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2018 DIGILAW 205 (ALL)

GAJRAJ v. STATE OF U. P.

2018-01-25

RAJEEV MISRA, SHASHI KANT GUPTA

body2018
JUDGMENT Hon’ble Rajeev Misra, J.—Feeling aggrieved by the conviction as well as the sentence of life imprisonment awarded by the VIIIth Additional Sessions Judge, Bulandshahar, under Sections 302/34 IPC and 323/34 IPC the appellants Gajraj, Jayanti and Tota all sons of Hukum Singh have filed the present criminal appeal. 2. We have heard Mr. S.C. Dwivedi, Advocate, assisted by Mr. Shyam Bahadur Vaish, Advocate, for the appellants and Mr. Rajiv Sharma, the learned A.G.A. assisted by Mr. Ajeet Ray, A.G.A. for the State. 3. Adverting to the factual matrix of the appeal in hand, it appears that an incident occurred on 23.2.1985 around 10:35 am at village Sunehara Ki Madheia on the road in front of the Baithak (a roofed gallery for sitting in front of a house) of Hukum Singh in which Vijay Pal Singh brother of Charan Singh and Maya sister of Charan Singh/wife of Sukh Pal sustained injuries on account of the alleged assault by the accused Gajraj, Jayanti and Tota. 4. Charan Singh the first informant lodged an FIR dated 23.12.1985 at 11:30 am (Ex. A1) at the Police Station Kotwali Dehat, District Bulandshahr nominating the appellants Gajraj, Jayanti and Tota as accused. 5. The prosecution story as unfolded in the FIR is that Gajraj, Jayanti and Tota all sons of Hem Singh, who are the cousin brothers of the first informant Charan Singh, are alleged to have forcibly and unlawfully occupied ¾ Bighas of land of the first informant on account of which there was exchange of hot words. Five/Six days before the fateful day, the pumping set of Jayantri installed on Buggy (a wooden cart drawn by male buffalo) was stolen on account of which the accused persons had taken up cudgels with the first informant and abused him. They had also threatened the first informant of taking revenge. On the fateful day of 23.12.1985 at around 10:25 am Vijay Pal, the brother of the first informant had gone on a bicycle to purchase Bidi (country made cheroot). The first informant was at home massaging his body when all of a sudden he heard shouts. Alarmed by the same, the first informant went ahead and saw that the three accused persons namely, Jayantri, Gajrat and Tota armed with Lathi and Pharsa (a sharp edged weapon) were assaulting his brother Vijay Pal. The first informant was at home massaging his body when all of a sudden he heard shouts. Alarmed by the same, the first informant went ahead and saw that the three accused persons namely, Jayantri, Gajrat and Tota armed with Lathi and Pharsa (a sharp edged weapon) were assaulting his brother Vijay Pal. Maya the sister of the first informant rushed out to save Vijay Pal who was also assaulted. Upon hearing the noise, Balbir son of Bhagwan Chand, Bhagwan Chand Son of Bahuri, Bahuri and many other men and women also came on the spot. Thereafter, the accused persons leaving the injured brother of the first informant ran away. Vijay Pal sustained injuries all over the body, whereas the sister Maya sustained injuries on the head. Placing Vijay Pal upon a Rickshaw, the first informant accompanied him and went to the police station for lodging the F.I.R and reached at the police Station concerned on 23.3.1985 at 10:35 am. 6. The entry of the FIR dated 23.12.1985 was made in the G.D, vide report No. 18 on 23.12.1985 at 11:30 am. The chick FIR was registered at 11:30 am. The special report regarding the aforesaid FIR was sent on 24.3.1985. 7. Upon registration of the FIR, dated 23.3.1985, the police of Police Station Kotwali Dehat, District Bulandshahr came into motion. Vijay Pal the injured was taken to the District hospital by constable CP 536 Shailendra. Regarding Maya, the injured sister, the police request for medico legal examination of the injured as provided in form 13 Cr.P.C. (majroobi Chithi) dated 23.3.1985 was prepared by the Station House Officer. Accordingly, the injured Maya was also taken to the hospital. 8. The injured Vijay Pal was admitted for treatment at the District Hospital Bulandshahr and accordingly, a Bed Head Ticket (Ex. Kha-1) was allotted to him. Upon examination the Doctor looking after the injured Vijay Pal opined that the injured Vijay Pal has sustained multiple incised wounds in front of the head in the middle which were bone deep and the bone chip could be seen. The Doctor further opined that the injured Vijay Pal could not be operated immediately as his blood pressure was very low and he was gasping for breath. Ultimately, Vijay Pal, the injured died at the District Hospital Bulandshahr on 24.3.1985 at 1:50 p.m.. The Doctor further opined that the injured Vijay Pal could not be operated immediately as his blood pressure was very low and he was gasping for breath. Ultimately, Vijay Pal, the injured died at the District Hospital Bulandshahr on 24.3.1985 at 1:50 p.m.. The body of the deceased was sent to the mortuary and the police was accordingly informed. Thereafter the first informant Charan Singh again went to the police station Kotwali Dehat for giving information regarding the death of his brother Vijay Pal. An entry to that effect was made in the G.D. on 23.3.1985 vide report No. 39 (Ext. Ka-7). Accordingly, Section 302 IPC was added by the police of Police Station Kotwali Dehat in Case Crime No. 107 of 1985. 9. The postmortem of the body of the deceased Vijay Pal was conducted on 24.3.1985 at 4:00 p.m. by Dr. O.M. Pandey and the following ante-mortem injuries were found on the body of deceased Vijay Pal : (i) Incised wound 2.5'’ x 1'’ cranial cavity deep on the left side of forehead oblong in position. (ii) Incised wound 2 ¼ ‘’ x ½’’ cranial cavity deep on the right side forehead above rt. eye brow. (iii) Incised wound 1 ½’’ x ½’’ bone deep on the ant. part. (iv) Incised wound 2 ½’’ x ¾’’ bone deep on the right side of head of 2'’ above right on the eye brow lat. part. (v) 4. Incised wound In an area of 3 ½’’ x 2 ½’’ x bone deep and right side of head 2'’ above the left ear. (vi) Abrasion 6'’ x ½’’ on the back of the fore arm middle part. (vii) Abrasion 1'’ x ½’’ on the chest left side lower part. (viii) M-Abrasion-3 ½’’ x ½’’ over. ant. back rt. Fore arm. The cause of death of the injured Vijay Pal as per post-mortem report was due to shock and hemorrhage as a result of ante-mortem injuries. 10. The injured Maya was also medically examined on 23.3.1985 at the District Hospital, Bulandshahr. Dr. P.L. Sharma who medically examined the injured Maya opined that the following injuries were found on the body of the injured Maya : (i) Lacerated wound 4cm x ¼ cm x scalp deep on top of head 11 cm above nose edge. 11. 10. The injured Maya was also medically examined on 23.3.1985 at the District Hospital, Bulandshahr. Dr. P.L. Sharma who medically examined the injured Maya opined that the following injuries were found on the body of the injured Maya : (i) Lacerated wound 4cm x ¼ cm x scalp deep on top of head 11 cm above nose edge. 11. In and around this time, the Sub-Inspector Bahadur Singh who was posted at police station City Kotwali, District Bulandshahr prepared the inquest report/Panchayatnama (Ex. Ka-8). According to the opinion of the panch, the death of the deceased Vijay Pal was homicidal and was on account of ante-mortem injuries inflicted upon his body. 12. The investigation of Case Crime No. 107 of 1985 under Sections 307/324 IPC, P.S. Kowali Dehat, District Bulandshahr started as contemplated under chapter 12 Cr.P.C. During the course of investigation, the investigating officer namely, S.I. Sri Ram Yadav prepared the site plan Exbt. Ka-3 of the place of incident. He also collected the material relating to the crime i.e. the memo of taking the sample of simple and blood stained soil from the spot Exbt. Ka-4 and further recorded the statement of some of the witnesses in terms of Section 161 Cr.P.C. Thereafter, the investigating officer was changed. Consequently, P.N. Chaturvedi who was already posted as Station Officer, Kotwali Dehat took over the remaining investigation. He recorded the statement of some of the witnesses as contemplated under Section 161 Cr.P.C. Again the investigation was changed and was taken over by one Subhash Chandra Garg who completed the remaining investigation by recording the statements of some of the witnesses in terms of Section 161 Cr.P.C. 13. Upon completion of the investigation of Case Crime No. 107 of 1985 initially registered under Sections 307/324 IPC, P.S. Kotwali Dehat, District Bulandshahr, to which Section 302 IPC was subsequently added the investigating officer, on the basis of the statements recorded and the material collected during the course of investigation, formed an opinion that a charge-sheet should be submitted against the accused persons. Accordingly, the investigating officer submitted the charge-sheet dated 4.6.1985 against the named accused persons in the Court of the CJM, Bulandshahr. Cognizance upon the same was taken by the Court concerned on 11.7.1985. Thereafter, the case was committed to the Court of sessions vide committal order dated 12.8.1985, passed by the CJM, Bulandshahr. 14. Accordingly, the investigating officer submitted the charge-sheet dated 4.6.1985 against the named accused persons in the Court of the CJM, Bulandshahr. Cognizance upon the same was taken by the Court concerned on 11.7.1985. Thereafter, the case was committed to the Court of sessions vide committal order dated 12.8.1985, passed by the CJM, Bulandshahr. 14. Pursuant to the aforesaid, S.T. No. 334/1985 (State of U.P. v. Jayanti and others) under Sections 302/307 IPC came into existence in the Court of the VIII Additional Sessions Judge, Bulandshahr. 15. The prosecution, in support of its case, relied upon nine witnesses namely: P.W. 1 Charan Singh (first informant) P.W. 2 Balbeer (Independent eye-witness) P.W. 3 Maya (Injured) P.W. 4 P.N. Chaturvedi P.W. 5 Sri Ram Yadav P.W. 6 Dr. P.L. Sharma P.W. 7 Kamruddin P.W. 8 Bahadur Singh P.W. 9 Dr. O.N. Pandey 16. Apart from the above, the prosecution also relied upon certain material evidence which was collected by the investigating officer during the course of investigation and marked as material exhibits, which were also duly proved. The same are catalogued herein below: Ex. 1 Blood stained earth Proved by P.W. 5 Ex. 2 Plain earth Proved by P.W. 5 Ex. 3 One Kurta Proved by P.W. 9 Ex. 4 One Paijama Proved by P.W. 9 Ex. 5 One underwear Proved by P.W. 9 Ex. 6 One Baniyan Proved by P.W. 9 17. Reliance was further placed by the prosecution upon certain documentary evidence which came to be prepared by the investigating officer in the discharge of his duties in accordance with the procedure provided for by the Code of Criminal Procedure. These are: Ex. Ka-1 Chik FIR Proved by P.W. 1 Ex. Ka-2 Copy of G.D. Proved by P.W. 5 Ex. Ka-3 Site plan Proved by P.W. 5 Ex. Ka-4 Fard of earth Proved by P.W. 5 Ex. Ka-5 Copy of report No. 40 Proved by P.W. 5 Ex. Ka-6 Injury report of Maya Devi Proved by P.W. 6 Ex. Ka-7 Copy of report No. 39 Proved by P.W. 8 Ex. Ka-8 Pancyatnama/inquest report Proved by P.W. 8 Ex. Ka-9 Challan of dead body Proved by P.W. 8 Ex. Ka-10 Photo of dead body Proved by P.W. 8 Ex. Ka-11 Letter of R.I. Proved by P.W. 8 Ex. Ka-12 Letter of C.M.O. Proved by P.W. 8 Ex. Ka-13 Postmortem Report Proved by P.W. 8 Ex. Ka-14 Charge-sheet Ex. Ka-8 Pancyatnama/inquest report Proved by P.W. 8 Ex. Ka-9 Challan of dead body Proved by P.W. 8 Ex. Ka-10 Photo of dead body Proved by P.W. 8 Ex. Ka-11 Letter of R.I. Proved by P.W. 8 Ex. Ka-12 Letter of C.M.O. Proved by P.W. 8 Ex. Ka-13 Postmortem Report Proved by P.W. 8 Ex. Ka-14 Charge-sheet Ex. Kha-1 Bed head ticket Proved by P.W. 6. 18. The accused persons denied the charges earlier framed by the Court of Sessions vide order dated 4.9.1985 and demanded trial. 19. On behalf of the accused appellants the following submissions were raised before the Court below in support of their innocence: (i) The statement of P.W. 1 Charan Singh, P.W. 3 Maya and P.W. 2 Balbir who are witnesses of facts are neither reliable nor credible. (ii) There is over writing on the bed head ticket which creates a serious doubt in the prosecution story. (iii) The prosecution has failed to prove the motive for committing the alleged crime as alleged in the FIR. (iv) The prosecution has not examined any independent witness in support of its case. (v) There are several contradictions in the statement of the witnesses adduced on behalf of the prosecution. (vi) The FIR is ante-timed. (vii) The medical evidence is contrary to the ocular version of the incident in question. (viii) The first informant went twice to the police station which itself disproves the prosecution case. (ix) Lastly, there are serious contradictions in the statement of P.W. 3 Maya with her statement recorded under Section 161 Cr.P.C. 20. The Court below upon evaluation of the submissions made with the evidence available on the record, did not accept any of the submissions so raised and thus convicted all the accused persons for offences under Sections 302/34 and 323/34 IPC. Consequently, all the accused persons were awarded rigorous imprisonment for life, vide judgment and order dated 3.2.1986, passed by the VIII Additional Sessions Judge, Bulandshahr. 21. Feeling aggrieved by the aforesaid judgment and sentence awarded by the Court below, the accused appellants have filed the present criminal appeal. 22. Mr. S.C. Dwivedi, Advocate, learned counsel for the appellants assisted by Mr. Shyam Bahaur Vaish after meticulously placing the evidence on the record before us, has made the following submissions in support of the present criminal appeal. Feeling aggrieved by the aforesaid judgment and sentence awarded by the Court below, the accused appellants have filed the present criminal appeal. 22. Mr. S.C. Dwivedi, Advocate, learned counsel for the appellants assisted by Mr. Shyam Bahaur Vaish after meticulously placing the evidence on the record before us, has made the following submissions in support of the present criminal appeal. (A) The accused appellants have been falsely implicated as there was no motive on the part of the accused appellants to commit the crime. (B) The FIR is ante-timed. (C) The incident itself being doubtful, the alleged place of occurrence and the presence of P.W. 1 Charan Singh is also doubtful. (D) There are various contradictions in the ocular version of the incident in the oral testimony of P.W. 1 Charan Singh and P.W. 3 Maya. (E) There is no recovery of the weapons used in the commission of the crime. (F) The prosecution of the accused appellants is the outcome of an investigation which is neither free nor fair. 23. We shall now deal with the submissions made by the learned counsel for the appellants serially and in detail. 24. Learned counsel for the appellants in challenge to the judgment and order passed by the Court below firstly submitted that the accused persons have been falsely implicated as they have no motive to commit the crime. 25. Before proceeding to consider the aforesaid submission of the learned counsel for the appellant, it would be prudent to have the meaning of the word ‘Motive’ as understood in criminal jurisprudence and how the Courts have considered it to be a relevant factor in the commission of crime. We may refer to the following observations made in paragraphs 17, 18 and 19 of the judgement of the Apex Court in the case of Bipin Kumar Mondal v. State of West Bengal, JT 2010 (7) SC 37: “17. During the cross-examination of all of the witnesses, nothing had transpired for which their evidence may be discarded. The witnesses were natural and most probable and their presence at the place of occurrence immediately after the commission of crime is expected, being close relatives and neighbours. No reason could be given as to why such close relations of the appellant would depose against him. The witnesses were natural and most probable and their presence at the place of occurrence immediately after the commission of crime is expected, being close relatives and neighbours. No reason could be given as to why such close relations of the appellant would depose against him. Undoubtedly, there is nothing on record to show as what could be the motive behind the murder of his wife and son by the appellant. However, it can be difficult to understand the motive behind the offence. The issue of motive becomes totally irrelevant when there is direct evidence of a trustworthy witness regarding the commission of the crime. In such a case, particularly when a son and other closely related persons depose against the appellant, the proof of motive by direct evidence loses its relevance. In the instant case, the ocular evidence is supported by the medical evidence. There is nothing on record to show that the appellant had received any grave or sudden provocation from the victims or that the appellant had lost his power of self control from any action of either of the victims. Motive : 18. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55 , this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the Court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. 19. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. 19. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shankar v. State of U.P., (1996) 9 SCC 40 ; Bikau Pandey and others v. State of Bihar, (2003) 12 SCC 616 ; and Abu Thakir and others v. State of Tamil Nadu, (2010) 5 SCC 91 ).”: 26. With the aid of the meaning of the term ‘Motive’ and its relevance in the commission of a crime, we shall now proceed to consider the merits of the aforesaid submission of the learned counsel for the appellants. According to the learned counsel for the appellants as per the prosecution story itself, it is alleged that the accused appellants are alleged to have encroached upon ¾ Bighas of land belonging to the family of the first informant, whereas no land is recorded in the name of the first informant or the accused appellants. It was next contended that as per the prosecution story as unfolded in the FIR itself, a theft is alleged to have taken place regarding a pumping set belonging to the accused appellant No. 1 Jayantri Prasad which was installed on a Buggy, on account of which the accused persons had taken up cudgels with the first informant and had threatened him. According to the learned counsel for the appellants, the aforesaid facts by themselves could not be said to form motive behind the commission of the alleged crime. 27. According to the learned counsel for the appellants, the aforesaid facts by themselves could not be said to form motive behind the commission of the alleged crime. 27. The law on the subject now stands crystallized and it is by now well established by a catena of decisions that the question of motive becomes irrelevant in the case of direct evidence vide judgments in Pedda Narayana and others v. State Of Andhra Pradesh, AIR 1975 SC 1252 , Bipin Kumar Mondal v. State of West Bengal, JT 2010 (7) SC 379, State of Uttar Pradesh v. Krishna Master, (2011) 1 SCC (Cri) 381. 28. According to the F.I.R. version, the occurrence in which criminality was committed upon Vijay Pal and his sister Maya was witnessed by the first informant Charan Singh (P.W.1) the injured sister Maya (P.W.3). During the course of trial another eye-witness Bablu (P.W.3) was also adduced in evidence as an independent eye-witness. All the aforesaid witnesses have seen the occurrence and P.W. 3 Maya is an injured witness. As such there is direct eye-witness account of the aforesaid three witnesses regarding the incident which occurred on 23.3.1985 and all the three witnesses have implicated the accused persons in the commission of the crime. 29. Thus in the light of the aforesaid, the submission raised by the counsel for the appellants that the accused appellants have been falsely implicated as there was no motive to commit the crime, is wholly misconceived. Accordingly, we have no hesitation in rejecting the aforesaid submission raised by the counsel for the appellants. 30. In continuation of his challenge to the impugned conviction awarded by the Court below to the accused appellants, it was next contended by the appellants’ counsel that the F.I.R. dated 23.3.1985 which is the basis of the present criminal proceedings against the accused appellants and has resulted in the conviction of the accused appellants is ante-timed. To lend support to the aforesaid submission, the appellants’ counsel drew the attention of the Court to the following facts : There is no mention of the FIR/Case Crime Number in the Panchayatnama as well as the postmortem report. It is not categorically proved from the evidence on the record as to who took the injured Vijay Pal to the hospital. It is not categorically proved from the evidence on the record as to who took the injured Vijay Pal to the hospital. The riksha puller who is alleged to have taken the injured Vijay Pal to the police station, has not been examined nor his name has been disclosed by any of the prosecution witness. There is no majrubi chitti accompanying the injured Vijay Pal to the hospital. No dying declaration of the injured Vijay Pal was recorded. There is no recovery of the bicycle on which the injured Vijay Pal had gone to purchase Bidi (country made cheroot) nor there is recovery of the bundle of Bidis from the spot. 31. Rebutting the aforesaid submissions made by the learned counsel for the appellants Mr. Rajiv Sharma, the learned A.G.A, submitted that the F.I.R. has been promptly lodged. Promptness excludes false implication. The incident has occurred in broad day light. The accused persons are the cousins of the first informant. As such, there is no question of identification of the accused persons. The statement of the doctor namely, Dr. P.L. Sharma, who has been examined as P.W.6, contains a categorical recital that the nature of the injuries found upon the body of the injured Vijay Pal, as well as the injured Maya were fresh, which demolishes the theory of ante-timing of the lodging of the F.I.R. as suggested by the appellants’ counsel. The injuries inflicted upon the injured Vijay Pal and Maya, could not be fabricated. The injured Vijay Pal was first taken to the hospital because it was a police case and no doctor would have attended the injured without the intervention of the police. The stomach of the injured Vijay Pal was empty which clearly disproves the ante-time theory suggested by the appellant’s counsel. Thus the medical evidence clearly supports the prosecution story. The reason for not mentioning of the F.I.R./Case Crime Number in the Panchyatnama/Postmortem Report, is clearly discernible from the statement of the S.I. Sri Bahadur Singh P.W. 8 who got the panchayatnama done and also sent the papers for postmortem. The same is at page 41/42 of the paper book. Thus the medical evidence clearly supports the prosecution story. The reason for not mentioning of the F.I.R./Case Crime Number in the Panchyatnama/Postmortem Report, is clearly discernible from the statement of the S.I. Sri Bahadur Singh P.W. 8 who got the panchayatnama done and also sent the papers for postmortem. The same is at page 41/42 of the paper book. The relevant portion of the same is quoted herein below: ^^2- iapk;rukek dh dk;Zokgh eSaus 3 cts fnu ljdkjh vLirky esa 'kq: dh vkSj fnu ds 4 1@2 cts lekIr dj nhA iapk;rukek ij dksbZ vijk/k uEcj ugha fy[kk gSA [kqn dgk fd ;g eqdnek dksrokyh nsgkr ls lEcfU/kr FkkA gekjs Fkkuk ij bl vijk/k ds lEcU/k esa dksbZ ,QŒvkbZŒvkjŒ ntZ ugha djkbZ FkhA bl dkj.k ij iapk;rukek ij vijk/k uEcj ugha fy[kk gSA blh otg ls iksLVekVZe ds fy;s dkxtkr Hksts tkus ds le; ,QŒvkbZŒvkjŒ dh udy ugha Hksth xbZA** 32. It was further submitted that not much will turn on account of non-mentioning of the FIR/Case Crime Number in the Panchayatnama and the postmortem report. The purpose of Panchayatnama is only to find out whether the death is homicidal or suicidal as held by the Apex Court in the following cases: (1) Shakila Khader v. Nausher Gama, 1975 (4) SCC 122 . (2) Radha Mohan Singh v. State of U.P., 2006 (2) SCC 450 . (3) Amar Singh v. Balwinder Singh, 2003 (2) SCC 518 . (4) Ravi @ Ravichandran v. State Rep. By Inspector Of Police, 2007 (15) SCC 372. 33. According to the learned A.G.A. in the case in hand, the prosecution story is supported by an injured witness and her testimony is consistent before the Police and the Court. Her testimony is further corroborated by the medical evidence which cannot be discarded. Similar view was taken by the Apex Court in the case of Akhtar and others v. State of Uttaranchal, 2009 (13) SCC 722 . Paragraph 18 of the aforesaid judgement is relevant for the controversy in hand and the same is extracted herein below: “18. In the case of Krishan v. State of Haryana, [ 2006 (12) SCC 459 ], this Court has taken the view that if the prosecution case supported by two injured eye-witnesses and if their (injured eye-witnesses) testimony is consistent before the police and the Court and corroborated by the medical evidence, their testimony cannot be discarded. In the case of Krishan v. State of Haryana, [ 2006 (12) SCC 459 ], this Court has taken the view that if the prosecution case supported by two injured eye-witnesses and if their (injured eye-witnesses) testimony is consistent before the police and the Court and corroborated by the medical evidence, their testimony cannot be discarded. Similarly, in the case of Surender Singh v. State of Haryana, [ 2006 (9) SCC 247 ], this Court has opined that: (SCCp. 251, para 9) “9.The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness was injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes.” This Court has taken the view in State of M.P. v. Mansingh, [ 2003 (10) SCC 414 ], that: (SCCp. 419, para 9) 9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. 34. Upon evaluation of the rival submissions made by the learned counsel for the appellants and the learned A.G.A, we are inclined to agree with the submissions raised by the learned A.G.A. No such submission was advanced by the learned counsel for the appellants in rejoinder on the basis of which the submissions made by the learned A.G.A could be said to be unfounded or irrational. The incident is of broad day light and the injuries sustained by the deceased Vijay Pal as well as the injured Maya were proved to be fresh by the testimony of the doctor that corroborates the medical examination report. The timing is the morning hour of winter day of the month of December and there is nothing unusual if the stomach of the deceased was found to be empty. The place of occurrence is clearly discernible from the site plan, which stands proved by the oral testimony of the Sub Inspector i.e. P.W. 5, who prepared the same. Accordingly, we have no option, but to repel the argument raised by the appellants’ counsel that the FIR is ante-timed. 35. The place of occurrence is clearly discernible from the site plan, which stands proved by the oral testimony of the Sub Inspector i.e. P.W. 5, who prepared the same. Accordingly, we have no option, but to repel the argument raised by the appellants’ counsel that the FIR is ante-timed. 35. Extending his challenge to the conviction awarded to the accused appellants by the Court below, learned counsel for the appellants submitted that the incident itself being doubtful, the alleged place of occurrence and the presence of P.W. 1 (Charan Singh) at the alleged place of occurrence is also doubtful. According to the learned counsel for the appellant, the following peculiar facts of the case in hand clearly go to establish the proposition advanced by him. The distance from the place of occurrence and the house of the first informant has not been mentioned in the site plan. The distance from point A which is the place of occurrence to point B which is the place where the first informant Charan Singh was massaging his body is 60 steps. The incident in question would not have lasted for more than 1 and ½ minutes and such distance could not have been covered after hearing the noise of shouting of the injured. Thus, P.W.1 could not have witnessed the occurrence. Neither the shop from where the injured Vijay Pal was coming after purchasing Bidi (country made cheroot) has been shown in the site plan nor the bicycle he was riding has been shown in the site plan. The place of incident thus becomes doubtful as there is no recovery of the bundle of Bidis, nor of the bicycle which the injured Vijay Pal is alleged to have used for going to make the purchase of Bidi. There is a difference in the names of the witnesses mentioned in the F.I.R. who have witnessed the occurrence in question and the name of the witnesses mentioned in the statement of P.W. 1 (Charan Singh) the first informant. The place of occurrence according to P.W. 1 is Chak Road whereas, according to the investigating officer who has prepared the site plan, the place of occurrence is the boundary (Medh) of the field. The place of occurrence according to P.W. 1 is Chak Road whereas, according to the investigating officer who has prepared the site plan, the place of occurrence is the boundary (Medh) of the field. The statement of P.W. 3 Maya was recorded by the investigating officer in terms of Section 161 Cr.P.C, after a period of two months and 11 days for which no explanation has come forward. The constable who took the injured Maya to the hospital has not been examined by the prosecution. The place of presence of the injured Maya has not been shown in the site plan. All the accused persons have been assigned the role of causing injuries whereas, only one accused namely Gajraj who was armed with a lathi caused injuries to P.W. 3 Maya. The Majrobi Chitti which was prepared in respect of the injured Maya P.W. 3 has not been referred to in any of the statements of the eye-witnesses. Lastly, there is contradiction in the recording of the statement of P.W. 1 Charan Singh the first informant by the investigating officer. 36. According to the learned counsel for the appellants, the combined effect of the aforesaid facts can lead to only one conclusion and i.e. that not only the incident itself is doubtful but the alleged place of occurrence and the presence of P.W. 1 Charan Singh at the place of occurrence is also doubtful. 37. In opposition to the aforesaid submission of the learned counsel for the appellants and the factual foundation laid by him, in support thereof, the learned A.G.A Mr. Rajiv Sharma drew the attention of the Court to the material exhibits as well as the documentary evidence prepared by the investigating officer during the course of investigation to demonstrate before us that not only the incident is true but the place of incidence is also the same where the incident actually occurred and the presence of P.W. 1 at the time and place of occurrence is beyond doubt. 38. To appreciate the submission of the learned A.G.A, it would be necessary to examine the legal character of a document which has been exhibited and the relevant provisions of the Code of Criminal Procedure/General Rules (Criminal), which provide for the acceptance of the documentary evidence, marking of the same as an exhibit and the proof of such documentary evidence. Section 294 Cr. Section 294 Cr. P. C. provides for the admission/denial of the genuineness of the document mentioned in the list of documents submitted by the prosecution or the accused. The documents produced are not proved automatically. Unless the accused admits those documents under Section 294 (1) Cr. P. C., the document must be proved by oral testimony. At this stage, we may refer to the observations made in paragraph 37 of the judgement of the Apex Court in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and others, 2009 (9) SCC 221 : “It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.” 39. Similar is the proposition laid down by the Supreme Court in paragraph 16 of the judgement of Apex Court in the case of Akhtar and others v. State of Uttaranchal, 2009 (13) SCC 722 . Paragraph 16 of the aforesaid judgement is quoted herein below : “In the opinion of the Medical Officer the injuries were fresh and simple in nature, caused by sharp-edged weapon. The same Medical Officer also examined PW-3, Mobin and opined that four injuries were caused by some hard blunt object and two injuries were caused by a fire-arm and all the injuries were fresh in duration. 11. Admittedly, there is no dispute as far as the genuineness of the injury reports, post-mortem reports and also the genuineness of the Ballistic Expert’s report is concerned. As defence has already admitted the same no useful purpose would be served to discuss those reports again.” 40. Thus, on a sum total of the aforesaid, it is explicitly clear that a document in order to become documentary evidence in a criminal case is required to be filed and proved as per the mandate of Section 294 Cr. As defence has already admitted the same no useful purpose would be served to discuss those reports again.” 40. Thus, on a sum total of the aforesaid, it is explicitly clear that a document in order to become documentary evidence in a criminal case is required to be filed and proved as per the mandate of Section 294 Cr. P. C. After the document has been admitted in evidence or proved, it is marked as an Exhibit in terms of Rule 27 of the General Rules (Criminal). Lastly, once a document has been marked as an exhibit, no formal proof of the same is required. For ready reference, Rule 27 of the General Rules (Criminal) is quoted herein below : “27. Marking of Exhibits. (a) Every document, weapon or other article admitted in evidence before a Court shall be clearly marked with the number it bears in the general index of the case and the number and other particulars of the case and of the police station. (b) The Court shall mark the documents admitted in evidence on behalf of the prosecution with the letter K followed by a serial numeral indicating the order in which they are admitted, thus- Ex. Ka1, Ex Ka2, Ex. Ka3, etc. and the documents admitted on behalf of the defence with the letter Kha followed by a numeral, thus- Ex. Kha 1, Ex. Kha 2, Ex. Kha 3 etc- (c)In the same manner every material exhibits admitted in evidence shall be marked with numerals in serial order, thus- Ex.1, Ex. 2, Ex. 3, etc. (d) All exhibit marks on documents and material exhibits shall be inswtalled by the presiding officer, (e) No document or material exhibit which has been admitted in evidence and exhibited shall be returned or destroyed until the period for appeal has expired or until the appeal as been disposed of, if an appeal be preferred against the conviction and sentence. (f) Documents or material exhibits which have not been admitted in evidence should not be made part of the record, but should be returned to the party by whom they were produced.” 41. Mr. Rajiv Sharma, the learned A.G.A. firstly, pointed out the material exhibits and the documentary evidence relied upon by the prosecution have been marked as exhibits and therefore the same has to be treated as uncontroverted evidence on record. No proof of the said documents is required. Mr. Rajiv Sharma, the learned A.G.A. firstly, pointed out the material exhibits and the documentary evidence relied upon by the prosecution have been marked as exhibits and therefore the same has to be treated as uncontroverted evidence on record. No proof of the said documents is required. 42. On the basis of the aforesaid, learned A.G.A. invited the attention of the Court to Exhibit 1 which is the blood stained earth and Exhibit 2 which is the plain earth collected from the place of occurrence and have been proved by P.W. 5 Sri Ram Yadav the investigating officer. The recovery of blood from the spot clearly proves the place of occurrence. Drawing attention to the oral testimony of P.W. 5, it was next contended by the learned A.G.A. Mr. Rajiv Sharma that no suggestion was made to P.W. 5 regarding the genuineness of the aforesaid exhibits. As such the same has to be accepted on its face value. Thus, it was concluded that an issue which was not argued before the Court below, cannot be allowed to be raised in appeal and that too on hypothetical basis. The recovery of the blood stained soil from the place of occurrence clearly proves the place of occurrence beyond any doubt. 43. In furtherance of his submission, the learned A.G.A. Mr. Rajiv Sharma next submitted before us that the incident which occurred on 23.2.1985 has left Vijay Pal and Maya his sister injured. While Vijay Pal the injured died subsequently, his sister Maya survived. The injured Maya has been examined as P.W. 3 and she has in her testimony implicated the accused persons. The burden is upon the accused persons to dislodge her testimony. Her testimony cannot be dislodged on casual basis. The defence will have to explain how the injuries were caused to P.W. 3 Maya, which the defence has miserably failed to explain. As such the incident which is the basis of the present criminal proceeding is proved to be true beyond any doubt. 44. Regarding the presence of P.W. 1 Charan Singh, the first informant, at the place of occurrence, the learned A.G.A. Mr. Rajiv Sharma vehemently urged before us that the F.I.R. has been lodged by the first informant Charan Singh himself. It was the first informant who took the injured Vijay Pal on a rickshaw to the police station. 44. Regarding the presence of P.W. 1 Charan Singh, the first informant, at the place of occurrence, the learned A.G.A. Mr. Rajiv Sharma vehemently urged before us that the F.I.R. has been lodged by the first informant Charan Singh himself. It was the first informant who took the injured Vijay Pal on a rickshaw to the police station. The F.I.R. is prompt and ante-timing of the F.I.R. suggested by the appellants counsel is wholly vague in view of the submissions made earlier (and also noted above). The statement of the first informant Charan Singh was recorded by the Investigating Officer under Section 161 Cr.P.C. and no contradiction could be pointed out in the testimony of this witness recorded during the course of trial as P.W. 1. The manner in which the incident in question occurred has been described in a similar manner in the statement under Section 161 Cr.P.C., as well as in the statement given before the Court as P.W. 1. Thus, the oral testimony of P.W. 1 Charan Singh regarding the manner in which the incident has occurred has remained consistent through out. The defence has not been able to take out any thing adverse to the prosecution case in the cross-examination of P.W.1 Charan Singh. 45. Upon examination of the records, we find that though the distance is not mentioned in the site plan in between the Chak Road and the Medh, the same is a minor omission and nothing will turn on the aforesaid minor omission. The distinction between a Chak Road (a road for access to agricultural plots) and a Medh (filed boundary) as sought to be made the basis of disputing the ocular version of Charan Singh is concerned, the same is not of any material significance. Admittedly, a Chak Road is to facilitate to reach to a plot and a Medh is the boundary demarking a plot that may be adjacent to a Chak Road or a plot. Any omission to show the place where Maya the injured was standing, will not demolish her ocular version of the incident that has not been contradicted in a manner so as to completely disbelieve her testimony. 46. All the aforesaid factors taken together, clearly demolish the point urged by the counsel for the appellants and therefore, the same is unworthy of acceptance. 47. 46. All the aforesaid factors taken together, clearly demolish the point urged by the counsel for the appellants and therefore, the same is unworthy of acceptance. 47. Continuing his challenge to the impugned judgment and order dated 3.2.1986 passed by the Court below, learned counsel for the appellants submitted before us and with much vehemence that there are various contradictions in the ocular version of the incident in question in the statement of P.W. 1 Charan Singh and P.W. 3 Maya, the injured sister of the deceased. 48. With much industry, the appellants’ counsel drew a parallel with the statements of the aforesaid witnesses to highlight the contradictions in the oral testimony of the above mentioned two witnesses. It was thus contended before us that on account of the aforesaid, the testimony of P.W. 1 and P.W. 3 is not worth to be relied upon. Therefore, the oral testimony of the aforesaid witnesses is liable to be disbelieved by this Court. 49. We would have referred to and dealt with the contradictions pointed out by the appellants’ counsel and thereafter, decide the reliability as well as the credibility of the aforesaid two witnesses. 50. However, on account of the established fact with which we shall deal in detail herein after we do not consider it necessary to indulge in the aforesaid exercise. Suffice it to mention here that P.W. 3 Maya is an injured eye-witness of the incident. P.W. 3 has categorically implicated all the accused appellants in the commission of the crime giving rise to the present prosecution. The burden was therefore upon the accused appellants to dislodge the testimony of P.W. 3. It was further obligatory on the part of the accused appellants to explain how the injuries were caused to the injured eye-witness i.e. Maya P.W. 3. As the accused appellants have failed to discharge this burden the inevitable conclusion remains that the oral testimony of P.W. 3 Maya, the injured eye-witness, remains uncontroverted, which has clearly implicated the accused appellants in the crime in question. In view of the above, the submission made by the counsel for the appellants being wholly misconceived is not worthy of acceptance. 51. In view of the above, the submission made by the counsel for the appellants being wholly misconceived is not worthy of acceptance. 51. Learned counsel for the appellants further submitted before us that as the weapons which are alleged to be used in the commission of the crime, have not been recovered and thus the accused appellants are liable to be acquitted of the charges alleged against them. We need not delve into this question as the said issue is no longer res integra. Reference may be made to the following judgements of the Supreme Court, wherein this very issue has been specifically dealt with and rejected. (i) Umar Mohammad and others v. State of Rajasthan, (2007) 14 SCC 711 , para 34. (ii) Munna Alias Surendra Kumar v. State of M.P., (2003) 11 SCC 480 , para 8. (iii) Mano v. State of Tamil Nadu, (2007) 13 SCC 795 , paras 16 and 17. (iv) Anwarul Haq v. State of U.P., (2005) 10 SCC 581 , para 15. 52. Lastly, it was urged by learned counsel for the appellants in support of the appeal that the prosecution of the accused appellants is the outcome of an investigation which is neither free nor fair. It is the submission of learned counsel for the appellants that as the investigation of Case Crime No. 107 of 1985 under Sections 307/324 IPC, P.S. Kowali Dehat, District Bulandshahar, has not been free and fair, all the accused appellants are liable to be acquitted of the charges alleged against them. 53. The submission is too bold to be accepted. 54. This controversy as to what will be the fate of a trial in which the investigation is found to be defective has been considered by the Apex Court in numerous cases. However, reference is made to the judgement of the Apex Court in the case of Visveswaran v. State represented by S.D.M, 2003 (6) SCC 73 . In paragraphs 11 and 13 of the aforesaid judgement it has been held as follows: “11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW1 and PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW1 and PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW1 and PW2, therefore, it is evident, could not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory from the statements of PW1 and PW2. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a times, crimes are committed under cover of darkness when none is able to identify the accused. The commission of crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt. 13. Reverting to the instant case, it is no doubt true that if the evidence of witnesses is examined in isolation, without having regard to the aforesaid principles, there may be considerable force in the submission that the identity of the appellant has not been established and likewise as a result of defective investigation of not holding test identification parade, the benefit should go to the appellant. However, when the case is examined having regard to the aforesaid legal principles, the result would be otherwise. Circumstances which have been taken into consideration against the appellant by the trial Court as well as the High Court are that the appellant, a Police official, was caught from a room in a hotel. The proprietor of the hotel was examined as PW3. The hotel record (Exhibits P-4 and P-5) showed booking of the room in that hotel by the appellant and also payment of advance of Rs. 100/-. PW3 had also been examined by PW14. The appellant could not explain his whereabouts during the time the offence was committed. He was not cooperative during investigation. He declined to give sample of his semen. He was having different appearance at the time of examination of PWI and PW2 in Court. At the time of commission of offence, he did not have beard and the moustaches. The appellant could not explain his whereabouts during the time the offence was committed. He was not cooperative during investigation. He declined to give sample of his semen. He was having different appearance at the time of examination of PWI and PW2 in Court. At the time of commission of offence, he did not have beard and the moustaches. However, when PWI and PW2 were examined in Court, he had beard and the moustaches and was wearing Dhoti. The testimony of PWI and PW2 was straightforward. The witnesses, immediately after the commission of offence, had named the’ appellant. The non-holding of the test identification parade, having regard to the facts of the case, is not fatal and does not create any reasonable doubt in the case of the prosecution. We are unable to accept the contention that the identity of the appellant had not been proved. From the proved circumstances, it has been fully established that PWI was picked up and raped in a hotel room as per the case set up by the prosecution by a Police Constable who was none other than the appellant. There is no infirmity in the impugned judgment of the High Court.” 55. Similarly, in the case of State of M.P. v. Mansingh and others, 2003 (10) SCC 414 , the Apex Court in paragraph 12 has held as follows : “12. Even if it is accepted that there was deficiencies in investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent. Non-examination of Hira Lal is also not a factor to cast doubt on the prosecution version. He was not an eye-witness, and according to the version of PW 8 he arrived after PW 8. When PW8 has been examined, the non-examination of Hira Lal is of no consequence.” 56. Thus, in view of the aforesaid decisions of the Apex Court, it is well established that the deficiency in the investigation cannot be a ground to discard the prosecution version, which is otherwise worth reliance. In the present case, as already held above, P.W. 3 the injured eye-witness is a reliable as well as credible witness and her testimony cannot be discarded on any ground. P.W. 3 in her testimony has clearly implicated the accused appellants in very categorical terms in the commission of the crime in question. In the present case, as already held above, P.W. 3 the injured eye-witness is a reliable as well as credible witness and her testimony cannot be discarded on any ground. P.W. 3 in her testimony has clearly implicated the accused appellants in very categorical terms in the commission of the crime in question. The prosecution has thus succeeded in substantially proving the very story it alleged. 57. In view of the discussions made herein above, the appeal fails and is liable to be dismissed. Accordingly, the present criminal appeal is dismissed. The appellants are on bail. Their bail bonds are cancelled and the sureties discharged. All the appellants shall be taken into custody by the C.J.M concerned and sent to jail to serve out the sentence already awarded by the Court below. A copy of this order be sent to the C.J.M. Bulandshahr forthwith for compliance.