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2024 DIGILAW 1036 (ALL)

Vinay Kumar Jaiswal v. State of U. P.

2024-04-10

ARVIND SINGH SANGWAN, RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : Arvind Singh Sangwan, J. The present appeal arises out of judgment of conviction dated 16.5.2012 passed by Additional Sessions Judge, Court No. 2, Maharajganj in Sessions Trial No. 9 of 2010 holding appellant-Vinay Kumar Jaiswal guilty of offence under Section 302, 307 and 506 of IPC read with Section 3/25 of Arms Act. vide order of sentence dated 17.5.2012, the accused-appellant was awarded imprisonment for life under Section 302 IPC with fine of Rs. 10,000/-. Under Section 307 IPC, he was sentenced to seven years of rigorous imprisonment with fine of Rs. 5000/-, under Section 506 of IPC, imprisonment for two years and under Section 3/25 of the Arms Act, the appellant was sentenced to one year imprisonment with fine of Rs. 1000/-. It was directed that in case of default in payment of fine, the appellant would further undergo imprisonment for six months. All the sentences were directed to run concurrently. 2. It is worth noticing that the Supreme Court of India vide order dated 16.12.2022 had directed the High Court to decide the appeal expeditiously. Paper book is complete and trial Court's record has been received. 3. Learned counsel for the appellant and learned AGA for the State have addressed their respective arguments and with their assistance, the entire evidence is re-scrutinized and re-appriciated. 4. As per the prosecution, informant-Sarita Jaiswal, PW-1 (wife of deceased-Dileep Kumar Jaiswal), gave a complaint (Ex.Ka-1) that her husband runs a saw mill which is in the name of her mother-in-law, Smt. Durgawati Devi. Her mother-in-law is residing with her husband. The elder brother of her husband, appellant-Vinay Kumar Jaiswal, had separated after the death of their father and used to demand money from her husband. On 7.5.2009, at about 5.30 in the morning, the appellant fired on the head of his brother (deceased-Dileep Kumar Jaiswal) and when his mother-Durgawati Devi tried to intervene, the appellant also fired upon her which hit her on chest and by abusing and threatening, he ran away from the spot. The informant and other brother of her husband namely Ashok alias Raju Jaiswal and other family members took the injured to Medical College, Gorakhpur, where Dileep Kumar Jaiswal died and Durgawati was admitted. On receiving the information, the formal F.I.R. was registered. 5. During the course of investigation, the police recovered the weapon of offence from the appellant alongwith live cartridges. On receiving the information, the formal F.I.R. was registered. 5. During the course of investigation, the police recovered the weapon of offence from the appellant alongwith live cartridges. From the spot, bloodstained earth was also recovered and a bullet was recovered from the head of the deceased during the post-mortem which was also taken into possession by the police. The cartridges both empty and live were sent to F.S.L. for examination. Thereafter, charge-sheet was presented before the Trial Court and charges under Section 307, 302, 504 and 506 of IPC read with Section 3/25/27 of the Arms Act were framed. 6. The appellant did not plead guilty and claimed trial. 7. In prosecution evidence, the informant (PW-1) reiterated her version. It was stated by her that her husband, Late Dileep Kumar Jaiswal, were four brothers. The eldest is Ashok alias Raju Jaiswal, younger to him is Vinay Jaiswal (accused-appellant), at number three was her husband (deceased Dileep) and the youngest is Pradeep Kumar alias Chhotu. She further stated that after the death of her father-in-law namely Shiv Kumar Jaiswal, her husband separated from his two brothers, Ashok alias Raju and Vinay Kumar Jaiswal who had got their share separated and started their separate business. It was further stated that her mother-in-law and youngest brother of her husband, Pradeep alias Chhotu were staying with her husband and they were working on saw mill which was in the name of her mother-in-law and this property was not divided. She further stated that accused-Vinay Kumar had taken Rs. 5,00,000/- from her husband and spent this amount on bad habits. 8. On 7.5.2009, when she was getting ready to go to her parental home and her husband was sleeping, suddenly she heard a noise of firing. She alongwith her brother-Ashok (PW-2), brother-in-law, Raju and mother-in-law, Durgawati Devi, went towards the room where her husband was sleeping. Accused-appellant was carrying a revolver and before they could understand anything, he fired upon her mother-in-law, Durgawati, on her chest. By extending threat, accused-Vinay Kumar Jaiswal, ran away. In the meantime, many people gathered. Injured persons were taken to Medical College, Gorakhpur where Dileep died and her mother-in-law was admitted. 9. In cross-examination, the defence tried to prove that PW-1 was not present at the spot. By extending threat, accused-Vinay Kumar Jaiswal, ran away. In the meantime, many people gathered. Injured persons were taken to Medical College, Gorakhpur where Dileep died and her mother-in-law was admitted. 9. In cross-examination, the defence tried to prove that PW-1 was not present at the spot. However, in her cross-examination, PW-1 has given complete details of the manner in which the incident took place, the manner in which the injured persons were taken to the hospital, the manner in which the information was given to the police and the investigation carried out by the police at the spot. This witness categorically stated that her brother (PW-2) was there at her matrimonial home as on previous day i.e. 6.5.2009, he had come to take her back for attending some function at her parental home. One suggestion was given to this witness that at the time of incident she was at her parental home and was not present in matrimonial home, however, she denied the suggestion that she alongwith her brother was not present at the spot. 10. Ashok Kumar Jaiswal (PW-2) narrated the incident as stated by PW-1. He has also given the complete details of giving complaint to the police and taking the injured persons to the hospital. In cross-examination, the defence tried to prove that he was not present on the spot. However, this witness was consistent in giving details of the incident. He has also denied the suggestion by defence that on the date of incident, he alongwith his sister (PW-1) had gone to their parental home and on receiving information from the brother of the deceased, they reached the medical college. 11. Sanjay Jaiswal (PW-3), is the neighbour of the deceased as well as the accused. This witness also gave the description of the incident by saying that when he reached the house of Dileep (deceased), he found both Dileep and his mother-Durgawati lying injured due to bullet injuries. This witness also stated that there used to be panchayat between Vinay Kumar (appellant) and Dileep Kumar (deceased) regarding partition of saw mill. However, this witness stated that on 24.5.2009, the Investigating Officer, in his presence, did not record any confession of accused (Vinay Kumar) or effected any recovery from the accused. Qua this part of statement, this witness was declared hostile. He was cross-examined by Government pleader. However, this witness stated that on 24.5.2009, the Investigating Officer, in his presence, did not record any confession of accused (Vinay Kumar) or effected any recovery from the accused. Qua this part of statement, this witness was declared hostile. He was cross-examined by Government pleader. In cross-examination, he stated that after 5-6 moths, Durgawati died and Vinay Kumar had surrendered before the Court. This witness further denied the suggestion as incorrect about the deposition made by him that after 4-5 days of the incident, the SHO came and took him and Raju (brother of accused) to the house of accused-Vinay Kumar, from where, his wife-Rekha produced a revolver wrapped in a newspaper and memo was prepared by SHO which was exhibited as Ex.15-Kha/2. In further cross-examination by the defence, this witness again stated that the revolver was recovered from Rekha vide recovery memo 15Kha/2 and he had signed on the same which he identified. However, he stated that, on 24.5.2009, the Investigating Officer, after taking order from the Court had taken Vinay Kumar Jaiswal to the police station where signature of PW-3 was taken on a blank paper. This witness further deposed that PW-1 and PW-2 were not present at the spot and also stated that nobody knew as to who had fired upon Dileep Kumar (deceased) and his mother and he had given information to PW-1 and PW-2 on mobile phone. 12. Ganesh Jaiswal (PW-4) is a witness of Panchayatnama (Ex.Ka-21). In cross-examination, this witness stated that both, PW-1 and PW-3, were not present on the spot. 13. Shiv Raj (PW-5) submitted that he was witness of recovery of the bloodstained earth collected by S.H.O. However, he denied having made any recovery in his presence. This witness was declared hostile. 14. Dr. Mukesh Kumar Srivastava (PW-6) conducted the post-mortem of Dileep Kumar Jaiswal (deceased) and found that there was an entry wound on right parietal region with blackening and charring of size 1 x 1 cm bone deep. The bone was fractured and bullet was found inside the brain. He also stated that another injury wound with blackening and charring was present below the injury No. 1 on the right parietal region of 1 x 1 cm with inverted margin. The bone was fractured and a bullet was recovered from the left side of parietal bone. The bone was fractured and bullet was found inside the brain. He also stated that another injury wound with blackening and charring was present below the injury No. 1 on the right parietal region of 1 x 1 cm with inverted margin. The bone was fractured and a bullet was recovered from the left side of parietal bone. He opined that death was due to shock and haemorrhage on account of receiving gunshot injuries. He prepared the post-mortem report (Ex.Ka-2). This witness stated that two bullets which were retrieved from the wound of the deceased were sealed alongwith clothes and were handed over to the constable who had brought the dead body for post-mortem and copies were sent to Chief Medical Officer, Gorakhpur and Senior Superintendent of Police, Gorakhpur. In cross-examination, this witness stated that the weapon of offence was not produced before him at the time when his statement was recorded. 15. Head Constable Dileep Kumar Singh (PW-7) stated that on 7.5.2009, informant-Sarita Jaiswal gave a written complaint in the Police Station, upon which, he registered the F.I.R. (Ex.Ka-3) and copy of the same in the original G.D. was entered at 9.15 a.m. In cross-examination, this witness stated that he has not brought the original G.D. 16. Dr. A.K. Srivastava (PW-8) prepared the medico-legal report of Durgawati Devi and found that injury No. 1 is on the left side of the chest with inverted margin of 1 x 0.8 cm which is six centimetre towards the centre from nipple with blackening. Injury No. 2 was on the left lower side of the chest .8 cm x .8 cm having inverted margins. He opined that the injuries were caused with fire-arm. This witness produced the original record and the medico-legal report was exhibited as Ex.Ka-5. 17. Rafiq Ahmad (PW-9), the Investigating Officer, deposed about investigation carried out by him. He proved the site plan and recovered the bloodstained earth which was sealed vide recovery memo (Ex.Ka-7). Bloodstained bed sheet alongwith bloodstained mattress cover were recovered vide recovery memo (Ex.Ka-8 and Ex. Ka-9). Thereafter, this witness went to B.R.D. Medical College on 8.5.2009 where Durgawati was admitted in emergency ward. There, he met Constable Moharir who gave him carbon copy of post-mortem report, one sealed packet in which the bullets recovered from the body of the deceased were kept and copy of Panchayatnama. Ka-9). Thereafter, this witness went to B.R.D. Medical College on 8.5.2009 where Durgawati was admitted in emergency ward. There, he met Constable Moharir who gave him carbon copy of post-mortem report, one sealed packet in which the bullets recovered from the body of the deceased were kept and copy of Panchayatnama. This witness stated that he tried to arrest the accused, however, on 15.5.2009, the accused surrendered before the Court of Chief Judicial Magistrate and thereafter, he was taken in custody. On 19.5.2009, his custody was taken from District Jail, Gorakhpur, where he recorded his confession statement about purchase of country made pistol alongwith cartridges and committing murder of his brother and causing injuries to his mother. This witness stated that the accused had concealed the country made pistol near Lehra Station. Thereafter, by taking permission from the Court on 24.5.2009, weapon of offence was recovered at the instance of accused. This witness further stated that in his confession, the accused admitted that he has committed murder of his brother and caused injuries to his mother. The confession statement of accused was exhibited as Ex.Ka-11. The country made pistol was taken in possession vide recovery memo Ex.Ka.12 and the site plan as Ex.Ka.13. After coming back to the Police Station, this witness added Section 3/25/27 of the Arms Act in Original G.D. and this was exhibited as Ex.Ka-14. This witness stated that on 6.7.2009, he reached the house of Durgawati where he recorded a statement which was also recorded in Case Diary. Statement of Durgawati under Section 161 Cr.P.C. in toto was recorded in the Case Diary and was attested which is Ex.Ka-15. On the same date, the memo was attested by Deepak Agarwal and Shivraj and statements of other witnesses were also recorded. This witness stated that after 4-5 months, Durgwati Devi died. This witness further proved sending of weapon of offence alongwith live cartridges, bloodstained clothes and earth, to Forensic Science Laboratory. This witness produced the case property as noticed above which were exhibited before the Trial Court. 18. This witness has also proved the country made pistol, live cartridges and empty cartridges which were inspected by Forensic Science Laboratory and were marked as 'Report of F.S.L.' This witness also stated that country made pistol alongwith empty cartridges and two live cartridges were the same which were recovered from accused-appellant. 19. This witness was subjected to lengthy cross-examination. 18. This witness has also proved the country made pistol, live cartridges and empty cartridges which were inspected by Forensic Science Laboratory and were marked as 'Report of F.S.L.' This witness also stated that country made pistol alongwith empty cartridges and two live cartridges were the same which were recovered from accused-appellant. 19. This witness was subjected to lengthy cross-examination. With regard to Ex.Ka-15, this witness stated that statement of Durgawati was recorded at her residence and the same was recorded in the Case Diary, however, there were no witness to her statement. 20. Further, with regard to recovery of country made pistol on 24.5.2009, a suggestion was given that the same was not recovered on the spot, however, this witness denied the same and stated that the country made pistol and cartridges were recovered under the Mango Tree, concealed with the dry grass and no one had access to that place. 21. S.H.O. Harish Chandra (PW-10) stated that he had verified the investigation conducted in the case and the case property alongwith other records were sent to Forensic Science Laboratory by preparing a docket through Constable Naval Kishore Sharma. 22. S.I. Ajit Kumar Mishra (PW-11), who had also conducted part of investigation, stated that during his investigation, he received ballistic report and forensic report from the Forensic Science Laboratory which were the part of Charge-sheet and were exhibited as Ex.Ka-19 and Ex.Ka-20 respectively. In cross-examination, he stated that while seeking permission from the District Magistrate to conduct the case under the Arms Act, he had mentioned the details of recovery in the Case Diary. 23. S.I. Ambika Prasad Tiwari (PW-12) is a witness who had prepared the Panchayatnama (Ex.Ka-21) alongwith statements Ex.Ka-22 to Ex.Ka.25. In cross-examination, this witness stated that he could not tell whether wife of the deceased and her brother were present there or not. 24. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence was put to him. 25. In majority of the questions relating to Ex.Ka-1 to Ex.Ka-4, it was stated that fake reports were prepared. With regard to post-mortem report, the accused replied that no post-mortem was conducted. Regarding recording of statement of Durgawati (Ex.Ka-15) which was proved by PW-9, again a reply was given that the entire proceeding is fake and not done as per law. In majority of the questions relating to Ex.Ka-1 to Ex.Ka-4, it was stated that fake reports were prepared. With regard to post-mortem report, the accused replied that no post-mortem was conducted. Regarding recording of statement of Durgawati (Ex.Ka-15) which was proved by PW-9, again a reply was given that the entire proceeding is fake and not done as per law. Regarding F.S.L. Report of country made pistol and cartridges, again he replied that the same is incorrect. Regarding another forensic report i.e. Ex.Ka-20 of bloodstained clothes and earth, the accused replied that he has nothing to say. 26. While putting all the statements of PW-1 to PW-12, the accused stated that they (prosecution witnesses) have made incorrect statements. The accused further stated that he want to lead defence witness. 27. In defence, Ashish Kumar Jaiswal (DW-1) appeared and stated that his house abutting the house of Dileep Kumar Jaiswal (deceased). On 7.5.2009, at about 5.30 a.m., he heard the voice of weeping and he went to the house of Dileep alongwith his brother-Sanjay and found that Dileep Kumar Jaiswal and his mother-Durgawati were injured and blood was oozing from their body. He alongwith his brother-Sanjay and Pradeep Jaiswal (another brother of deceased-Dileep) took Dileep and his mother to Medical College, Gorakhpur where Dileep died and his mother was admitted. This witness stated that Sarita (PW-1/wife of deceased) and Ashok Kumar Jaiswal (PW-2/brother of Sarita) were in village Naua Bari, Police Station - Jhangaha, District - Gorakhpur and they were not present at the house of the deceased. This witness stated that he and his brother-Sanjay intimated the same to them on mobile phone and thereafter, they came to the hospital and started crying. 28. He further stated that thereafter, Panchayatnama was conducted and post-mortem of dead body was done. He stated that when he and other people enquired about the incident, the people who were present at the place of incident and at Medical College said that they had no knowledge of the person who had committed the offence. 29. This witness further stated that Sarita (PW-1) has performed marriage with brother of deceased namely Pradeep Kumar Jaiswal according to Hindu rites and ceremonies. 30. 29. This witness further stated that Sarita (PW-1) has performed marriage with brother of deceased namely Pradeep Kumar Jaiswal according to Hindu rites and ceremonies. 30. In cross-examination by Public Prosecutor, this witness stated that he had no knowledge, when Sarita (PW-1) had gone to her parental home and he informed them (PW-1 and PW-2) through the mobile phone of his brother-Sanjay. However, this witness stated that after giving information, he did not remember if before or thereafter, he received any telephone call. On asking whether he can tell the mobile number of Sarita (PW-1) or her brother Ashok (PW-2), this witness stated that he cannot tell the same and denied that accused-appellant had committed the offence. 31. Pradeep Kumar Jaiswal (DW-2) stated that some unknown person had committed the murder of his brother and had also caused injuries to his mother by using fire-arm. He alongwith his brother accused-Vinay Kumar Jaiswal were sleeping about half kilometre away from the place of incident and Ganesh Jaiswal who lives in front of his house told him and Vinay that somebody had fired upon Dileep and, thereafter, he and Vinay Kumar went there and found that their brother-Dileep and mother-Durgawati were lying in injured condition. This witness further stated that he alongwith Ashish Kumar Jaiswal and Sanjay Jaiswal took his brother and mother to Medical College, Gorakhpur in a Maruti Car. This witness further stated that he told Sanjay Jaiswal to inform Sarita (PW-1) regarding the incident and to come to Medical College as a day prior to the incident, his sister-in-law, Sarita Devi (PW-1), had gone to her parental home to attend some function. When police conducted the Panchayatnama, both PW-1 and PW-2 reached there. 32. This witness further stated that four months before making his statement before the Court i.e. 27.4.2011, he had performed marriage with Sarita Devi (PW-1). This witness stated that he did not know as to who had committed murder of his brother-Dileep and further stated that he did not know as to why his statement was not recorded by the Investigating Officer and why he was named as a witness. 33. Lastly, he denied the suggestion that being brother of accused-Vinay Jaiswal, he was making false statement. 34. Jairam Shah (DW-3), an employee of the Medical College, admitted and proved the record relating to admission of Dileep Kumar Jaiswal and Durgawati which is at page Nos. 33. Lastly, he denied the suggestion that being brother of accused-Vinay Jaiswal, he was making false statement. 34. Jairam Shah (DW-3), an employee of the Medical College, admitted and proved the record relating to admission of Dileep Kumar Jaiswal and Durgawati which is at page Nos. 42 and 43 of the original register. As per the record, they were admitted by Ashish Jaiswal. 35. Hasim Ali (DW-4), an employee of the Office of C.O. Farenda, who brought the Z register in the Court and proved on record the chik report relating to F.I.R. (Ex.Ka-3). 36. Thereafter, the Trial Court vide impugned judgment of conviction and order of sentence held the appellant guilty and sentenced him for life imprisonment. 37. Counsel for the appellant has firstly argued that presence of PW-1 and PW-2, the eye-witnesses, are highly doubtful. Counsel has placed reliance upon the statement of Sanjay Jaiswal (PW-3) to submit that he has stated that Sarita (PW-1) had gone to her parental home and even PW-2 was not present at the spot. Counsel further submits that in cross-examination, S.I. Ambika Prasad (PW-12) has also stated that at the time of conducting the Panchayatnama, wife of the deceased (PW-1) and his brother-in-law (PW-2) were present or not, he could not state. Counsel further relied upon the statement of Ashish Kumar Jaiswal (DW-1) that at the time of incident, PW-1 and PW-2 were not present at the place of occurrence and he and his brother gave information to them on mobile phone which was informed by Pradeep Kumar Jaiswal. Counsel has also stated that Pradeep Kumar Jaiswal (DW-2/brother of deceased and accused-Vinay Kumar) had also stated that PW-1 and PW-2 were not present at the spot and he alongwith Ashish Jaiswal and Sanjay Jaiswal took the injured persons to the hospital. Counsel submits that it has also come in the statement of DW-3 that the injured persons were admitted in the hospital and if PW-1 and PW-2 were present, they would have admitted them in the hospital. 38. It is next argued that recovery of the country made pistol was not proved. Counsel submits that it has also come in the statement of DW-3 that the injured persons were admitted in the hospital and if PW-1 and PW-2 were present, they would have admitted them in the hospital. 38. It is next argued that recovery of the country made pistol was not proved. Counsel relies upon the statement of PW-3 who has stated that after 4-5 days, the S.H.O. came at the house of Vinay Kumar and took him and Ashok Kumar alias Raju (brother of accused-Vinay Kumar) to the room of Vinay Kumar where his wife-Rakhi produced a country made pistol wrapped in a newspaper and Investigating Officer prepared some document regarding recovery, on which, they have signed which was tagged with the records. 39. Counsel submits that later on as per the prosecution, some recovery was effected at the pointing of accused on 24.5.2009 from an open place concealed under dry grass near Lehra Station and, therefore, recovery from the appellant is not proved. 40. It is next argued that no motive has been proved as to why the appellant has committed murder of his brother and caused injuries to his mother. Counsel has next argued that as per prosecution version, the fire-arm injuries were caused from close range but as per the Post-mortem report, there was blackening and charring on the wound which occurs if the fire-arm is used from some distance. 41. Counsel further submitted that mother of the appellant was not examined as witness though she was a natural witness and the Trial Court has not given due weightage to defence evidence. 42. In reply, learned A.G.A. for the State has however submitted that both PW-1 and PW-2 are the natural witnesses and PW-1 being wife of the deceased was present in the house when the accident took place and despite lengthy cross-examination, the defence could not put a dent to prove that she was not present at the spot as she has replied to every minute question put to her from the time of incident till recovery. It is further stated that she denied that she or her brother was not present on the spot. Similar is the evidence of PW-2 who was remained consistent with regard to his presence on the spot and the manner in which murder of Dileep was committed by the appellant. 43. It is further stated that she denied that she or her brother was not present on the spot. Similar is the evidence of PW-2 who was remained consistent with regard to his presence on the spot and the manner in which murder of Dileep was committed by the appellant. 43. Learned A.G.A. has also referred to the recovery effected from the appellant i.e. country made pistol, bullets retrieved from the body of the deceased, empty cartridges and live cartridges. Counsel has referred to the report of Forensic Science Laboratory (Ex.Ka-19 and Ex. Ka.20) wherein a categorical report was given that the cartridges sent for examination were matching with the weapon of offence and were fired upon by the same weapon. 44. Counsel has referred to the conclusion part of this report wherein it was stated that the disputed cartridges marked as EC-1, EC-2 and EC-3 were fired upon by pistol of .32 (point thirty two) bore marked as 1/10. 45. It is next argued that the recovery was effected from the accused on 24.5.2009 on his pointing out and no recovery was effected from the wife of accused. 46. Learned A.G.A. submits that had there been any such recovery at the instance of Rekha, the defence would have produced her as witness and, therefore, the statement of PW-3 to this effect is not relied upon as this witness was declared hostile as he was witness before whom the recovery was effected and this witness has admitted that his signatures are there on the recovery memo. 47. Learned A.G.A. has further argued that post-mortem report of deceased-Dileep and medico-legal report of injured-Durgawati clearly suggest that both of them received fire-arm injuries because as per the injuries, the wounds were having blackening and charring. 48. Counsel further submitted that there was motive attributed to the accused as it has come in the statement of PW-3 that even on previous occasions, deceased-Dileep and accused-Vinay, both brothers, had convened Panchayat for partition of saw mill which was in the name of their mother-Durgawati. 49. Learned A.G.A. for the State further stated that it has come in the statement of PW-1 that accused-Vinay was spending money on his vices and had taken Rupees Five Lakhs from deceased-Dileep and, therefore, motive is proved. 50. Learned A.G.A. has referred to Ex.Ka-15 which is proved by PW-9, the Investigating Officer. 49. Learned A.G.A. for the State further stated that it has come in the statement of PW-1 that accused-Vinay was spending money on his vices and had taken Rupees Five Lakhs from deceased-Dileep and, therefore, motive is proved. 50. Learned A.G.A. has referred to Ex.Ka-15 which is proved by PW-9, the Investigating Officer. This document is the copy of G.D. report wherein statement of Durgawati recorded under Section 161 Cr.P.C. was entered. It is submitted that in this statement Durgawati stated that her son - Vinay Kumar committed murder of her another son-Dileep Kumar Jaiswal and also tried to commit her murder. 51. Learned A.G.A. submits that though statement under Section 161 Cr.P.C. is not admissible, however, in cross-examination was offered to PW-9, the Investigating Officer regarding Ex.Ka-15 by suggesting that same was recorded in presence of two eye-witnesses and, therefore, in the absence of any statement of Durgwati recorded by Court, as she died within six months of incident, no adverse inference can be drawn. 52. Learned A.G.A. has lastly argued that all the incriminating evidence including Ex.Ka-15 was put to the appellant in his statement under Section 313 Cr.P.C. but he could not give any explanation. Learned A.G.A. argued that Pradeep Kumar Jaiswal (DW-2) had stated that he accompanied Ashish Jaiswal and Sanjay Jaiswal to the Medical College but, this statement is an after thought as neither this witness lodged the First Information Report regarding murder of his own brother and injury to his mother nor he was a witness to Panchayatnama and even he did not get the injured admitted in the hospital which suggests that he was not present at the spot. 53. Learned A.G.A. submits that since this witness had performed marriage with Sarita (PW-1), he has made false statement in order to save his brother-Vinay Kumar Jaiswal. 54. After hearing the counsel for the parties, we find no merit in this appeal for the following reasons : A. Counsel for the accused-appellant could not substantiate his arguments that Sarita Jaiswal (PW-)/Informant/wife of deceased-Dileep, was not present at the place and time of incident and is not an eye-witness. A perusal of the examination-in-chief of PW-1 reveals that she has given a complete detail of incident as stated in the F.I.R. and investigated by the police. A perusal of the examination-in-chief of PW-1 reveals that she has given a complete detail of incident as stated in the F.I.R. and investigated by the police. This witness stated that her husband (deceased-Dileep Jaiswal) had four brothers and, after the death of her father-in-law, the elder brothers namely Ashok alias Raju Jaiswal and accused-Vinay Kumar Jaiswal separated and started their independent business. However, mother and younger brother-Pradeep alias Chhotu were residing with deceased-Dileep. This witness has also stated that the accused was addicted to vices and even previously had taken Rupees Five Lakhs from his deceased brother-Dileep. She has further stated that her brother-Ashok (PW-2), a day prior to the incident, had come to her matrimonial house as she was to accompany him to attend some function at her parental home. However, on 7.5.2009 in the morning at about 6.00 a.m., the accused came with a revolver and murdered her husband and caused grievous injuries to her mother-in-law, Durgawati. Even during cross-examination of both PW-1 and PW-2, nothing has come on record that they were not present at the spot as both the witnesses have replied to every minute cross-examination regarding the manner of incident, the investigation, the Panchayatnama, post-mortem report as well as further investigation. Similarly, defence could not prove that Ashok Kumar Jaiswal (PW-2) who is real brother of PW-1 was also not present at the spot when the incident took place. In order to prove that PW-1 and PW-2 were not present at the spot, the defence examined Ashish Kumar Jaiswal (DW-1), a neighbour, who stated that he had taken the deceased and his mother to hospital alongwith his own brother-Sanjay Jaiswal and brother of deceased namely Pradeep Jaiswal. However, this witness could not give satisfactory explanation about phone number used by him and Pradeep Jaiswal (DW-2) by which the alleged information was given to PW-1 and PW-2 to prove that they were not present at the spot and were at Village Naua Bari where DW-1 informed them. Even Pradeep Kumar Jaiswal (DW-2) stated that he alongwith Ashish Jaiswal and Sanjay Jaiswal took his brother-Dileep and mother-Durgawati to Medical College. This witness also stated that PW-1 reached Medical College after the incident. However, this witness stated that four months prior to his statement before the Trial Court i.e. 27.4.2011, he performed marriage with Sarita (PW-1) who is widow of deceased-Dileep. This witness also stated that PW-1 reached Medical College after the incident. However, this witness stated that four months prior to his statement before the Trial Court i.e. 27.4.2011, he performed marriage with Sarita (PW-1) who is widow of deceased-Dileep. Therefore, it is apparent that in order to save his brother (accused-Vinay Kumar Jaiswal), he appeared as defence witness. If this witness had gone to Medical College, his presence should have been marked in the record as well as the Panchayatnama which is missing. Jairam Shah (DW-3), an employee of the Medical College, has proved that deceased-Dileep and injured-Durgawati were admitted by Ashish Jaiswal (DW-1). This statement also falsified the deposition of Pradeep Kumar Jaiswal (DW-2). Therefore, we uphold the finding of the Trial Court that PW-1 and PW-2 are the eye-witnesses of the incident. B. Next argument raised by the counsel for the appellant is that the recovery of weapon from the appellant is not proved is also without any substance. Counsel for the appellant has heavily relied upon the statement of PW-3 who was partly declared hostile with regard to recovery of weapon as he stated that 4-5 days after the incident, the Investigating Officer came to the house of accused-Vinay Kumar and in presence of Sanjay Jaiswal (PW-3) and Ashok Kumar Jaiswal alias Raju (brother of accused-Vinay Kumar), Rakhi (wife of accused) had produced the revolver wrapped in the newspaper. The Investigating Officer prepared recovery memo at spot which was signed by PW-3 and other witnesses. However, this witness stated that later on when accused-Vinay surrendered before the Court, the Investigating Officer had shown recovery on a subsequent date by changing date on the memo of recovery of weapon which was signed by PW-3 and other witnesses 4 - 5 days after the incident when Rakhi handed over the weapon. However, this witness stated that later on when accused-Vinay surrendered before the Court, the Investigating Officer had shown recovery on a subsequent date by changing date on the memo of recovery of weapon which was signed by PW-3 and other witnesses 4 - 5 days after the incident when Rakhi handed over the weapon. This aspect of PW-3 is without any substance as Rakhi, wife of Vinay Kumar, was never cited as defence to prove that she had handed over the weapon of offence to the Investigating Officer 4-5 days after the incident as it is the case of prosecution that Vinay Kumar surrendered before the Court of Chief Judicial Magistrate on 15.5.2009 and thereafter, as per the statement of Investigating Officer (PW-9), by taking permission from the Court, the accused was taken to the place of recovery and on his pointing out, the recovery of fire-arm was effected and recovery memo was prepared. Even there is no cutting on this record. This version of PW-3 has been rightly disbelieved by the Trial Court that the recovery was not effected from the house of the accused 4-5 days after the incident as accused was arrested after about 20 days of incident. C. The argument raised by the counsel for the appellant that no motive is proved is also without any force as it has come in the statement of PW-1 that after the death of her father-in-law, two elder brothers of her husband had separated including appellant-Vinay Kumar. It has also come in the statement that Vinay Kumar was putting pressure on her husband for the partition of saw mill which was in the name of her mother-in-law namely Durgawati and he had even taken Rs. 5,00,000/- from deceased-Dileep which he had spent on his bad habits. Therefore, he came with a premeditated motive to put pressure on deceased-Dileep and her mother-in-law in whose name the saw mill was there. However, having been unsuccessful, he committed murder of Dileep and made murderous assault on his mother-Durgawati who later on died after 4-5 months. D. The next argument of counsel for the appellant is that as per prosecution, the fire-arm injuries were caused from close range but as per the post-mortem report there was blackening and charring of the wound which occur if the fire-arm is used from some distance. D. The next argument of counsel for the appellant is that as per prosecution, the fire-arm injuries were caused from close range but as per the post-mortem report there was blackening and charring of the wound which occur if the fire-arm is used from some distance. This argument is also without any basis as both PW-1 and PW-2 have stated that when they heard noise of the gunshot, they found that accused was carrying a revolver and her husband was lying in a pool of blood and while leaving, the accused extended threat even to her mother who tried to stop him and caused fire-arm injuries to his mother as well which is proved from the medico-legal report. The medical evidence i.e. post-mortem report and medico-legal report corroborates the version of prosecutor. E. Next argument of the counsel for the appellant that statement of the mother of the appellant who was a natural witness was not recorded is also without any substance as she died 4-5 months after the incident that is much prior to recording of her evidence. It has come in the statement of PW-9 that during investigation, he has recorded statement of Durgawati, who stated that her son had committed murder of her other son-Dileep and had even caused injuries to her. This statement was recorded by PW-9 under Section 161 Cr.P.C. even in the Case Diary which was exhibited as Ex.Ka-15. Though it is settled principle of law that statement under Section 161 Cr.P.C. can only be used for the purpose of confrontation of the witness. However, perusal of statement of PW-9 shows that the defence has even cross-examined this witness qua Ex.Ka-15 and PW-9 has stated that he recorded the statement of Durgawati at her residence which he also recorded in the Case Diary in verbatim. Even while recording the statement under Section 313 Cr.P.C., the statement of Durgawati Ex.Ka-15 was put to appellant but no explanation was given by defence. F. Argument of counsel for the appellant that prosecution has failed to prove that weapon of offence recovered from the appellant, in fact was used for commission of offence is also without any substance. It has come in the reports of Forensic Science Laboratory (Ex.Ka-19 and 20) that the cartridges sent for examination matched with the weapon of offence and were fired upon by the same weapon. It has come in the reports of Forensic Science Laboratory (Ex.Ka-19 and 20) that the cartridges sent for examination matched with the weapon of offence and were fired upon by the same weapon. Therefore, the categorical finding recorded by the Forensic Science Laboratory that disputed cartridges marked as EC-1, EC-2 and EC-3 were fired upon by the pistol of .32 (point three two) bore marked as 1/10 proves that the weapon recovered from the appellant was used in commission of offence whereby the accused-appellant committed murder of his brother and caused gunshot injuries to his mother. G. Learned A.G.A. for the State has rightly pointed out that Pradeep Kumar Jaiswal (DW-2) being brother of deceased as well as accused, after performing marriage with PW-1, in order to save accused, has made false statement that PW-1 and PW-2 were not present at the spot. 55. In view of the above, we find no merit in the present appeal. 56. Accordingly, this appeal is dismissed. 57. The accused-appellant is already in custody. He will undergo the remaining sentence in accordance with law. 58. Record and proceedings be sent back to the Trial Court forthwith.