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2016 DIGILAW 2138 (ALL)

Abbas v. State of U. P.

2016-06-03

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Anil Kumar Srivastava-II, J. – Shri Nagendera Mohan, learned counsel for the appellant Abbas and Zakir Ali, Shri I.B. Singh, learned senior counsel for the appellant Sharafat Ali and Shri S.H. Ibrahim, learned counsel for the appellant Alla Zahur and Mrs. Madhulika Yadav, learned AGA for the State were heard at length. Learned counsel for the complainant was also heard. 2. Since all the appeals have arisen out of a single judgment, hence, all the appeals are being decided by single judgment. 3. Criminal Appeal No.427 of 2005, Criminal Appeal No.438 of 2005 and Criminal Appeal No. 233 of 2005 have arisen out of the judgment and order dated 17.1.2005 passed by Sessions Judge, Sultanpur in Session Trial No.450 of 2002; State v. Zakir Hussain and Others arising out of Case Crime No.488 of 2002, under Section 302/34, Police Station-Gauriganj, District-Sultanpur whereby learned Trial Judge has found the accused appellants guilty for the offence punishable under section 302 I.P.C. read with Section-34 IPC and sentenced them with imprisonment of life. 4. According to the prosecution, there is enmity between the family of complainant Ram Shankar Gupta and Sarafat Ali over some property dispute. On 23.8.2002 at 5.30PM, Shyam Lal, brother of the complainant who is a Lekhpal in Tehsil Gauriganj, was coming to house on his Motor Cycle. When he reached near the house of Farooq, Sharafat Ali armed with Pharsa, Zakir Ali armed with Banka, Abbas armed with Gandasa and Allah Zahoor armed with countrymade pistol attacked Shyam Lal. Allah Zahoor fired upon him and exhorted the co-accused to kill. Sharafat Ali, Zakir Hussain, Abbas attacked the deceased Shyam Lal. On hearing the shrieks of Shaym Lal, Phool Chandra, Brijesh Kumar and Rakesh Kumar reached at the spot. Shayam Lal died at the spot. His body was taken to the hospital Gauriganj where doctor declared him dead. FIR was lodged on 23.8.2002 at 8.30PM at P.S. Gauriganj, District-Sultanpur, under Section 302/34 IPC. Investigation was entrusted to the Station House Officer S.P. Gupta. Inquest proceedings were conducted on 24.8.2002. Blood stained and plain soil was recovered from the spot. Site plan was prepared. Body was sent for postmortem which was conducted on 24.8.2000 at 11.30AM. After investigation charge-sheet was submitted against the accused. 5. In order to prove its case, prosecution has examined P.W.1 Ram Shankar Gupta complainant, P.W.2 Phoolchandra an eye witness. Inquest proceedings were conducted on 24.8.2002. Blood stained and plain soil was recovered from the spot. Site plan was prepared. Body was sent for postmortem which was conducted on 24.8.2000 at 11.30AM. After investigation charge-sheet was submitted against the accused. 5. In order to prove its case, prosecution has examined P.W.1 Ram Shankar Gupta complainant, P.W.2 Phoolchandra an eye witness. P.W.3 S.P. Gupta, investigating officer, P.W. 4 Dr. Q.A Siddiqui who had conducted the postmortem and found following ante mortem injuries on the body of the deceased. I. Incised wound 16cm.x 2cm. X brain deep in the head 8cm. away from right ear and the left eye was mutilated and beneath it, the bone was cut and brain was coming out of the injury. II. Incised wound 14cm.x 5cm. from left side of tampel upto right cheek x bone deep and left eye ball badly lacerated. III. Incised wound 2cm.x 4cm. on the face in the left side in the right side of temporal region from left angle of mandible, glottis deep, nose cut upto glottis. IV. Incised wound 18cm.x 4cm. from chin to right temporal region, mandible, teeth, tongue cut upto glottis. V. Incised wound 5cm. X 4cm.x bone deep on the chin. VI. Incised wound 7cm.x 2cm. on the left hand upper side bone deep. 6. According to the doctor death was caused due to shock and haemorrhage as a result ante mortem injuries. Duration was about 3/4 days. PW-5 CP 434 Shiv Prasad Arya is a formal witness. 7. Appellants have denied the prosecution story and stated that due to enmity they have been falsely implicated. Deceased was Lekhpal who has made illegal allotment of land. He was killed by some unknown persons at some other place. 8. No evidence was adduced in defence. 9. Learned Trial Court, after appreciating the evidence, arrived at the conclusion that prosecution has proved the charges against accused beyond reasonable doubt. Accordingly convicted and sentenced the accused appellants as mentioned above. 10. Learned counsel for the accused-appellants mainly assailed the finding of the learned trial court on the ground that prosecution has miserably failed to prove the charges against the accused. There was no motive for commission of Crime. No cash and motor cycle was recovered from the place of occurrence. It is further argued that place of occurrence was changed. 10. Learned counsel for the accused-appellants mainly assailed the finding of the learned trial court on the ground that prosecution has miserably failed to prove the charges against the accused. There was no motive for commission of Crime. No cash and motor cycle was recovered from the place of occurrence. It is further argued that place of occurrence was changed. Prosecution was required to prove the charge against accused beyond reasonable doubt but the prosecution could not ascertain the actual place of occurrence. It is further submitted that there was no eye witness present at the spot. There was no reason as to why the Sub-Inspector has gone to hospital when the dead body was at the police station. It is further argued that FIR is ante timed and ante dated as inquest proceedings were conducted on the next day of occurrence while body reached at the police on the same day. Ram Shankar was one of the signatory of the inquest report but he has not stated anything about the weapon used. It was further submitted that blood stained soil was recovered from the place of occurrence which was neither produced in the court nor was sent to the forensic science laboratory. In the case arguments were heard and judgment was reserved but before the judgment could be delivered an application was moved on behalf of the appellant for making further submission. Hence, we listed this matter on 30.5.2016. On that date arguments of Senior Advocate Mr. I.B. Singh were heard. Learned A.G.A. was also heard. Shri I.B. Singh has placed reliance on some pronouncements of Hon'ble Apex Court which shall be considered at the relevant part of the judgment. 11. Learned AGA and the learned counsel for the complainant have submitted that P.W.1 Ram Shankar Gupta, P.W.2 Phoolchandra were present at the spot. Place of occurrence, as mentioned in the first information report and the site plan are the same. It is further submitted that minor discrepancies in the prosecution version could not be a ground to disbelieve the prosecution story. It was further argued that all the witnesses have independently supported the prosecution version. Mere relationship of the witness with the deceased could not be a sole ground to discard the testimony. It is further submitted that ocular evidence finds support from the medical evidence. It was further argued that all the witnesses have independently supported the prosecution version. Mere relationship of the witness with the deceased could not be a sole ground to discard the testimony. It is further submitted that ocular evidence finds support from the medical evidence. If any defect is found in the investigation, benefit of the same could not be extended to the accused as accused could not get any benefit of the defective investigation until and unless they prove that any prejudice was caused to them. 12. Before adverting to the factual matrix of the case we would like to first refer the medico-legal evidence on record. According to the prosecution accused Alla Zahoor shot a fire from the countrymade pistol which did not hit the deceased. Thereafter, on the exhortation of Alla Zahoor accused Sharafat Ali armed with spade, Zakir Hussain armed with banka and Abbas armed with Gadasa, attacked the deceased by their respective weapons. According to PW-4 Dr. Siddiqui who had conducted the postmortem on the body of the deceased, six incised wounds were found which could have been caused by sharp edged weapon. Postmortem was conducted on 24.8.2002 at 11: 30 AM wherein duration of the death was about 3/4 day. 13. Cause of death was shock and harmorrhage due to ante-mortem injuries. PW-4 Dr. Siddiqui has stated that the death could have been caused on 23.8.2002 at about 05: 30 PM. There might have been a variation and injuries could have also been caused between 07: 30 to 8: 00 P.M. Date, time nature of injuries and duration finds support with the medico-legal evidence. 14. Now it is to be seen as to whether the prosecution has successfully been able to prove the guilt against the accused appellants beyond reasonable doubt ? Learned counsel for the appellants argued that there was no motive for the commission of crime. In the first information report it is mentioned that there is a dispute of land between the complainant Ram Chandra Gupta and accused Sharafat Ali. Some dispute have also arisen between Alla Zahoor and Abbas with the complainant due to which they were inimical towards complainant as well as family members of the complainant. Deceased is the real brother of complainant Ram Shankar Gupta. PW-1 Ram Chandra Gupta has stated that there is some dispute regarding abadi land between him and Sharafat Ali. Some dispute have also arisen between Alla Zahoor and Abbas with the complainant due to which they were inimical towards complainant as well as family members of the complainant. Deceased is the real brother of complainant Ram Shankar Gupta. PW-1 Ram Chandra Gupta has stated that there is some dispute regarding abadi land between him and Sharafat Ali. Some cattle of Alla Zahoor and Abbas have entered into the field of Ram Shankar due to which some dispute has arisen between them. In the cross-examination even in the Statement under Section-313 Cr.P.C. accused have admitted that there is enmity with the witnesses and complainant. PW-2 Phool Chandra has also stated regarding enmity. Enmity is a double edged weapon which could have been used by either side. Deceased may have been attacked by the accused due to enmity or it might also be possible that complainant might have falsely implicated the accused due to enmity but it is to be seen along with the other evidence on record. Although, it is true that motive plays an important role in a criminal case but if there is direct evidence of the incident then motive loses its importance. 15. Hon'ble the Apex Court in the case of Darbara Singh v. State of Punjab 2012 (10) SCC 476 , Sanjeev v. State of Haryana (2015) 4 SCC 387 and Birendra Das and another v. State of Assam (2013) 12 SCC 236 has laid down the law on the point of motive. In the case of Darbara Singh (supra), Hon'ble the Apex Court has observed in paragraph no. 15 and 16 as under: - "So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the Appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. More so, the conviction took place 20 years prior to the incident. No independent witness have been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ........................." 16. We have to examine evidence of eyewitness to ensure as to whether they were present and seen the occurrence or not. 17. At this stage, we have to keep in mind that PW-1 Ram Shankar Gupta is the real brother and PW-2 Phool Chandra is the real nephew of the deceased. At the same time it is also to be seen as to what will be the effect of non production of independent witnesses ? 18. Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC 433 had held in paragraph no.34 as under: - "The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar v. State of Punjab, (2003) 11 SCC 367 , Brathi v. State of Punjab (1991) 1 SCC 519 and Alagupandi v. State of T.N. (2012) 10 SCC 451 ." In a recent judgment in the case of Gurjit Singh v. State of Haryana (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. 19. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. v. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under: - "At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under: - We are not impressed with this argument. The appreciation of evidence of such related witnesses have been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [ (1954) SCR 145 ], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under: - A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [ (2006) 4 SCC 512 ]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [ (2008) 16 SCC 73 ]} In the case of Darya Singh & Ors v. State of Punjab [ AIR 1965 SC 328 ], the Court held as under: - On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars." (Underlined by us) 20. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh reported in [ (2009) 13 SCC 790 ], wherein Hon'ble the Apex Court has held as under: - "It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case have been supported by the witnesses and no cogent reason have been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........." 21. Again in the case of Balraje @ Trimbak v. State of Maharashtra [ (2010) 6 SCC 673 ], Hon'ble the Apex Court has held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 22. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 22. Hon'ble Apex Court in the case of Mano Dutt and Another v. State of Uttar Pradesh (2012) 4 SCC 79 had again occasion to consider this aspect and has observed in para 32 as under: "Another argument with regard to the appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons aforerecorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in view of the discussion made above, we are of the considered view that the prosecution have been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten." 23. Reference may be made on this point and the pronouncement of Hon'ble Apex Court in the case of case of Shiv Ram and Anr. v. State of U.P. (1998) 1 SCC 149 has considered this aspect and was of the view that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such situation is that the Court must scrutinise the evidence of such witnesses with utmost care and caution. 24. So even if independent witnesses are not produced it will not adversely affect the prosecution version if statement of related witnesses are trustworthy. 25. 24. So even if independent witnesses are not produced it will not adversely affect the prosecution version if statement of related witnesses are trustworthy. 25. In the backdrop of these above legal propositions we have to very carefully examine and scrutinise the statement of PW-1 Ram Shankar and PW-2 Phool Chandra. 26. PW-1 Ram Shankar Gupta has stated that he was present at the place of occurrence. That he had seen the occurrence when Shyam Lal was coming on his motorcycle and reached near the house of Farooq then all the accused surrounded him. Firstly Alla Zahoor fired which did not hit Shyam Lal then Sharafat, Zakir and Abbas started attacking Shyam Lal. Shyam Lal raised an alarm. Phool Chandra, Girija Shankar, complainant Rakesh, Younus have seen the occurrence. Evidence of PW-1 Ram Shankar Gupta is attacked on the ground that he is not an eyewitness. He is a witness of inquest. His statement was also recorded as a witness of inquest by PW-4 S.I. S.P. Gupta Investigating Officer. 27. In order to assess the evidence of PW-1 Ram Shankar Gupta we have to look into the whole story of the case along with circumstances. 28. PW-1 Ram Shankar Gupta is the complainant and real brother of the deceased. Whether he was present at the spot or not would also relate to the fact as to whether the First Information Report lodged by him is prompt or it is ante-time or antedated ? An argument is advanced by the defence that First Information Report is ante-time and antedated. First Information Report was lodged at 08: 30 PM at Police Station - Gauriganj. It means that just after three hours First Information Report was lodged. PW-5 CP-43 Shiv Prasad Arya has prepared the chik F.I.R. and registered the case in GD. It was admitted that the case was registered in the presence of Station house Officer S.P. Gupta. Investigation was entrusted to him. Inquest proceedings began on 24.8.2002 in the morning at 06: 00 AM in the premises of police station. Ram Shankar complainant PW-1 is one of the 'panch' in the inquest proceedings. PW-1 Ram Shankar has specifically stated that when accused ran away from the scene of occurrence he managed vehicle and took his brother to Gauriganj hospital where Doctor declared him dead. Ram Shankar complainant PW-1 is one of the 'panch' in the inquest proceedings. PW-1 Ram Shankar has specifically stated that when accused ran away from the scene of occurrence he managed vehicle and took his brother to Gauriganj hospital where Doctor declared him dead. Although, it is true that police station is on the way to hospital but the First Information Report was not lodged at that time. There is nothing abnormal in his conduct. Deceased was badly injured. He received six incised wounds. It would be the natural conduct of anyone, even an unknown person who saw an occurrence that firstly he would try to take the injured to a hospital so that necessary medical aid could be provided to him. Unfortunately, when PW-1 Ram Shankar reached hospital, injured Shyam Lal was declared as brought dead. Thereafter, he took the body and reached at police station to lodge the First Information Report. This fact is further fortified by the statement of PW-5 CP-43 Shiv Prasad Arya who has stated that he prepared the chik F.I.R. Itself. It is mentioned that (Vernacular Matter) No suggestion was given to PW-5 CP Shiv Prasad that the dead body was not brought to the police station by the complainant. Even no suggestion is given to PW-1 Ram Shankar that he did not take the dead body to the police station. Hence, it is proved that just after the occurrence complainant took his brother Shyam Lal to the hospital in Tata Sumo where Doctor declared him dead. Then he wrote the written report and came to the police station to lodge the First Information Report. Investigating Officer PW-3 S.P. Gupta has stated that death memo was received from the hospital which was entered in the G.D. It was also copied in the case diary. No death memo is on record. PW-3 S.P. Gupta was not asked to file the copy of death memo on record which could have shown that time of death of the deceased is different as alleged by the prosecution. During the course of arguments, learned counsel for the appellant has shown the photocopy of case diary where an entry of death memo is made but we are not inclined to take note of it as it is not made part of the record and no opportunity was given to the witness to explain the aspect during cross-examination. During the course of arguments, learned counsel for the appellant has shown the photocopy of case diary where an entry of death memo is made but we are not inclined to take note of it as it is not made part of the record and no opportunity was given to the witness to explain the aspect during cross-examination. First Information Report was lodged at 08: 30 P.M. Time between the lodging of F.I.R. and occurrence is three hours which cannot be said to be a delayed F.I.R. F.I.R. is prompt. 29. Another argument advanced on behalf of the defence is that complainant was a panch in the inquest proceedings but he did not tell the officer conducting the inquest proceedings names of the accused as well as weapon used by them. It is further argued that when the dead body was brought to the police station in the night at 08: 30 P.M. then why the inquest proceedings were initiated at 06: 00 A.M. in the next morning. It is further argued that S.I. Ram Roop Giri, who has conducted the inquest proceedings has not been produced, rather secondary evidence is produced which is proved by PW-5 S.I. Shiv Prasad, hence, are not admissible in the evidence. 30. Inquest proceedings are conducted under section-174 Cr.P.C. What is the purpose of conducting the inquest proceedings was discussed by the Hon'ble Apex Court in Guiram Mondal v. State of West Bengal, (2013) 15 SCC 284 and it was held that : - "The inquest report normally would not contain the manner in which the incident took place or the names of eyewitnesses as well as the names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely, whether it is suicidal, homicidal, accidental, etc. Reference may be made to the judgments of this Court in Pedda Narayana v. State of A.P.And Amar Singh v. Balwinder Singh, (1975) 4 SCC 153 . In Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 This Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. Inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law." In Amar Singh v. Balwinder Singh and others, (2003) 2 SCC 518 Hon'ble Apex Court has held : - "The provision of holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The heading of hte section is "Police to enquire and report on suicide etc." Subsection (1) of this section provides that 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 information to the nearest Executive Magistrate and 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, buries, 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. The requirement of the section is that the police office shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. The scope and purpose of Section 174 Cr.P.C. Ws explained by this Court in Pedda Narayana v. State of A.P. (1975) 4 SCC 153 and it will be useful to reproduce the same : 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 assualted is foreign ot the ambit and scope of the proceedings under Section 174 . Neither in practise 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 Khujji v. State of M.P. (AIR para 8) (1991) 3 SCC 627 Court, after placing reliance upon the abovequoted decision, rejected the contention raised on behalf of the accused that the evidence of eyewitnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. In Shakila Khader v. Nausheer Cama (1975) 4 SCC 122 , 125 (AIR para 5) it was held that an inquest under Section 174 Cr.P.C. Is concerned with establishing the cause of the death only. The High Court was, therefore, clearly in error in holding that as the facts about the occurrence were not mentioned in the inquest report, it would show that at least by the time the report was prepared the investigating officer was not sure of the facts of the case.” 31. In the inquest report it is mentioned that the death was caused due to the injuries on the body of the deceased. Opinion of the panch was obtained. In the inquest report it is mentioned that the death was caused due to the injuries on the body of the deceased. Opinion of the panch was obtained. No cash was recovered from the body but it does not make any difference. It is not always necessary that every person should carry cash in his pocket at every time. Inquest proceedings were conducted at police station itself because dead body was brought to the police station. Admittedly, S.I. Ram Roop Giri prepared the inquest report who has not been produced in the Court. Secondary evidence was given by PW-5 Constable Shiv Prasad Arya who has stated that S.I. Ram Roop Giri is ill and is admitted in the medical college. This witness had been posted with S.I. Ram Roop Gir and was well conversant with the signatures and writing of S.I. Ram Roop Giri. This fact has not been challenged in the cross-examination that Ram Roop Giri is not ill or not admitted in the medical college. Only suggestion given to the witness PW-5 Constable Shiv Prasad is about the ante dating the F.I.R. No suggestion is given regarding preparation of the inquest report. PW-1 Ram Shankar is a panch of the inquest proceedings who has stated that the inquest proceedings were conducted in the morning. Experience reminds us that the inquest proceedings are not conducted during the night for want of sufficient light. Dead body remained in the police station during the night. In the morning, inquest proceedings were conducted. Thereafter, body was sent for postmortem. Even if name of accused or witnesses or weapon used are not mentioned in the inquest report then it does not make any difference as there is no requirement of law that such information should also be mentioned in the inquest report. Hence, we are of the considered view that the inquest proceedings which were conducted on the next day of occurrence were conducted in accordance with law. Simply because the inquest proceedings were conducted in the morning it cannot be concluded that by that time F.I.R. was not in existence. 32. Learned counsel for appellant has placed reliance upon Deny Bora v. State of Assam (2014) 14 SCC 22 wherein it was held in para 12 that : - “12. Simply because the inquest proceedings were conducted in the morning it cannot be concluded that by that time F.I.R. was not in existence. 32. Learned counsel for appellant has placed reliance upon Deny Bora v. State of Assam (2014) 14 SCC 22 wherein it was held in para 12 that : - “12. From the aforesaid authorities, it is quite vivid that non-examination of material witnesses would not always create a dent in the prosecution case. However, as has been held in State of H.P. v. Gian Chand, (2001) 6 SCC 71 the charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find out whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. That apart, the court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness capable of explaining correctly the factual situation.” 33. In the present case, two witnesses of fact PW-1 Ram Shankar and PW-2 Phool Chandra have been examined who were totally reliable witnesses. Non-examination of S.I. Ram Roop Giri is duly explained by the prosecution. Secondary evidence has been produced. Hence, non-examination of S.I. Ram Roop Giri could not be a factor which may create a doubt on prosecution story. 34. Reliance is also placed in Govindaraju alias Govinda v. State by Sriramapuram Police Station and others, (2012) 4 SCC 722 . In that case Doctor who had conducted the postmortem and prepared postmortem report was not produced. The Head Constable who had come to the help of PW1 for taking the deceased to the hospital and was present immediately after the occurrence was also not examined. Forensic Science Laboratory report was placed on record but no person from Forensic Science Laboratory was produced. It was held in para 65 and 66 that : - “65. The Head Constable who had come to the help of PW1 for taking the deceased to the hospital and was present immediately after the occurrence was also not examined. Forensic Science Laboratory report was placed on record but no person from Forensic Science Laboratory was produced. It was held in para 65 and 66 that : - “65. The applicability of the principle of “adverse inference” presupposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the constable appears in the police investigation but still they were not examined. It is true that in their absence the post-mortem report and the FSL report were exhibited and could be read in evidence. But still the lacuna in the case of the prosecution remains unexplained and the chain of events unconnected. For instance, the Head Constable could have described the events that occurred right from the place of occurrence to the death of the deceased. They could have well explained as to why it was not possible for one police officer, one Head Constable and one constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. Similarly, the doctor could have explained whether inflicting of such injuries with the knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability. 66. This Court in Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145 clearly stated that material witness is one who would the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. 66. This Court in Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145 clearly stated that material witness is one who would the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the court. The fact that the witnesses who were necessary to unfold the narrative of the incident and though not examined, but were cited by the prosecution, certainly raises a suspicion. When the principal witnesses of the prosecution become hostile, greater is the requirement of the prosecution to examine all other material witnesses who could depose in completing the chain by proven facts. This view was reiterated by this Court in Yakub Ismailbhai Patel v. State of Gujarat, (2004) 12 SCC 229 . 35. Facts of the present case are different. Eyewitnesses Doctor Investigating Officer were produced by the prosecution. PW-1 Ram Shankar is also a Panch of the inquest report. Hence, we do not find any reason to observe that non-production of S.I. Ram Roop Giri has caused prejudice to the defence of appellants. 36. Reliance is also placed on Joginder Singh vs. State of Haryana, (2014) 11 SCC 335 also the Hon'ble Apex Court has held that non-examination of witness should be examined in the background of circumstances of each case. 37. It is argued that place of occurrence could not be established by the prosecution, hence, benefit of it should be extended to the appellants. According to the First Information Report when deceased came on his motorcycle near the house of Farooq then Alla Zahoor fired upon him which did not hit him, thereafter appellants Zakir Hussain Sharafat Ali and Abbas inflicted blows by their weapons. Investigating Officer has collected plain and blood stained soil from the place of occurrence. Site plan is prepared by PW-3, S.P. Gupta wherein place of occurrence is shown by (X). Broken spectacles and one 12 bore cartridge was recovered from place 'K'. This palace is towards north-western side of the house of Farooq and towards north of house of Sukhai Baba. Accused ran away towards North-western side. Deceased was riding a motorcycle at the time of incident. This motorcycle has not been recovered by the Investigating Officer. Broken spectacles and one 12 bore cartridge was recovered from place 'K'. This palace is towards north-western side of the house of Farooq and towards north of house of Sukhai Baba. Accused ran away towards North-western side. Deceased was riding a motorcycle at the time of incident. This motorcycle has not been recovered by the Investigating Officer. Motorcycle was taken to his house by brother Ram Kumar to his house as has been stated by PW-2 Phool Chandra that next morning motorcycle was taken away by Ram Kumar to his house. PW-3 S.P. Gupta Investigating Officer has stated that he has prepared the recovery memo of cartridge and broken spectacles which were recovered from the place of occurrence. Blood stained and plain soil was also recovered although this was not sent to the chemical examiner. On 23.8.2002, he has not seen the motorcycle. Place of occurrence is a road which is about four to five feet in width. PW-2 Phool Chandra has also stated that towards southern side of the house of Farooq is a khadanja which is about three feet in width. House of Sukhai Baba is towards west of Farooq's house. Investigating Officer has recovered plain and blood stained soil along with one cartridge and broken spectacles on 24.8.2002 from the place of occurrence wherein PW-2 Phool Chand was also one of the witnesses. Motorcycle was not there. Even if motorcycle was not seen by the Investigating Officer it does not cast any doubt upon the prosecution version. According to the prosecution one fire was shot by Alla Zahoor which did not hit the deceased. Investigating Officer has recovered a cartridge from the place of occurrence which supports the prosecution version. We are of the considered view that place of occurrence is established by the prosecution. 38. PW-1 Ram Shankar is the real brother of the deceased who is also complainant and eyewitness. PW-3 S.P. Gupta has stated that he has recorded the statement of Ram Shankar as witness of inquest and not as eyewitness but PW-1 Ram Shankar has given a categorical statement regarding occurrence who has also proved the written report. It is further stated by the witness that the Investigating Officer has recorded his statement. As we have mentioned earlier that this witness is real brother of the deceased his testimony has to be looked into with extra caution. It is further stated by the witness that the Investigating Officer has recorded his statement. As we have mentioned earlier that this witness is real brother of the deceased his testimony has to be looked into with extra caution. In the First Information Report names of Phool Chandra Brijesh Kumar and Rakesh Kumar are written as witnesses. Name of Younus is neither mentioned in the First Information Report nor he have been produced as witness, hence, non production of Younus does not cast any doubt over the prosecution version. PW-1 Ram Shankar has stated that his statement was recorded by the Investigating Officer and was read over to him. He has seen the occurrence. First fire was shot by Alla Zahoor which did not hit the deceased, thereafter, appellants attacked by banka, gadasa and spade. All the three accused persons were attacking him simultaneously. There are six injuries on the body of deceased. Same are on the left side while some are on the right side. It cannot be expected from an injured person that when he is attacked by the several persons then he will continue to remain in a static position. Evidence of PW-1 Ram Shankar is fully reliable, trustworthy. His evidence could not be discarded merely on the ground that he is real brother and interested witness. 39. PW-2 Phool Chand is also real nephew of the deceased who was present at a distance of about 15 lathi from the place of occurrence. He was uprooting the grass from his field. Although there are some defects in the investigation regarding presence of the witness. PW-2 Phool Chand, who has stated that he has given the statement to Investigating Officer that he was uprooting the grass but Investigating Officer has not seen his field and not shown it in the site plan but it is settled legal position that mere defect in the investigation could not extend any benefit to the accused. 40. In Dayal Singh and others v. State of Uttranchal 2012 (3) J.I.C. 428 Hon'ble Supreme Court propounded the law on defective or faulty investigation. It was held that - “The investigating Officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known reasons of medical practise, respectively. It was held that - “The investigating Officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known reasons of medical practise, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can some times prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it.” “Declaration in duty or carelessness is an abuse of discretion under a definite law and misconduct is a violation of indefinite law. Misconduct is a forbidden act whereas dereliction of duty is the forbidden quality of an act and is necessarily indefinite. One is a transgression of some established and definite rule of action, with least element of discretion, while the other is primarily an sabuse of discretion. This Court in the case of State of Punjab & Ors. v. Ram Singh Ex. Constable [ (1992)4 SCC 54 : ( AIR 1992 SC 2188 : 1992 AIR SCW 2595)] stated that the ambit of these expressions had to be construed with reference to the subject-matter and the context where the terms occurs, regard being given to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires maintenance of strict discipline. The consequences of these defaults should normally be attributable to negligence. Police officers and doctors, by their profession, are required to maintain duty decorum of high standards. The standards of investigation and the prestige of the profession are dependent upon the action of such specialised persons. The police manual and even the provisions of the Cr.P.C. Require the investigation to be conducted in a particular manner and method which, in our opinion, stands clearly violated in the present case. ................. Also, in the same case, the court, while referring to the decision in Ram Bihari Yadav and others v. State of Bihar & Ors. The police manual and even the provisions of the Cr.P.C. Require the investigation to be conducted in a particular manner and method which, in our opinion, stands clearly violated in the present case. ................. Also, in the same case, the court, while referring to the decision in Ram Bihari Yadav and others v. State of Bihar & Ors. [ (1995) 6 SCC 31 : ( AIR 1996 SC 122 : 1995 AIR SCW 3810)] noticed that if primacy is given to such designed or negligent investigation, to the omission of lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice.” “In the case of Sathi Prasad v. The State of U.P. [ (1972) 3 SCC 613 : ( AIR 1973 SC 448 )], this court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in the court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh alias Shera & Ors. v. State of Punjab [ (2004) 3 SCC 654 : ( AIR 2004 SC 1920 : 2004 AIR SCW 1609)], held, “in the case of a 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 tentamount to playing into the hands of the investigating officer if the investigation is designedly defective.” “The court in the case of Paras Yadav v. State of Bihar [ AIR 1999 SC 644 : ( 1999 AIR SCW 296 )], enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should into stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party”.......... The contaminated conduct of officials should into stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party”.......... “ Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be ensure needs of the society. On the contrary, efforts should be ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much important if not more, as the interest of the individual accused. The courts have a vital role to play.” 41. Hence, even if a place from where PW-2 Phool Chand witnessed the occurrence, is not shown by the Investigating Officer in the site plan, then it does not extend any benefit to the accused. PW-2 Phool Chandra had accompanied the deceased to the hospital thereafter, he came to the police station along with the dead body. It is stated by him that when he was in the hospital along with the dead body then one sub-inspector came to the hospital but no memo etc. was prepared. PW-1 Ram Shankar has also admitted that S.I. Ram Roop Giri had come to the hospital before lodging the F.I.R. at the Police Station. None of the witnesses had stated that the police officer came to the hospital in connection with the present case or he had asked any questions from the witnesses. Hospital is a public place where police officers may visit it until and unless it comes in the evidence that police officer purposely came to the hospital in connection with the particular case then it cannot be expected that any fault lies on the part of the prosecution in this regard. 42. When the evidence of PW-1, PW-2 is fully reliable then even if no independent witness is produced it will not adversely affect the prosecution version. We have discussed legal position on this point in the earlier part of the judgment. 43. 42. When the evidence of PW-1, PW-2 is fully reliable then even if no independent witness is produced it will not adversely affect the prosecution version. We have discussed legal position on this point in the earlier part of the judgment. 43. Another argument is advanced that the statement of Phool Chand was recorded by the Investigating Officer on 12.9.2012 while he was available then why his statement was recorded so late. Reliance was placed on a judgment Vijay Singh v. State of M.P. (2005) Cr LJ 299 (MP) which is not applicable to the facts of the present case. In the present case there is no infirmity in the site plan prepared by the Investigating Officer. Reliance has also been placed on Ganesh Bhavan Patel and another v. State of Maharashtra AIR 1979 Supreme Court 135. In the present case statement of complainant and PW-1 Ram Shankar was recorded on the date of lodging the F.I.R. Hence, even if statement of Phool Chand is recorded at a subsequent stage it does not adversely affect the prosecution version. 44. We are of the considered view that learned trial court has rightly appreciated evidence on record in a legal way. Prosecution has successfully proved the charges levelled against the accused appellants. Accordingly judgment and order of conviction and sentence is to be confirmed and is hereby confirmed. Appeals are dismissed. Appellant Sharafat, Abbas and Zakir are in jail. They shall serve out the sentence as imposed by the learned trial court. Accused Alla Zahoor is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody to serve out the sentence. 45. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith. Appeal dismissed.