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2010 DIGILAW 277 (ALL)

Krishna Kumar Tiwari @ Munna v. State Of U. P.

2010-01-22

RAJESH CHANDRA, RAKESH TIWARI

body2010
Rakesh Tiwari,J. and Rajesh Chandra,J. 1. Heard Sri I.K.Chaturvedi holding brief of learned Senior Counsel Sri Jagdish Singh Sengar on behalf of Krishna Kumar Tewari @ Munna, s/o Baldev Prasad Tiwari, r/o village Nairanapura, PS Kotwali, District Mahoba, learned AGA and perused the record. The court by order dated 17.9.04 had summoned the lower court record for fair and proper disposal of the bail application and had directed the office to list the case on 19.11.2004. The prayer for bail of the accused applicant was to be considered after receipt of the lower court record. The Record has been received from the court below hence prayer for bail is now being considered. 2. It appears from record that an incident had taken place on 8.10.03 at about 8.15 PM in which Sri Arun Kumar Paliwal was killed near the PCO, which was being run by one Rajesh Chaturvedi near the Alha Chowk,Kasba Mahoba, District Mahoba. A report of the incident was lodged by Sri Ajay Kumar Paliwal, brother of the deceased at about 9.20 PM on the same day within an hour of the incident. The appellant Krishna Kumat Tewari has been convicted for life imprisonment, under Section 302 IPC in ST No.214/03, State of U.P. Vs. Krishn Kumat @ Munna Tewari, PS Kotwali Mahoba, District Mahoba. 3. The contention of the counsel for the appellant is that there was no source of light at the place of incident; that deceased was taken to the hospital by one Narendra Kumar, a third person and not by the two prosecution witnesses of the incident who were related to the deceased and that post mortem report is inconsistent with the occular version of the prosecution witnesses as the version in the FIR regarding the seat of injury is contrary to the injury reported by the Doctor in the post mortem report. It is submitted that no independent witness was produced by the prosecution in support of its case; that motive is not proved; that the place of incident and the presence of the complainant at the place of incident is doubtful as the Investigating officer had not found blood on the spot and had not collected blood soaked soil to send it to chemical examiner to fix the place of incident. It is urged that there was no enmity between the accused and the deceased: It is stated that the deceased has been shot dead by some unknown assailants from the back from a distance which is clear from the injuries received by the deceased from the dispersal of the pellets. According to the version in the FIR the complainant and his brother Sri Arun Kumar Paliwal along with Kamlesh Verma and Pramod Kumar @ Babli were standing near the PCO of Rajesh Chaturvedi, near Alha Chowk, Mahoba at about 8.15 PM. They were talking amongst themselves when the appellant Krishna Kumar Tewari @ Munna, s/o Baldev Prasad Tewari came near them. He took out a country made pistol and fired on the left side of the chest of Sri Arun Kumar Paliwal due to old enmity. As a result of the firearm injury, Sri Arun Kumar Paliwal fell on the ground and was immediately taken to the District Hospital, Mahoba, where he was declared dead. It is also alleged in the FIR that the complainant and others had seen the appellant firing upon Sri Arun Kumar Paliwal, by which he received injuries resulting into his death. It is lastly submitted that the Investigating Officer had visited the place of occurrence on 8.10.03 itself but the inquest report was prepared on the next date at 7 AM which falsifies the whole case of the prosecution. 4. Learned AGA has submitted that there was no denial of the factum of the incident. It is stated that the motive pales into insignificance when there are occular witnesses of the incident. Since the witnesses were present at the place of occurrence then neither the role of the appellant nor the place of incident can be said to be doubtful merely because the Investigating Officer did not take blood stained soil from the spot which also rules out involvement of any unknown person in the incident as the witnesses had seen the appellant firing upon Arun Kumar Paliwal. 5. Regarding the seat of injury, he states that in the FIR, it has been stated that the accused appellant had fired upon the left side of the chest but the post mortem report shows that the entry wound is on the back side of scapula and the exit wound is on the left side. 5. Regarding the seat of injury, he states that in the FIR, it has been stated that the accused appellant had fired upon the left side of the chest but the post mortem report shows that the entry wound is on the back side of scapula and the exit wound is on the left side. It is stated by AGA that averment in the FIR as regards the seat of injury is explainable due to reflex action of the person being fired upon. According to him, the accused had fired on the left side but the deceased by reflex action tried to avoid the firearm shot by turning and trying to escape and in that process the bullet had entered into the back side of the right shoulder scapula and the exit wound was caused on the left side. He has placed reliance upon the evidence adduced by the prosecution in this regard who has stated that on being fired upon the deceased had ducked hence the nature of injury is in consonance with ocular version. 6. As regards the question of distance from which the fire is shot and the pattern of dispersal of pellets is concerned, the learned AGA has argued that there is no data regarding the dispersal of pellets from country made pistol and the data of dispersal available in the medical jurisprudence is only with regard to fire of shot from a standard gun. In a country made pistol, pellets may go haywire as their dispersal is unpredictable depending upon various factors such as amount of gun powder used, size and material of pellets etc. which is controlled in a fire shot of a standard cartridge from a standard gun. According to the learned AGA the dispersal of the pellets causing the injury is of not much help to the appellant. He has also argued that it is apparent from the FIR that the deceased was immediately taken to the hospital and as such there was no question of falling of much blood on the spot which is normally for ascertaining of the place of occurrence and blood group of the deceased. 7. He has also argued that it is apparent from the FIR that the deceased was immediately taken to the hospital and as such there was no question of falling of much blood on the spot which is normally for ascertaining of the place of occurrence and blood group of the deceased. 7. It is lastly submitted that if the investigation has not been properly done, the accused cannot get any benefit from it; if otherwise the case against him is proved and as such any irregularity by the Investigating Officer in investigation or in preparation of inquest report due to some circumstance beyond his control would not give any benefit of doubt to the deceased. From the record, he submits that the police was informed by the hospital through the Ward Boy at about 9.10.PM about the deceased being brought to the hospital hence the FIR can neither be said to be after thought nor delayed in the facts and circumstances of this case. We find from the statement of PW1 Ajay Kumar Paliwal that there was source of light at the place of occurrence. There was street light as well as the lights of the shops in which the assailant who was known to the witness could be recognized. Moreover, the statement of prosecution witness shows that the victim was immediately taken in the arms after being hit and soon after taken to the hospital. The blood stained shirt of this witness was taken in possession by the Investigating Officer. In such circumstance there was hardly any chance for the Investigating Officer to find copious blood on the soil which could be taken into possession by him. The shirt of the witness was sent to the chemical examiner and group"B" blood was found on it and which matched the blood group of the deceased. However, it appears that by some inadvertent mistake the shirt of that witness has been described by the chemical examiner as that Munna. 8. Sri Arun Kumar Paliwan who was shot down by the assailants was immediately taken to the hospital hence not finding of blood stained soil cannot be said to be inexplicable. Since their are occular witnesses, neither the place of occurrence nor the identity of the appellant could be said to be doubtful. 8. Sri Arun Kumar Paliwan who was shot down by the assailants was immediately taken to the hospital hence not finding of blood stained soil cannot be said to be inexplicable. Since their are occular witnesses, neither the place of occurrence nor the identity of the appellant could be said to be doubtful. It also appears from the FIR that there was old enmity between the deceased and the appellant, hence the argument of the learned counsel for the appellant that there was no enmity, is prima facie ruled out. 9. After hearing learned counsel for the parties, we are of the considered opinion that there were source of light at the place of occurrence and the occular testimony of the witnesses shows that the incident has taken place as per the prosecution story. The injury shown in the post mortem report received by the deceased was fatal. There is no inconsistency in the injury report and the medical report for the injury has been explained by prosecution that it came to happen on the back though the assailants had fired on left side of the chest and because of the fact that on seeing the assailant firing upon him from a step or two, he turned in order to duck and save himself. It may be remembered that in such incidents, the witnesses tend to state whatever their mind perceived in the fleeting moment of the incident. It was also witnessed by some persons, including the complainant hence the motive pales into insignificance. Merely because the complainant or the witnesses are related to the deceased, does not throw their testimony out of board. The settled law is that the statements of any such related and interested witnesses are to be given a closer scrutiny by the courts. Normally independent witnesses do not come forward where such incidents of murder take place. We also find that the difference regarding dispersal of pellets in respect of standard gun is not applicable to a country made pistol for which no data is available in the medical jurisprudence except that dispersal of pellets. Country made pistols may be unusually large and has no fixed pattern. We also find that the difference regarding dispersal of pellets in respect of standard gun is not applicable to a country made pistol for which no data is available in the medical jurisprudence except that dispersal of pellets. Country made pistols may be unusually large and has no fixed pattern. Any lapse in the investigation or delay in the preparation of the inquest due to not availability of light at the relevant time and its completion on early norming, the next day does not obliterate the factum of the incident. Since the name of Narendra Kumar is shown in the memo as the deceased was brought by him, does not make the whole of the incident improbable. 10. For all these reasons, prima facie we do not find that a case for bail is made out by the appellant. The prayer for bail is accordingly rejected. Since the lower court record has been received, it would be in the interest of justice that the office is directed to prepare the typed copy of the paper book within three weeks and list the appeal for hearing before the appropriate Bench thereafter.