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2013 DIGILAW 1116 (MP)

Mukesh @ Bittu v. State of M. P.

2013-09-13

M.K.MUDGAL, S.K.GANGELE

body2013
JUDGMENT : M.K. MUDGAL, J. 1. By this judgment both the Criminal Appeal No. 31 of 2004 (Mukesh @ Bittu vs. State of M.P.) and Criminal Appeal No. 57 of 2004 (Pushpee @ Pushpendra Singh vs. State of M.P.) are being disposed of simultaneously by a common judgment, as the aforesaid appeals are arising out of the judgment dated 12-12-2003 passed by the Court of IV Additional Sessions Judge, Gwalior (Smt. Laxmi Sharma) in Sessions Trial No. 176 of 2002 convicting the accused Mukesh alias Bittu under section 302 read with section 34 of Indian Penal Code and sentencing him to undergo life imprisonment with fine of Rs. 5000/- and the accused Pushpee alias Pushpendra Singh under section 302 of Indian Penal Code and under section 25/27 of the Arms Act and sentencing him to undergo life imprisonment with fine of Rs. 5000/- and three years RI with fine of Rs. 1000/- respectively with default stipulation mentioned in the impugned judgment. 2. The following admitted facts have come on record as under: The witness Jitendra Singh Kushwah (PW-1) and Devendra Singh Kushwah (PW-10) are the deceased Manna Singh's sons. The witness Dr. G.S. Tomar (PW-9) is the Father-in-law of the offspring of the deceased. There is no dispute regarding the homicidal death of Manna Singh and Ramshankar Yadav. 3. The story of the prosecution is as follows: Jitendra Singh Kushwah (PW-1) lodged the report Ex.P.1 on 30-12-2001 at 19-15 P.M. at Police Station Morar alleging that on the same day at 18.45 P.M. he had gone to “Shivalaya” STD PCO carrying tiffin for his father who was sitting at the PCO and parked his scooter near the PCO. At the same time, he saw the alleged Pushpee @ Pushpendra Singh along with his companion came there on Motorcycle which was being driven by his companion. The accused Pushpendra Singh straightway rushed into the PCO where, the complainant's father Manna Singh and other retired Military personnel namely Ramshanker Yadav were sitting. At once, Pushpendra Singh fired shots at Manna Singh, when Ramshankar Yadav tried to rescue the Jitendra Singh (PW-1) father, the accused Pushpendra Singh also fired at him too. After the fire, the accused Pushpendra Singh fled away with his companion who was ready for driving on motorcycle. Later, Manna Singh was taken to the J.A. Hospital, where, doctors declared him dead. After the fire, the accused Pushpendra Singh fled away with his companion who was ready for driving on motorcycle. Later, Manna Singh was taken to the J.A. Hospital, where, doctors declared him dead. Thereafter, the report Ex.P/1 was lodged by Jitendra Singh (PW-1). The said report was written by M.L. Verma Station House Officer (PW-15). 4. The investigation was conducted by M.L. Verma (PW-15) who prepared the spot map Ex.P/4 on the day of incident after reaching the spot. The three used cartridges were seized vide Ex.P/5 and blood stained soil was collected from the spot vide Ex.P/6. After making the inquest reports of both the deceased, the Post-mortem was got conducted by Dr. J.N. Soni (PW-13). The reports of which are Ex.P/17 and P/18. During investigation, the statements of the witnesses were recorded. From the statements of the witnesses, it was revealed during investigation that the accused Pushpendra Singh used to make frequent calls from the PCO without paying any charges and he was due to pay more than Rs. 2000/- as charges. On account of this, the accused Pushpendra Singh committed this crime. 5. Further, during investigation, accused Pushpee @ Pushpendra was arrested vide Ex.P/26, interrogated and his statement under section 27 of Cr.P.C. was recorded, on the basis of which, the Motorcycle used in the incident and Mobile phone were seized vide Ex.P/15 at his instance. Further on the basis of information Ex.P/7 divulged by him during investigation, the weapon used for offence, the revolver was seized vide Ex.P/8 and all the seized articles were sent for Serological examination vide Ex.P/28. 6. After investigation was over, charge-sheet was submitted in the Court of Judicial Magistrate First Class from where, it was received by the trial Court for trial. Learned trial Judge on the basis of the allegations made in the charge-sheet, framed charges against appellant Bittu @ Mukesh punishable under section 302/34 of Indian Penal Code and against appellant Pushpee @ Pushpendra under section 302 in alternative 302/34 and under section 25/27 of the Arms Act. Needless to emphasize that all the accused denied allegations levelled against them and pleaded that they had been falsely implicated in the case due to enmity. 7. In order to bring home the charges, the prosecution examined as many as 15 witnesses as (PW-1) to (PW-15) and placed the documents Ex.P/1 to P/28 on record. Needless to emphasize that all the accused denied allegations levelled against them and pleaded that they had been falsely implicated in the case due to enmity. 7. In order to bring home the charges, the prosecution examined as many as 15 witnesses as (PW-1) to (PW-15) and placed the documents Ex.P/1 to P/28 on record. The accused in support of their defence examined Suresh Singh (DW-1). 8. Learned trial Judge on the basis of the documents and evidence placed on record, came to hold that the charges are proved against the accused and accordingly convicted and sentenced them which has been mentioned herein above. The present appeals have been filed by the appellants. 9. The following question crops up for consideration in this appeal: “Whether the findings recorded by the learned trial Court convicting and sentencing the accused are based on proper appreciation of the recorded evidence?” 10. Heard the arguments and perused the record. 11. In accordance with the prosecution story, the witness Jitendra Singh Kushwah (PW-1) deposing in Paras 1 to 6 of his statement has explicitly stated that on the day and time of the incident, he had gone to his S.T.D. P.C.O. carrying tiffin for his father. There he saw the accused Pushpendra Singh along with his accomplice, Bittu alias Mukesh arriving at the PCO. Then Pushpendra Singh rushed into the PCO hurriedly and fired shots at his father and Ramshankar Yadav quickly and after shooting them, he immediately fled away from the spot along with Bittu alias Muksh on Motorcycle. The witness was cross-examined at length on behalf of the accused. 12. There is no dispute regarding homicidal death of both the deceased Manna Singh and Ramshankar Yadav. The Post-mortem report Ex.P/17 of Manna Singh and Ex.P/18 of Ramshankar Yadav have been proved by Dr. J.N. Soni (PW-13) who has opined in Para 3 of his statement that Ramshankar Yadav's death was caused by loss of blood from the injuries inflicted on his neck by a fire arm. Ramshankar's death was homicidal in nature and the injury received by him was grave enough in the ordinary course of nature to cause death. The witness has further opined in para 8 of his statement that Manna Singh's death was caused because of the shock and blood loss caused by serious injuries received on his neck and head by a fire arm. The witness has further opined in para 8 of his statement that Manna Singh's death was caused because of the shock and blood loss caused by serious injuries received on his neck and head by a fire arm. The injuries received by him in the ordinary course of nature were grave enough to cause the death of any human being. The doctor's statement has not been challenged about the opinion regarding the cause of death of Manna Singh and Ram Shankar Yadav. 13. The learned counsel Shri N.P. Dwivedi for the appellant Pushpendra Singh drawing the attention to the statement of Awadh Bihari Nigam (PW-4) Atar Singh (PW-5), Ajab Singh (PW-6) and Mahendra Singh (PW-7) the eye-witnesses of the incident, has vehemently contended that all the aforesaid witnesses have neither taken the name of the accused Pushpendra Singh firing shots at the deceased persons nor did they assert the presence of Jitendra Singh Kushwah (PW-1) rather they have stated in their statements that Jitendra Singh Kushwah (PW-1) was not present on the spot when the incident occurred and he came there later after receiving the information about the same. The counsel further submitted that considering the said statements of the witnesses, suspicion arises about the presence of Pushpendra Singh on the spot and his statement therefore, cannot be relied upon as an eye-witness. 14. To bolster his submission, learned counsel has relied upon the judgment in Lallu Manjhi and Another vs. State of Jharkhand, AIR 2003 SC 854 , in Para 10 of the judgment, the Hon'ble Apex Court has held as under: “10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.” 15. The argument was considered. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.” 15. The argument was considered. The submission made by the learned counsel is not acceptable as all the witnesses turned hostile therefore, they were cross-examined by the prosecution after being declared hostile and the said witnesses have denied the previous statements Ex.P/9 to Ex.P/12 respectively recorded during the investigation wherein, they had deposed about the presence of Jitendra Singh Kushwah (PW-1) and the act of firing being committed by the accused Pushpendra Singh. In view of the said facts, no inference can be drawn in favour of the accused Pushpendra Singh that he had not committed the offence and Jitendra Singh Kushwah (PW-1) was not present on the spot. It is clarified here that the statement of a hostile witness can be relied upon to some extent to corroborate the prosecution but no benefit can accrue to the accused on the basis of such statement. 16. It is true that in the instant case Jitendra Singh Kushwah (PW-1) is the only eye-witness who has been relied upon by the learned trial Court in convicting the accused since all other eye-witnesses Awadh Bihari (PW-4), Atar Singh (PW-5), Ajab Singh (PW-6) and Mahendra Singh (PW-7) have not corroborated the prosecution story. The witness Devendra Singh Kushwah (PW-10) the brother of Jitendra Singh Kushwah (PW-1) and Dr. G.S. Tomar (PW-9) are admittedly not the eye-witnesses of the incident as according to their statements, they arrived at hospital only after receiving the information about the incident. The learned counsel further submits that the presence of Jitendra Singh Kushwah (PW-1) is not natural as the distance of his residence from the site of the crime is one and half Kms and story of bringing tiffin for his father does not appear plausible as the time stated for this reason also does not seem to be convincing. The learned counsel further submits that the presence of Jitendra Singh Kushwah (PW-1) is not natural as the distance of his residence from the site of the crime is one and half Kms and story of bringing tiffin for his father does not appear plausible as the time stated for this reason also does not seem to be convincing. Besides, the blood stained clothes of Jitendra Singh Kushwah (PW-1) and tiffin and scooter of Jitendra Singh Kushwah (PW-1) were not seized by the police which shows that the statement of Jitendra Singh Kushwah (PW-1) about the lifting his father after the incident in the injured condition is totally false and it can be further inferred that the Jitendra Singh Kushwah (PW-1) has been introduced as an eye-witness in this case being the son of the deceased. 17. The submissions made by the learned counsel for the appellant were considered. It is a case of double murder. Although Jitendra Singh Kushwah (PW-1) is the son of deceased, his testimony cannot be discarded only on this ground as in Kartik Malhar vs. State of Bihar, 1995 AIR SCW 4540 in which, it has been held as under: “Conviction can be recorded on the basis of the statement of single eye-witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye-witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. Indeed, the Courts insist on the quality and not on the quantity of evidence.” 18. On careful perusal of the statement of Jitendra Singh Kushwah (PW-1), it appears that nothing has been elicited in the cross-examination to record a finding that the evidence is improbable or suspicious and deserves to be rejected. Jitendra Singh Kushwah (PW-1) has no motive to implicate the accused falsely and that apart from that, his testimony has withstood the rigorous cross-examination in material particulars and received corroboration from the evidence of the doctor. That apart, from the above, it is almost well-nigh impossible to believe that the Jitendra Singh Kushwah (PW-1) has any animosity for some reason to see that the accused persons are convicted. That apart, from the above, it is almost well-nigh impossible to believe that the Jitendra Singh Kushwah (PW-1) has any animosity for some reason to see that the accused persons are convicted. We do not find any reason to differ with the said evaluation solely on the ground that he is related to the deceased person Manna Singh i.e. the son of the deceased or he could not see the occurrence. It is the relatives who would come forward to depose against the real culprit and would not like to falsely implicate the others. In case of Sher Singh and Others vs. State of Haryana the Hon'ble Apex Court has held that relationship of the witnesses with the deceased by itself is no ground to reject their testimony, as a matter of fact that witness would be the last person to implicate somebody falsely. Conviction can be based on their testimony. See also on this point Dalip Singh and Others vs. State of Punjab, AIR 1953 SC 364 . Moreover, Jitendra Singh Kushwah (PW-1) has stated in para 15 of his cross-examination that he used to carry tiffin for his father generally between 6-30 to 8.00 P.M. and hence, his statement that he took the tiffin at 6 P.M. on that date, cannot be disbelieved. 19. It is true that in Para 17 of Jitendra Singh Kushwah (PW-1) statement, it has come on record that the clothes worn by him at the time of lifting his father were smeared with blood stains but the police did not seize them. The witness M.L. Verma (PW-15) has deposed in Para 23 of his statement that he did not take notice of the informer Jitendra Singh Kushwah (PW-1) about his clothes being stained with blood or not. In our opinion, not seizing the blood stained clothes of Jitendra Singh Kushwah (PW-1) does not affect the credibility of the statement of (PW-1) and the prosecution story. As the instant case is not based on circumstantial evidence rather Jitendra Singh Kushwah (PW-1) has firmly deposed in his statement to have seen the incident. In our opinion, not seizing the blood stained clothes of Jitendra Singh Kushwah (PW-1) does not affect the credibility of the statement of (PW-1) and the prosecution story. As the instant case is not based on circumstantial evidence rather Jitendra Singh Kushwah (PW-1) has firmly deposed in his statement to have seen the incident. Similarly, that the submission of the learned counsel to this effect that the scooter and tiffin carried by Jitendra Singh Kushwah (PW-1) were not seized, has also no significance as both the said items were neither related to the offence nor were they part of STD PCO where the said crime happened nor were they used in committing the offence. Furthermore, M.L. Verma (PW-15) has deposed in Para 23 that when he arrived at the scene of crime and prepared the spot map Ex.P/4, he saw a scooter parked in front of PCO but he did not deem it necessary to seize it. His statement corroborates the fact that there indeed was a scooter parked in front of the PCO as also deposed by Jitendra Singh Kushwah (PW-1) in Para 15 of his statement. 20. The learned counsel Shri Dwivedi appearing on behalf of the appellant Pushpendra Singh placing heavy reliance on L/N.K. Mehraj Singh vs. State of U.P. 1995 Cri. L.J. 457 and M.C. Ali and Another vs. State of Kerala, (2010) 2 SCC (Cri) 885, Paras 33, 34 and 36 has contended that in the inquest report prepared under section 174 of Criminal Procedure Code the Ex.P/2 and Ex.P/3 of the deceased Manna Singh and Ex.P/20 of the deceased Ramshankar Yadav details of the FIR, name of the accused and the gists of the offence have not been mentioned so it reflects that the FIR was not recorded promptly till the preparation of Ex.P/2 and P/3 and Ex.P/20 and also indicates that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. 21. The I.O. M.L. Verma (PW-15) deposing in Para 6 has stated that the inquest report Ex.P/2 and P/3 of the deceased Manna Singh and Ex.P/20 of the deceased Ramshankar Yadav were prepared by him on 31-12-2001. In Para 18 of the statement, it has come on record that the number and details of FIR have not been stated in Ex.P/2, Ex.P/3 and Ex.P/20. In Para 18 of the statement, it has come on record that the number and details of FIR have not been stated in Ex.P/2, Ex.P/3 and Ex.P/20. However, the witness has clarified that there is no column in the said document for writing the number of FIR and details of the incident. The clarification given by the witness appears to be correct and convincing as the scope of section 174 of the Criminal Procedure Code, has been elaborately discussed by the Hon'ble Apex Court in the judgment of Radha Mohan Singh alias Lal Saheb and Others vs. State of U.P. AIR 2006 SC 951 (three Judge Bench). The Hon'ble Apex Court has held the view as follows: “12. The provision for holding of inquest is contained in section 174, Criminal Procedure Code and the heading of the section is Police to enquire and report on suicide etc. Sub-Sections (1) and (2) thereof read as under: 174. Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. (2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate. (2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under section 174. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details. 13. In Podda Narayana vs. State of A.P. AIR 1975 SC 1252 , it was held that the proceedings under section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader vs. Nausher Gama, AIR 1975 SC 1324 , the contention raised that non-mention of a person's name in the inquest report would show that he was not an eyewitness of the incident was repelled on the ground that an inquest under section 174, Criminal Procedure Code is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig vs. State of Andhra Pradesh, AIR 1987 SC 923 , that the non-mention of name of an eyewitness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Podda Narayana vs. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853 and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under section 174, Criminal Procedure Code was also explained in Amar Singh vs. Balwinder Singh, 2003 (2) SCC 518 . In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the Investigating Officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in section 174, Criminal Procedure Code and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. After noticing the language used in section 174, Criminal Procedure Code and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eyewitness. In Meharaj Singh vs. State of U.P. (supra) the language used by the legislature in section 174, Criminal Procedure Code was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in Paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby overruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted.” 22. In the said judgment, the Apex Court has overruled the judgment L/N. K Mehraj Singh vs. State of UP and Others (supra), cited by the learned counsel for the appellant, while the case was being argued by the learned counsel Shri N.P. Dwivedi, it was brought to the notice of the learned counsel by the Court that the referred judgment by him had already been overruled by the Hon'ble Supreme Court. Furthermore, cited the judgment reported as M.C. Ali and Another vs. State of Kerala (supra) by the appellant, no mention of the law laid down relating to section 174 of the Cr.P.C. has been made and the said judgment is based on the facts. 23. Furthermore, cited the judgment reported as M.C. Ali and Another vs. State of Kerala (supra) by the appellant, no mention of the law laid down relating to section 174 of the Cr.P.C. has been made and the said judgment is based on the facts. 23. Considering the above analysis, it is concluded that as contended by the appellant's counsel, no mention of the number of FIR and details of the incident in the inquest report Ex.P/2 and P/3 and Ex.P/20 either creates suspicion about the story of prosecution or it leads to the inference about the FIR being antedated and ante-timed. Indu Bai vs. State of M.P. 2010 ILR (MP) Note 7, it has been held that there is no absolutely requirement of law for mentioning the number of FIR, names of the accused and the witnesses in the inquest report prepared under section 174 of the Criminal Procedure Code. 24. The learned counsel for the appellant drawing the attention to Para 17 of the statement of Jitendra Singh Kushwah (PW-1) has submitted that according to the statement of Jitendra Singh Kushwah (PW-1), he went to police station for lodging the report after leaving the dead body of his father at J.A. Hospital for post-mortem. On the contrary, the witness Dr. G.S. Tomar (PW-9) has deposed in Paras 7 and 8 that when he arrived at hospital, he found Jitendra Singh Kushwah (PW-1) there and after that Jitendra Singh Kushwah (PW-1) was with him till 1 A.M. The counsel has further contended that if Jitendra Singh Kushwah (PW-1) had been with Dr. G.S. Tomar (PW-9), it cannot be construed that the report Ex.P/1 was lodged by Jitendra Singh Kushwah (PW-1) as stated by him at about 19.15 P.M. 25. The argument was considered. On perusal of Ex.P/1, it becomes clear that the said report was lodged by Jitendra Singh Kushwah (PW-1) at 19.15 P.M. at PS Morar. During cross-examination of Jitendra Singh Kushwah (PW-1), he was not asked as to when he reached and left J.A. Hospital and arrived at PS Morar. Besides in Para 6 of the statement of Dr. G.S. Tomar (PW-9), it has come on record that Dr. During cross-examination of Jitendra Singh Kushwah (PW-1), he was not asked as to when he reached and left J.A. Hospital and arrived at PS Morar. Besides in Para 6 of the statement of Dr. G.S. Tomar (PW-9), it has come on record that Dr. G.S. Tomar (PW-9) reached STD PCO i.e. the scene of crime between 7.30 to 8 P.M. after receiving information from Jitendra Singh Kushwah (PW-1) by Mobile and on learning about the crime at the spot, he went to the J.A. Hospital which is some 10 Kms away from the scene of the crime as stated by Jitendra Singh Kushwah in Para 4 of his statement. Moreover, he was not asked in the cross-examination about what time, he reached the hospital. Considering the distance between two places, it is natural for him to have reached the hospital only after 8 PM. In the said circumstances, it was quite possible for Jitendra Singh Kushwah (PW-1) to have lodged the FIR Ex.P/1 at 19-15 P.M. and thereafter, he came back to the hospital about 8 P.M. Therefore, the statement of Jitendra Singh Kushwah (PW-1) and Dr. G.S. Tomar (PW-9) can neither be deemed contradictory nor it can be inferred that the Jitendra Singh Kushwah (PW-1) had not gone to PS Morar from the hospital at 19.15 P.M. Hence, the aforesaid contention submitted by the learned counsel cannot be accepted. 26. The learned counsel for the appellant has further argued that the post-mortem reports Ex.P/17 of the deceased Ramshankar Yadav and Ex.P/18 of the deceased Manna Singh do not confirm the statement of Jitendra Singh Kushwah (PW-1) Dr. J.N. Soni (PW-13) deposed in paraa 3 and 8 of his statement that the injuries caused by fire arms to the deceased Ramshankar Yadav and Manna Singh described in post-mortem reports Ex.P/17 and P/18 respectively from distance whereas, accordingly to paras 23 and 24 of the statement of Jitendra Singh Kushwah (PW-1), the accused Pushpendra Singh shot the fires on both the deceased inside the PCO office room after his entry. On account of this, it cannot be believed that the Jitendra Singh Kushwah (PW-1) was actually present there. To bolster his submission, the learned counsel placed reliance on the judgment Chhabilal and Another vs. State of M.P. ILR (2009) MP 536. 27. On account of this, it cannot be believed that the Jitendra Singh Kushwah (PW-1) was actually present there. To bolster his submission, the learned counsel placed reliance on the judgment Chhabilal and Another vs. State of M.P. ILR (2009) MP 536. 27. On perusal of the post-mortem reports Ex.P17 and Ex.P18, it becomes clear that no specific distance has been mentioned by Dr. J.N. Soni (PW-13) in them. Similarly, even Dr. J.N. Soni (PW-13) has not deposed in his statement about the distance of firing. However, Jitendra Singh Kushwah (PW-1) has stated in Para 24 of his statement that the accused Pushpendra Singh fired a shot at his father from a distance of nearly 3 to 4 feet. The spot map Ex.P/4 proved by M.L. Verma (PW-15) in Paras 3 and 16 of his statement corroborates the statement of Jitendra Singh Kushwah (PW-1). Thus, it is evident that the statement of Jitendra Singh Kushwah (PW-1) and Dr. J.N. Soni (PW-13) and the post-mortem reports are not contradictory to one another. The cited judgment is based on quite distinct facts and no advantage can be given to the accused. Therefore, the argument put forth by the learned counsel for the accused is not accepted. 28. The learned counsel for the appellant has strenuously argued that the prosecution has utterly failed to prove the compliance of the section 157 of the Criminal Procedure Code which is mandatory. According to the provision, the FIR had to be sent to the concerned Magistrate without any delay but in the instant case the FIR Ex.P1 was sent to the Magistrate on 3-1-2002. The said fact has been proved by the appellant producing the witness Suresh Singh, Constable (DW-1) who has deposed in his statement that the FIR Crime No. 874/2001 was submitted before the Court on 3-1-2002 by him. The learned counsel for the appellant has further argued that the delay in sending the report shows that it was ante timed and antedated and further it creates a great suspicion about the prosecution story. 29. To bolster his submission, the learned counsel has placed reliance upon the judgments Shivlal and Others vs. State of Chhattisgarh, (2011) 3 SCC (Cri) 777, Chikkarangaih and Others vs. State of Karnataka, (2011) 1 SCC (Cri) 1071 and Mathura Yadav vs. State of Bihar, 2003 (1) MPWN 164 . The submission was considered. 29. To bolster his submission, the learned counsel has placed reliance upon the judgments Shivlal and Others vs. State of Chhattisgarh, (2011) 3 SCC (Cri) 777, Chikkarangaih and Others vs. State of Karnataka, (2011) 1 SCC (Cri) 1071 and Mathura Yadav vs. State of Bihar, 2003 (1) MPWN 164 . The submission was considered. On perusal of the cited judgments, it becomes clear that it has not been held that the non-compliance of the said provision i.e. section 157 of the Cr.P.C. makes the prosecution story infructuous as well as fatal to the investigation too. In Shivlal and others (supra) the Supreme Court has determined that every delay in sending report to the Magistrate would not necessarily lead to inference that FIR has not been lodged at the time stated or investigation is not fair and forthright. 30. It is true that the prosecution has not produced any evidence regarding compliance of section 157 of the Criminal Procedure Code. Besides, M.L. Verma (PW-15) was cross-examined in Para 13 in this regard wherein he has not given any particular date of sending the FIR to the concerned Magistrate. The statement of Constable, Suresh Singh (DW-1) makes it clear that the FIR was sent to the concerned Magistrate on 3-1-2002. However, no adverse inference can be drawn in the instant case that the FIR Ex.P/1 was not lodged on 30-12-2001 at 19.15 P.M. as the lodging of the report on 30-12-2001 has been proved by M.L. Verma (PW-15) in Para 1 of his statement. Moreover, on the same date, the spot map Ex.P/4, the seizure memo Ex.P/3 and other seizure memo Ex.P/6 whereby blood stained soil and simple soil seized were prepared by the M.L. Verma (PW-15) and all these documents bear FIR number, over and above, Ex.P/13 the seizure memo and Ex.P/27 another seizure memo were prepared on 31-12-2001 which too bear FIR number. Therefore, it cannot be inferred that the FIR was not written before 3-1-2002. 31. The instant case is based on the statement of the eyewitness Jitendra Singh Kushwah (PW-1) whose statement has come on record as genuine and trustworthy after a close scrutiny and a lengthy cross-examination. It was the duty of M.L. Verma (PW-15) I.O. to send the report immediately to concerned Magistrate and in case of any delay in sending the report he should have made it clear. It was the duty of M.L. Verma (PW-15) I.O. to send the report immediately to concerned Magistrate and in case of any delay in sending the report he should have made it clear. M.L. Verma (PW-15) has not discharged his duty sincerely in this respect. In a heinous crime of the double murder case, if there has been any lapse on the part of I.O. the prosecution story cannot be disbelieved on this ground only as the aggrieved party has no control over the act of investigation officer. In the instant case, it has become proven on the basis of the statement of Jitendra Singh Kushwah (PW-1) and other corroborative evidence. The Hon'ble Apex Court in the case of Ambika Prasad vs. State (Delhi Administration), 2000 SCC (Cri) 522, has held as under: “In a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively. A criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” 32. In the judgment of Manga @ Mansingh vs. State of Uttarakhand, 2013 Cri. L.J. 3332 (SC) in Paras 19 and 20 the Hon'ble Supreme Court has held as under:- “19. Per Contra, it will be appropriate to refer to a reasoned decision of this Court reported in Sandeep vs. State of Uttar Pradesh, 2012 (6) SCC 107 , wherein this very Bench dealt with the implication of section 157, Criminal Procedure Code and held as under in paragraphs 62 and 63: “62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under section 157, Criminal Procedure Code instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh vs. State of Punjab, AIR 1972 SC 2679 , wherein this Court has clearly held that: “Where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.” 63. Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Ishwar Singh vs. State of U.P. AIR 1976 SC 2423 and Subash Chander vs. Krishan Lal, AIR 2001 SC 1903 . We can also refer to a recent decision of this Court in Bhajan Singh alias Harbhajansingh and Others vs. State of Haryana, (2011) 7 SCC 421 : AIR 2011 SC 2552 . Relevant Paras 29 and 31 (Paras 15 and 16 of AIR) are as under:- 29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression “forthwith” mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. Every such delay is not fatal unless prejudice to the accused is shown. The expression “forthwith” mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.” 33. In Para 29 of the impugned judgment the learned trial Court has considered this issue and has opined that the delay in sending the report is not fatal in this case. The findings of the learned trial Court in this case seem to be proper. 34. The learned counsel has further submitted that in Paras 4, 9 and 13 of the Jitendra Singh Kushwah (PW-1), it has come on record that the accused Pushpendra Singh owed Rs. 2000/- to Manna Singh for having made a number of calls from the S.T.D. P.C.O. earlier without paying anything to him and he had a kind of dispute before over the payment of the charges and in the light of this fact, the prosecution has shown it to be the motive of this incident but the documents related to the due amount of charges were not seized during investigation owing to which, the prosecution story should not be believed regarding motive of the accused for committing the offence. It is true that the documents relating to due payment of charges were not seized whereas Jitendra Singh Kushwah (PW-1) has stated in Para 10 of his statement that he has shown the register of P.C.O. to the police but it was not seized by them. In the instant case, the seizure of the register of P.C.O. for proving the due amount of charges was not so essential so as to disbelieve the prosecution. It was only obligatory to make the motive clear and it was to be proved by the evidence. Jitendra Singh Kushwah (PW-1) has successfully proved the motive in this case. 35. In the instant case, the seizure of the register of P.C.O. for proving the due amount of charges was not so essential so as to disbelieve the prosecution. It was only obligatory to make the motive clear and it was to be proved by the evidence. Jitendra Singh Kushwah (PW-1) has successfully proved the motive in this case. 35. The learned counsel further submits that the report of Ballistic Expert has not been produced for proving the fact that the shots fired by the seized revolver vide Ex.P/8 from the possession of the accused Pushpendra Singh and so it cannot be held that the seized revolver was used by the accused in committing the crime. The said issue has been taken into account in the impugned judgment in Paras 47 to 49 and it has been held that it has no effect. 36. M.L. Verma (PW-15) has deposed in Para 11 that the seized properties/articles were sent by him for examination to the F.S.L Sagar vide memo Ex.P/28. It is true that the report of F.S.L. too has not been produced on record and no explanation has been given by the prosecution in this regard. Undoubtedly, it appears to be gross-negligence on the part of the prosecution for not producing the said report but no advantage can be conferred to the accused for the negligence of the prosecution in the instant case as discussed by the learned trial Court in Paras 47 to 49 and held that the revolver used in the crime was seized from the possession of the accused Pushpendra Singh. Besides, the (PW-3) Santosh Singh Parmar who examined the revolver has opined that the seized weapon was found in running condition. The findings of the learned trial Court in this regard also appear to be just. 37. The Hon'ble Apex Court in Karnel Singh vs. State of M.P. (1995) 5 SCC 518 has held as under: “Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. The findings of the learned trial Court in this regard also appear to be just. 37. The Hon'ble Apex Court in Karnel Singh vs. State of M.P. (1995) 5 SCC 518 has held as under: “Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.” Considering the above analysis and recorded evidence, it is found that the findings recorded by the trial Court convicting the accused Pushpee @ Pushpendra Singh are based on proper appreciation of evidence. 38. The learned counsel for the appellant Bittu @ Mukesh has pleaded that name of the said co-accused has not been mentioned in the F.I.R. Ex.P/1 and no identification parade was conducted by the prosecution by Jitendra Singh Kushwah (PW-1) after the arrest of the accused. In the instant case, the conviction of the said accused is based solely on the statement of Jitendra Singh Kushwah (PW-1). The counsel further submitted that the learned trial Court has committed a mistake to have relied upon the statement of Jitendra Singh Kushwah (PW-1) as the said witness has identified the accused in the dock identification after a long period since the incident. Dock identification of the accused by the witness Jitendra Singh Kushwah (PW-1) has no significance for convicting the accused. The counsel further submitted that the appellant-accused Bittu alias Mukesh was neither armed with any weapon nor any injury was caused by him to the deceased nor any allegation of exhortation is against him. 39. Learned trial Court in Para 27 of the judgment relying upon the statement of eye-witness Jitendra Singh Kushwah (PW-1) has found that the present appellant along with co-convict Pushpee alias Pushpendra Singh came on Motorcycle and the appellant was driving the motorcycle. He stopped the Motorcyle in front of STD PCO at a distance and then co-accused Pushpee alias Pushpendra Singh entered into the shop of STD and fired shots at Manna Singh and also at Ramshankar, resulting into their death. He stopped the Motorcyle in front of STD PCO at a distance and then co-accused Pushpee alias Pushpendra Singh entered into the shop of STD and fired shots at Manna Singh and also at Ramshankar, resulting into their death. After the incident, co-accused came outside the shop and sat on motorcycle of the present appellant and both of them ran away from the spot but the said findings being not based on proper reasonings, deserve to be set aside. The counsel has further argued that no other witness has taken the name of the accused being involved in this offence. To bolster his submissions the learned counsel has placed reliance on the judgment of Mohanlal Gangaram Gehani vs. State of Maharashtra, AIR 1982 SC 839 in which, it has been held as under: “20. Thus, as Shetty did not know the appellant before the occurrence and no Test Identification Parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticizing the evidence of Dr. Heena when her evidence was true and straightforward. 25. As that of Shetty PW-3 (Sheikh) admits at Page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the Court, in the absence of a test identification parade the evidence of PW-3 was valueless and could not be relied upon as held by this Court in V.C. Shukla vs. State (Delhi Administration), (1980) 3 SCR 500 : AIR 1980 SC 1382 , where this Court made the following observations (at p. 1396 of AIR): “Moreover, the identification of Tripathi by the witness for the first time in the Court without being tested by a prior test identification parade was valueless.” 26. Same view was taken in a Federal Court decision in Sahdeo Gosain vs. The King Emperor, (1944) 6 FCR 223 : AIR 1944 FC 38.” 40. Further in Ravi alias Ravichandran vs. State, AIR 2007 SC 1729 , the Hon'ble Apex Court has held as under: “It is no doubt true that the substantive evidence of identification of an accused is the one made in the Court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. Such test identification parade is required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographers published in the newspaper.” 41. On perusal of the record, it becomes clear that name of the accused Bittu @ Mukesh has not been mentioned in the F.I.R. Ex.P/1 which was lodged by Jitendra Singh Kushwah (PW-1) who has claimed himself to have witnessed the occurrence. In Paras 1, 22, 23, 24, 27 and 28 of the statement of Jitendra Singh Kushwah (PW-1), it has unequivocally come on record that the witness was not acquainted with the accused Bittu @ Mukesh before this incident. In Paras 1, 22, 23, 24, 27 and 28 of the statement of Jitendra Singh Kushwah (PW-1), it has unequivocally come on record that the witness was not acquainted with the accused Bittu @ Mukesh before this incident. Owing to this fact, the name of the accused Bittu @ Mukesh was not got written in the F.I.R. Ex.P/1. In Para 25 of the statement, the witness Jitendra Singh Kushwah (PW-1) has admitted that he had not seen him again since the incident occurred. After the incident the witness identified the accused in the Court during the recording of his statement and further he admitted that the identification parade was also not got conducted by the police from him. M.L. Verma (PW-15) has admitted in his statement that the identification parade of the accused Bittu @ Mukesh was not got conducted by him from Jitendra Singh Kushwah (PW-1) and he has given the explanation that name of the accused Bittu @ Mukesh came to be known in the investigation. The explanation given by M.L. Verma IO (PW-15) is not only baseless but also appears to be false so as to hide his negligence in investigation by not getting identification parade conducted from Jitendra Singh Kushwah (PW-1) who was the key witness of this case. It is plausible that he might have intended that by not conducting the identification parade the accused Bittu @ Mukesh may get benefit for this lapse. It was double murder case, so it was highly expected from the I.O. to prove into the matter sincerely and diligently. However, he has failed in discharging his duty. Consequently, the accused Bittu alias Mukesh is getting benefit of doubt in this case. 42. The sole statement of Jitendra Singh Kushwah (PW-1) has no substance against the accused Mukesh as no other witness has deposed in his statement that the accused Bittu @ Mukesh was seen riding on the Motor-cycle. In view of the aforesaid cited judgments, the testimony of Jitendra Singh Kushwah (PW-1) regarding dock identification against the accused Bittu @ Mukesh cannot be believed. 43. Considering the above analysis, it is concluded that the learned trial Court has not properly considered the evidence as well as the legal provision in convicting the accused Bittu @ Mukesh and so the said conviction of the accused Bittu @ Mukesh is not sustainable. 43. Considering the above analysis, it is concluded that the learned trial Court has not properly considered the evidence as well as the legal provision in convicting the accused Bittu @ Mukesh and so the said conviction of the accused Bittu @ Mukesh is not sustainable. Hence, allowing the Criminal Appeal No. 31/2004, the conviction and sentence of the accused Bittu @ Mukesh under section 302/34 of the Indian Penal Code is hereby set aside. The accused is in jail since his arrest i.e. 24-6-2002 and has been serving sentence. His detention is cancelled. The accused Bittu @ Mukesh be released immediately. The information in this regard be sent to the jail authority that if the said accused is not required in any other case, he be released forthwith. 44. So far as the other accused Pushpendra Singh is concerned, on the analysis of the recorded evidence as discussed earlier, no flaw has been found in convicting the accused Pushpee @ Pushpendra Singh by the trial Court. Hence, affirming the conviction and sentence awarded by the learned trial Court to the accused Pushpee @ Pushpendra Singh, his Criminal Appeal No. 57/2004 being meritless and devoid of credence, is hereby dismissed. The accused is in jail. Information in this regard be sent to the accused in the jail. A copy of the judgment be sent to the concerned authority.