Jai Chand and anr. Vs. State of H.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/890227
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnSep-21-2000
Case NumberCriminal Appeal No. 418 of 1998
Judge Lokeshwar Singh Panta and; M.R. Verma, JJ.
Reported in2002CriLJ2301
ActsArms Act, 1959 - Sections 25, 27, 54 and 59; ;Indian Penal Code (IPC), 1860 - Sections 34, 84, 109 and 302; ;Code of Criminal Procedure (CrPC) - Sections 154, 157 and 313
AppellantJai Chand and anr.
RespondentState of H.P.
Appellant Advocate M.S. Chandel and; Yoginder Paul, Advs.
Respondent Advocate G.S. Guleria, Dy. Adv. General and; J.K. Verma, Asstt. Adv. General
DispositionAppeal dismissed
Cases ReferredShiv Ram v. State of U.P.
Excerpt:
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]
- 
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
lokeshwar singh panta, j.1. accused jai chand and budhi singh were prosecuted in sessions trial no. 18 of 1996 in the court of sessions judge, mandi for offences punishable under sections 302/109 of the indian penal code and section 25 of the arms act for the murder of smt. seema devi wife of accused jai chand. by the impugned order, the learned sessions judge has sentenced accused jai chand for life and to pay a fine of rs. 2000/- under section 302, ipc and in default of payment of fine to suffer rigorous imprisonment for six months. under section 25 of the arms act, 1959, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of rs. 500/- and in default of payment of fine, to undergo rigorous imprisonment for two months. accused budhi singh has been sentenced.....
Judgment:

Lokeshwar Singh Panta, J.

1. Accused jai Chand and Budhi Singh were prosecuted in Sessions Trial No. 18 of 1996 in the Court of Sessions Judge, Mandi for offences punishable under Sections 302/109 of the Indian Penal Code and Section 25 of the Arms Act for the murder of Smt. Seema Devi wife of accused Jai Chand. By the impugned order, the learned Sessions Judge has sentenced accused Jai Chand for life and to pay a fine of Rs. 2000/- under Section 302, IPC and in default of payment of fine to suffer rigorous imprisonment for six months. Under Section 25 of the Arms Act, 1959, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo rigorous imprisonment for two months. Accused Budhi Singh has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- for the offence punishable under Section 109 read with Section 302 of the Indian Penal Code and in default of payment of fine, to undergo rigorous imprisonment for six months. Both the sentences imposed upon accused Jai Chand were ordered to run concurrently. Both the accused, appellants herein, have challenged their conviction and sentence in this appeal.

2. Accused Jai Chand is the son of accused Budhi Singh and they were living in their house in village Barnod under Police Station and Tehsil Jogindernagar, District Mandi. Smt. Seema Devi was wife of accused Jai Chand. The relation between Smt. Seema Devi and both the accused were strained. Accused Budhi Singh owned a Gun SBBL No. 30396 for which he is holding a valid licence.

3. It was the prosecution case that Smt. Seema Devi filed some criminal case against one Devi Singh and her husband Jail Chand prior to the present incident. On 31 -12-1995 Smt. Seema Devi shouted for Kaushalya Devi (P.W, 7) wife of Hari Singh her 'Jeth' (brother of accused Budhi Singh) and told the latter that children had set the grass on fire, The children refuted the allegations and stated that they had set only the neat of wasps on fire, On this count, accused Budhi Singh pieked quarrel with his daughter-in-law Smt Seema Devi. Accused jai Chand asked his wife as to why she was quarrelling with his father. She replied that it was her father-in-law who had picked quarrel with her without any reason and it had become intolerable for her to bear the hostile behaviour and attitude of her father-in-law. It was further alleged that accused Budhi Singh instigated his son accused Jai Chand to kill his wife with the gun and he would see the consequences lateron. On the instigation of his father, accused Jai Chand took the gun and shot dead Smt. Seema Devi, when she was in the kitchen. Smt. Kaushalya Devi witnessed the entire incident and rushed to the scene of crime followed by her husband Hari Singh (PW. 8). At the scene of occurrence, many other persons also gathered. Accused Jai Chnd tried to re-load the gun but it was timely snatched away from his hand by Hari Singh. The incident was reported to the police at Police Station, Jogindernagar by Ram Singh (PW-5) and on the basis of his report, First Information Report (Ex. PG) came to be lodged on 1-1-1996 at 9 a.m. against both the accused under Sections 302/34 of the Indian Penal Code and Section 25/54/59 of the Arms Act. Sh Bishamber Dutt, Sub Inspector (PW. 12) after registration of the case visited the scene of crime and prepared inquest report Ex. PH on the dead body of Smt. Seema Devi which was lying in the kitchen. Site plan Ex. PW-12/A was also prepared; took into possession 'Khandolu' (sleeping mattress); two live cartridges Ex. P. 14 & Ex. P. 15; small green bag Ex. P-16 and the gun licence Ex. P-17. He also collected controlled sample of earth Ex. P. 37; blood stained earth Ex. P. 38 and the Gun Ex. P-19 produced by PW Hari Singh containing fired cartridge Ex. P. 18. The dead body of Smt. Seema Devi was sent to Civil Hospital. Jogindernagar for post mortem, which was conducted by a team of doctors, namely, Dr. Raj Kumar (PW. 1) Sunil Thakur, Dr. R. P. Kaushal and Dr. D.D. Rana. Sketch map of the Gun Ex. PW/19/A was also prepared and viscera report was sent to Chemical Examination for Forensic Science Laboratory along with other items. Post Mortem report Ex, PA and the Chemical Examiner's report Ex, p, 12/1 were collected, Gun Ex., p-10 was also sent to Forensic Scienee Laboratory together with used cartridges, irregular red pellets and plastic air cushion and metalli pieces. The Chemi-cal Examiner submitted his report Em- PW. 12/C in respect of the gun and other material. Sanction order Ex. PW. 12/D was also obtained from the District Magistrate, Mandi to prosecute the accused persons under Arms Act. Statements of the witnesses were recorded and on completion of the entire investigation, charge-sheet was Lald before the trial Court against both the accused alleging the commission of the aforesaid offences.

4. Both the accused were initially charged for the offence under Section 302 read with Section 34 of the Indian Penal Code and accused Jai Chand was also charged under Section 25 of the Arms Act whereas accused Budhi Singh was charged under Section 27 of the Arms Act. It appears from the judgment of the teamed Sessions Judge that an application filed by the prosecution for amendment of the charges against the accused was allowed and charges were accordingly amended. Accused Jai Chand stood charge-sheeted for the offence punishable under Section 302, IPC for having killed his wife Smt. Seema Devi and under Section 25 of the Arms Act for having acquired the gun belonging to his father accused Budhi Singh for committing the murder of his wife. Accused Budhi Singh was charge-sheeted for offence punishable under Section 109 read with Section 302 of the Indian Penal Code for having abeted murder of Smt. Seema Devi by his son accused Jai Chand as well as for having allowed his son to use his licenced gun in the commission of the crime. Both the accused pleaded not guilty to the charges levelled against them and cLalmed to be tried. The prosecution examined as many as 13 witnesses to substantiate its case against the accused. In their statements recorded under Section 313 Cr. P.C. both the accused denied the allegations levelled against them.

5. Accused Jai Chand stated that on the alleged day of occurrence, he was sick as his arm and leg were not functional and he was under medical treatment of his uncle Dr. Hari Singh and that his mind was not working properly due to disease. He stated that the prosecution witnesses have entertained grudge against him. His defence was that he had gone to forest to cut the wood where he had a paralytic attack and his co-villagers had brought him from the forest in November, 1995. He did not know what actually happened to Smt. Seema Devi and he was not not in his senses. He also stated that he did not even know when he was brought to the police station and during the trial of the case, he was under the medical treatment of Dr. Manjul and remained admitted in hospital in Shimla for about 19-20 days as he used to get periodical fits. He pleaded his innocence.

6. Accused Budhi Singh also denied the allegations levelled against him. However, he admitted the ownership of gun Ex. P-19. He stated that he has been falsely implicated in this case at the instance of witnesses who entertained grudge against him. He pleaded that his gun was lying in the ground floor in a room where he lived and on the day of the incident, he was in the upper storey in the kitchen at the relevant time along with three children. He stated that when the gun shot was fired he came out of his kitchen and found his gun not in the room. He saw his gun In the hands of his brother Hari Singh. There was no light in the house at that time. He also stated that Hari Singh is living separately from him and the door of Hari Singh's house does not open towards his house. Both the accused examined seven witnesses in their defence, namely, Gopi Ram (DW. 1), second brother of accused Budhi Singh, Vidhu Ram (DW. 2), Bhagat Ram Pharmacist (DW-3), Dr. Chetan Upadhaya (DW-4) who was at the relevant time looking after the jail patients, Dr. Manjul (DW-5) Medical Officer in Zonal Hospital Mandi, Dr. Jyoti Mehta (DW-6) posted as Assistant Professor Neurology, Indira Gandhi Medical College, Shimla and Dr. Ramesh Thakur (DW-7) a private medical practitioner settled at Mandi.

7. The circumstances against the accused relied upon by the prosecution and as found by the trial Court were as follows :-

(a) The eye-witness account of Smt. Kaushalya Devi (PW. 7);

(b) Extra-judicial confession of the accused;

(c) Report of the Ballistic Expert; and post mortem report of the team of doctors.

(d) Weapon of offence was in possession of A-1 Jai Chand immediately after the commission of the offence; and

(e) Weapon of offence was the licenced gun pf A-2 Budhi Singh.

8. The death of Smt. Seema Devi was not in dispute paused by bullet injuries. On scrutinizing the entire evidence and other materials on record, the learned Sessions Judge convicted both the accused for the commission of the offences for which they were charge-sheeted and sentenced them as noted hereinabove. Now, both the convicts have filed the present appeal challenging the correctness and validity of their conviction and sentence by the trial Court. In this appeal accused Jai Chand is appellant No. 1 and accused Budhi Singh appellant No. 2 and hereinafter they are referred to as 'A-l' and 'A-2'.

9. We have heard Mr. M. S. Chandel learned counsel for the appellants and Mr. M. S. Guleria, learned Deputy Advocate General for the State-Respondent.

10. Mr. Chandel first contended that from the scrutiny of the evidence on record, it is clearly established that both the appellants were living separately from each other and the finding to the contrary recorded by the learned trial Court that they were living together and sharing common kitchen was against the evidence of Smt. Kaushalya Devi (PW-7), the alleged eye-witness and Gopi Ram (DW-1) real brother of A-2.

11. We have considered this contention of the learned counsel. It has come in the evidence of PW-7 and her husband PW-8 that both the appellants were living jointly in one house being son and father and PW-8 along with his wife PW-7 and their children were living separately in the adjacent house. The suggestion of defence was emphatically denied by PW-7 that A-2 was not in the house at the scene of occurrence on the alleged day of the incident. She categorically stated that A-2 was near the fire place in the kitchen where deceased Smt. Seema Devi was also sitting but they have got their separate kitchens. According to her version, A-1 was in the verandah. However, DW-1 has stated that A-1 used to live separately from his father A-2. The rooms and separate kitchens of both the appellants are in one house which are adjacent to the houses of PWs. 7 and 8. It is insignificant and irrelevant for our consideration whether the appellants before the commission of the crime lived jointly and shared common kitchen. The sole question for determination and consideration was whether the prosecution has proved its case beyond reasonable doubt against the appellants or not and further whether the trial Court has rightly appreciated the entire evidence produced on record. Now we propose to examine the circumstances accepted by the trial Court :-

Circumstance (a) :

Eye witness account of PW. 7

12. A-2 is the real brother of PW-8 husband of PW-7 and A-1 is the real nephew of PWs. 7 and 8. It was the evidence of PW-7 that after the marriage of A-1 and Smt. Seema Devi, they lived together peacefully for some time but thereafter they started quarrelling. She deposed that on-31-12-1995, she was in her house when Smt. Seema Devi shouted for her from the house of one Puran Chand and told her that children had set the grass on fire. The children denied the allegation and said that they had not set the grass on fire but instead set the nest of wasps on fire and on hearing the children saying so, A2 picked up quarrel with Smt. Seema Devi. In the meantime, A-1 asked his wife as to why she was quarrelling with his father. Smt. Seema Devi replied that it was A-2 who picked quarrel with her without any reason and that it had become intolerable for her to bear the behaviour of A-2 and on hearing this A-2 instigated and told A-1 to kill Smt. Seema Devi with his (A-2) gun and he would see the consequences later. A-1 immediately picked up the gun and shot Smt. Seema Devi dead. Smt. Seema Devi shouted 'Haye Meri Maan Mar Diya' and on hearing the cry of Smt. Seema Devi, she rushed to the scene of crime followed by her husband PW-8. In the meanwhile, lot of persons had gathered there. The gun was in the hands of A-1 which was snatched away from him by PW-8. An attempt was made by the defence in the cross-examination of PW-7 to show that she was not in good terms with the appellants which she emphatically denied. She testified that she had cordial relation with the family of the appelalnts as all of them belong to the same family. She maintained that A-2 was using abusive language towards her as well but she never objected to it as A-2 was elder member of their family. She specifically denied that A-2 was not present at the place of occurrence. She unambiguously stated that A-2 was near the fire place in the kitchen and Smt. Seema Devi was also in the kitchen near the fire place whereas A-1 was in the verandah and it was at that time that A-2 told A-1 to bring his gun from room and shot Smt. Seema Devi dead. She also denied the suggestion that A-1 did not fire at his wife with the gun. The testimony of PW-7 has not been shattered or impeached by the appellants in her cross-examination to disbelieve and discredit her version. She is a truthful witness and has proved the presence of A-2 on the scene of occurrence. In fact A-2 has himself admitted his presence In the house when in answer to a question In his statement under Section 313, Cr. P.C. he stated that his gun was lying in the ground floor in a room where he lived and that he was In the upper storey at that time along with three children in the kitchen and when the gun was fired, he came out and found his brother PW-8 holding gun in his hands.

13. The ocular evidence of PW-7 has been challenged by the learned counsel for the appellants on the ground that there were discrepancies in her evidence vis-a-vis the evidence of PW-8. According to the learned counsel, PW-7 in her deposition stated that her husband witnessed the ocurrence whereas PW-8 was categorical that he had not seen the occurrence and reached the scene of crime after hearing the gun shot. The learned counsel pointed out that the evidence of PW-8 suggested that PW-7 left her house to the house of the appellants only after hearing the gun shot and in the circumstances, PW-7 could not see the gun shot being fired. The contention of the learned counsel is without merit and cannot be accepted. It is but natural that minor contradictions and veriations were bound to occur with the passage of time and such contradictions were indicative of the truthfulness of the witness PW-7 who has no personal axe to grind against the appellants being one of the members of the same family.

14. On careful consideration of the evidence of P.W. 8, it stands proved that he had tried to help the appellants to whom he was closely related. It was stated by PW-8 that he returned back home on the fateful day at about 8-15 p.m. from his clinic in District Kangra where he was doing his private practice as doctor and was also giving medical treatment to his nephew A-l. He deposed that when he was changing his clothes he heard a sound of gun shot and noise of the children and he immediately rushed to the house of A-l. On reaching there he found A-1 standing outside his house holding a gun in his hands. He snatched the gum from A-1 which was later on handed over to the police by him. In his cross-examination, on behalf of the appellants, he stated that his wife rushed to the house of the appellants after the firing of the gun shot. It was not possible to PW-8 to witness the actual firing of the gun shot by A-1 as he was In his room changing the clothes when he heard the gun shot and his wife PW-7 was not In that room and, therefore, he could have known If his wife left the house after hearing the gun shot. From the testimony of PWs. 7 and 8, we find that there is no real contradiction or variation in their respective evidence which would amount to discard their versions. PW-7 has stated in clear and unambiguous words that she had watched the quarrel erupted between the deceased Smt. Seema Devi and the appellants from her house and it was A-2 who instigated A-1 to kill Smt. Seema Devi with gun shot and that she witnessed the entire incident of firing of the gun shot by A-1 and immediately thereafter she rushed to the place of occurrence followed by her husband. The eye-witness account of PW-7 inspired implicit confidence and was unblemished and conviction could be based on the solitary statement of this witness without being corroborated by other eye-witness.

15. The appellants examined DW-1 to show that PW-7 could not have seen the gun shot being fired by A-1, DW-1 stated that A-2 is his real brother and A-1 is his nephew. He heard loud sound at 7-30 or 7-35 p.m. on 31-12-1995 when he was in his room on the upper floor of the house and on coming out of his room he saw the dead body of Smt. Seema Devi in the room of A-1. It was his evidence that the courtyard of the appellants was not visible from the house of P.Ws. 7 and 8. Simply because the common courtyard between the houses of the four brothers could not be seen from the house of PW-8, it would not show that PW-7 did not witness the firing of the gun shot by A-1 at his wife. DW-1 has admitted in his cross-examination that there was frequent quarrel between Smt. Seema Devi and A-1 and this part of his statement has been corroborated by the testimony of PW-7. The witness has also admitted that dead body of Smt. Seema Devi was lying in the kitchen of A-1 and the gun in the hands of PW-8 belong to A-2.

16. From careful examination of the spot map Ex. PW-12/A, we find that the dead body of Smt. Seema Devi was lying at place 'A' which is depicted kitchen of A-1 and the gun shot was fired by him from mark 'B' at his wife. Mark 'C' has been reflected just in front of mark 'B' where the gun was allegedly given by A-2 to A-1 for firing gun shot at Smt. Seema Devi. Mark 'D' is shown as the house of P.Ws. 7 and 8 and from there is an open gallery between marks 'C' and 'D' from where PW-7 had seen the entire incident as it was an open and uninterrupted space. From the perusal of the spot map, it is clear that the house Of DW-1 is shown towards the eastern side of the house of appellants and one Anup Singh and on the extreme eastern side of DW-1 there is one gallery in between his house and the house of PWs. 7 and 8. On re-appraisal of the evidence of PW-7 and DW-1 coupled with spot map we find that DW-1 could not have seen the actual incident which could be seen from the house of PWs. 7 and 8 at places 'B' and 'C' in the kitchen of A-l. Therefore, the evidence of DW-1 is of no help to the appellants to disbelieve and discredit the eye-witness account of PW-7, who had seen the entire incident.

Circumstance (b):

Extra-judicial confession of appellants.

16-A. The learned counsel for the appellants vehemently contended that the extra-judicial confession allegedly made by the appellants to PW. 5 and Dhani Ram PW-6 President of the Panchayat was not believable as the prosecution has not proved as to what were the exact words used by the appellants and the confession, if any, was made to the interested persons out of whom one is the brother of the deceased and as such, it was probable for the appellants to have made confession to those persons on whom they would have never reposed confidence. We are afraid to accept the contention of the learned counsel. Admittedly, PW-5 is the real brother of deceased Smt. Seema Devi who was informed by Ranveer Singh (PW-11) that A-1 had shot dead his sister. He along with Dhani Ram (PW-6) who at the relevant time was President of Gholvan Panchayat reached village Barnod. They found the dead body of Smt. Seema Devi in the kitchen in a pool of blood. PW. 5 asked both the appellants who were present in their house about the reason of the death of Smt. Seema Devi and on his inquiry, A-2 told him that they would have done this work long time back but they were late for some reason. He stated that A-1 confessed his guilt of shooting his wife. The witness said :-

Jai Chand accused present in the Court confessed the guilt and said that he had shot dead his wife. Jai Chand accused further revealed that he had shot dead his wife at the behest of his father Budhi Singh accused.

17. In his cross-examination he denied the suggestion of the appellants that he had made false statement to the extent that Jai Chand had admitted having killed his wife at the instance of his father Budhi Singh.

18. His testimony has been corroborated by PW-6 who accompanies him along with PW-11 to the scene of occurrence. PW-6 deposed that when they reached at the scene of occurrence, they saw the dead body of Smt. Seema Devi and both the appellants were present there. He inquired about the cause of the death of Smt. Seema Devi, whereupon PWs. 7, 8 and one Ward Member Gian Chand (not examined) revealed that A-1 hud Milled his wife with a gun shot. He also stated by him that both the appellants had also admitted this fact, In the cross-examination he has specifically stated : 'I had asked Jai Chand accused about the murder of Seema Devi. He had revealed that both of them i.e. he and his wife Seema were quarrelling with each other. She hurled abuses on him, he felt enraged and shot her dead.'

19. PW-11 deposed that on hearing the gun shot fired from the side of the house of appellants, he immediately rushed to his house and found Smt. Seema Devi lying dead. He was sent by PW-7 to intimate PW-5 about the incident. It: was in this background that extra (judicial confession was made by the appellants to PWs. 5 and 6.

20. Mr. M. S. Chandel, learned counsel for the appellants contended that extra-judicial confession is a weak piece of evidence and in the present case, the prosecution witnesses to whom the extra-judicial confession was made asked the appellants to make the confession. In support of his submission, the learned counsel has relied upon Rahim Beg and Mahadeo v. State of U.P. 1972 Cri LJ 1260 : AIR 1973 SC 343, Anneppa v. State of Karnataka 1978 Cri LJ 462 Karnataka High Court, Heramba Brahma v. State of Assam 1983 Cri LJ 149 : AIR 1982 SC 1595 Supreme Court), State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588 : 1997 Cri LJ 774 and Sitaram Vishnu Chalke v. State of Maharashtra 1993 Cri LJ 3364 Bombay High Court to contend that there was no justified reason for the appellants to have reimposed confidence in PWs. 5 and 6 for making extra-judicial confession and the prosecution has failed to prove by reliable evidence that the appellants have ever made any extra judicial confession.

21. We have given our anxious and thoughtful consideration to the submission of the learned counsel for the appellants on this and find that the ratio of the above decisions will be of no help to the appellants in the peculiar facts and circumstances of the present case. In all the decisions, the settled proposition is that the extra-judicial confession is a weak piece of evidence and it must pass the test of reproduction of exact words, the reason or motive for confession and persons selected to whom confidence is reposed,

22. In State of U.P. v. M. K, Anthony AIR 1985 SC 48 : 1985 Cri LJ 493, their Lordships have held that there is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence and observed as under (para 15 of AIR) :-

If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appears to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, than after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.

23. In Baldev Raj v. State of Haryana AIR 1991 SC 37 : 1990 Cri LJ 2643, it is held that extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court, requires the witness to give the actual words used by the accused as rearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the atual words but the substance were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes that the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. In Kavita v. State of T.N. (1998) 6 SCC 108 : 1998 Cri W 3824, their Lordships held that eonvie-Man can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.

24. In the present case both the appellants voluntarily made extra-judicial confession to PW-5 brother-in-law of the deceased and PW-6 Pradhan of the Panchayat. The| extra-judicial confession made by the appellants to the near relation of the deceased PW-5 and the independent witness PW-6 President of the Panchayat was voluntarily made by them without any threat, inducement or promise from any person in authority. The trial Court has held that extra-judicial confession made by the appellants were not only voluntary but the same were true. Hence the extra-judicial confession fully consistent with the evidence of the witnesses establishes the guilt of the appellants. Once the confession has been properly accepted and acted upon by the trial Court and there is no scope for any doubt regarding the complicity of the appellants in the crime, the testimony of the witnesses being responsi-ble persons could not be doubted in the absence of any material to show that they have been motivated to falsely implicate the appellants. There was no infirmity in the confession which has been accepted and relied upon by the trial Court and hence has to be maintained. The extra-judicial confession made by the appellants to PWs. 5 and 6 finds corroboration and lends support to the eye-witness account of the occurrence narrated by PW-7, The contention therefore is un-sustainable.

25. The learned counsel for the appellants next contended that there is considerable delay in lodging the First Information Report (Ext. PG) and sending its copy to the judicial Magistrate late, which will cast doubt in the entire prosecution case. In support of this submission, the learned counsel has relied upon the judgment of Delhi High Court in Mahabir Singh v. State 1979 Cri LJ 1159, Thulia Kali v. State of Tamil Nadu AIR 1973 SC 501 : 1972 Cri LJ 1296. In re Gabriel 1977 Cri LJ 135 (Madras High Court) and L/NK Meharaj Singh/Kalu v. State of Uttar Pradesh (1994) 2 Crimes 154 (155) : 1995 Cri LJ 457 (Supreme Court). In all these decisions it has been observed that First Information Report is accepted to reflect the occurrence truly without embellishment or fabrication. Its recording without any reasonable delay also exclude the possibility of conjuring up of a false case by the police. Thus to save the report from any kind of attack and also to derive assurance and authenticity to the facts stated in this report, compliance of the provisions of the Code of Criminal Procedure is essential. Sending of the report to the Magistrate as provided under Section 157, Cr. P.C. is no doubt directory and not mandatory, but its directory nature, however, does not mean that the Police Officers can profane or violate without any legal consequence. Taken singly, such a delay or failure may not be sufficient to lead to the conclusion that the investigation was tainted or unfair, but when considered in conjunction with other infirmities or discrepancies, it may assume great importance and may cause suspicion about the purported time of its recording or even about its contents. Sections 154 and 157 have enormous importance and cannot be treated as a mere surplusages. They are very salutary provisions, which can be utilised for counter-checks and balances for testing or evaluating the other evidence.

26. In L/NK Meharaj Singh/Kalu's case 1995 Cri LJ 457 (supra) their Lordships of the Supreme Court held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Their Lordships proceeded to held that delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the abvantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally looks for certain external checks. One of the checks is the receipt of the copy of FIR, called a special report in a murder case, by the local Magistrate. If this report is received by a Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. In the present case the occurrance took place on 31-12-1995 at about 8 p.m. and the FIR came to be lodged on 1-1-1996 at 9 a.m. by PW-5 brother-in-law of the deceased. The distance between the place of occurrence and the Police Station is recorded about 21 Kms. in the FIR (Ext. PG). PW-5 was informed by PW-11 about the death of his sister-in-law at his native place and immediately thereafter he rushed to the village of the appellants accompanied by PW-6 when he saw his sister dead lying in the kitchen in a pool of blood. It has come in his deposition that soon thereafter, he tried to lodged the FIR on telephone from the village of the appellants but the telephone was found out of order and the motorable road was very far away from the scene of occurrence. He accompanied by PW-6 returned to their village and thereafter went to the road Chauntra from where they took the bus to Jogindernagar and reported the matter to the Police next morning. There was no suggestion put to PW-5 and the Investigating Officer (PW-12) that the FIR was as a result of due deliberation and consultation to implicate the appellants falsely in the crime. The FIR was received by the Magistrate on 2-1-1996 at 9-30 a.m. and admittedly, there is a delay of about 24/- hours in sending the First Information Report to the Illaqua Magistrate. In the FIR PW-5 has given the names of the appellants who were responsible for the murder of his sister -in-law with a gun shot and he has also stated that both the appellants had voluntarily confessed their guilt to him and to other persons including PW. 6 who were present at the spot. It also finds mention in the FIR that PWs. 7 and 8 were present at the scene of occurrence when he reached there who also told him that A-1 had killed his wife at the instigation of A-2 by a gun shot. In these circumstances the FIR cannot be said to be ante time or lodged after due deliberation or consultation by PW-5 and delay in sending the copy of the FIR to the Magistrate would not demolish other credible evidence on record. The delay if any, would only show carelessness on the part of the Investigating Agency which would not affect the substratum of the prosecution story. We see no substance in the submission of the learned counsel for the appellants that the delay in lodging the FIR and sending the Special report thereof to the Illazue Magistrate will cast any doubt in the prosecution case, In sending of the copy of the FIR to the Illaqua Magistrate late by the Investigating Agency no fault could be found with the evidence of PW-5 and FIR Ext. PG. In the Identical factual situation their Lordships in Shiv Ram v. State of U.P. (1998) 1 SCC 149 : 1998 Cri LJ 76 has said that delay in sending copy of the FIR to Illaqua Magistrate would not demolish other positive or credible evidence on record by the prosecution.

Circumstance (c) :

Report of the Ballistic Expert and the Post Mortem Report of the team of Doctors.

27. From the report of the Central Forensic Science Laboratory, Chandigarh (Ext. PW-12/C) gun SBBL No. 30396 (Ext. P-19) was found in working order and a 12 bore fired cartridge case marked C/l was found to have been fired from the said gun and the cartridge could not have been fired through any other gun because every fire arm has its own characteristic marks. The Scientific Officer concluded that the lead pellets and plastic air cushion wad could have been fired through the SBBL gun No. 30396. In the post mortem examination of deceased Smt. Seema Devi conducted by a team of Doctors, it was noticed that plastic cushion was recovered from the left breast of the deceased Seema Devi as deposed by Dr. Raj Kumar (PW-1). It has been established by the prosecution that the crime cartridge which killed deceased Smt. Seema Devi was fired through the gun SBBL No. 30396 and there was no challenge to the finding of the Ballistic Expert by the appellants and this circumstance has been properly accepted by the trial Court.

Circumstance (d) :

Weapon of offence was in possession of A-1 Jai Chand immediately after the commission of the offence.

28. It has been proved by the prosecution in the evidence of PW-8 uncle of A-1 and brother of A-2 that on 31-12-1995 he returned to his home from his Clinic at about 8-15 p.m. and when he was changing clothes, he heard firing of gun shot and the noise of the children, He immediately went towards the house of A-1 and found him standing and holding the gun of his father in his hand, He asked A-1 as to why he was holding that gun who replied that he was going to commit suicide, pw-8 snatched the gunlrom the hands of A-1 and put it in his room, This part of the evidence of PW-8 has not been disputed by the appellants in the cross-examination. Similarly, Vikram Singh (PW-9) who also lives in the same vicinity stated that when he was taking his food about 8 p.m. on the day of the occurrence he heard a gun shot. He went outside his house and saw A-1 standing in the compound of his house with a gun in his hand. The testimony of this witness has been left unshaken and unchallenged by the appellants. The evidence of both these witnesses fully established that A-1 was found holding the gun (Ext. P-19) belonging to A-2 in his hands immediately after Seema Devi was killed with the bullet and the pellets fired from the said gun by A-1. This circumstance coupled with ocular eye account evidence of PW-7 and extra-judicial confession conclusively proved that it was A-1 and none else who fired gun shot, from gun Ext. PI9 which caused fatal wound on the body of deceased Smt. Seema Devi.

Circumstance (e) :

Weapon of offence was the licenced gun of A-2 Budhi Singh.

29. The ownership of the gun has been admitted by A-2 in his statement recorded under Section 313, Cr. P.C. The licence of the gun (Ex. P-17) was issued in the name of A-2 from the office of District Magistrate, Kangra and renewed by the Deputy Commissioner, Mandi on 28-12-1992 as deposed by Amar Singh (PW. 10) Licence Clerk of the office of Deputy Commissioner, Mandi.

30. The last contention of the learned counsel before the trial Court and reasserted before this Court was that A-1 killed his wife under the fit of epilepsy seizure and his case would fall within the exception of Section 84 of the Indian Penal Code. Section 84 of the Code stipulates as under :

Act of a person of unsound mind-Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

31. It is well settled that the exception if pleaded has to be proved by the accused. There is no evidence on record to suggest that A-1 at the time of committing murder of his wife was of unsound mind and not capable of knowing the act. On the contrary, the evidence as already referred to and discussed by us hereinabove would clearly show that A-1 picked quarrel with his wife and shot her dead at the instigation of his father A-2. It is no doubt true that A-1 had suffered from convulsions on the left (upper limb) followed by unconsciousness. It has come in the evidence of PW-8 who is the real uncle of A-1 that A-1 (Jai Chand) had a paralytic attack two months prior to the incident while he was in the forest and he was carried home by some persons. It was stated by him that he treated A-1 and he used to administer him Nerobin and Metabol injections. It was also stated by him that A-1 was depressed on the day when he killed his wife. The evidence of PW-8 will not absolve A-1 from proving his defence of exception as mere depression of A-1 after the incident would not be indicative of his unsoundness of mind absolving him from controlling his own conduct and deprived of the power of passing rational judgment on the moral character of the act or incapable of knowing the nature of the act. Under law A-1 was to prove that he did not know either that the act was wrong or that it was contrary to law.

32. Dr. Chetan Upadhya (DW-4) who looked after A-1 in the jail deposed that Jai Chand was suffering from epilepsy seizure and was under his treatment since 8-1-1996. He referred him to Dr. Manjul (DW-5) who at the relevant time was posted as Medical Officer in the Zonal Hospital, Mandi for treatment. DW-5 found A-1 to be of Focal seizures with Secondary Generalization. DW-5 further referred A-1 to Super Specialist in I.G.M.C. Hospital, Shimla for exact diagnosis where he was examined by Dr. Jyoti Mehta (DW-6) Assistant Professor in Neurology. It has categorically been admitted by DW-6 in her cross-examination that under the attack of convulsions the patient becomes unconscious and after seizure the patient is neither violent nor aggressive. DW-6 examined A-1 on 16-8-1997 and found that he suffered from left focal (motor) seizure with occasional secondary generalization due to neurocysticercosis. She stated that the patient in this kind of disease and particularly A-1 whom she examined was in control of his faculties when attack would come and after attack the patient would become unconscious and that after recovery the patient could not act abnormally. In her cross-examination, she clarified, 'after recovery from seizure the patient in this kind of disease would neither be violent nor aggressive.

33. The defence also examined Dr. Ramesh Thakur, (DW-7) who at the relevant time was Practising medicines in Mandi Town. DW-7 after going through the record of A-1 found that he suffered from focal seizure to the left half of his body. He further stated that this kind of disease can disturb the mental condition of a person and a person can behave abnormally prior to the attack and after the attack of focal seizure. He further admitted that he is not a specialist in neurology and has admitted that he examined A-1 for the first time on 13-10-1997. The trial Court has rightly held that in view of the opinion of Dr. Jyoti Mehta (DW-6) who is D.M. in Neurology and is working as Assistant Professor in I.G.M.C. Shimla coupled with the evidence of Dr. Manjul, (DW-5), the opinion of Dr. Rarnesh Thakur (DW-7) could not be found final opinion about the conduct and behaviour of A-1 after the attack of focal seizure.

34. From the order dated 19-3-1998 recorded by the trial Court we find that A-1 was tested by learned trial Judge about the soundness of his mind by putting him various questions after the examination of the defence witnesses and it appeared to the learned trial judge that A-1 was of sound mind as he did not have any seizure during the trial in the Court. A-1 in his statement recorded under Section 313 Cr. P.C. never pleaded that he was of unsound mind and his simple plea was that he fell sick in November, 1997 and he used to get periodical fits.

35. On re-appraisal of the entire evidence on record, we are of the view that the trial Court has rightly held that A-1 was of sound mind at the time when he killed his wife Smt. Seema Devi and his plea of unsoundness of mind has been rightly rejected. The eye-witness account of PW-7 is very consistent and cogent that A-2 father of A-1 picked up quarrel with Smt. Seema Devi on the day of occurrence and when A-1 intervened and asked his wife as to why she was quarrelling with his father, she replied that A-2 was quarrelling with her without any cause and it. had become intolerable for her to bear the hostile behaviour of A-2. The evidence also shows that A-2 instigated A-1 to kill his wife with his gun and he would see the consequences later. A-1 immediately handled the gun of his father A-2 and shot Seema Devi dead. Smt. Seema Devi shouted. 'Hai Meri Maan Mar Diya' and on hearing her cries PW-7 rushed to the place of crime. The reliable testimony of PW-7 who is one of the close family members of the appellants coupled with the fact that the gun with which Smt. Seema Devi was shot dead belonged to A-2, would clearly show that A-2 instigated his son A-1 to kill Smt. Seema Devi with his gun. The testimony of PW-7 lends assurance from the testimony of PW-5 and the acceptable confession of the appellants. It is well settled that while appreciating the evidence of the prosecution witnesses, some discrepancies and contradictions occurring in the evidence will not be sufficient evidence to discard the entire prosecution evidence. We have absolutely no doubt that the above circumstances relied upon by the prosecution and accepted by the learned trial Court are sufficient to reach the irresistible inference that both the appellants are guilty of the charges levelled against them. The trial Court, therefore, in our view was justified in convicting the appellants and sentencing them for the offences proved against them and we find no fault with the judgment impugned in this appeal.

36. No other point has been urged before us.

37. For all the reasons stated above, we see no merit in his appeal. The appeal, therefore, fails and shall stand dismissed accordingly.