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2013 DIGILAW 534 (JK)

Krishan Lal v. State Of J&K

2013-09-11

ALI MOHAMMAD MAGREY, Hasnain Massodi

body2013
1. Criminal Appeal No. 38/2009 & Confirmation No. 13/2009 arises out of Trial Court judgment dated 06.06.2009 and order of the even date whereby the appellant has been convicted of offences punishable under Section 302, 450 RPC, Section 27 Indian Arms Act, 1959, sentenced to imprisonment for life, fine of Rs. 10,000/- and to default imprisonment for two months, imprisonment of five years, fine of Rs. 5,000/-, and default imprisonment for a period of one month and imprisonment for two years with fine of Rs. 5,000/- and imprisonment of one month in default of payment of fine. 2. Background facts alleged in the charge sheet and held to have been proved beyond reasonable doubt by the Trial Court need to be noticed in the first instance. 3. Shri Krishan Lal S/o Nek Ram R/o Salal Tehsil Reasi - appellant herein, is an employee of Public Works Department. IFCON is a construction company engaged in construction of Chenab Bridge Project, as a part of Udhampur - Srinagar Railway Line. The Company in connection with execution of contract bagged by it set up its office and residential quarters in a rented accommodation at Salal, Reasi. The appellant on 06.03.2005 at 9.30 PM, came to the residential quarters of the employees of the Company and introducing himself as a muscle man of the area, demanded money from Shri P. Vedhalingam working as Storekeeper in the Company, hurling abuses on the employees. Shri P. Vedhalingam objected to the appellant's behaviour, stating that he and others present were only employees of the company and he would take up the matter with the Company. The appellant, undeterred by the response of Shri P. Vedhalingam left the place, extending threats and with the warning that he would come back. The appellant after an interval of about 45 minutes returned to the residential quarters of Company Staff - now armed with the twelve bore gun arid open fire on Shri P. Vedhalingam. The bullet hit his abdomen. He was shifted to a local hospital in an injured condition where he succumbed to injuries. The appellant managed to escape from the scene of occurrence leaving behind his nylon chapels. 4. The occurrence was telephonically reported to Police Station, Reasi by Shri Maheshpai S/o Jagdeshpai R/o Kumta North, Karnataka an Engineer of the Company and posted with the deceased at Salal. The appellant managed to escape from the scene of occurrence leaving behind his nylon chapels. 4. The occurrence was telephonically reported to Police Station, Reasi by Shri Maheshpai S/o Jagdeshpai R/o Kumta North, Karnataka an Engineer of the Company and posted with the deceased at Salal. The report prompted Police Station, Reasi to register a case FIR no. 34/2005 under Sections 307,452, 323 RPC and 3/25 Arms Act. However, after the victim breathed his last, offence punishable under Section 307 RPC was substituted by offence punishable under Section 302 RPC. 5. The investigation was taken over by Shri Ranjeet Singh, SHO Police Station, Reasi in his own hands. He accompanied by Constables Mangal Singh 435/SGC, Mohammad Alam 245/C, Mohammad Freed 332/C, Kuldeep Raj 186/SGC, Abdul Zahoor 319/C, Suresh Singh & Ravinder 110/SGC went to the scene of occurrence and deputed Basant Lal ASI, Nazir Ahmad 364/. Makhan Lal 102/SPO to the hospital where deceased was rushed after occurrence, for treatment. The investigating officer seized nylon chapels, left behind by the appellant at the place of occurrence, lifted the blood stains for analysis, seized empty cartridge, took over dead body of the deceased got its postmortem examination conducted and forwarded the blood samples etc to Forensic Science Laboratory. The appellant was arrested and on his disclosure a twelve bore gun the weapon of the offence was recovered, sealed and sent to Forensic Science Laboratory for its examination by the Ballistic Expert. The Investigating Officer recorded statement of all those acquainted with the facts of the case and on the strength of material collected during investigation, concluded investigation as proved against the appellant. The charge sheet alleging commission of offences punishable under Sections 302, 450 RPC and 3/25 Arms Act was accordingly presented before the Committal Magistrate and the ease committed by the Magistrate to Sessions Court, Reasi. 6. The appellant, on 08.10.2005 was formally charged of the offences punishable under Sections 302, 450 RPC and 3/25 Arms Act. He pleaded not guilty and asked for a regular trial. The prosecution, in the circumstances, was asked to adduce necessary evidence to prove charge against the appellant. 7. The prosecution at the time it presented the charge sheet proposed to examine as many as 26 witnesses to substantiate charge against the accused. He pleaded not guilty and asked for a regular trial. The prosecution, in the circumstances, was asked to adduce necessary evidence to prove charge against the appellant. 7. The prosecution at the time it presented the charge sheet proposed to examine as many as 26 witnesses to substantiate charge against the accused. It also proposed to rely on the documentary evidence in the shape of seizure memos, disclosure memo and recovery memo, evidencing steps taken and the material collected by the Investigating Officer during investigation and the documents reflecting opinion of experts like the doctor who conducted postmortem examination and Forensic Science Experts. It also proposed to rely on the material like chapels left by the appellant at the scene of crime committing the offence, blood stains, clothes of the deceased, the empty cartridge and the weapon of offence. 8. The prosecution out of 26 witnesses listed in the charge sheet examined as many as 17 witnesses. The witnesses examined included PWs Vishwaragunathap, Sunderajan, Maheshpai, Jaswant Singh, Shanker Singh, Mohinder Singh, Abhishek Tikoo, S. Dharmarao and Sunil Bhogia, who witnessed the occurrence or came to the scene of occurrence immediately after the appellant opened fire on the deceased. S/Shri Hukumchand - local Patwari, Lakshman Singh -landlord in whose house occurrence took place, Shri Ashwani Kumar who took photographs of the scene of occurrence, Shri Gianchand Khajuria -- Revenue Officer in whose presence packets dispatched to the FSL were sealed, Dr. P. S. Thakur and Dr. Sayeed Riaz - who conducted the postmortem examination and Shri S. H. Bukhari - Forensic Expert. The prosecution witnesses who crossed the witness box proved Seizure Memos, EXPW BR, EXPW BR/1, EXPW BR/2, EXPW DS/2, EXPW DS/3, EXPW D/S4, EXPW NS, Death Report EXPW DS/5, Disclosure Memo EXPW SD, Recovery Memo, EXPW SD/1 and Spurdnama EXPW DS/7 & EXPW DS/8, Postmortem Report EXPW SR, FSL Report EXPW - 25, communication EXPW GC, Site Plan EXPW HC & Revenue Record EXPW HC/1. 9. The incriminatory material appearing in the prosecution evidence was on 17.10.2007 put to the appellant and the appellant given an opportunity to offer explanation and putforth his stand. The appellant denied his presence at the scene of occurrence and his involvement in the occurrence. 9. The incriminatory material appearing in the prosecution evidence was on 17.10.2007 put to the appellant and the appellant given an opportunity to offer explanation and putforth his stand. The appellant denied his presence at the scene of occurrence and his involvement in the occurrence. He denied to have visited the residential quarter of the deceased, demanded money from the deceased or any other employee, threatened the deceased and other employees or to have shot at / opened fire on the deceased resulting in his death. The appellant examined DWs Rattan Lal and Sher Singh in his defence. DW Rattan Lal is living adjacent to the place of occurrence and claimed to have been present when the deceased was shifted to hospital. He denied presence of appellant at the place of occurrence. DW Sher Singh stated that the twelve bore gun was seized by Police from the house of the appellant. 10. The Trial Court after making a thread bare discussion of the evidence brought on record, held prosecution to have proved its case against the appellant beyond reasonable doubt and accordingly convicted the appellant of the offences punishable 302, 450 RPC and 3/25 Arms Act and sentence him as above, and made a reference in terms of Section 374 Cr.PC registered as Confirmation no. 13/2009. 11. The Trial Court judgment is questioned in the Criminal Appeal on hand, on the ground set out in the memorandum of appeal. It is pleaded that the Trial Court failed to appreciate the prosecution evidence in right perspective and ignored serious discrepancies and contradictions come across in the prosecution evidence. None of the prosecution witnesses, including those heavily relied upon by the prosecution, according to the appellant, claimed to have been present at the time of occurrence. The prosecution is said to have failed to convincingly prove disclosure statement and seizure memos in as much as the witnesses to disclosure memo admittedly were not conversant with the language (dogri) in which the disclosure statement is said to have been made and most of the witnesses to the seizure memos belied the prosecution case. The trial court judgment and order are also assailed on the ground of discrepancy between ocular and medical evidence. The trial court judgment and order are also assailed on the ground of discrepancy between ocular and medical evidence. It is pointed out that the medical experts and witnesses who claimed to have seen the occurrence, differ on the distance from which the appellant opened fire on the victim and thereby render the prosecution evidence doubtful. 12. We have gone through the Trial court judgment and order called in question in the present criminal appeal, the memorandum of appeal and the trial court record. We have heard Mr. Goni, Senior Advocate, appearing for the appellant and Ld. Sr. Additional Advocate General. 13. The occurrence, as per the prosecution case, took place inside a building comprising four rooms where the officers of IFCON where residing. The officers of the company using the building as their residence claim to have been present on spot at the time the appellant opened fire on the deceased, P/W Sunder Rajan was a room partner of the deceased. P/W Vishwa Rughunath Rao shared another room with P/W Abhishek Tikoo. P/Ws Dharam Rao, Sunil Bogia also resided in the same building. The occurrence tool place after all the officers had assembled in the mess to take their dinner and were thereafter proceeding to their respective rooms. In the circumstances the prosecution witnesses sound convincing, when they claim to have been present at the seen of occurrence. P/Ws Vishwa Raghunath Rao, Sunder Rajan and Maheshpai claimed to have witnessed the occurrence and confirm presence of P/Ws Abhishek Tikoo, Sunil Bogia, Dharama Rao at the seen of occurrence. The witnesses have given a vivid account of the occurrence and appellant's earlier visit to the building when he hurled abuses, threatened and demanded money from the deceased and the deceased objected to his behaviour and expressed his inability to make any payment. There was nothing on record to suggest that the prosecution witnesses who hailed from different parts of the country, where strangers to the locality had any enmity with the appellant or had a reason to falsely implicate the appellant. The prosecution evidence is cogent, convincing and credit worthy. The discrepancies or contradictions, if any, in the prosecution evidence are minor and negligible and instead of discrediting the prosecution evidence, make it sound, reliable and trustworthy. The prosecution evidence is cogent, convincing and credit worthy. The discrepancies or contradictions, if any, in the prosecution evidence are minor and negligible and instead of discrediting the prosecution evidence, make it sound, reliable and trustworthy. It is well settled law that parrot like statements of witnesses point to tutoring and concoction and minor discrepancies and contradictions make the statements natural and creditworthy. In the circumstances, there is no merit in the argument advanced by the Ld. Counsel for the appellant that discrepancies arid contradiction appearing in the prosecution evidence ought to have persuaded the Trial Court to throw out the prosecution case. 14. We need not be reminded that the prosecution story disclosed by the witnesses to the occurrence, is sufficiently corroborated by other evidence - oral and documentary on record. First and foremost is the First Information Report (FIR) recorded by P/W Daljit Singh SHO Police Station Reasi. The occurrence was reported to P/S Reasi by P/W Mahesh Pai, a colleague of the deceased. The report was lodged half an hour after the alleged occurrence and detailed all important facts about the occurrence. The report disclosed identity of the assailant (appellant), the weapon used in commission of the crime and the background of the crime. The report being first version of the crime, reduced to writing half an hour after the occurrence is an important piece of corroborative evidence. We need to appreciate that the facts given in the First Information Report are come across all through in the narratives of the prosecution witnesses. The other piece of corroborative evidence is the testimony of P/W Dr. P.S.Thakur and Dr. Syed Riyaz and Postmortem examination report- EXPW SR. The postmortem examination report details the same injury on the body of the deceased as the prosecution witnesses claim to have been inflicted by the appellant on the deceased and also point to the weapon used to inflict the injury. The Trial Court therefore had before it sufficient evidence to connect the appellant with the crime. 15. Ld. Counsel for the appellant, realizing that the discrepancies and contradictions pointed out, did not go to the root of the matter and were not fatal to the prosecution case, shifts focus to other two aspects of the case that according to Ld. Counsel are sufficient to dislodge the prosecution case. Ld. 15. Ld. Counsel for the appellant, realizing that the discrepancies and contradictions pointed out, did not go to the root of the matter and were not fatal to the prosecution case, shifts focus to other two aspects of the case that according to Ld. Counsel are sufficient to dislodge the prosecution case. Ld. Counsel in the first place points to failure of the Investigating Officer to conduct identification parade. It is argued that as the prosecution witnesses admittedly were not acquainted with the appellant and claimed to have seen him for the first time when he came to their rented residential accommodation, it was necessary for the Investigating Officer to conduct test identification parade and get the appellant identified by the prosecution witnesses. It is argued that identification of the appellant by the PWs in the court during trial is a weak form of evidence and cannot be a substituted for test identification parade conducted immediately after the occurrence. It is pointed out that failure on part of the Investigating Officer to conduct test parade, laves room for the appellant having been shown to the witnesses after his arrest and before he crossed the witness box. Failure to conduct Test Identification parade according to Ld. Counsel for the appellant, casts a doubt on identification of the appellant and over all on prosecution case in as much as it is doubtful whether the appellant was the person who barged into the residential quarter of the employees of IFCON and opened fire on the deceased. Ld. Counsel to buttress his argument places reliance on law laid down in Mahabir v. State of Delhi 2008 (3) Supreme 111 . 16. The argument in the background of facts and circumstances of the case is specious and devoid of substance. The occurrence has taken place in a small town where people unlike an urban area, are acquainted with each other. It is not therefore surprising that in the occurrence report itself the identity of the appellant was disclosed by Shri Maheshpai, a colleague of the diseased. This apart the appellant as the prosecution evidence reveals would move around projecting himself as a goon or muscleman of the area expecting all those engaged in construction of the project in question to give him money, to keep him in good humor. He is said to have earlier also demanded money from the employees of the company. 17. This apart the appellant as the prosecution evidence reveals would move around projecting himself as a goon or muscleman of the area expecting all those engaged in construction of the project in question to give him money, to keep him in good humor. He is said to have earlier also demanded money from the employees of the company. 17. The appellant met the deceased and other prosecution witnesses an hour before the occurrence fuming, hurling abuses and demanding money. The deceased, as per the prosecution evidence, objected his behaviour, forbade him from hurling abuses and expressed his inability to meet his demand. The argument between the deceased and the appellant must have generated some discussion about the identity and activities of the appellant amongst the prosecution witnesses in the mess where they assembled for dinner immediately after appellant first time that evening went to the residential quarters in question. The prosecution witnesses therefore must have come to know about identity of the deceased, making it unnecessary for the Investigation officer to conduct Test Identification Parade. This is the reason that the police was informed immediately after the occurrence about the identity of the appellant. 18. The case law relied upon by Ld. Counsel for the appellant does not in any manner extend support to his case. It merely reiterates that Test Identification Parade does not constitute substantive evidence and is primarily meant to help the Investigating agency to take the investigation on the right track and that necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. In any case failure to conduct Test Identification Parade has been held not to be fatal to the prosecution case. In State of U.P v. Sukhpal Singh and ors. (2009) 4 Supreme Court Cases 385 where the Trial Court and the High Court had held failure to conduct Test Identification Parade fatal to the prosecution case, Supreme Court observed: "Whether test identification parade is necessary or not would depend upon the facts and circumstances of each case. The Supreme Court in a series of cases has taken the view that the test identification parade under Section 9 of the Evidence Act is to test the veracity of the witness and his capacity to identify the unknown persons whom the witness must have seen only once. The Supreme Court in a series of cases has taken the view that the test identification parade under Section 9 of the Evidence Act is to test the veracity of the witness and his capacity to identify the unknown persons whom the witness must have seen only once. The High Court failed to appreciate that in the instant case the witnesses were otherwise known to the accused persons and in the moonlight and lantern light they clearly identified them. The test identification parade had no great relevance in the facts and circumstances of this case. The High. Court ought to have considered the entire case in correct perspective of the small rural village background where most of the people know each other. They live in the vicinity. The test which may be relevant for metros or big cities cannot always be applied to small rural village settings." In the present case, it may be stated at the cost of the repetition, there was no necessity to conduct Test Identification Parade and failure on part of the Investigation Officer to go for such parade cannot have any lethal effect on the fate of the prosecution case. It is well settled law that prosecution case otherwise proved beyond reasonable doubt, cannot be thrown out on the ground that the matter could have been investigated in a better way. In Sukhpal Singh's case (supra) it was observed: ".....The Supreme Court on an earlier occasion has clearly observed that unless there are compelling reasons the High Court should not set aside the judgment of the trial court and must always keep in view that the trial court had the advantage of seeing the demeanour of the witnesses and therefore the conclusion of the trial court should not be set aside in the light-hearted manner." Earlier in Lakhshmi and others v. of U.P Apex Court held: "....Every faulty investigation or padding in evidence cannot by itself lead to total demolition of the prosecution case if it can otherwise stand ignoring these fallacies." 19. The next ground urged by the Ld. Counsel for the appellant, to assail the trial court judgment and order relates to failure of the trial court to put all the incriminatory material to the appellant in terms of section 342 Cr. PC and afford him an opportunity to offer his explanation. Ld. The next ground urged by the Ld. Counsel for the appellant, to assail the trial court judgment and order relates to failure of the trial court to put all the incriminatory material to the appellant in terms of section 342 Cr. PC and afford him an opportunity to offer his explanation. Ld. Trial Judge while recording conviction of the appellant has relied on disclosure statement EXPWS-D and the recovery memo EXPW-D1 and seizure of Gun license No. 10457.96 that pertains to the weapon of offence i.e 12 bore gun recovered on disclosure of and at the instance of the appellant. Ld. Counsel for the appellant argues that as contents of disclosure statement and recovery memo have not been put to the appellant and the appellant given an opportunity to offer necessary explanation, the trial court judgment and order are liable to be set aside. Failure on part of the Trail Judge to confront the appellant with said incriminatory material, according to the Ld. Counsel for the appellant, has caused serious prejudice to the appellant. 20. There can be no disagreement with Ld. Counsel for the appellant that the disclosure statement EXPWD wherein the appellant is said to have volunteered to help the Investigation Officer recover weapon of offence concealed by him under a heap of stones and thereafter its recovery at the instance of the appellant, have not been put to the appellant at the time his statement under section 342 Cr. P.C was recorded. It is also true that Ld. Trial Judge has relied on this evidence in the judgment under challenge. The question arise as to what are the options left with appellate Court confronted with such a situation. 21. The importance of statement under 342 Cr. PC cannot be for any reason, whatsoever be down played. The provision, confers an important right to an accused and gives him a unique opportunity to explain his stand and convince the Trial Court that whatever is stated in the prosecution evidence against him is devoid of any substance and not to be believed or that whatever is sought to be inferred from prosecution evidence cannot be logically so concluded. The accused may thereafter reinforce his stand by adducing evidence in his defense. The importance of opportunity given to the accused u/s 342 Cr. The accused may thereafter reinforce his stand by adducing evidence in his defense. The importance of opportunity given to the accused u/s 342 Cr. P.C to explain the prosecution evidence and duty cast on the Trial Court to strictly adhere to the mandate of the provision, came up recently before the Apex Court in (1) Alister Anthony Pareira v. State of Maharashtra - 2012 (1) Supreme 34 , and (2) Sujit Biswas v. State of Assam - 2013 (4) Supreme 509 , relied upon by the Ld. Counsel for the appellant. 22. In Alister Anthony Pareira's case it was held: "57. ...... the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law, firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice". The law on the subject was reiterated in Sujit Biswas's case in following words: "12. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr. P.C, is to meet the requirement of the principles of natural justice, i.e audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the evidence Act, as the accused cannot be cross-examined with reference to such statement. 23. The Supreme Court in State (Delhi Administration v. Dharam Paul) AIR 2001 SC 2924 commenting on the options available to the Appellate Court, in the event it finds an inculpatory material not put to the accused, held: "Where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him." The failure on part of the Trial Court to put to the accused any part of incriminatory material come across in the prosecution evidence against him, having regard to above case law would not be an infirmity that goes to the root of the matter, and so as to render the judgment of conviction liable to be set aside, irrespective of consequences or fall out of such failure for the accused. The failure must have prejudiced the accused or otherwise resulted in failure of justice. In case such failure does not impact the judgment as the accused is not prejudiced by the failure because he has been in a position to make clear his stand or the circumstances not put to the accused even if ignored, do not change the ultimate result of the trial, such failure would not vitiate the proceedings render Trial Court judgment illegal or warrant interference by the appellate court. 24. 24. In Banarsi Dass v. State of J&K 2007 (I) SLJ 169 : 2006 (1) JKJ[HC] 587 : KLJ 2006 133 and Dhoop Singh and Anr. v. State of J&K & Anr. 2009 (2) JKJ 711 [HC], this court on noticing that some of the incriminatory material was not put to the accused by the Trial Court while recording his statement u/s 342 Cr. P.C set aside the conviction recorded and sentence imposed by the Trial Court and remanded the matter with the direction to the Trial Court to record statement of the accused afresh confronting the accused with each and every material fact and circumstance incriminatory in character distinctly and separately and thereafter dispose of the matter in light of the explanation tendered by the accused. 25. From the above discussions it emerges that in the event the appellate court while hearing a criminal appeal arising out of a judgment of conviction recorded by the trial court, finds the trial court to have omitted to confront the accused with some of the incriminatory material, relied upon by the trial court while rendering the judgment and therefore denying him an opportunity to explain such incriminatory material and the omission to put such material in the opinion of the trial court has prejudiced the accused, the appellate court can exercise any of the following options: i) make good the lapse committed by the trial court, by itself calling upon the accused to show what explanation the accused has as regards the circumstances established against him but not put to him by the Trial court. ii) remand the matter to the Trial Court, without commenting on merits of the case and require the trial court to put the incriminatory material not earlier brought to the notice of the accused, to the accused, record his explanation, if any, to such material and thereafter proceed to decide the matter. iii) to ignore omission on part of the trial court to put some of the incriminatory material to the accused and give him an opportunity to explain such material, where other prosecution evidence i.e. the evidence put to the accused is sufficient to bring home guilt to the accused and enables the prosecution to prove its case against the accused beyond reasonable doubt. 26. 26. In the present case the prosecution has examined independent and reliable witnesses who have, either seen the appellant open fire on the deceased from a distance of 4/5 feet that pierced his abdomen damaged his vital organs and resulted in his death. The witnesses have given the background facts that lead to the occurrence and their testimony has stood the test of cross examination. Their statements have remained un-impeached. The direct evidence comprising of the statement of the eye witnesses is reinforced and corroborated by other evidence including the postmortem examination report EXPWD1. The recovery of weapon of offence at the instance of the appellant reflected in disclosure memo EXPWD is only a piece of corroborative evidence and its exclusion does not create any dents in the prosecution case. In other words even if the material that was not put to the appellant is excluded from the prosecution evidence, the remaining prosecution evidence is so cogent convincing and creditworthy that it enables the prosecution to prove charge against the appellant beyond even a shadow of reasonable doubt. So viewed, failure on the part of the Trial Court to put disclosure memo EXPWD to the appellant, does not vitiate the trial and is not fatal to the Trial Court judgment convicting appellant of the offences punishable under Sections 302, 450 RPC, 3/27 Arms Act. 27. For the reasons discussed, the Criminal appeal on hand is dismissed and the trial court judgment dated 06.06.2009 whereby the Trial Court has convicted the appellant of the offences punishable u/s 302, 450 RPC, 3/27 Arms Act, and the order of even date sentencing the appellant to imprisonment for life and imprisonment, fine and default imprisonment detailed above, are upheld. 28. Confirmation no. 13/2009 is disposed of accordingly.