct of father loosing two sons would be to stay with the sons and weeping instead of going to the RAJ NARAIN SINGH v. STATE OF U,P. & ORS. [DR. MUKUNDAKAM SHARMA, J.] police station immediately to lodge an FIR. However, we are unable to accept such contention, as it is devoid of any merit. In the present case it is quite clear from the evidence of the witnesses that first of all, PW-2 who was relative of the PW-1 came to the petrol pump i.e. the place of occurrence.
The altercation arose between PW-2 and Accused No. 3. All the three accused then started beating PW-2. PW-2 was_ then dragged and looked inside the show room. When PW-1 came to prevent the accused from doing this, the Accused No. 2 fired shot at him but by chance the shot did not hit him. At that time, the deceased Rajesh and Brijesh emerged there on motorcycle,. c On the exhortation by the accused persons, Accused No. 3 fired shots aiming at them, due to which Brijesh and Rajesh fell down and died on the spot. It is also proved from the evidence that PW-1 along with his companion Adya Prasad Singh again came forward to his sons then the accused Pushkar again fired a shot. In the aforesaid circumstances, it is quite clear that PW- y 1 could not reach upto his sons after they fell down due to firing. It is also clear from the record that the two accused had locked PW-2, a relative of PW-1 in their custody and at that time Accused No. 2 was having a gun.
In the aforesaid circumstances, when PW-1's both son fell down, his relative (PW-2) was in the custody of the accused persons, PW-1 had indeed no other option except to approach the police station. That was also necessary since there was also danger to the life of PW-2. In the aforesaid circumstances, we find no reason to doubt the prompt registration of the FIR.
19. Another submission which was made on behalf of the accused was that PW-1 to PW-3 are interested witnesses and there are some contradictions in their statements. It has been contended that PW-1 and PW-2 are related to each other and also with the two deceased as both deceased were the sons of PW-1. However, PW-3 cannot be said to be in any way interested with PW-1 or PW-2 nor he had enmity with the accused persons. A perusal of the evidence of PW-3 unmistaKably makes it quite clear that on the fateful day, he A proceeded at 6 O'clock from his house for grazing cattle and had reached at 8 O'clock, at 'bhita' in front of petrol pump towards east of the road along with his cattle. The incident took place in the month of May and as the cattle were grazing, his presence at the place at 8 a.m. cannot be doubted. 20 . .The learned counsel appearing for the accused has strenuously argued and drawn our attention to the fact that the prosecution has not examined the other witnesses availabie on the spot.
However, we are unable to accept the said contention as it is not.necessary that all those persons who were present \,… c at the spot must be examined by the prosecution in order to prove the guilt of the accused. Section 134 of the Evidence Act p,rov.ides that no particular number of witnesses is required for proof of any fact. It is trite law that it is not the number of witnesses but it is the quality of evidence which is required io be taken note. of by the courts for ascertaining the truth of the allegations made against the accused. In the Takhaji Hiraji v. 'f ~ Tha.kore Kubersing Chamansing, (2001) 6 SCC 145, at page 155,.this Court observed as follows: • "19. So is the case with the criticism levelled by the High . Court on the prosecution case finding fault therewith for .non-examination of independent witnesses. It is true.that fl if a material_ w~tness, who would unfold the genesis of the incident 9r an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and wfthholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of A other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence =f adduced. The court of facts must ask itself- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If c –t the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence ~ ,, at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident aRd did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there ._,, is apparently no reason why they would tell a lie. The ""' \ genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakores was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance.
The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tightrope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope c dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have '( – gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case." (emphasis underlined) ,_.
21. Further, we cannot lose sight of the fact that ghastly acts, of the nature 'and gravity as the µresent one, when committed in a public place ·may very well create a sense of fear and shock in the minds of the witnesses and thus prevent them from coming forward and deposing against the perpetrators of the crime. If the testimonies of those witnesses, G who have deposed during the trial, are otherwise found to be reliable, trustworthy and cogent, the said evidence cannot be disbelieved or discarded merely because the prosecution has failed to examine other witnesses allegedly present on the SP'Ot. ….
22. Another submission which has been advanced by the learned counsel for the accused is that the story of Accused No. 1 and Accused No. 2 locking the PW-2 in the showroom is completely unbelievable. As discussed hereinbefore, on altercation having taken place for petrol, PW-2 was assaulted by the accused persons and forcibly taken t.o the showroom 8 and locked in there immediately thereafter. On being asked by PW-1 not to do the same, the gun shot was fired at him but he retreated to safety. Thereafter, when both deceased, Rajesh and Brijesh, the two sons of PW-1 reached the spot, two consecutive shots were fired at them which resulted in their c death and thereafter again gun shot was fired towards PW-1. This fact is quite clear not only from the evidence of PW-1 but has also beer) fully corroborated by the evidence of PW-2 and PW-3. It is quite evident from the record that a big crowd gathered at the spot. Under the said circumstances, it was quite natural for the accused persons to keep PW-2 in their custody. Making PW-2 captive, a fact to which PW-11, the SSI who was investigating the case was also a witness, could well protect the accused persons from the crowd which had come to the place of occurrence after hearing the gunshots. Making PW-2 captive could also protect the petrol tank from being damaged by the pressure of the agitated crowd. The injuries were found on the body of PW-2 by the doctor who had examined him soon _,, after the incident at 1.50 pm on the same day. -.c 1
23. The name of Surendra Kumar servant has been disclosed after his death, for the first time in the statement under Section 313 CrPC and prior to that the name of Surendra Kumar was never even referred to at any place. The fact that Surendra Kumar was a servant at the petrol-pump at the time of incident has not been proved by any oral or documentary evidence by the defence.
24. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the High Court clearly erred in reversing the order of conviction A recorded by the trial Court. Accordingly, we set aside the .f judgment and order of the High Court and restore the judgment and decision of the trial Court.
25. The appeals ~re hereby allowed. The bail bonds of the B Accused No. 1, Accused No. 2 and Accused No. 3 stand cancelled and they are directed to surrender before the jail authorities within 15 days from today, failing which the authorities are directed to proceed in accordance with law . .
26. The appeals are hereby allowed in terms of aforesaid c order. K.K.T. Appeals allowed. , ·1('~