HIRALAL PANDEY AND ORS.versusSTATE OF U.P

                          [2012) 3 S.C.R. 1066


A                   HIRALAL PANDEY AND ORS.
                                   v.
                           STATE OF U.P.
                  (Criminal Appeal No. 65 of 2008)
                            17 APRIL, 2012.
B
        [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

        Penal Code, 1860:

c      s.302134 - Two persons shot dead by three accused -
  Conviction and life imprisonment - Upheld by High Court -
  Held: The evidence of the son of one of the deceased that
  the accused fired at them when he and the two victims were
  going on a motorcycle was corroborated by another witness
0 who at the time of the incident reached there on a cycle along
  with others - The oral evidence was further supported by the
  medical evidence - Minor defects in investigation cannot be
  a ground to disbelieve the prosecution case, which has been
  proved beyond reasonable doubt through the evidence of two
E eye-witnesses as supported by the medical evidence -
  Evidence.

        INVESTIGATION."

      Lapses - Held: Unless the lapses on the part of the
F investigation are such as to cast reasonable doubt about the
  prosecution story or seriously prejudice the defence of the
  accused, the court will not set aside the conviction.

      The three appellants were prosecuted for murders of
  one 'RR' the father of the complainant (PW-1) and his
G companion 'KBS'. The case of the prosecution was that
  when at about 6 p.m. on 22.9.1979, PW-1, his father and
  'KBS' were going on a motorcycle being driven by 'KBS',
  the three appellants-accused fired at them as a result of
  which 'RR' and 'KBS' died at the spot. Meanwhile, PW-2
H                           1066
  HIRALAL PANDEY AND ORS. v. STATE OF U.P.            1067


and some others reached the place of incident and all the      A
three accused ran away. The trial court convicted all the
three accused u/s 302/34 IPC and sentenced each of
them to imprisonment for life. The High Court affirmed the
conviction and the sentence.
                                                               B
     In the instant appeal filed by the accused persons, it
was, inter alia, contended for the appellants that the
courts below should not have relied upon the evidence
of PWs-1 and 2 who were interested witnesses and the
prosecution should have examined the independent
witnesses cited in the FIR; that the time of recording of      C
FIR at the police chowki was doubtful as the FIR was first
written by pencil which was erased and again overwritten
as per the evidence of the constable (PW-4); that there
was no recovery of empty cartridges from the place of
occurrence and that the injuries on the dead bodies were       D
not correlated with the weapons allegedly possessed by
the appellants.

    Dismissing the appeal, the Court

     HELD: 1.1. PW-1 has stated that he and his father         E
'RR' were going on a motorcycle driven by 'KBS' when
the incident took place at about 5-10 minutes before 6.00
p.m. From the narration of the incident by PW-1, it is very
clear that he was present at the time of the occurrence
and has seen the appellants with double barrel gun,            F
single barrel gun and a rifle with cartridges. He has stated
that when the appellants fired, 'KBS', who was driving the
motorcycle, got scared by the firing and the motorcycle
got dis-balanced and came on the western strip of the
road and he and his father jumped from the motorcycle          G
and ran but 'KBS' fell down along with motorcycle; that
the appellants were firing continuously and his father ran
towards paddy fields and he ran towards Harijan Basti;
that after he returned to the spot he found that 'KBS' was
lying dead by gun-shot on the road and his father was          H
    1068    SUPREME COURT REPORTS               [2012] 3 S.C.R.

A lying dead by gun-shot in paddy fields. PW-1 has clearly
  disclosed that hearing the firing, 'SLS' and PW-2, who
  were coming on cycles reached there and 'LS' also
  reached there. The evidence of PW-1 could not have
  been doubted by either the trial court or the High Court.
B [para 14) (1077-A-B; 1078-C-F; 1079-A]

         1.2. The testimony of PW-2 supports the evidence of
    PW-1 in all material respects. He has said that as soon
    as the motorcycle fell, appellant 'S' went near 'KBS' and
    fired. He has also said that 'RR' fell down in the water-
C   filled paddy fields and when 'RR' tried to get up,
    appellants 'S' and 'H' reached there and fired while PW-
    1 ran away. He has also disclosed that 'SL' and 'L' also
    reached the place of occurrence and shouted along with
    him not to fire and hearing this, the appellants ran away
D   from the spot. He has also said that after the incident, PW-
    1 came on the spot along with 7-8 persons. PW-2 is,
    therefore, a direct eyewitness to the firing by the
    appellants on the two deceased persons and in his
    lengthy cross-examination the defence has not been able
E   to bring to the notice of the court any material to hold that
    his evidence is not reliable. He gave vivid description of
    the occurrence in the witness box during the cross-
    examination. The veracity of PW-2, has been tested in the
    cross-examination and his evidence is, thus, reliable.
F   [para 16) [1080-C-F]

      1.3. It cannot be said that the evidence of PW-2 could
  have been discarded on the ground that he was only a
  chance witness. The incident took place when the victims
  were traveling on a motorcycle on the road and PW-2
G was also coming on the same road on his cycle when he
  saw the incident. Moreover, PW-2 has been named in the
  FIR as one of the persons who were coming on a cycle
  and as one of the persons who shouted at the appellants
  not to fire. [para 17) [1081-C-E]
H
  HIRALAL PANDEY AND ORS. v. STATE OF U.P.             1069


     Hem Raj and Others v. State of Haryana 2005 (2)            A
SCR 1152 = (2005) 10 SCC 614; and Thangaiya v. State
of T.N. 2004 (6) Suppl. SCR 786 = (2005) 9 sec 650 -
relied on

     1.5. Once it is accepted that PW-1 and PW-2 were           8
present at the place of occurrence and their evidence was
reliable, the fact that other independent witnesses named
in the FIR have not been examined before the court,
cannot be a ground for not believing the prosecution
case. [para 17] [1081-F]
                                                                c
    State of UP. v. Ani/ Singh 1988 Supp. (2) SCR 611 -
relied on

     2. From the evidence of PW-4, it is evident that
although a suggestion was made to him in cross-                 D
examination by the defence that the time of incident in the
chik register was first written in pencil and thereafter
erased and again written, PW-4 has said that the
suggestion is incorrect. There is no definite evidence
before the Court to come to the conclusion that the time        E
of incident as recorded in the FIR was doubtful. [para 18]
[1082-B-C]

     3. The ro (PW-5) has admitted during cross-
examination by the defence that no empty cartridge was
found from the passage on which PW-1 ran away from              F
the spot nor did he find any empty pellet, tikli or cartridge
from the spot where the motorcycle was lying and where
'KBS" was shot. PW-5 has also not stated that any empty
cartridge was recovered from the paddy field where 'RR'
was shot, but the fact remains that both the deceased           G
were killed by gun shots. PW-3, the doctor, who carried
out the post mortem, has described the gun shot wounds
of both the deceased as ante mortem injuries and has
opined that the injuries were sufficient to normally cause
death. Thus, the medical evidence supports the                  H
    1070    SUPREME COURT REPORTS               [2012] 3 S.C.R.


A eyewitness accounts of PW-1 and PW-2. [para 19] [1082-
  F; 1083-A]

       4. The defects in the investigation like the injuries on
  the body of deceased were not correlated with the
  weapons allegedly possessed by the appellants, that
8
  serological report has not been produced although the
  blood-stained earth was collected and that the
  investigation was started not on 22.09.1979 but only the
  following day in the morning, cannot be a ground to
C disbelieve the prosecution story which has been proved
  beyond reasonable doubt through the evidence of the
  two eyewitnesses as supported by the medical evidence.
  Unless the lapses on the part of the investigation are
  such as to cast reasonable doubt about the prosecution
  story or seriously prejudice the defence of the accused,
D the court will not set aside the conviction. [para 20] [1083-
  B-D, G]

        State of Uttar Pradesh v. Bhagwant Kishore Joshi 1964
    SCR 71 =AIR 1964 SC 221 - relied on.
E
                         Case Law Reference:
     2005 (2) SCR 1152              relied on   para 7 and 12
     2004 (6) Suppl. SCR 786        relied on   para 9 and 17
F    1988 Supp. (2) SCR 611         relied on   para 10 and 17
     1964 SCR 71                    relied on   para 20
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 65 of 2008.
G
        From the Judgment & Order dated 06.02.2007 of the High
    Court of Judicature at Allahabd in Criminal Appeal No. 178 of
    1981.

       Vijay Hansaria, Gaurav Jain, Abha Jain Sneha Kalita for
H the Appellants.
   HIRALAL PANDEY AND ORS. v. STATE OF U.P.                  1071


     R.K. Das, Pradeep Misra, Suraj Singh for the Respondent.         A

     The Judgment of the Court was delivered by

     A.K. PATNAIK, J. 1. This is an appeal by way of special
leave under Article 136 of the Constitution of India against the
judgment and order dated 06.02.2007 of the Allahabad High             B
Court in Criminal Appeal No.178 of 1981.

      2. The facts very briefly are that on 22.09.1979 at 8.05 p.m.
 Balbir Singh, the complainant, lodged an FIR with Police
 Chowki Dhata, P.S. Khakhreru in District Fatehpur. The               c
 prosecution story as stated in the FIR was that on 22.09.1979
 the complainant was returning home after purchasing crude oil
 from Khaga and Raja Ram Singh (his father) and Kunj Behari
 Singh were waiting for him at Dhata and he left the oil at Dhata
 and the three sat on the Motorcycle No.UTY 3213. Kunj Behari         0
 Singh drove the motorcycle and when they reacl1ed near
 bamboo clumps ahead of Kanya Pathshala on Dhata-Hinauta
_Road at about 6.00 P.M., Hira Pandey, Subhash Pandey@
 Bodhan and Surendra Nath Pandey, the three appellants
 herein, who were waiting with single barrel gun, double barrel       E
gun and rifle respectively and cartridge belts, started firing at
them. As soon as Kunj Behari was shot, the Motorcycle lost
balance and he and his father jumped off from the bike and
while his father ran towards the west into the paddy fields, he
ran towards Harijan Basti. From Dhata end, Sunder Lal Singh,
Hari Prasad Singh, Lakhpat Sonar and Shisuvir Narain were             F
coming and many other persons were coming from Kabraha
side and on their exhortation, the appellants ran away to hide
in the fields. Raja Ram and Kunj Behari died at the spot as a
result of the firing. He had lodged a case against two of the
appellants, Subhash and Surendra under Sections 323, 325              G
and 147 of the Indian Penal Code (for short 'IPC') and they had
asked him to compromise several times but he had not
compromised and to take revenge they had fired upon them.
The complainant has also stated in the FIR that his pant got
torn while running to save his life.                                  H
    1072    SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A       3. The FIR was registered. The investigation was entrusted
  to Pyare Lal Sharma, S.I. (for short 'the 10'). The 10 reached
  the place of occurrence at 7 .30 A.M. on 23.09.1979 where the
  complainant was present. He recorded the statement of the
  complainant and wrote the Panchnamas of the deceased Raja
B L.; P-Ram and the deceased Kunj Behari in the presence of the
  witnesses and seized the bodies of the two deceased persons
  and sent them for post mortem to the District Hospital through
  Constable Jamil Ahmad. He also collected blood-stained earth
  and sealed them in containers. He recorded the statements of
c Raghupat Singh, Sunder Lal Singh, Hari Prasad Singh and a
  few other persons of the Harijan Basti. The remaining
  investigation was completed by S.O. Ram Mohan Ramand a
  charge-sheet was filed against the appellants under Section
  302 read with 34, IPC.

D        4. At the trial, the complainant was examined as PW-1,
    who fully supported the prosecution case as alleged in the FIR.
    Hari Prasad Singh was examined as PW-2 and he also
    supported the prosecution case as alleged in the FIR. Dr. Anand
    Swarup of the District Hospital, who carried out the post
E   mortem, was examined as PW-3. He described in details the
    ante-mortem gun shot injuries in the chest and abdominal cavity
    and the thighs of the deceased Raja Ram and opined that the
    cause of his death was due to shock and hemorrhage as a
    result of the injuries sustained by him. PW-3 also described the
F   ante-mortem gun shot injuries on left side of the chin and below
    the left ear and the left side of the neck of the deceased Kunj
    Behari Singh and opined that the cause of his death was due
    to shock and hemorrhage. Ram Prakash, the constable who
    received the complaint at Dhata Chowki of P.S. Khakheru, was
G   examined as PW-4. The 10 was examined as PW-5 and Jamil
    Ahmad, the constable, who carried the dead body for the post
    mortem, was examined as PW-6. In defence, the appellants
    examined a resident of the Harijan Basti of village Dhata, Shiv
    Balak, as DW-1 who stated that he had heard some voice
H   coming from the road in the south of his house asking for help
   HIRALAL PANDEY AND ORS. v. STATE OF U.P.               1073
               [A.K. PATNAIK, J.]

and when he walked ahead in the direction of the voice he saw      A
6-7 miscreants who fired twice, but he could not recognise the
miscreants and the appellants were not amongst the
miscreants. The trial court, however, relied upon the evidence
of PW-1 and PW-2 and convicted the appellants under Section
302 read with Section 34, IPC and after hearing the parties on     B
the question of sentence, sentenced them for life imprisonment.
The appellants carried an appeal to the High Court, but the High
Court has affirmed the conviction and the sentence and has
dismissed the appeal.

     5. Mr. Vijay Hansaria, learned Senior Counsel appearing
                                                                   c
for the appellants, submitted that the trial court and the High
Court should not have relied on the evidence of PW-1 as
admittedly he had previous enmity with the appellants. He
submitted that if PW-1 was the prime target of the appellants,
he would have received some injury as according to PW-1 all        D
the appellants were armed with fire arms and cartridges, but
as a matter of fact PW-1 has not received a single injury and
this would go to show that PW-1 has falsely implicated the
appellants. He further submitted that according to the evidence
of PW-1, as soon as the motorcycle lost balance he jumped          E
off from the motorcycle and ran away from the place of
occurrence towards the Harijan Basti and therefore he could
not have seen the appellant firing on the two deceased persons.

     6. Mr. Hansaria submitted that the trial court and the High   F
Court should not have relied on PW-2, who was a mere chance
witness and was also a witness cited by PW-1 in support of
his complaint against the appellants under Sections 323, 325
and 147 IPC pending in the Court. He argued that PW-2
therefore was an interested witness and his evidence should        G
have been discarded. He submitted that PW-2 has made
material improvements over his statement made to the police
under Section 161 of the Cr.P.C. He has stated that Hira and
Surendra fired at the deceased Raja Ram in which case Raja
Ram would have had injuries from at least two gun shots, but       H
according to PW-3, the Doctor, who carried out the post
    1074         SUPREME COURT REPORTS               (2012] 3 S.C.R.


A   mortem on the dead body of Raja Ram, all the injuries on his
    dead body were caused by a single gun shot.

       7. Mr. Hansaria next submitted that in the FIR, PW-1 has
  stated that when the appellants were firing on the deceased
  persons from the Dhata end besides Hari Prasad Singh (PW-
8
  2) Sunder Lal Singh, Lakhpat Sonar and Shisuvir Narain were
  coming and many other persons were coming from Kabraha
  side, but the prosecution has examined only PW-1 and has not
  examined the other witnesses. He submitted that the 1.0. (PW-
C 5) has admitted that he had recorded the statement of Sunder
  Lal Singh and yet Sunder Lal Singh has been withheld from the
  witness box and there is no explanation whatsoever as to why
  Sunder Lal Singh was not examined. He submitted that
  independent witnesses have therefore not been examined in
  support of the prosecution case though these witnesses were
D named in the FIR. He cited Hem Raj and Others v. State of
  Haryana [(2005) 10 SCC 614] in which this Court has held that
  when the evidence of alleged eyewitnesses raises serious
  doubts on the point of their presence at the time of actual
  occurrence, the unexplained omission to examine the relevant
E witnesses would assume significance.

        8. Mr. Hansaria also pointed out the following lapses in the
    prosecution case:

           (i)     The time of recording of FIR at Dhata Police
F                  Chowki is doubtful, since at the time of writing the
                   report it was made by pencil which was erased and
                   again overwritten as per the evidence of PW-4
                   (Constable Ram Prakash).

G          (ii)    There is no recovery of empty cartridges from the
                   place of occurrence, even though both the
                   eyewitnesses have stated that several gun shots
                   were fired.

           (iii)   Injuries on the bodies of the two deceased persons
H
   HIRALAL PANDEY AND ORS. v. STATE OF U.P.               1075
               [A.K. PATNAIK, J.]

             were not correlated with weapons allegedly            A
             possessed by accused persons.

      (iv)   The fire arms allegedly used have not been
             recovered nor is there any mention of efforts made
             to recover the same.
                                                                   B
      (v)    Though blood stained earth was collected and
             sealed near the dead body of Kunj Behari; no
             serological report has been produced to match the
             blood with that of the deceased Kunj Behari.
                                                                   c
      (vi)   As per PW-4, though Darogaji from Police Station,
             Khakeru came to the outpost in the night after the
             report of the incident has been sent from Chowki,
             yet investigation was started only in the morning.

     9. Mr. R.K. Das, learned Senior Counsel appearing for the     D
State, submitted that the presence of PW-1 at the spot of
occurrence is supported by three circumstances: (a) that his
motorcycle was found lying at the spot; (b) that his pant was
torn and (c) DW-1 admitted to have seen the motorcycle lying
on the western side of the road. He submitted that PW-1            E
therefore was present at the place of occurrence and was an
eyewitness to the firing. He submitted that PW-2 could not be
treated as a chance witness as the incident took place on the
road and only passers-by on the road would be witnesses to
any such incident which took place on the road and their           F
evidence could not be brushed aside on the ground that they
are chance witnesses. He cited Thangaiya v. State of T.N.
[(2005) 9 SCC 650] in which this Court has held that if a murder
is committed in a street, only passers-by will be the witnesses
and their evidence could not be brushed aside or viewed with       G
suspicion on the ground that they were mere chance witnesses.

    10. Mr. Das also cited the decision of this Court in State
of UP. v. Anil Singh (1988 Supp. (2) SCR 611) for the
proposition that the prosecution version could not be rejected     H
    1076    SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A only on the ground that all the witnesses to the occurrence have
  not been examined. He submitted that the prosecution story thus
  cannot be discarded merely because all the witnesses named
  in the FIR including Sunder Lal Singh were not examined
  before the court.
B       11. Mr. Das submitted that it is true that the fired cartridges
  have not been recovered from the place of occurrence and this
  may be because the paddy fields had water and paddy stand
  up to knee height and it was impossible to search and collect
  the fired cartridges, but the fact remains that the deceased have
C died of fire arm injuries. He contended that the trial court and
  the High Court have rightly believed the two eyewitnesses PW-
  1 and PW-2 considering the fact that the motive of the appellant
  was to take revenge against the complainant and his father for
  not agreeing to compromise the complaint case under Sections
D 323, 325 and 147 of the IPC pending before the court.

        12. We may first examine the contention of Mr. Hansaria
  that the trial court and the High Court should not have relied on
  the evidence of PW-1 and PW-2 who were interested witnesses
E and that the prosecution should have examined the independent
  witnesses cited in the FIR, namely, Sunder Lal Singh, Lakhpat
  Sonar and Shisuvir Narain, who as per the FIR shouted at the
  appellants when they were firing at the deceased. We have
  perused the decision of this Court in Hem Raj and Others v.
F State of Haryana (supra) cited by Mr. Hansaria and we find that
  in the aforesaid decision this Court has held th~t non-
  examination of independent witnesses by itself may not give
  rise to adverse inference against the prosecution, but when the
  evidence of the alleged eyewitnesses raises serious doubts on
  the point of their presence at the time of actual occurrence, the
G unexplained omission to examine the independent witnesses
  would assume significance. Hence, we will have to first consider
  whether the evidence of the two eyewitnesses PW-1 and PW-
  2 raises serious doubts on the point of their presence at the
  time of actual occurrence.
H
   HIRALAL PANDEY AND ORS. v. STATE OF U.P.                 1077
               [A.K. PATNAIK, J.]

      13. When we examine the evidence of PW-1 in this light,        A
we find that he has stated that he had a motorcycle and a diesel
pump set and on the day of the incident he purchased crude
oil from Khaga, which is entered in his card and he came back
to Dhata taking crude oil at 5.30 P.M. in the evening where he
met his father and Kunj Behari and he kept the oil in a shop         B
there and Kunj Behari drove the motorcycle from Dhata and his
father and he sat behind him and when they started from Dhata
for their village on the motorcycle the incident took place at
about 5-10 minutes before 6.00 p.m. He has stated:
    "When we reached ahead of Kanya Pathshala Dhata near             C
    bamboo clumps, these three accused came out bamboo
    clumps. At that time accused Subhash was holding a
    double barrel gun with cartridge belt on shoulder. Hira Lal
    Pandey was having single barrel gun with cartridge belt on
    shoulder. Surendra had rifle and also cartridge belt. When       D
    these people came on the road and saw us going, then
    the three accused exhorted that today let them not escape.
     It was combined voice of the three. On exhortation all the
    three fired almost same time. First Subhash fired, I do not
    know whether it hit any body or not. But Kunj Behari Singh       E
    was scared by firing and Motor Cycle got dis-balanced and
    came on western strip of the road. Me and my father
    jumped from Motorcycle and ran. But Kunj Behari fell down
    along with Motorcycle. Accused persons were firing
    continuously. My father went ran towards paddy field             F
    towards west and I ran towards Harijan Basti in north.
    Hearing the fire, Sunder Lal Singh and Hari Prasad Singh
    of village Sonari coming on cycles from Dhata reached
    there. Lakpat Sonar also reached there. These people
    stopped there and shouted at the accused. I was running          G
    and hearing the fire. I was clearly hearing the sound of fire.
    Accused persons ran away on exhortation-lalkara of
    witnesses. When I jumped from the motorcycle and ran, I
    could not see whether my father or Kunj Behari was hurt
    or not because I was running to save myself. I ran towards       H
    1078    SUPREME COURT REPORTS                   (2012] 3 S.C.R.


A       village through Harijan Basti and Canal Side. I shouted
        reaching near the village. I returned back at the spot along
        with several persons collected there, and found that Kunj
        Behari was lying dead by gun shot on the road and my
        father was lying dead by gun shot in paddy field, while
B       running my trouser got terned. We people remained for
        about an hour at the place of occurrence. From there I
        came to Dhata and wrote the report in my hand writing
        sitting near the shop of Uma Shankar and gave that in Data
        Chowki."
C          14. From the aforesaid narration of the incident by PW-1,
    it is very clear that he was present at the time of the occurrence
    and has seen the appellants with double barrel gun, single
    barrel gun and a rifle with cartridges. He has stated that when
    the appellants fired, Kunj Behari, who was driving the
D   motorcycle, got scared by the firing and the motorcycle got dis-
    balanced and came on the western strip of the road and he and
    his father jumped from the motorcycle and ran but Kunj Behari
    fell down along with motorcycle. He has also stated that the
    appellants were firing continuously and his father ran towards
E   paddy field towards west and he ran towards Harijan Basti
    towards north. He has also said that after he returned to the
    spot he found that Kunj Behari was lying dead by gun shot on
    the road and his father was lying dead by gun shot in paddy
    field. Moreover, PW-1 has clearly disclosed that hearing the
F   firing, Sunder Lal Singh and Hari Prasad Singh (PW-2), who
    were coming on cycles from Dhata, reached there and Lakhpat
    Sonar also reached there. He has not said that only Hari Prasad
    Singh (PW-2) from Dhata reached there. If PW-1 was really
    interested in falsely implicating the appellants in the case with
G   the help of PW-2, he could have also said that he also saw the
    appellants firing at his father and at Kunj Behari and that only
    Hari Prasad Singh (PW-2) was coming on cycle from Dhata
    and shouted at the appellants and that Sunder Lal Singh and
    Lakhpat Sonar, whom he had named in the FIR, did not reach
H   the spot in time to be able to witness the incidence. We are,
   HIRALAL PANDEY AND ORS. v. STATE OF U.P.                 1079
               [A.K. PATNAIK, J.]

thus, of the view that the evidence of PW-1 could not have been      A
doubted by either the trial court or the High Court.
    15. When we examine the evidence of PW-2 Hari Prasad
Singh, we find that he has stated:
    "Incident occurred about an year ago. Sun was about to           B
    set at about 6 P.M. in the evening I along with fellow
    Sunder Singh were going from Dhata to Sonari on our
    separate cycles. Sunder Singh is also resident of Sonari.
    When I reached near girls school on Dhata-Sonari road,
    then from our back, deceased Raja Ram, Kunj Behari and           c
    Balbir P.W.1 crossed us on motorcycle. Kunj Behari was
    driving the motorcycle, Raja Ram and then Balbir were
    sitting behind him.
    After crossing the girls school and when we were 30-40
    paces away from Bamboo Kothi, all the three accused,             D
    Surendra, Heera and Subhash, present in court, came on
    the road from Bamboo Kothi. Seeing these persons, all
    the three accused gave a Lalkara that they should not go,
    and after saying this, three accused fired. At that time,
    accused Subhash had a double barrel gun, Surendra had            E
    a rifle and Hira Pandey had a single barrel gun. Due to
    fire, motor cycle got disbalanced. I did not see that the fire
    hit any body riding the motorcycle or its driver but I saw
    motorcycle getting disbalanced and going towards left strip
    of the road. Balbir P.W.1 jumped from that disbalanced           F
    motorcycle and ran towards north in the side we were
    going. Raja Ram also got down from motorcycle and ran
    towards paddy fields in west. But Kunj Behari fell there with
    motorcycle. As soon as the motorcycle fell, accused
    Subhash went near Kunj Behari and fired. Raja Ram fell           G
    down in water filled paddy fields. As Raja Ram tried to get
    up, accused Surendra and Hira reached near him and
    fired. Kunj Behari and Raja Ram died due to fire injuries
    then and there and Balbir ran away.
    I asked accused persons not to fire which could hit us.          H
    1080    SUPREME COURT REPORTS                   [2012] 3 S.C.R.


A       Apart from me and Sunder Lal, Lakhpat Sonar also
        reached on the place of occurrence from south side and
        he also shouted that do not fire, do not kill (Maaro).
        Hearing this, accused persons ran away from the spot.
        After the incident, I stayed for about 30-45 minutes at the
B       spot. During this, Balbir came on the spot along with 7-8
        persons."
       16. The aforesaid testimony of PW-2 supports the
  evidence of PW-1 in all material respects. He has said that due
C to the firing by the appellants, the motorcycle got disbalanced
  and went towards left strip of the road and PW-1 jumped from
  the motorcycle and ran towards north side while Raja Ram ran
  towards paddy fields in the west, but Kunj Behari fell there with
  the motorcycle. PW-2 has further said that that as soon as the
  motorcycle fell, the appellant Subhash went near Kunj Behari
0
  and fired. He has also said that Raja Ram fell down in the
  water-filled paddy fields and when Raja Ram tried to get up,
  the appellants Subhash and Hira reached there and fired while
  PW-1 ran away. He has also disclosed that Sunder Lal and
  Lakhpat also reached the place of occurrence and shouted
E along with him not to fire and hearing this, the appellants ran
  away from the spot. He has also said that after the incident,
  PW-1 came on the spot along with 7-8 persons. PW-2 is,
  therefore, a direct eyewitness to the firing by the appellants on
  the two deceased persons and in the lengthy cross-examination
F of PW-2 the defence has not been able to bring to the notice
  of the court any material to hold that his evidence is not reliable.
  On the other hand, we find, on a reading of the cross-
  examination of PW-2, that he has stated that Kunj Behari had
  fallen flat and his face was towards the sky when he was shot
G and his head was in the north, one leg in the south and one leg
  was on the motorcycle. He has stated that the appellant
  Subhash fired at Kunj Behari from the east from a standing
  position and at that time the barrel of the gun of the appellant
  Subhash was downwards on Kunj Behari. PW-2 has also
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   HIRALAL PANDEY AND ORS. v. STATE OF U.P.                  1081
               [A.K. PATNAIK, J.]

stated that there were four paces distance between the place          A
where Raja Ram fell in the paddy field and the place from
where the two appellants entered the field and the two
appellants fired on Raja Ram when he tried to get up. Had PW-
2 not seen the occurrence, he could not have given such details
of the occurrence in the witness box during the cross-                B
examination. The veracity of PW-2, in our considered opinion,
has been tested in the cross-examination and his evidence is,
thus, reliable.
     17. We do not also think that the evidence of PW-2 could
have been discarded on the ground that he was only a chance           C
witness. The incident took place when the deceased were
traveling on a motorcycle on the road and PW-2 was also
coming on the same road on his cycle when he saw the incident.
This Court has held in Thangaiya v. State of T.N. (supra) that
if a murder is committed in a street, only passers-by will be         D
witnesses and their evidence cannot be brushed aside or
viewed with suspicion on the ground that they were mere
chance witnesses. Moreover, PW-2 has been named in the FIR
as one of the persons who were coming on a cycle from Dhata
side and as one of the persons who shouted at the appellants          E
not to fire. In State of U.P. v. Ani/ Singh (supra), this Court has
held that when a witness figures as an eyewitness in the FIR,
he cannot be categorized as a chance witness. Once we
accept that PW-1 and PW-2 were present at the place of
occurrence and their evidence was reliable, the fact that other       F
independent witnesses named in the FIR, such as SUllder Lal
Singh, have not been examined before the Court, cannot be a
ground for not believing the prosecution case. In State of U.P.
v. Anil Singh (supra), this Court has held that the prosecution
case cannot be doubted for not examining the witnesses after          G
taking note of the fact that the public are generally reluctant to
come forward to depose before the Court. We, therefore, do
not find any merit in the submission made by the learned
counsel for the appellants that the prosecution story should not
be believed because the independent witnesses have not been
                                                                      H
examined.
    1082     SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A       18. We have also considered the contention of Mr.
  Hansaria that the time of recording of FIR at Dhata Police
  Chowki is doubtful as the FIR was first written by pencil which
  was erased and again overwritten as per the evidence of PW-
  4. We find from the evidence of PW-4 that although a
B suggestion was made to him in cross-examination by the
  defence that the time of incident in the chik register as the time
  of incident was first written in pencil and thereafter erased and
  again written, PW-4 has said that the suggestion is incorrect.
  There is no definite evidence before the Court to come to the
c conclusion that the time of incident in the FIR was first written
  in pencil and was thereafter erased and again written and that
  the time of incident as recorded in the FIR was doubtful.
           19. Regarding the contention of Mr. Hansaria that there
    was no recovery of empty cartridges, we find that the 10 (PW-
0   5) has admitted during cross-examination by the defence that
    no empty cartridge was found from the passage on which PW-
    1 ran away from the spot and he did not find any empty pellet,
    tikli or cartridge from the spot where the motorcycle was lying
    and where the deceased Kunj Behari was shot. PW-5 has also
E   not stated that any empty cartridge was recovered from the
    paddy field where Raja Ram was shot, but the fact remains that
    the deceased Kunj Behari and Raja Ram were killed by gun
    shots. Dr. Anand Swarup (PW-3), who carried out the post
    mortem, has described the gun shot wounds of the deceased
F   Raja Ram as ante mortem injuries in the chest and abdominal
    cavity and has opined that the cause of his death is shock and
    hemorrhage as a result of the injuries sustained by him. Mr.
    Hansaria is right that according to PW-3 all the injuries on the
    deceased Raja Ram were caused by one gun shot, whereas
G   PW-2 has deposed that both Surendra and Hira fired at Raja
    Ram, but it appears only one of them was able to hit Raja Ram
    with a bullet because of which Raja Ram died. PW-3 has
    similarly described the injuries on the body of the deceased
    Kunj Behari as gun shot injuries in his oval cavity on the left side
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   HIRALAL PANDEY AND ORS. v. STATE OF U.P.                1083
               [A.K. PATNAIK, J.]

of the chin and neck and left shoulder and has opined that the      A
injuries were sufficient to normally cause death. Thus, the
medical evidence supports the eyewitness accounts of PW-1
and PW-2.
      20. The submission of Mr. Hansaria that injuries on the
body of deceased were not correlated with the weapons               B
allegedly possessed by the appellants would have been relevant
if the fire arms were recovered from the appellants and the
bullets were also recovered from the body of the deceased or
from the place of occurrence. Regardirig his contention that
serological report has not been produced although the blood-        C
stained earth was collected ard that the investigation was
started not on 22.09.1979 but only next day in the morning,
these are defects in investigation but such defects cannot be
a ground to disbelieve the prosecution story which has been
proved beyond reasonable doubt through the evidence of the          D
two eyewitnesses as supported by the medical evidence. In
State of Uttar Pradesh v. Bhagwant Kishore Joshi (AIR 1964
SC 221), Subba Rao, J., as he then was, has held that it was
necessary for the accused to throw a reasonable doubt that the
prosecution evidence is such that it must have been                 E
manipulated or shaped by reason of the irregularity in the matter
of investigation, or that he was prevented by reason of such
irregularity from putting forward his defence or adducing
evidence in support thereof, but where the prosecution evidence
has been held to be true and where the accused had full say in      F
the matter, the conviction cannot obviously be set aside on the
ground of every irregularity or illegality in the matter of
investigation. In other words, unless the lapses on the part of
the investigation are such as to cast reasonable doubt about
the prosecution story or seriously prejudice the defence of the     G
accused, the Court will not set aside the conviction.
    21. We, therefore, do not find any merit in this appeal and
we accordingly dismiss the appeal.

R.P.                                        Appeal dismissed.
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