Criminal Appeal No.293 of 2004

28th January, 2010

Petitioner Counsel: Mr. S. M. BHANGDE
Respondent Counsel: Mr. Y. B. MANDAPE

Cases Cited:
Prakash Chand Vs. State (Delhi Administration), AIR 1979 SC 400 [Para 12]
Ramsingh Bavaji Jadeja Vs. State of Gujarat, 1994 Cri.L.J. 3067 [Para 12]
State of A.P. Vs. V. V. Pandurang Rao, 2009 Cri.L.J. 2972 [Para 13]

JUDGMENT

P. D. KODE, J.:- By present appeal, appellant/accused has thrown a challenge to this judgment and order dated 23.4.2004 convicting him for commission of offence of murder of one Dipak Rajaram Mishra and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rs.Five Thousand only) and in default to undergo rigorous imprisonment for six months passed by learned 1st Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial No.280/2002 of the said Court. However, by the said judgment and order co-accused no.2 Laltaprasad Shitalprasad Yadav also charged for commission of murder of said Dipak along with appellant in furtherance of their common intention was acquitted.

2. The said session trial had arisen out of the charge-sheet submitted by PW-7 PSI Satghare of Kuhi Police Station in the court of JMFC, Kuhi against the appellant and said acquitted co-accused for commission of offence punishable under Section 302 r/w. 34 of the Indian Penal Code as a result of investigation of FIR No.19/2002 registered with the said police station on 11.2.2002 at 13.00 hours on the basis of report Exh.46 of PW-5 Suraj son of deceased Dipak Mishra recorded by PW-11 PSI Dnyaneshwar Deokate at the spot of incident at which PW-11 had been after receiving wireless message that murder of one person had occurred in village Kharabi and after gathering information that Dipak Mishra was murdered, had been to house of said Dipak Mishra and found Dipak lying dead in the house with several injuries on his person and wife (PW-4) Radha, father Rajaram present in the house.

3. It is the case of the prosecution that then Rajaram had informed PW-11 that he could not see for want of spect while PW-4 Radha had appraised him she has not seen anybody and PW-5 Suraj had said that appellant had assaulted Dipak Mishra with knife. PW-11, after recording report Exh.46 of PW-5, had sent the same to Police Station, Kuhi for registration of offence and obtained crime number for the offence registered from the person at the police station. PW-11, thereafter, in presence of panchas one Shri. Santosh Thakur and Bhamelal Taraam had drawn spot panchanama Exh.60 at the spot. After returning to the police station he had signed printed FIR Exh.61. He had drawn inquest panchanama Exh.10 and recorded statements of witnesses. On the same day in presence of panchas PW-9 Indrajeet and PW-10 Sitaram, by drawing panchanama Exh.63, he had arrested appellant and taken his personal search and seized uparne, Article-H Full Sleeved shirt and Article-G blackish ash colour full pant on the person of appellant. Similarly in presence of same panchas, by drawing panchanama Exh.64, he had arrested co-accused Laltaprasad and taken his personal search and seized Article-I Full Sleeved shirt and Article-J blackish ash colour full pant on the person of said accused.

4. On the next day on 12.2.2002 he had recorded the statement of PW-2 Raju Lokhande and PW-3 Darshan M. Galgale. On 13.2.2002 PW-11 has recorded discovery statement pertaining to knife concealed in the field made by appellant in presence of panchas PW-1 Subhash Padole and PW-6 Krushna Raut by drawing memorandum panchanama Exh.65 and, thereafter, by drawing discovery panchanama Exh.66 seized knife Article-F taken out by the appellant concealed in the field owned by one Mr. Tikle nearby Tajbaba locality by leading the panchas and PW-11 to the said place.

5. PW-7 PSI Satghare, who had taken the investigation on 2.3.2002, has recorded statements of PW-4 Radhabai and supplementary statement of PW-5 Suraj. He had sent requisition letter Exh.18 to the Medical Officer for examination of knife seized during investigation and for giving opinion whether injuries caused to the deceased could have been caused by the said weapon and whether the accused has killed the deceased with the said knife. Similarly he had forwarded the muddemal Article-seized during the investigation to the Chemical Analyser for examination and report under forwarding letter Exh.14. After completion of investigation he had charge-sheeted the accused as stated earlier.

6. The main prosecution case, in brief, regarding the incident as disclosed from report Exh.46 lodged by PW-5, is as under :

PW 5 was residing along with his father (deceased), mother, PW-4, younger brother Shubham and grand-father Rajaram Mishra. Since last four to five days prior to said day, deceased was going for the work of distribution of paper by jeep. Three months prior to the same deceased was confined in a Jail in a case of quarrel for about 1-1/2 months. At that time, appellant Chote Gupta alias Wasudeo, friend of his father always used to come to their house.

On last Wednesday at about 1.30 o'clock to 2.00 o'clock in the afternoon Chote Gupta was passing from near their house. At that time deceased had called him by his name at their house. Deceased had told appellant as to why he was coming to his wife. After saying so deceased has touched the knife at the abdomen of the appellant and pressed his neck. Thereon appellant had dragged the deceased in the courtyard of the house. Quarrel had ensued in between them. Thereafter PW-2 Raju Lokhande residing in their locality had intervened and separated the quarrel. Appellant had went away. Thereafter, deceased had given abuses to his mother PW-4 for long time.

On 11.1.2002 in the midnight his brother, mother PW-4, deceased and grand-father were sleeping in the house. At that time someone had knocked door of the house. They had started thinking as to who had knocked the door in the midnight. Then his grand-father had open the door of the house. Immediately two persons had entered the house, one person had started delivering knife blows on abdomen and chest of his father. His grand-father had put on the light. At that time he had seen that appellant who always used to come to their house was assaulting his father. The another person was standing inside near the door. As soon as the light was put on he had seen him and identified also. He was Laltaprasad s/o. Shitalprasad Yadav. He also used to come to their house sometimes. His father was shouting loudly. His grand-father and mother were also shouting loudly. After appellant had delivered the knife blows on the abdomen of his father, he had died after sometime.

Last Wednesday quarrel had taken place between his father and appellant. Upon the said issue appellant had delivered and killed his father with knife. His complaint had been recorded as per his say.

7. After committal of the case by learned JMFC, Kuhi to the Court of the Sessions, the trial was taken up by learned 1st Ad-hoc Additional Sessions Judge, Nagpur. The charge Exh.3 was framed on 18.6.2002 against the appellant and co-accused Laltaprasad for commission of offence punishable under section 302 r/w. 34 of the Indian Penal Code. Both the accused had pleaded not guilty to the said charge framed and claimed to be tried. The said plea of the appellant was at Exh.4.

8. The prosecution at a trial has examined in all 11 witnesses i.e. ten witnesses referred hereinabove and PW-8 Dr. Kavita Nagrale, who had performed autopsy upon the corps of Dipak Mishra brought to Government Medical College and Hospital, Nagpur under requisition Exh.21 sent by Kuhi police station. The accused had admitted inquest panchanama Exh.10 and seizure panchanama Exh.11 pertaining to the clothes of the deceased and seizure panchanama and seizure panchanama Exh.13 in respect of seizure of bed-sheet, quilt and pillows and the requisition Exh.14. Out of 11 witnesses examined at a trial, eye-witnesses PWs.-2, 3 and panch witnesses for memorandum and discovery of weapon PW-s-1 and 6 and so also of clothes PW-9 and 10 having not supported the prosecution was required to declare them hostile.

9. The defence of the appellant at the trial that of total denial and of false implication. However, during the answers in his examination effected under Section 313 of Cr.P.C. the appellant had neither assigned any reason for his false implication or for witnesses having deposed against him.

10. Thus prosecution case had mainly rested upon the evidence of wife and son of deceased PW-4 and PW-5, doctor PW-8 and investigating officers PW-7 and PW-11 and the documentary evidence referred hereinabove as a corroborative evidence for the oral testimonies of said witnesses. The trial court accepted the evidence of PW-4 and 5 and came to the conclusion that the appellant was the perpetrator of the assault in which the injuries were caused to the deceased. However it came to the conclusion that apart from no role being attributed to accused no.2 Laltaprasad his presence at the spot was doubtful. The trial court also came to the conclusion that deceased has died due to the injuries caused by a weapon a like knife before the Court on the basis of the medical evidence of PW-8 adduced and the said evidence was also corroborating evidence of the eye-witnesses. The trial court thus came to the conclusion of the appellant being guilty for commission of offence of murder and convicted and sentenced him as stated earlier and in consequence to the conclusion of accused Laltaprasad having not shared any common intention with the appellant and even his presence his doubtful, acquitted him.

11. The learned counsel for the appellant urged to allow the appeal and set aside the order of conviction and sentence passed by the trial Court on the count of :

a) evidence of star prosecution witnesses PW-4 and PW-5 being discrepant, unreliable being full of improvements, omissions and contradictions is liable to be discarded.

b) the evidence of PW-5 is unreliable and liable to be discarded due to inordinate delay occurred in lodging of First Information Report by him.

c) the prosecution evidence itself reveals the investigation having already commenced prior to lodging of the same.

d) the same is unreliable due to variance in the evidence regarding the place at which the said report at Exh.46 was recorded.

e) thus the said report/FIR cannot be treated as FIR and as such the same cannot be used for corroborating evidence of PW-5.

f) the evidence of PW-5 was liable to be discarded or atleast was not liable to be acted without independent corroboration in view of PW- 5 being a child witness and the possibility of himself being tutored and/or alleged FIR lodged by him being imaginative being fully reflected from the omissions and contradictions brought on the record.

g) the fact of PW-5 minor having lodged FIR in spite of other elder persons being present in his house coupled with failure of his mother PW- 4 and grand-father to approach the police for lodging FIR/report and further failure of PW-4 to make a grievance with the police regarding killing of her husband for a considerable period being clearly indicative of the inmates of the house being not aware about the identity of the assailants in all probability due to having not witnessed the incident or atleast having not seen the assailants.

h) the evidence of PW-4 considered upon the fact that her statement was not recorded by PW-11 at the spot or thereafter at the earliest and the same came to be recorded in month of March i.e. after considerable delay takes away all sanctity of her evidence and her evidence becomes totally inconsequential for any meaningful purpose either for coming to the conclusion about the guilt of the accused alone upon the same or even for corroborating such claims staked by PW-5.

i) the appellant having not disputed the fact of deceased being assaulted and/or being killed the other type of corroborating evidence supporting occurrence of such events can be of no use for corroborating the evidence of PW-5 atleast regarding the aspect of the appellant being perpetrator of the crime.

j) evidence of PW-4 being the evidence of wholly unreliable witness the same can never be useful for corroborating the evidence of PW-5.

k) the prosecution evidence considered as a whole and particularly improvements made in the motive for crime at the trial considered along with other infirmities in the evidence of main witnesses clearly reveals that they are not telling the true story and hence their evidence is liable to be rejected.

l) even the medical evidence is not consistent with the evidence of eye-witnesses and/or with the weapon recovered as the same also denotes the possibility of deceased being attacked/injured by using two weapons and the same connoting the participation of two assailants.

m) the trial court having acquitted accused no.2 on the basis of the same evidence, it is difficult to perceive that upon such infirm evidence conclusion can be reached about guilt of the appellant being established beyond pale of doubt.

n) since the prosecution evidence fails to make a case of investigation being above board it will be highly unsafe to rely upon the evidence of investigating officer for coming to the conclusion that the weapon was recovered in consequent to the information given by the appellant.

o) since prosecution has failed to prove the link in between the weapon recovered and the crime occurred the entire evidence of discovery and recovery of weapon is inconsequential.

p) considering the character of prosecution evidence for such a serious prosecution, the accused deserves to be acquitted as the same has miserably failed to establish guilt of accused beyond pale of doubt or atleast the accused deserves to be given benefit of doubt.

12. The learned counsel also placed reliance upon the decision in cases of :

i) Prakash Chand Vs. State (Delhi Administration) reported in AIR 1979 SC 400 and,

ii) Ramsingh Bavaji Jadeja Vs. State of Gujarat, reported in 1994 Cri.L.J. 3067.

13. The learned APP supported the impugned judgment and order and submitted that the evidence on record clearly makes out a case of accused having committed the offence of murder of the deceased. He urged that prosecution evidence clearly reveals that both the eye-witnesses were most natural witnesses for the crime occurred in their house. He urged that since grand-father had not seen incident and wife of the deceased must have become aghast and hence merely because she had not gone for filing FIR would not be a circumstance casting suspicion about her evidence nor the same can be said to be a factor indicating that the inmates of the said house were not knowing the culprits. He urged that considering age of PW-5 merely because he had gone for lodging FIR/or the others have not gone would not be a circumstance for doubting his evidence on the same count as the same is otherwise without any significant blemishes. He urged that considering the reason and purpose because of which the statement of witnesses are recorded during the investigation and since it is not legal position that delay in recording the statements of witnesses is always fatal to prosecution and particularly in cases when possibility of witness being falsely roped by the prosecution is ruled out the evidence of such witness is not liable to be rejected on the count of there being delay in recording statement. Such a possibility being totally ruled out regarding PW-4 her evidence is not liable to be discarded on said count. The consistent and cogent evidence of PW-s.-4 and 5 corroborated by other evidence leading to the conclusion about the guilt of the accused is not liable to be discarded on minor discrepancies brought on the record as such a discrepancies were bound to occur in the evidence of such honest, rustic witnesses. He thus urged that there was no merit in the appeal the same should be dismissed. He also placed reliance upon a decision in a case of State of A.P. Vs. V. V. Pandurang Rao, reported in 2009 Cri.L.J. 2972.

14. We have given thoughtful consideration to the submissions advanced by both the parties and carefully perused the record and the decisions relied.

15. Apart from the learned counsel for the appellant having not disputed the deceased having met with homicidal death due to being attacked and injured in his house and having confined his submissions to the extent of prosecution having failed to establish the appellant being perpetrator of the crime of murder; there exists over-whelming evidence on the record for establishing aforesaid facets in a shape of unshattered oral account of the incident regarding deceased being injured in his house in the relevant night as spelt out from the evidence of PW-4 and PW-5, the medical evidence of PW-8 corroborated by autopsy notes at Exh.54, inquest panchanama Exh.10, spot panchanama Exh.16 inclusive of seizure of blood stained articles from said spot. The same part of evidence in no uncertain terms establishes deceased having met with a death due to injuries sustained by him in an assault made upon him in his house.

16. The evidence of PW-8 Dr. Kavita Nagrale, who had performed autopsy upon the deceased, reveals that she has given sketchy account of 17 external injuries noted by her during the autopsy with precision about their dimensions and the location. The said evidence reveals that out of them injury nos.1, 4, 5, 6, 7, 8, 10 were stab wounds either on chest, abdomen, axilla, forearm as while injury nos.2, 3, 9, 12, 13, 14 and 15 were incised wounds either on chest, abdomen, back, forearm, thigh,right arm etc. and injury nos.16 and 17 were abrasions both as deposed by her. She has further deposed that age of all the said injuries were within 24 hours and out of them injury nos.1, 4, 5, 6, 7, 8 and 10 may be caused by sharp and pointed weapon and injury nos.2, 3, 9, 10, 13, 14 and 15 may be caused by sharp cutting weapon while injury nos.16 and 17 may be caused by hard and blunt object.

17. The further part of her evidence reveals again detail account given by her regarding internal damaged noticed by her inclusive of gathering of 800 cc blood and blood clots in thoracic cavity. Her evidence also specifies the corresponding external injury qua the internal damaged noticed by her and the damaged caused to vital organs such as left lung kidney. She has specifically deposed of injuries noticed by her being sufficient in ordinary course of nature to cause death and the same being possible by knife Article-F before the Court. Her evidence in well corroborated by P.M. notes prepared by her at Exh.54 and so also the opinion Exh.55 given by her regarding the weapon in response to query made by Police.

18. The scrutiny of her evidence does not reveal any significant matter being elicited during cross-examination rendering her evidence and/or opinion given by her, unbelievable or unacceptable. It is true that she has admitted of having not noticed any zigzag injury on the person of the deceased and that stab injuries and incised wounds being of different types. However, she has clearly denied that incised wounds and stab wounds are not possible by one weapon. She has also admitted that the weapon Article-F was having one edge blunt and one edge sharp. She has also admitted that zigzag injuries can be possible by weapon Article-F. However, she had denied that by the same weapon clean cut injuries were not possible.

19. Thus taking into consideration all the answers given by her and considering knife Article-F before the Court which is Hattimar knife, it is difficult to accept submission of learned counsel for the appellant that since deceased had sustained both types of injuries i.e. incised wound and stab wounds and having not sustained any zigzag injuries, the same belies the oral account of the eye-witnesses in which the claim is staked of assault being effected by only person i.e. appellant. It is difficult to accept such a submission as the evidence of PW-8 in terms reveals that both type of injuries were possible by using the said Article. PW-8 having given such an opinion, after taking into consideration the nature of injuries seen by her, the same is not liable to be discarded only on the count of said weapon having one blunt side and the other side is having zigzag cut. Needless to add the same is not liable to be discarded on the count of no zigzag injury being found by her on the person of the deceased. In the same context it will be necessary to add that the defence having failed to elicit any admission from her that in the event of use of the said Article-for attack, the same would have certainly resulted in causing zigzag injury also, the relevant submission will not deserve any credence. The same is obvious as the nature of resultant injury would always depend upon manner of using such a weapon of large size. Needless to add user of sharp blade side for attacking was bound to result in causing incised wound while using the same from pointed end, would result in causing a stab injury.

20. Having regard to the aforesaid and the defence having failed to rule out the possibility that the same weapon could not have caused both type of injuries i.e. stab wound and incised wound or while causing such injuries, the said weapon would have certainly caused a zigzag injury, the submission will not survive that the said medical evidence signifies two different weapons being used for causing the same and the same in term reveals assailants being more than one and hence the same conflicts belies with the oral account given by PW-4 and PW-5 about involvement of single assailant/appellant in the assault and as such their evidence is liable to be discarded on the said count.

21. Having dealt with such a submission of the learned defence counsel and having concluded that the same does not survive, it can be safely said that the evidence of PW-8 considered along with the other evidence referred hereinabove in terms reveals the deceased having met with homicidal death due to injuries sustained by him by means of a weapon of attack alike knife Article-F. Needless to add that said evidence in terms establishes that he had met with a death due to the said injuries sustained and not for any other reason. Such a conclusion is inevitable as all the other evidence relied in relevant context rule out the other possibilities for cause of such injuries i.e. the same being either accidental or suicidal.

22. Now for considering main challenge in this appeal and the attack made by the learned counsel for the appellant to the star prosecution witnesses PW-4 and PW-5, it will be necessary to dilate about certain features about the evidence of both the said witnesses who had staked a claim of themselves being eye-witnesses of the incident of an assault upon the deceased. At first blush, it will be necessary to say that both of them being respectively wife and son of the deceased and apart from defence not challenging their presence in the said house during the relevant night and nothing having surfaced on the record to come to otherwise conclusion, both of them clearly appear to be the most natural witnesses for the incident regarding which they have staked such a claim and as such orientation of their claim clearly appears to be well founded.

23. Now firstly taking the criticism to the evidence of PW-5 on the count of himself being minor, merely on the said count his evidence will not be liable to be rejected as after close scrutiny of his evidence as required by the law, the same does not reveal any significant circumstance in his evidence making the claim staked by him unacceptable. It is true that as pointed by learned counsel for the appellant during the evidence PW-5 had claimed that he was not knowing the person who was standing at the door of the house but it is brought on record that while lodging the report Exh.46 he had mentioned the name of the said person being acquitted accused Laltaprasad. It is also true that PW-5 while during evidence had claimed of having narrated the incident to one neighbour and the said neighbour had been to Police Station. PW-5 had also claimed of having gone to the Police Station. PW-5 had also deposed of having lodged report. During the cross-examination, PW-5 had deposed that he was not knowing the name of person with whom he had been to Police Station. He has further deposed that Police had been to his house and there also Police had taken his report and he was not recollecting whether Police had obtained his signature in the Police Station or otherwise. It is also true that as pointed out by the learned defence counsel PW-11 having claimed of having recorded the report of PW-5 at the spot i.e. not at the Police Station.

24. However, even taking into consideration all aforesaid aspect still it is difficult to accept that because of the same a conclusion can be drawn that the evidence of PW-5 suffers from serious infirmity or that the same denotes that Exh.46 was not recorded at his behest or that Exh.46 was lateron fabricated. The same is obvious as reading the Exh.46 as a whole clearly reveals that PW-5 had not initially identified the said person and had identified him after the lights were put on by his grand-father. Similarly the cross-examination of PW-5 effected does not reveal of himself being questioned about the relevant aspect as to how he had given the name of Laltaprasad while lodging Exh.46. Apart from the same, even as per the evidence of PW-5 or his version in FIR, the said person had not played any role in assaulting his father. Having regard to the same, the discrepancy regarding such an aspect cannot be said to be affecting core of his testimony that during the said night his father was assaulted by means of knife by the appellant.

25. Even the case regarding the other discrepancies pointed also cannot be said to be different. In the said context considering the age of PW-5 at the time of incident, the right time at which the incident had occurred in which his father was murdered merely because he was not knowing the name of the neighbour along with whom he had been to the Police Station cannot be a circumstance affecting the core of testimony narrated hereinabove. Needless to add that in the said night PW-5 could have reason to remember probably for ever the name of assailant of his father rather than name of that person with whom he had been to the Police Station.

26. Similarly in the context of the report Exh.46 of PW-5 being recorded at the spot or at the Police Station, the close look at the evidence of PW-5 does not reveal that during the same he has staked a positive claim of having lodged Exh.46 at the Police Station. Truly speaking his claim is confined to having been to the Police Station along with the neighbour. It is true that he had claimed of having lodged the report Exh.46 but on close look, the relevant recital does not reveal of himself having staked a claim of having lodged the same at the Police Station. In view of the same merely because of his admission that he was not remembering whether he had signed the report at the Police station or otherwise cannot be said to be fatal enough as tried to be canvassed on behalf of the defence.

27. Now considering one more aspect pertaining to the evidence of PW-5 and so also that of PW-4 i.e. inconsistencies brought on the record regarding the probable motive for the crime i.e. both the witnesses having pre-trial stage claimed i.e. as stated in Exh.46 that the quarrel had ensued between the deceased and the appellant on the count of appellant visiting wife of the deceased during his absence when deceased was in jail, while at trial having stake the claim of the quarrel having ensued on the count of appellant having demanded money from deceased, the said variance also cannot be said to be in relation with the core of the testimony of both the witnesses regarding appellant being perpetrator of the crime. Similarly considering in proper perspective the reason given in Exh.46 regarding the quarrel and PW-4 being a lady and PW-5 being her son, the tendency to conceal such a matter does appear to be more natural than unnatural. At any rate even accepting the same, as observed earlier the same having not the effect of going to the root of the main issue, the same cannot be said to be affecting credibility of either of the witnesses.

28. Now considering the thrust of the criticism of learned counsel for the appellant regarding PW-4 and so also conduct of both the witnesses i.e. PW-4 or her father-in-law having not gone to the Police Station for lodging the report and/or PW-5 being sent to the Police Station and/or PW-5 having failed to give a statement to PW-11, it is difficult to give any significance about such a conduct on part of PW-4 for bifold reasons. At the first place considering the time at which incident had taken place, PW-4 was a lady who had lost her husband, her father-in-law was unable to see for want of spects, it is difficult to perceive that such a conduct on part of rustic witness can be termed as an unnatural affecting credibility of her testimony. Additionally the close look at the evidence of PW-4 or even that of PW-5 does not reveal any opportunity being given them during the cross-examination to explain the said conduct and/or after giving the opportunity the same had remained to be explained by them apart from the same being found explained upon the preponderance of probability factor as stated hereinabove. Needless to add in view of the same, such a criticism will not deserve any credence.

29. Now with record to another phenomenon tried to be pointed by defence counsel regarding statement of PW-4 being not immediately recorded and/or the same being recorded after 2nd of March by PW-7 after he had taken up the investigation and PW-11 during his evidence having categorically observed in examination-in-chief that "Radhika told me that she had not seen anybody and during cross-examination having observed that he had not recorded statement of PW-4. He felt that PW-4 must be concealing something. She was not willing to give statement at that time" and the submission canvassed that all the same clearly reveals that no reliance can be placed upon her evidence, cannot be accepted.

30. Before ascribing the reason for aforesaid conclusion, it will be necessary to take into account the purposes for which the statements are required to be recorded under section 161 of the Cr.P.C.. The legal position regarding the same has been repeatedly explained to the effect that the same are required to be recorded to put a check upon witnesses to make a new story at a trial and/or putting a check upon prosecution to rope/plant altogether new witnesses at a trial and for the purposes of the defence knowing the case required to be met at a trial. Having regard to the same there appears substance in the submission of learned APP that presence of PW-4 at the time of the incident in the house apart from being natural being already spelt from Exh.46 lodged by PW-4 and no new story being made by her during her evidence, her evidence cannot be termed on the said count as an evidence of infirm witness nor the credibility of her evidence would be lost on the said count nor the same would be liable to be rejected on the said count.

31. In addition to the aforesaid it is difficult to perceive even considering the answers even by PW-11 pointed by defence regarding the relevant aspect and even leaving aside the question of admissibility of the same due to the same being in the nature of statement made by witness to the Police Officer during the course of the investigation and accepting the same as it is still since further part of evidence of PW-11 again fails to reveal any plausible reason for not recording statement of PW-4 thereafter which ultimately was recorded by PW-7 after taking up the investigation any much significance can be given to the said aspect which at the most can be said to be reflective of improper investigation. Hence not much significance can be given to such a aspect as the fact of investigation was perfunctory by itself cannot be said to be a crucial aspect in appreciating testimony of any witness and in the instant case that of PW-4 whose foundation/presence at the spot has been found supported by report Exh.46. Having regard to the same, we are of the considered opinion that in fact and circumstances of the present case and when in the criminal trial guilt it required to be determined on the basis of the evidence led before the Court and not on the basis of the matters stated in the statements recorded during the investigation and since the evidence of PW-4 scrutinized on the touchstone of probability factor does not reveal infirmities warranting discarding of the same, the same cannot be discarded as canvassed by the learned counsel for the appellant. Similarly since doctrine of falsus in uno, falsus in omnibus has not been made applicable in India and since it is permissible to sift chaff from the grain if the same is possible and such a thing being possible regarding the infirmities from the evidence of PW-4 and PW-5 pointed by defence regarding presence of another person during the incident but himself having not played any role, we do not find that the said factor can be said to be affecting the evidence of both the said witnesses in any manner.

32. Since the decision in a case of State of A.P. Vs. V. V. Panduranga Rao pointed out by learned APP and so also by defence counsel in a case of Ramsingh Bavaji Jadeja Vs. State of Gujarat clearly reveals the legal position in which the detail statement recorded by the Police after going to the place of occurrence can be treated as FIR and in the instant case no circumstances being brought on the record for not treating Exh.46 as FIR, we do not deem it necessary to make any elaborate discussion about the aspect tried to be agitated by learned defence counsel without there being any concrete foundation for the same on the record and so also the decision in a case of Prakash Chand Vs. State (Delhi Admn.) which clearly is not directly applicable in the instant case.

33. As a net result of the aforesaid discussion and since after reappraisal of evidence the core of the testimony of PW-5 regarding guilt of the accused as an perpetrator of crime being found corroborated by report Exh.46 lodged by him and so also the evidence of PW-4 upon scrutiny being not found to be infirm and the same also corroborating the evidence of PW-5 and the account of incident given by both of them being again found corroborated by the medical evidence and so also the circumstance of the recovery of weapon at the behest of appellant to some extent by the evidence of PW-11 and all the said evidence clearly establishing the guilt of the appellant for commission of murder, we do not find the present appeal warrants any interference on our part regarding the findings arrived by the trial Court. Hence we do not find any merit in the appeal and dismiss the same.

Appeal dismissed.