text stringlengths 5 5.67k |
|---|
Therefore, he may not be able to have participated in the crime. FAC |
It was resisted by Mr.Das Bahl, learned counsel for the State. FAC |
The acceptance of the prosecution case rests on the evidence of PW 3 and PW 4. FAC |
PW 3 and D 3 had the licence to vend liquor at Kotli Ablu. FAC |
PW 4 and D 2 were vending liquor under them. FAC |
D 4 came to see D 2 as they were married sisters. FAC |
D 1 came and was vending on the fateful day in the shop. FAC |
D 1 to D 4 were killed in the intervening night of June 4 5, 1984 is practically admitted from the evidence of DW 3. FAC |
During the course of the same transaction PW 4 sustained 7 lacerated gunshot injuries and one incised injury is also admitted through the evidence of DW 2 and DW 3, PW 2, the Doctor 's evidence conclusively established that D 1 and D 2 died due to gun shot injuries. FAC |
D 1 and D 2 each had two entry and exit wounds due to gun shots. FAC |
D 3 and D 4 also had gunshot lacerated as well as incised injuries. FAC |
They also died on the spot due to the injuries which are sufficient to cause death in the ordinary course of nature. FAC |
Seven empty and two live cartridge fired from M 0/11 rifle of 351 bore of U.S.A. make belonging to A 1 were recovered from the scene of occurrence. FAC |
Therefore, the deaths of D 1 and D 2 due to gunshot injuries and D 3 and D 4 due to gunshot and incised injuries are proved beyond doubt. FAC |
Equally PW 4 sustained injuries is also established. FAC |
The only question is whether the appellants are assailants. Ratio |
The conviction of the appellants hinges upon the acceptability of the testimony of PW 3 and PW 4. Ratio |
Let us first take the evidence of PW 4, the injured witness whose presence at the time of occurrence stands confirmed. Ratio |
He is aged about 19 years. Ratio |
He was working in the liquor shop of D 3 and PW 3 at Kotli Ablu. Ratio |
He is residing in that village was not disputed. Ratio |
As stated earlier he sustained 8 injuries (7 gunshot and one incised) during the course of the same transaction is also indisputable, and in fairness, was not disputed by Shri Lalit. Ratio |
His serious attack is that PW 4 did not disclose the names of the assailants for two days which would show that he did not either see the assailants or the assailants were not known him. Ratio |
We find it difficult to accept. Ratio |
His case that he jumped from the terrace in front of the shop and he was attacked by the assailants was not disputed in the cross examination. Ratio |
The suggestion that he was sleeping alongwith D 4 would show that he could see A 1 who fired at him while he was running away and it receives corroboration from medical evidence of PW 2 that the injuries are on the backside while he was chased by the accused. Ratio |
So he 266 could clearly identify his own assailants as the occurrence did not take place at a fleet or glimpse. Ratio |
In the F.I.R. at the earliest, it was specifically stated that PW 4 was not in a condition to speak. Ratio |
It would mean that he was either under shock or unconscious. Ratio |
The First Information Report given by the Chowkidar was admitted in evidence with the consent of the defence. Ratio |
It is settled law that the First Information Report is not substantive evidence. Ratio |
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought. Ratio |
Since the examination of first information was dispensed with by consent Ex P 24, F.I.R. became part of the prosecution evidence. Ratio |
Under section 11 of the Evidence Act read with s.6 the facts stated therein namely, PW 4 was not in a speaking condition, could be used only as a relevant fact of prior existing state of facts in issue as resgestae of "the earliest information". Ratio |
It is not used to corroborate the prosecution case, but can be looked into as an earliest information of the existing condition of PW 4 at 9.00 a.m. on June 5, 1984 i.e. when the report was given in exhibit p 24, PW 4 was still unconscious. Ratio |
When PW 4 had stated that he became unconscious as soon as he came and tapped the door of DW 3, and fell down, by operation of section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 contained to remain unconscious till the report was given. Ratio |
Therefore, the F.I.R. could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 S.H.O.reached and saw him within the meaning of s.11 read with s.6 of the Evidence Act. Ratio |
When PW 4 received 7 gun shot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocked the door he fell down unconscious appears to be quite natural and probable. ... |
The evidence of PW 5, that on seeing PW 4 in critical unconscious condition he sent him to the Doctor for medical examination and the doctor administering sadation appear to be human probabilities and there is nothing intrinsic to suspect their evidence. Ratio |
Thus PW 4 was not in a fit condition to give statement till June 7, 1984 at 7.00 a.m. PW 4 's evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross examination. Ratio |
It is not uncommon in normal human probability that he was not expected to know the names of the relations of A 3. Ratio |
When A 1 and A 3 came in that very night to the shop and quarreled for non supply of liquor on credit, it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A 3. 267 Undoubtedly, ocular defence evidence, if it is not subjected to critical cross examination, is entitled to ... |
But merely because the prosecution, as usual, made insipid cross examination, the defence evidence is not to be believed automatically. Ratio |
Witnesses may be prone to speak lies but circumstances will not. Ratio |
So even though the burden of the defence is not as heavy as of the prosecution, the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities. Ratio |
The evidence on record is clear that PW 4 was left attended, though was lying with injuries at the house of DW 3, till the investigating officer PW 5 came and saw him in critical condition. Ratio |
The normal human conduct, which is common in the country side, is to give immediate first aid and then to make inquire of the cause for injuries and the persons who caused the same. Ratio |
As DW 3 betrayed such conduct, make us to suspect the credibility and veracity of his evidence and of DW 2 that PW 4 was conscious all through and that he did not disclose the assailants ' names. Ratio |
Therefore, the evidence of DW 2 and DW 3 that PW 4 was professed to have disclaimed the names of the assailants is unbelievable despite no specific cross examination was directed on that aspect. Ratio |
That apart they did not tender themselves to be examined by PW 5, the investigating officer. Ratio |
As regards the shedding of the light from the house of Gurbax Singh is concerned, there is uncontroverted evidence of PW 5, that he remained in the village till 9.30 p.m. on June 5, 1984 to see whether the light was emanating from the house of Gurbax Singh and found to be so and sufficient for PW 3 and PW 4 to identify... |
No cross examination on this aspect was directed. Ratio |
Gurbax Singh, the owner of the house was not examined by the defence. Ratio |
Only his son DW 2, an youngster, came into the box and perjured the evidence. Ratio |
Therefore, the claim that the light was not working for three months prior to the date of occurrence, cannot be believed. Ratio |
Even assuming that there was no light, even then, PW 4 could identify his own assailants when he was attacked and chased in the course of the same transaction. Ratio |
Nothing worthwhile was brought out in the cross examination to disbelieve his testimony. Ratio |
He had no axe to grind against any of the accused. Ratio |
To motive to make false implication of the accused was even suggested. Ratio |
He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons. Ratio |
Moreover the medical evidence of PW 2 fully corroborated the evidence of PW 4. Ratio |
It is settled law that corroboration is not a rule of law, but one of caution as an assurance. Ratio |
The conviction could be made on the basis of 268 the testimony of a solitary witness. Ratio |
The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of... |
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance. Ratio |
Considered in this light, we have no hesitation to conclude that PW 4 is a witness of truth and inspires us to believe his evidence. Ratio |
He would, even in the absence of any light have identified the accused, who had attacked him and committed the murders of sleeping, unarmed and innocent D 1 to D 4. Ratio |
The evidence of PW 3, though was severely attacked by Shri Lalit, giving our anxious consideration and subjecting to careful analysis, we find that the Special Court committed no error in accepting his evidence. Ratio |
It is common knowledge that the villagers during summer sleep outside the house, court yard of the house, if any, or on the terrace of the concrete houses. Ratio |
No doubt there is no stairs to the terrace of the shop whose height is only 8 and 1/2 feet. Ratio |
PW 4 and PW 3 being young men it is not difficult to climb up and sleep and now it was proved providential for them. Ratio |
Therefore, the absence of producing, the quilts or lack of steps is not a serious infirmity to doubt the presence of PW 3 and PW 4 and that they slept on the terrace of the shop. Ratio |
In view of curfew and tense condition in the State, it would be unlikely that PW 3 would have traveled in the night to Madhok at a distance of 23 km. Ratio |
The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case. Ratio |
This is clearly in negation of and in the teeth of s.172(3) of the Code. Ratio |
Section 172 reads thus: "Diary of proceedings in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forthwith the time at which the information reached him, the time at which he began and closed his investiga... |
269 (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. STA |
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting su... |
" It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation. Ratio |
Under sub section(2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Ratio |
Neither the accused, nor his agent, by operation of sub section(3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it. Ratio |
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witnes... |
It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act. Ratio |
The entries cannot be used by the accused as evidence. Ratio |
Neither PW 5, nor PW 6, nor the court used the case diary. Ratio |
Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Ratio |
Thereby the defence cannot place reliance thereon. Ratio |
But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence. Ratio |
As regards the omission of the names of the appellants in the memos sent to the Medical Officer PW 2 under exhibit D 13 and 15 it is also not evidence except as record of investigation. Ratio |
It is not a rule of 270 law that the memo should bear names with cause title of accused. Ratio |
It is enough if the name of the injured is mentioned in the memo. Ratio |
Therefore, the omission to refer their names after the word Banam in the memos sent to the Doctor would not create any doubt that the appellants were later implicated. Ratio |
Equally the prosecution cannot rely on the statement of PW 3 enclosed to the inquest reports as substantive evidence, as is done and argued with vehemence by Sri Das Bahl. Ratio |
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence. STA |
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty o... |
The statement made by such person is a "previous statement" within the meaning of s.162 and it shall not be signed. Ratio |
So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by s.145 of the Evidence Act or with the permission of the court the prosecution could use it for re examina... |
It is settled law that s.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police office being used for any purpose whatsoever. Ratio |
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence. Ratio |
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.