TaxTMI 
TaxTMI 
2017 (9) TMI 2011
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....other rigorous imprisonment of six months. 2. The prosecution case was set in motion on the statement (Ex.P-2) of Satish Kumar Chourasiya alias Rajni Chourasiya s/o Daulat Ram Chourasiya made to Shri A.P. Singh, Station House Officer, Police Station, Uchehara, District Satna on 03.10.2002 at about 11 p.m. On the basis of such statement, FIR (Ex.P-1) was lodged. He stated that he stays in village Ichaul in Atta Chakki (flour mill). On 3.10.2002 at about 4 p.m., he was standing near Kranti crossing eating Chat when somebody informed him that his brother Ajay Chourasiya is being beaten by accused Sukhendra, Sapan, Chingu, Kalyan and Dablu Ghosh. There was a rumor in the area that Ajay and Sukhendra had a dispute on account of a money transaction. When he reached the place of occurrence then he saw that the appellant has caught hold of Ajay from his collar and took out a country-made pistol kept in his pant and fired on the right side of the chest of Ajay. Ajay fell on the spot near Mandir (temple). At that time, Chingu, Sapan, Kalyan and Dablu have caught hold of Ajay and after firing of bullet, all five accused persons ran away. He took Ajay on a motorcycle to Uchehara Dispensary wh....
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.... PW-1, Shivprasad as PW-2 and Lala as PW-3. Kailash Prasad (PW-6) is the witness to the disclosure statement of the present appellant whereas PW-5 - Dr. B.K. Gautam was a Medical Officer at Community Health Centre, Uchehara, who initially examined the deceased. PW-8 is Dr. M.M. Pandey, who has conducted the postmortem examination. PW-9 - Jogendra Tamrakar and PW-10 - Dilip Kumar are the eye-witnesses, though declared hostile. 8. In this background, learned counsel for the appellant vehemently argued that from perusal of the site plan (Ex.P-3) prepared by the Investigating Officer A.P. Singh (PW-11), the presence of witnesses is not reflected, therefore, their presence is doubtful at the place of occurrence. Learned counsel for the appellant relies upon a Division Bench judgment of this Court reported as 2005 Cri. L.J. 299 (Vijay Singh vs. State of M.P.) to contend that it was incumbent upon the Investigating Officer to mention the place from where the witnesses have witnessed the incident. Since the site plan does not disclose the presence of the witnesses, therefore, the testimony of the so-called eye-witnesses cannot be relied upon. It is further argued that the pistol was taken....
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....ross-examination he stated that he does not know what has been written in Ex.P-3 and he has signed on such document without reading. Munnilal (PW-7) is the father of deceased and that of Satish Kumar Chourasia (PW-1). He is witness to the preparation of the site plan and not to the occurrence. The place from where Shivprasad (PW-2) has seen the occurrence has been mentioned in the site plan, therefore, even if the distance between the place where the accused was standing and where the witness was standing will not create doubt on the testimony of the eye-witnesses. 12. The question which arises is: as to whether on that basis such a site plan can create doubt on the veracity of the eye-witnesses. The Supreme Court in a judgment reported as AIR 1962 SC 399 (Tori Singh and another vs. State of Uttar Pradesh) was examining the argument that the deceased was not likely to receive injury where he is reflected in the site plan. The Court held that the marking of the spot on the sketch-map would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure. The Court held as under:- "7. ...............In the second place, the mark on the sketchmap was put by t....
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.... 1996 (8) SCC 199 (Jagdish Narain and another vs. State of U.P.), the prosecution evidence was sought to be disputed inter alia on the ground that the failure of the Investigating Officer to indicate in the site plan as to where from the shots were fired, makes the prosecution case doubtful. The High Court held that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to omission on the part of the Investigating Officer. The Court held that when a site plan is prepared by an Investigating Officer, he prepares what he sees and observes. That would be direct and substantive evidence. But, information derived in respect of an incident such as when, where and how it happened, is hearsay evidence. The person from whom he heard, when examined is not the direct evidence. Such statement cannot be used even to corroborate the maker thereof and can be used only to contradict him. The Supreme Court held as under:- "9. In responding to the next criticism of the trial Court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effe....
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....cle would have been visible to the appellant and as the accident had happened as he was attempting to overtake that vehicle, a duty to take extra care lay on him but he had ignored this basic principle. 7. We are unable to accept this plea. The site plan only indicates the place where the accident happened and nothing more can be read into it. In the face of the eyewitness evidence produced by the prosecution itself no inferences can be drawn as in such a situation the ocular evidence of those travelling in the vehicle has to be given primary importance. We are of the opinion that this is a case of no evidence, calling for interference at any stage." 15. In another judgment reported as (2005) 13 SCC 624 (Pratap Singh and another vs. State of M.P.), it was held that even if the witnesses are not reflected in the site plan, that does not bar the prosecution to produce such witnesses during trial. The relevant extract from the said decision reads as under:- "18. The High Court, in our opinion, further committed an error in not drawing an adverse inference for non-examination of Shivrajsingh and Motiram. It was for the prosecution to prove its case. Even if in the First Informatio....
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....was found to be an act of interpolation. Similar was the position of the ladder in the site plan. The Court, thus, held that such deficiency in the site plan makes the prosecution case doubtful. However, the defects as quoted above are that part of the site plan which is prepared on the basis of the observation of the Investigation Officer alone is relevant whereas the site plan prepared on the basis of information given to him is hearsay evidence. Such site plan is not admissible until and unless the witnesses on the basis of whose statement the site plan is prepared, appear in the witness box and have been contradicted in terms of Section 162 of the Cr.PC - as held by the Supreme Court in Jagdish Narain's case (supra). Since Shivprasad (PW-2) has not been confronted with the site plan in terms of Section 162 Cr.P.C, therefore, the omission in the site plan of the place where from witnesses have seen the occurrence will not discredit the prosecution story. It may be noticed that in Singhara Singh's case (supra), three Judge Bench judgment in Tori Singh's case (supra) was not referred to. Since the larger Bench judgment was not referred to in Vijay Singh's case (sup....
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....ound to doubt the prosecution story. 18. In respect of the argument that the country-made pistol, empty shell and live cartridge were sent for forensic science examination after delay again does not warrant any consideration. Ramsingh (PW-4), the Armourer, who deposed that on 21.11.2002 a sealed intact packet was received containing country-made pistol and an empty shell. He has also received the live cartridge which was sent vide memo Ex.P-5A. He has deposed that the country-made pistol was in working condition but whether there was a fire from country-made pistol, could be reported only by the Forensic Science Laboratory, Sagar. The weapon was taken in possession by the police on 06.10.2002 and was forwarded to the Armourer for his opinion on 21.11.2002 and also sent to FSL, Sagar on the same day. Learned counsel for the appellant failed to point out any statutory time limit for forwarding the articles taken in possession for forensic science examination. The country-made pistol and empty shell and live cartridge was sent for the expert opinion in 45 days, therefore, delay in sending the seized articles for opinion of the Forensic Science Laboratory is not much. Therefore, that ....
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....affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, (1974) 3 SCC 626; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517; Paras Yadav v. State of Bihar, (1999) 2 SCC 126; State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715; Amar Singh v. Balwinder Singh, (2003) 2 SCC 518; Allarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57; and Ram Bali v. State of U.P., (2004) 10 SCC 598." 21. Similar view has been reiterated by the Supreme Court in its judgment reported as (2013) 7 SCC 278 (Ganga Singh vs. State of M.P.) wherein it was held that the court cannot acquit the accused on the ground that there are some defects in the investigation. The Supreme Court concluded as under:- "17. We are also unable to accept the submission of Mr. Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt s....
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....lnigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...." 24. Therefore, 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....