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2005 DIGILAW 348 (MP)

Rambaran Singh v. State of M. P.

2005-03-07

CHANDRESH BHUSHAN, SHEELA KHANNA

body2005
JUDGMENT 1. Both the above mentioned appeals, numbered as criminal Appeal No. 348/96 and criminal Appeal No. 342/96 are being disposed of by this common judgment as they are appeals by one and three persons respectively, who were jointly tried and each one of whom was convicted for offences punishable under sections 148,302/149 and 452 of IPC and was sentenced to undergo rigorous imprisonments for the periods of one year, life and one year respectively, to run concurrently, vide one judgment dated 3.10.1996 in the same Sessions Trial No. 291/92 pronounced by First Additional Sessions Judge Gwalior, and against which they have preferred these appeals almost on similar grounds. Out of the three appellants in Criminal Appeal No. 342/96, one, namely Premsingh died during the pendency of appeal and therefore his name was struck off from the array of appellants. 2. The prosecution story in brief is that since same time before 14.11.91, a dispute was going on between one Shyamveer Singh, hereinafter referred as the deceased, and appellant Prem Singh (now dead) and Ashok Pratap Singh. Because of that dispute on 14.11.1991, at around 7 a.m., appellant Ashok Pratap Singh armed with a country made revolver (Katta), Rajndra Singh with an iron rod and Rambaran also with a country-made pistol (Katta), all the three together with Premsingh and three other persons with a common object to kill Shyamveer Singh, jointly assembled near a Bavdi (water reservior) situated at Birla Nagar, Gwalior. The deceased Shyamveer Singh and hid brother Babusingh (PW1) who together. but on separate cycles were going to purchase vegetables and for exercises, respectively also passed by the same road. No sooner they come near the appellants, one of them, namely Shyamveer Singh was surrounded by the appellants and the persons accompanying them. Premsingh exhol1ed that let Shyamveer Singh be killed and thereupon both the deceased and his brother Babusingh (PW1) in order to save themselves, pushed the appellants and their accomplices and rushed towards their house. The appellants and their accomplices chased them. Some one of them even fired two shots at Shyamveer Singh. Babusingh (PW1) and the deceased could ultimately reach the house of their brother-in-law Tajendra Singh (PW4). Both of them after going inside that house bolted its outer door. The appellants who along with their accomplices were chasing them crashed that door and come into the courtyard where the deceased was present. Babusingh (PW1) and the deceased could ultimately reach the house of their brother-in-law Tajendra Singh (PW4). Both of them after going inside that house bolted its outer door. The appellants who along with their accomplices were chasing them crashed that door and come into the courtyard where the deceased was present. Thereafter, all of them with the arms held by each one of them, started assaulting the deceased. They gave blows of the butts of pistols and of iron rods and sticks on the body of deceased. Even the country made pistol was fired at him. Thereafter, Shyamveer Singh, who had fallen on the ground, was taken as dead by them and therefore, they started moving out, seeing them moving out, the deceased, who was quite alive, rose and ran inside a room and bolted its door from inside. Premsingh saw him so running and shouted that he was alive. Thereupon, All the assailants returned back and after breaking the doors of the room where the deceased had taken shelter went inside and started assaulting him again Umadevi (PW7), whose husband's house it was and who was sister .of the deceased seeing that incident, in order to save the deceased, dropped over him and requested for not assaulting him But appellant Ashok Pratap Singh caught her by hand and pushed her out. Her husband Tajendra Singh (PW 4) also tried to rescue the deceased but was prevented on gun point. The assailants continued to assault the deceased till he died. Thereafter, the appellants, together with other assailants, at out firing shots in the air by the firearms held by them. After coming out of the house of Tajendra Singh, they escaped on a motorcycle and a jeep. One Prahlad Singh (PW3) and two other persons along with the people of that area had seen the incident. The appellants and their accomplices were dreaded evils and therefore the people were afraid of them. After the assailants had gone away around 7.45 a.m. complainant Babusingh (PW 1) went to PS Gwalior and lodged the first information report Ex.P-1. Thereafter, the police reached the spot and from there referred the dead body of the deceased for autopsy. Autopsy was conducted by Dr. After the assailants had gone away around 7.45 a.m. complainant Babusingh (PW 1) went to PS Gwalior and lodged the first information report Ex.P-1. Thereafter, the police reached the spot and from there referred the dead body of the deceased for autopsy. Autopsy was conducted by Dr. V.K. Diwan (PW 9), who found in all nine injuries on the body of the deceased, two of which were wounds of entry of shots fired by fire-arms, six were other lacerated wounds on or around the head and one was an abrasion on his chest. After completing the investigation. A charge-sheet was field by PS Gwalior against three appellants and four other persons including Prem Singh, who had died during the pendency of this appeal. 3. The learned Eighth Additional Sessions Judge Gwalior before whom the trial commenced accordingly. charged each one of the two appellants namely Rambaran Singh and Ashok Pratap Singh for committing offences punishable under sections 148,302/149/,452 of IPC and 25 (1) as well as 27 of the Arms Act. The remaining appellants namely Rajendra Singh was charged for committing offences punishable under sections 148,302/149 of IPC and 452 of IPC only. The appellants abjured their guilt. 4. During the trial in all nine witnesses were examined by the prosecution and two by the defence. The prosecution examined the complainant Babusingh (PW1) his elder brother Bharat Singh and three eye-witnesses namely, Prahalad Singh (PW3), Umadevi (PW7) and Tajendra Singh (PW4), together with witnesses Gagendrasingh (PW5), Narendrasingh (PW 6), Investigating officer Lalmani Sharma (PW 8) and the Medical Expert Dr. VK. Diwan (PW9). In defence, one Ramlakhan Singh (DW 1) who was head constable of P.S. Purani Chhawni and one Jalak Singh (DW 2) who was sub-Inspector of P.S. Gola ka Mandir were examined by the appellants. 5. After recording the evidence, statements of all the accused persons and hearing the parties, the First Additional Sessions Judge, Gwalior to whom the case was transferred by that time and who is hereinafter referred as the trial Court pronounced it's impugned judgment, on 3.10.96, holding each of the appellants and Premsingh guilty of offences punishable under sections 148,302/149/ and 452 of IPC only. After further hearing them the learned trial Court imposed the impugned sentences on each one of them. 6. After further hearing them the learned trial Court imposed the impugned sentences on each one of them. 6. Aggrieved by their convictions and sentences, these appeals have been preferred by appellant Rambran Singh and the other two appellants, respectively, on the ground that the learned trial Court has failed to properly consider the various shortcomings and weaknesses in the prosecution evidence. According to them, out of the complainant and three other eye-witnesses examined by the prosecution, two witnesses have not supported the testimony of the complainant and one has been disbelieved by the trial Court itself. Thus, the impugned conviction was based on the testimony of a solitary witness who according to them was not wholly reliable. The cartridges found at the spot, the bullets recovered from the body of the deceased together with the arms seized from two appellants were not referred to Ballistic Expert for its opinion. All the said four eye-witnesses were close relations and one of them namely Babusingh (PW1) who is complainant was a police Head Constable himself. The version given by the complainant Babusingh (PW1) was also a highly improbable version considering the injuries found on the body of the deceased and in view of the several improvements made by him in his testimony before the Court. Thus, The appellants have prayed for their acquittal. The respondent- State on the other hand has supported the impugned judgment. 7. The learned counsels of both the sides are heard and the record is perused. 8. The witnesses Babusingh (PW 1). Bharatsingh (PW 2) Prahalad singh (PW 3), Umadavi (PW 7), and Tejendra singh (PW 4), all the five have stated that the deceased was injured and ultimately died after an incident, which according to complainant had occurred on 14.11.1991. Their testimony in this respect, is corroborated by an independent witness like Dr. Y.K. Diwan (PW9) who according to him had conducted autopsy of the body of the deceased Shyamveer Singh on 14.11.91 itself. He has opined that the deceased died of the injuries on the inner part of the body caused by firearm. The two bullets by which those injuries were caused were also recovered by him from the body and handed over to the police officials. This part or the prosecution evidence is also not challenged before us. He has opined that the deceased died of the injuries on the inner part of the body caused by firearm. The two bullets by which those injuries were caused were also recovered by him from the body and handed over to the police officials. This part or the prosecution evidence is also not challenged before us. From the testimony of the complainant Babusingh (PW1), Bharatsingh (PW2) Umadevi (PW7), and Tejendrasing (PW4), in this respect together with the medical evidence of Dr. Y.K. Diwan (PW9), in is established beyond doubt that the deceased Shyamveer Singh died on 14.11.1991 because of certain injuries received by them including two injuries caused by use of fire-arms. Considering the nature of these injuries as also opined by the medical expert Dr.Y.K. Diwan (PW9), the death of the deceased was certainly homicidal. The findings or the learned trial Court to that extent deserve confirmation and are accordingly confirmed. 9. The only question raised before us, in these appeals, by challenging the findings of the trial Court in this respect, is as to whether the injuries or anyone of them due to which the deceased died, was caused by the appellants or anyone of them? In this regard, four witnesses were produced by the prosecution in the trial Court as eye witnesses. Out of them, two namely Umadavi (PW 7) and Tajendrasingh (PW 4) who were none else but the sister and brother-in-law of the deceased, have only stated about occurrence of an incident wherein some assailants had injured the deceased. But both of them have categorically stated that they have not seen as to who those assailants were. Thus, these two have not supported the prosecution version about involvement of the appellants. 10. Out of the remaining two, one namely Prahlad Singh (PW 3), as stated by hi m itself, was a resident of village Kaluapura of district Eta, i.e., in Uttar Pradesh. How then, he was present on the spot near Birla Nagar at Gwalior in M.P., on the fateful day. i.e. on 14.11.1991? In this respect he states that on 12.11.1991 he had come to the town where incident took place for buying certain buffaloes. He also states that on 13.11.1991 he had gone to Resham Mill to see buffaloes but could not find any buffaloes for purchase by him. He also states that he had stayed with his brother in police lines. In this respect he states that on 12.11.1991 he had come to the town where incident took place for buying certain buffaloes. He also states that on 13.11.1991 he had gone to Resham Mill to see buffaloes but could not find any buffaloes for purchase by him. He also states that he had stayed with his brother in police lines. He also states that on that date, early in the morning around 6 O'clock, he went near the water reservoir. Why did he so go? There is no explanation to this question. Normally, it appears to be highly unnatural for anyone to go without any reason so early in the morning towards that reservoir. He, as he admits in his cross-examination, was cousin of the deceased and complainant Babusingh (PW 1). His statement Ex. D-6 was for the first time recorded during investigation on 29.11.1991, i.e., almost a fortnight after the date of incident and his explanation for this delay was that after the incident complainant had sent him to village Naner for fatching his parents and there he stayed for 5-6 days and returned only after the woman folk had returned back from Gwalior. He further stated that a day thereafter he was called to the police station where his statement was recorded. Thus, his explanation for delay, whatever it was, explains the delay only for at the most a week. But his statement Ex. D-6 as is apparent from the date mentioned below the signature of the sub inspector, was recorded on 29.11.1991, i.e. after two weeks. Considering want of explanation for two weeks together with the fact that he was an outsider, it becomes difficult to rely that actually he was present at the time of incident. Even if he had come for purchasing buffaloes to Gwalior his presence on the spot at the early hours of morning is also unnatural. He was a close relation of the deceased and the complainant. This fact in such circumstances fails to inspire any confidence in him. His testimony, therefore, is not worthy of credit and the learned trial Court has also rightly refused to rely on his statement before it. 11. Thus, as far as the involvement of the appellants in the incident wherein fatal injuries were caused to the deceased is concerned, the only remaining prosecution evidence was that of complainant Babusingh (PW 1). His testimony, therefore, is not worthy of credit and the learned trial Court has also rightly refused to rely on his statement before it. 11. Thus, as far as the involvement of the appellants in the incident wherein fatal injuries were caused to the deceased is concerned, the only remaining prosecution evidence was that of complainant Babusingh (PW 1). Undoubtedly, in his examination-in-chief itself (para 1), this witness Babusingh (PW 1) has stated that one Arendra Pratap was also accompanying the appellants and other assailants. That part of his testimony is belied by the statement of prosecution's own witness Lalmani Sharma (PW8), the Investigating Officer himself, as he in his cross- examination (para 6) has admitted that after filing the challan on further enquiry he had found that Arendra Pratap was not present on the spot. Though, he denies that he had information that Addl. Chief Judicial Magistrate Shri D.K. Paliwal had conducted an enquiry and had reported to the High Court that the said Arendra Pratap was in jail at the time of incident but he admits that on an application by the said Arendra Pratap in the sessions Court, he had sought permission to verify and had re-investigated the matter and had found that the said Arendra Pratap was not present on the spot and thus, this testimony of Investigating officer namely Lalmani Sharma (PW 8) itself renders the part of the testimony of the complainant Babusingh (PWI) about Arendra Pratap participation in the event is false. 12. The learned Senior Advocate for the appellants on the basis of this established falsehood in the testimony of complainant Babusingh (PW 1) vehemently argued, that the testimony of Babusingh (PW 1) involving the appellants, could not be considered as wholly reliable and he being the only solitary witness left in this respect, could not be relied upon for fastening quilt on the appellants. In this respect, i.e. to support his contention, he placed reliance on the decisions of the apex Court in the cases of V. Thevar v. State of Madras, reported in AIR 1957 SC 614 , Karunakran v. State of Tamil Nadu, reported in AIR 1976 SC 383 and Joseph v. State of Kerala, reported in AIR 2003 SC 507 . 13. 13. In the above mentioned case of Joseph v. State of Kerala (supra), the apex Court has observed that: ,•........Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eye-witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable ." In this case, the sole testimony, originally discarded by the trial Court but relied upon by the High Court, was of a witness who himself was injured in the incident and therefore his presence could not be seriously doubted. But the evidence of that witness was directly in conflict with other evidence, the signature contained on FIR lodged by him was of doubtful character as he himself admitted that they were different from his signature on the acknowledgment of summons by him and secondly, that he stated about having suffered a bleeding injury while no blood stained clothes were seized from him by the police and the statement of Medical Expert was to the effect that it was not a bleeding injury and further that neither in the certificate nor in any other place the names of accused had been mentioned. Thus, the witness in that case was not disbelieved merely because one part alone of his testimony was found false. The apex Court in this case of Joseph has also observed that the evidence of a sole witness to the incident has to be accepted with an amount of caution and after testing it on the touch stone of the evidence tendered by other witnesses (see para No. 13). 14. In the case of Karunakaran (supra) it was observed by the apex Court that in a case where connection of the accused depends on the solitary testimony of a single witness and if that witness is absolutely reliable, there can be no infirmity in convicting the accused. 14. In the case of Karunakaran (supra) it was observed by the apex Court that in a case where connection of the accused depends on the solitary testimony of a single witness and if that witness is absolutely reliable, there can be no infirmity in convicting the accused. However, in that case it was found that the concerning solitary witness was an obliging witness and had no qualm of conscience in implicating the accused for the mere asking by someone like an inimical police officer against whom criminal cases were pending at the instance of the father of the accused. It was also observed that the eye-witness was one who could be persuaded to substitute PW 1, 2 and 3 for his deceased brother as chasing the assailants and this degrades him from the status of an absolutely reliable witness. The High Court had discarded the testimony of those three witness (PW 1, 2 and 3) and had described them as batch of liars as they had implicated two persons other than the single accused implicated in the FIR, In the FIR it was also not mentioned that these witnesses (PW 1, 2 and 3) had also chased the assailants. Thus, in that case also the witness was not disbelieved merely because any single falsehood in his testimony. 15. In the case of V. Thevar (supra) also relied upon by the learned Sr. Counsel for the appellants, it was observed by the apex Court that: ••..........Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution." The apex Court in that case further observed that evidence has to be weighed and not counted and that it is not seldom that a crime has been committed in the presence of only one witness. It was further observed that the matter thus depends upon the circumstances of each case and the quality of the evidence. According to the apex Court the oral testimony could be classified into three categories, namely - (1) Wholly reliable. (2) Wholly unreliable and (3) Neither wholy reliable nor wholly unreliable. It was further observed that the matter thus depends upon the circumstances of each case and the quality of the evidence. According to the apex Court the oral testimony could be classified into three categories, namely - (1) Wholly reliable. (2) Wholly unreliable and (3) Neither wholy reliable nor wholly unreliable. It was also observed that in the first category of proof, the Court has no difficulty in convicting or acquitting on the sole testimony of such a wholly reliable witness. Similarly, it was observed that in the second category also there was no difficulty with the Court in coming to a conclusion. It was with respect to the third category that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. 16. Thus, considering all these decisions, we are unable to agree with the senior counsel for appellants that, when the trial Court bases its, finding of guilt on the testimony of a single witness, it should so base only if the testimony of that witness is reliable in its entirety. The wholeness of the reliability of such a witness has to be in respect of that material part which is being relied upon and not necessarily of the full testimony, i.e. in respect of each and every paJ1 of his testimony. Therefore, merely because some part of the testimony of a witness is found false, it can be said that it would not be proper to disregard his entire statement. The apex Court as already pointed out before. as back as in the year 1957, in the case of V. Thevar (supra) and again in recent case of Joseph v. State of Kerala (supra) has also observed that the Court has only to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial with respect to the testimony of single witness, which is being relied upon. In such cases of solitary witness undoubtedly, the Court has to weigh carefully his testimony. It was also observed that if the Court is satisfied that the testimony is free from all taints which tend to render oral testimony open to suspicion then it becomes duty of the Court to act upon such testimony. 17. In such cases of solitary witness undoubtedly, the Court has to weigh carefully his testimony. It was also observed that if the Court is satisfied that the testimony is free from all taints which tend to render oral testimony open to suspicion then it becomes duty of the Court to act upon such testimony. 17. Simply only on a ground that a solitary witness has attempted to falsely rope in one more person, it would not be proper to conclude that his testimony is so tainted that it tends to necessarily render even other parts or his testimony open to suspicious which otherwise inspired confidence being corroborated in material particulars by other reliable evidence. It is not disputed that the principle of "falsus in uno falsus in omnibus" is not applicable in this country. The apex Court itself has in the case of Sucha Singh and another v. State of Punjab reported in (2003) 7 SCC 643 , observed that the dictum-falsus in uno falsus in omnibus-is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. It was further observed that, therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance. The Apex Court also observed that: "It is the duty of the Court to separate the grain from the chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to he deficient to prove that guilt of other accused persons. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details represented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto." 18. Therefore, in the present case, merely because the complainant Babusingh (PW 1) has tried to falsely rope in one Aryendra, his testimony need not be discarded in toto and needs further examination if the part roping in Aryendra, can easily be separated from other part of his testimony. 19. Therefore, in the present case, merely because the complainant Babusingh (PW 1) has tried to falsely rope in one Aryendra, his testimony need not be discarded in toto and needs further examination if the part roping in Aryendra, can easily be separated from other part of his testimony. 19. Thus, inspite or false implication of one Aryendra by this complainant : Babusingh (PW 1), it has to be considered whether the para1 of complainant's mony about the guilt of the appellants or anyone of them was separable and deserved reliance and if so whether it establishes beyond any doubts that the appellants or anyone of them is guilty of causing death of the deceased ? 20. In this respect, the complainant Babusingh (PW l) in his testimony before the Court, has averred that he alongwith the deceased, were going on two separate bicycles when near the gate of water reservoir they were intercepted by the appellants and some other persons including Aryendra. According to him, appellants Rambaran and Rajendra (only two) were holding country-made pistols in their hands. He rurtner started that after surrounding them, Premsingh (who died during the pendency of this appeal) exhorted that the deceased be caught and killed, whereupon, both he and deceased ran towards the house of Tejendra singh (PW 4) and after reaching inside his house they bolted the door. He has further stated that soon thereafter the appellants accompanied by others also entered the house after breaking the door and reached the countryard where the deceased was present. Then, according to him, appellant Ashok Pratap Singh as well as one Vijay Pratap fired shots from the country-made pistols held be them and thereafter, pushed the deceased to the floor and started beating" him with the butts of countrymade pistols held by them. He has further stated that after sometime, believing that the deceased has already died they left him and after seeing them so going the deceased suddenly rose up and went inside the nearby room locking its door from inside and seeing that Premsingh shouted that the enemy (deceased) was alive and he should be killed. Thereafter, according to him, all the appellants and others returned back, broke the door of the room and went inside where the deceased was hiding and started assaulting him again. According to him, they were repeatedly striking the head of the deceased against the floor. Thereafter, according to him, all the appellants and others returned back, broke the door of the room and went inside where the deceased was hiding and started assaulting him again. According to him, they were repeatedly striking the head of the deceased against the floor. He has also stated that they also gave blows from butts of the pistols and of iron rods held by them and this they kept on doing till ultimately the deceased died and thereafter they went away. Thus, he has not assigned any specific role to the said Aryendra while he specifically states that appellants were armed with fire-arms, had fired shot and had also given, blows of butts. About Aryendra he only gives an omnibus statement that he was also present with others and out of them even the trial Court has separated others than appellants and Premsingh by acquitting them. Therefore, In the testimony of complainant the part relating to Aryendra can very well be separated from the part relating to appellants. The question that remains, therefore, is only whether the part relating to appellants was otherwise reliable or not. 21. Witness Tejendrasingh (PW 4) and Umadavi (PW 7) in whose house the incident occurred, have stated that they could not see as to who were the assailants. They only confirmed that the deceased was assaulted and killed in their house. Medical Expert Dr. Y.K. Diwan (PW9) who conducted autopsy has stated that he had found nine wounds on the body of the deceased out of which one was abrasion, six were lacerated wounds and two were wounds of entry of gunshots. He has also stated that he has found two bullets embodied in the body of the deceased and after taking them out they were also handed over to the police. He has also stated that besides the two entry wounds of bullets remaining three injuries found on the body of the deceased were caused by hard an blunt object. Out of these seven injuries, all the six lacerated wounds were only on the head of the deceased. Thus, these six wounds could be the result of blows of butts, iron rods or because of the head having been repeated struck against the floor. Out of these seven injuries, all the six lacerated wounds were only on the head of the deceased. Thus, these six wounds could be the result of blows of butts, iron rods or because of the head having been repeated struck against the floor. The two entry wounds of shots by the firearm, bullets of which were also found embodied in the body of the deceased, could be because of the shots fired by even country-made gun. 22. As per prosecution, three country-made pistols had also been recovered from the possession of three of the appellants by the Investigating Officer. Two empties and certain pellets, as per Ex. P-9, had also been recovered from the spot. There is no evidence on record of sending those three firearms, the two empties, pellets and the two bullets found from the body of the deceased to any ballistic or forensic expert. Relying on the decisions of the apex Court in the case of Sukhwant Singh v. State of Punjab reported in AIR 1995 SC 1601 , and State of M.P. supra reported in 2001(1) Vidhi Bhasvar 259 = AIR 2001 SC 2408 , it is submitted by the learned counsel for appellants that non-sending of firearms, cartridges and pellets to ballistic expert makes the prosecution evidence unreliable. But as observed by the apex Court in the case of Amer Singh v. Balwinder Singh reported in (2003) 2 SCC 518 and Dhansingh v. State of Punjab reported in (2004) 3 SCC 654 , failure on the part of the Investigating Officer to send the firearms seized and empties etc. recovered from the spot to forensic laboratory was by itself not sufficient to throw out the prosecution case especially when the same is established from the testimony of eye-witnesses. Therefore, the defective investigation in this respect, i.e., non-sending of such firearms, empties and bullets to the forensic laboratory does not by itself make the testimony of complainant in that respect unreliable. It only suggests want of a possible confirmative evidence not necessarily because it would negative the other evidence but probably because of ignorance or negligence or even willful default in investigation. Therefore, at the most it can only be considered as a possible circumstance against the prosecution story, but also not by itself sufficient to discredit it. 23. This solitary witness Babusingh (PWl) undoubtedly is a near relation of the deceased. Therefore, at the most it can only be considered as a possible circumstance against the prosecution story, but also not by itself sufficient to discredit it. 23. This solitary witness Babusingh (PWl) undoubtedly is a near relation of the deceased. The apex Court in the case of Amarsingh (supra) where members of the family were examined as eye-witnesses while two other independent persons were not even examined though they were not family members, has observed that it was quite likely for such other persons that they do not want to get involved in any dispute and therefore no adverse inference could be drawn merely on the basis of their non-examination. The eye-witnesses who were members of the family and examined by the ....prosecution were relied upon by the apex Court. In the case of State of "J.P. v. Jagdev, reported in AIR 2003 SC 660 , the apex Court observed that the evidence of eye-witnesses could not be discarded on the ground that they were interested being related to the deceased, if there is corroboration in material particulars by other reliable evidence. The close relation of the witness as observed by the apex Court in the case of State of A.P. Punti Ramulu reported in AIR 1993 SC 2644 , by itself is not enough to discard his testimony. It only puts the Court on its guard to scrutinise the evidence more carefully. Thus, the fact that this witness Babusingh (PW 1) was a close relation though not by itself sufficient to discredit him together with the circumstances discussed before does put the trial Court at guard and calls for a close scrutiny. If there was corroboration in material pm1iculars of his statement about appellants by other reliable evidence, then only he could be relied upon. 24. On closer scrutiny, it is found that as per the statement of complainant Babusingh (PW 1) the series of events were like this that the gunshots were fired only in the courtyard and after that the deceased had risen and gone to the room where he had bolted the door of the room from inside and it was thereafter, that further assault by striking his head on the floor and by giving blows of butts and iron rods was made. The Medical Expel1 Dr. The Medical Expel1 Dr. Y.K. Diwan (PW9) has in his cross-examination clarified that both the entry wound must have been fired from behind at the deceased and that a person who receives such injuries as numbered 8 and 9 (of gun shots) should fall then and there and could not walk and blood should ooze out from his body at the place. Therefore, if the version of the complainant Babusingh (PW 1) was true it meant that the deceased, after receiving both the gunshot wounds, rose and ran to the neighbouring room where ultimately he was further assaulted and killed. This was not possible in view of the said testimony of the Medical Expert Dr. VK. Diwan (PW9) because had the said gunshot injuries been caused to the deceased in the courtyard, he could not have risen and walked to the nearby room nor could he have bolted the door, as per the opinion of Medical Expert. Thus, the evidence of Medical Expert does make a serious dent in the credibility of this solitary witness as the testimony about the sequence of events which are material particulars is not corroborated by the Medical Expert. 25. There are some improvements also in his testimony before the Court like that he has testified that when he and the deceased both were surrounded by the appellants near the water reservoir, witnesses Prahalad and Ramniwas had also reached there and had even tried to obstruct the appellants. No such version was given by him in his earlier statement (Ex. D-l) recorded by the Investigating Officer under section 161 of CrPC, during the course of investigation. Probably this improvement was to induct Prahalad and Ramniwas as eye-witnesses to the whole incident. In his testimony in Court this complainant Babusingh has stated that the appellants and other co-accused went away in a jeep and a motorcycle and both of these vehicles as disclosed to him by witness Prahalad were at the time of incident kept by them undercover. But there is nothing like that in his report, Ex. P-l or in his earlier statement. Ex. D-1. In the Court he states that appellant Ashok Pratap Singh had kicked his sister Umadevi (PW7) but this is also an improvement as it has not been mentioned by him in his report, Ex. P-1. But there is nothing like that in his report, Ex. P-l or in his earlier statement. Ex. D-1. In the Court he states that appellant Ashok Pratap Singh had kicked his sister Umadevi (PW7) but this is also an improvement as it has not been mentioned by him in his report, Ex. P-1. He has also stated categorically in his statement before the Court that Premsingh was armed with a stick and this was clearly seen by him. But it, was not so mentioned in his FIR. Ex. P-l. Similarly, in the Court he has specifically stated about an iron rod held by appellant Rajendrasingh while in the first information report he has not mentioned that clearly. In the first information report. Ex. P-1 only it is mentioned that the appellants Rajendra and Premsingh and other persons armed with iron rods had surrounded him. In his cross-examination this Babusingh (PW 1) has stated that he knew Ravindra Singh from before and that he knew father of Ravindra singh as well as his cousin Ashok Pratap Singh. But in his first information report neither the name of Ravindra Singh nor even as a relation of any other person has been mentioned. All this improvements in his testimony before Court, further strengthens doubt against his credibility. 26. Complainant Babusingh (PW I) as he himself admits in his cross-examination was a police head constable and on 14.11.1991 was posted in purani Chhawni. He admits that he was on duty on 14.11.1991 (para 45). He also admits that there was a duty register in police station in which their presence is marked. But at the same time. he also states that on 13.11.1991, around 7 O'clock in the evening he had come to his house from the police station and had not gone to the police station on the date of incident• i.e. 14.11.1991 (para 46 & 47) and thereby gives a reason to support the possibility of his presence at the time of incident. But one Ramlakhan Singh, a head constable of police station Purani Chhawni. Gwalior had been examined by the defence as a defence witness and he had produced the duty register of that police station. The relevant entry is Ex. 0-8 (copy 0-8-C). But one Ramlakhan Singh, a head constable of police station Purani Chhawni. Gwalior had been examined by the defence as a defence witness and he had produced the duty register of that police station. The relevant entry is Ex. 0-8 (copy 0-8-C). In this duty register this complainant Babusingh (PW 1) is clearly marked present on 14.11.1991 which in turn falsifies his statement about having not gone to police station on duty on 14.11.1991. i.e.. the date of incident. On 13.11.1991 it has been marked that he was on duty on guard at police station. This witness Ramlakhan (DW 1) has even stated that on 14.11.1991. Babusingh was on duty for the whole 24 hours and he remained there this was also mentioned in the rojnameha which was brought by him in the Court. From the testimony of this witness Ramlakhan and the duty register thus not only the complainant Babusingh is contradicted but it also makes his presence at the time of incident itself quite doubtful. The learned trial Court has failed to consider the specific falsehood in this respect in the testimony of complainant and has brushed aside the above referred testimony of DW 1 Ramlakhan Singh simply because he was not himself an eyewitness to the performance of any duties on the said date by complainant himself being on duty else where. The trial Court has failed to consider that has produced certain official record which itself falsified the testimony plainant. The learned trial Court has tried to conclude that in spite of his attendance on the date of incident in his thana, he could have been at the place of incident when it occurred by having short breaks, but that is not the case of prosecution and therefore a mere assumption by the trial Court. The case of prosecution as per the testimony of Babusingh (PW 1) was specifically that he had not all attended his duties at police station on 14.11.1991 but was absent since the evening of 13.11.1991 itself and that is falsified by the attendance register. 27. The case of prosecution as per the testimony of Babusingh (PW 1) was specifically that he had not all attended his duties at police station on 14.11.1991 but was absent since the evening of 13.11.1991 itself and that is falsified by the attendance register. 27. Thus, the testimony of complainant Babusingh (PW 1) regarding involvement of the appellants in the incident wherein the deceased was injured and killed, is not corroborated in material particulars relating to the sequence of the events as to when, where and how the shots attributed to appellants were fired, by other reliable evidence like that of Medical Expert. Even his testimony otherwise was also not consistent as there were variations between his first information report and his testimony in Court. There were improvements in his testimony in Court. Thus, his testimony in the Court was not corroborated even by his own FIR (Ex.P-l). Not only there was this want of corroboration in material particulars by other evidence but there was also sufficiently reliable evidence on record which falsifies him and even makes his presence at the spot itself doubtful. The doubt becomes further strengthened by the valid reasons for him to testify against the appellants. The reasons were that he himself happened to be close relation of the deceased and the deceased who was his own brother had an enmity and old dispute with the appellants. The complainant has in his cross-examination (para 58) admitted that before the incident the deceased had himself told him that some unknown persons had threatened him for life and this makes it possible that the deceased was killed by some unknown persons and since the assistants were unknown, the complainant implicated the appellants with whom members of his family were on inimical terms. Such a doubt is also strengthened by the want of corroboration and hostility of witnesses namely, Umadevi (PW7) and Tejendrasingh (PW4) who were none else than the sister and the sister's husband of the deceased. Thus, considering the prosecution evidence in totality, the testimony of complainant Babusingh (PW 1) also with regard to involvement of the appellants in causing of the injuries to the deceased is not reliable. The learned trial Court has failed to appreciate all the weaknesses in prosecution evidence, discussed hereinbefore. The finding of the learned trial Court therefore cannot be upheld and deserves to be set aside. The learned trial Court has failed to appreciate all the weaknesses in prosecution evidence, discussed hereinbefore. The finding of the learned trial Court therefore cannot be upheld and deserves to be set aside. Accordingly it is set aside and it is held that the prosecution has failed to prove its case against the appellants beyond reasonable doubts. The appellants atleast deserve the benefit of doubt. Their impugned convictions and sentences are accordingly set aside. Both the appeals (Criminal Appeal No. 348/96. and Criminal Appeal No. 342/96) are allowed. The appellant Ashok is in custody. He be released forthwith. The appellants Rajendrasingh and Rambaran as per their counsels, are on bail. Their bail bonds shall stand cancelled. ......................