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2013 DIGILAW 469 (UTT)

State of Uttaranchal v. Shekhar Gupta

2013-07-15

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. PW1 Shakeel Ahmad wrote a complaint to Inspector In-charge, Kotwali, Kichha on 30.07.1997, at 10:00 P.M., against accused Shekhar Gupta, Dharampal and Narad, which was registered as case crime no. 353 of 1997, under Section 307 of IPC. The incident was alleged to have taken place on the selfsame day at 09:30 P.M. and the FIR was lodged immediately after half an hour. The distance between the place of occurrence and the police station concerned was half kilometer and, therefore, there appears to be no delay in lodging the FIR. 2) After the investigation, a charge-sheet was submitted against the accused persons in respect of offence punishable under Section 307 of IPC. The case was committed to the Court of Sessions. When the trail began and prosecution opened it’s case, charges for the offence punishable under Section 307 of IPC read with Section 34 of IPC were framed against the accused persons, to which they pleaded not guilty and claimed trial. 3) PW1 Shakeel Ahmad (informant), PW2 Anees Ahmad (injured), PW3 Muzaffar (eyewitness), PW4 Dr. P.D. Pandey (Medical Officer), PW5 S.I. Ganga Singh (I.O.) and PW6 S.I. Mahesh Chand Mishra (I.O., who conducted investigation at some length) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr. P.C., in reply to which they said that they were falsely implicated in the case. No evidence was adduced in defence. 4) After considering the evidence on record, learned Addl. Sessions Judge / III F.T.C., Udham Singh Nagar, exonerated Shekhar Gupta, Narad alias Mukesh, and Dharampal of the charges leveled against them. They were exonerated of the offence punishable under Section 307 of IPC read with Section 34 of IPC, vide impugned judgment and order dated 15.04.2004. Aggrieved against the impugned judgment and order, present Government Appeal was preferred. 5) PW1 Shakeel Ahmad supported prosecution story in his examination-in-chief and also proved his complaint (Ext. Ka-1). PW1 was not an eyewitness to the alleged incident. 6) PW2 Anees Ahmad was the injured. PW2 said in his examination-in-chief, that on 30.07.1997, at 09:20 P.M., when he reached at water tank near old hospital road with PW2, a white Maruti car came and stopped. Narad Gupta, Shekhar Gupta and Dharampal Gupta alighted from said car. Narad stopped PW2 and inflicted blow of gupti (a short sharp double edged weapon). PW2 said in his examination-in-chief, that on 30.07.1997, at 09:20 P.M., when he reached at water tank near old hospital road with PW2, a white Maruti car came and stopped. Narad Gupta, Shekhar Gupta and Dharampal Gupta alighted from said car. Narad stopped PW2 and inflicted blow of gupti (a short sharp double edged weapon). PW2 saved himself. He escaped unhurt. Dharampal Gupta exhorted Shekhar Gupta to kill PW2. Shekhar Gupta fired upon PW2 with country made pistol. The pellets stuck the abdomen of PW2. PW2 fell on the ground. PW2 raised an alarm. Akhalak Ahmad (not examined) and Kalle (not examined) came. The accused persons were seen in the light of the lamp post. PW2 was taken to hospital, where he was provided medical aid. PW2 was also referred to Haldwani Hospital for conducting x-ray. Haldwani doctors referred PW2 to Bareilly, where PW2 was admitted for 20-22 days. In the cross-examination, PW2 said that he was hit by Shekhar Gupta from a distance of 1½ - 2 feet. PW3 Muzaffar Ali was also present when Shekhar Gupta hit PW2. The Investigating Officer did not record his statement. A suggestion was given to PW2 that some unknown persons fired upon him, to which he denied. PW2 was recalled by the prosecution, saying that he escaped unhurt by the blow of gupti. Shekhar Gupta fired upon PW2 with country made pistol. 7) PW3 Muzaffar Ali supported PW2 and said that on 30.07.1997, at 09:30 P.M., when he alongwith PW2 were coming to their houses via old hospital road, a white Maruti car came and stopped. Narad gave a blow of gupti to PW2, but PW2 escaped unhurt. Dharampal exhorted Shekhar Gupta to kill PW2. Shekhar Gupta fired upon PW2 with country made pistol, which hit him (PW2). The accused persons were seen in the light of lamp post. Accused persons fled away. The injured was taken to hospital. In the cross-examination, PW3 said that, PW2 reached hospital at 10:00 P.M. PW3 did not accompany PW2. The blood dropped on the earth. Shekhar Gupta shot fire upon PW2 from a distance of 4-5 feet. PW5 and PW6, both conducted investigation of the case at some length. 8) PW4 Dr. P.D. Pandey examined PW2 on 30.07.1997, at 10:15 P.M. PW4 found : i) Wound of entry 1 cm x 1 cm on front of left side chest, 6 cm below left nipple. Shekhar Gupta shot fire upon PW2 from a distance of 4-5 feet. PW5 and PW6, both conducted investigation of the case at some length. 8) PW4 Dr. P.D. Pandey examined PW2 on 30.07.1997, at 10:15 P.M. PW4 found : i) Wound of entry 1 cm x 1 cm on front of left side chest, 6 cm below left nipple. There was blackening around the wound. The patient was referred to Radiologist for x-ray. ii) Wound of exit 1 cm x 1 cm (depth not probed). The wound was on the right side of the chest. Advised x-ray. Fresh blood was oozing out from the wound. The patient was conscious. Duration of injury was fresh. 9) Apart from medical report (Ext. Ka-2), PW4 also proved supplementary report (Ext. Ka-3), which was based upon the report of the Radiologist. No bony injury or no foreign body was found, as per the supplementary report. In the cross-examination, PW4 said that he could recognize the injured only after looking at M.I. The blackening will come only if the injured is fired from a distance of 6 meters (which should be read as 6 cm) or less. No scorching was found. No bone was fractured. 10) No pellet was found. No pellet was collected by the Investigating Agency. The pellet was also not found embedded inside the body of the injured. If accused Shekhar Gupta pierced pellet into the body of the injured, where did it go? Neither was it found outside, nor found embedded inside the body? There was no blackening. The prosecution witnesses have said that Shekhar Gupta fired upon PW2 with a close range. Neither there was blackening, nor scorching. No bone was broken. There was no consistency between the ocular evidence and the medical evidence. They are at material variance with each other. Prosecution story became doubtful on this very important and material contradiction alone. It is, therefore, not possible to hold that the incident took place in the manner, as was indicated by PW2, especially, when the independent witnesses (Alkalak Ahmad and Kalle) did not come forward to support the prosecution story. PW3 said that blood spilled on the ground when Shekhar Gupta fired upon PW2. Bloodstained earth was not scientifically examined. It was, therefore, not established that the incident took place on the same place, where the blood dropped. PW3 said that blood spilled on the ground when Shekhar Gupta fired upon PW2. Bloodstained earth was not scientifically examined. It was, therefore, not established that the incident took place on the same place, where the blood dropped. Learned trial court has discussed the prosecution evidence and rightly came to the conclusion that the prosecution story was not proved beyond a shadow of reasonable doubt. The accused persons / respondents were rightly exonerated by giving them benefit of doubt. This Court is unable to take a view different from what was taken by the court below. No interference is called for in the impugned judgment and order. 11) Government Appeal thus fails and is accordingly dismissed. 12) Let a copy of this judgment alongwith the lower court records be sent to the court below for compliance.