Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3498 (ALL)

BADAN v. STATE OF U. P.

2014-11-25

AKHTAR HUSAIN KHAN, ARUN TANDON

body2014
This criminal appeal is directed against the judgement and order passed by the Special Judge, Gorakhpur dated 24th May, 1994 in Sessions Trial No. 347 of 1992 being Crime No. 369 of 1992, Police Station Khorawar, Sub-District Sadar Purvi, District Gorakhpur. Under the said judgement and order of the Sessions Judge, the appellant Badan has been convicted of an offence under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment. The case of the prosecution, as reflected from the records of the present appeal, is as follows: On 30th June, 1992, a first information report was registered with the Police Station Khorawar, District Gorakhpur by Shivnandan at 10:00 p.m.. In the first information report, it stated that there was an old enmity between Badan son of Ram Chandra, Mahendra son of Tapeshwar, Rambriksha son of Tapeshar, Balkesh son of Jageshar and the informant. It was disclosed that in connection with the aforesaid enmity, on 30th June, 1992 at 9:30 p.m. son of the informant, namely, Koil, after having food, was sleeping on the Chatti laid on the floor beside the Chabutara along with Komal son of Thagai, Triveni son of Chaittar and few small children. Badan, Mahendra, Ram Briksha and Balkesh after identifying the son of the informant Koil threw a bomb on him. On hearing the sound of the bomb, Komal, Triveni and other children awoke. All the four accused ran towards north. Despite efforts, they could not be caught. After hearing the sound of screaming, the first informant along with other persons reached the place of incident, they saw and identified all the accused with the help of electricity light. It was stated that two injuries had been caused on the body of the son of the informant Koil, one on the right palm (panja) and the second on the middle part of neck of Koil. First information report was registered under Section 307 of the Indian Penal Code as case crime no. 369 of 1992. Written first information report was marked as Exhibit-1. Chick first information report was marked as Exhibit-6. The investigation of the offence was undertaken by the Sub-Inspector, P.K. Tripathi. Necessary entries in General Diary were made. He recorded the statement of injured Koil. The statement of the injured Koil was marked as Exhibit-2. 369 of 1992. Written first information report was marked as Exhibit-1. Chick first information report was marked as Exhibit-6. The investigation of the offence was undertaken by the Sub-Inspector, P.K. Tripathi. Necessary entries in General Diary were made. He recorded the statement of injured Koil. The statement of the injured Koil was marked as Exhibit-2. The injured Koil is sent along with head constable Mazroobi for medical examination at Primary Health Centre, Khorawal. Since medical officer was not available at the primary health centre, the pharmacist of the Primary Health Centre after making an endorsement on the relevant letter referred the injured Koil to District Hospital, Ghorakhpur. The Doctor at District Hospital, Gorakhpur reported that Koil was brought dead to the District Hospital. Koil is stated to have expired at around 11:50 p.m. Panchnama of the dead body of Koil was done on 1st July, 1992 by Sub-Inspector Hari Narayan Singh, Police Station Kotwali, Gorakhpur, which was marked as Exhibit-8. Map of the place of incident was prepared and the statements of the witnesses were also recorded. Post-mortem of the dead body of the deceased Koil was done at District Hospital, Gorakhpur by Dr. J.P. Gupta. Post-mortem report was marked as Exhibit-6. After investigation charge-sheet was filed against the accused Badan under Section 302 of the Indian Penal Code. Against other accused named in the first information report, charge-sheet was filed under Section 302 read with Section 34 of the Indian Penal Code. The prosecution in support of its case examined 8 witnesses. P.W. -1, first informant Shiv Nandan father of the deceased Koil gave an eye-witnessed account of the incident and proved the contents of the first information report marked as Exhibit-Ka 1. He also narrated the incident as disclosed in the first information report. P.W.-2 Basant, son of the first informant Shiv Nandan also gave the eye-witnessed account of the incident. He supported the prosecution case, as narrated in the information report and that disclosed by the first informant Shiv Nandan. P.W. -3 Komal, son of Khagai, was the independent eye witness of the incident. He also supported the prosecution story as narrated in the first information report and that disclosed by the first informant Shiv Nandan (P.W.-1) and Basant (P.W.-2). Sub-Inspector Ram Kumar Tripathi, who had done the investigation was examined as P.W.-4. Dr. P.W. -3 Komal, son of Khagai, was the independent eye witness of the incident. He also supported the prosecution story as narrated in the first information report and that disclosed by the first informant Shiv Nandan (P.W.-1) and Basant (P.W.-2). Sub-Inspector Ram Kumar Tripathi, who had done the investigation was examined as P.W.-4. Dr. J.P. Gupta had performed the post-mortem of the dead body of the deceased Koil was examined as P.W.-5. He proved the medical report as well as the ante mortem injuries, which were found on the dead body of the deceased. Head Constable Mahendra Pratap Singh, who had prepared the chick report was examined as P.W.-6. He also proved the GD entries. Ramashray, an eye witness of the Panchnama, was examined as P.W.-7. Statements of the accused were recorded under Section 313 of the Indian Penal Code. The accused Badan, in his statement, stated that there was a long standing enmity between him and eye witness Komal and Triveni and they have given false statement against the accused Badan. It was further stated that the deceased and eye-witnesses were pattidar and it is for this reason that the they have falsely disclosed against accused. All other accused took similar stand i.e. they have been falsely implicated and the statements of the related witnesses need not be relied upon. The Trial Court after considering the material evidence on record found that the prosecution has been able to bring home the charge with certainty against accused Badan and accordingly convicted him of an offence under Section 302 of the Indian Penal Code. The Trial Court further found that although in the first information report, all the four accused have been named but the role of throwing of bomb had been assigned to Badan only. No role had been assigned to other accused in the first information report. Even the role of extortion had not been attributed to the other accused in the first information report. The first informant Shiv Nandan in his testimony, had disclosed that he had seen the accused Badan throwing bomb on the deceased Koil and that he saw other accused running away. The Trial Court, therefore, found that no role had been assigned to other accused in the matter of throwing of bomb and the injuries caused to the deceased Koil. The first informant Shiv Nandan in his testimony, had disclosed that he had seen the accused Badan throwing bomb on the deceased Koil and that he saw other accused running away. The Trial Court, therefore, found that no role had been assigned to other accused in the matter of throwing of bomb and the injuries caused to the deceased Koil. The Trial Court therefore, came to the conclusion that the other 3 accused were entitled to benefit of doubt and accordingly acquitted Balkesh, Mahendra and Ram Briksha of the offence under Section 302 read with Section 34 of the Indian Penal Code. Learned Amicus Curiae on behalf of the appellant challenging the judgement and order so passed by the Trial Court initially made an attempt to suggest that prosecution witnesses were all related/pattidar and therefore, their evidence could not have been relied upon specifically in the circumstance when enmity between the informant and the accused was admitted. It was then contended that in the Panchnama, , witnesses had opined that the injuries suffered by the deceased Koil were that of the gun shot and further that the post mortem report also reflected that ante mortem injuries, which were found on the dead body of the deceased Koil, as one of which could be caused by gun shot. It was, therefore, submitted that the prosecution has not been able to bring home the charge with certainty, hence the judgement and order of the Trial Court cannot be legally sustained. Learned Additional Government Advocate on behalf of the State disputes the correctness of the contentions raised on behalf of the appellant. He submits that in the facts of the case the first information report was lodged promptly. The prosecution story, as narrated in the first information report, was well supported by eye witnesses account as well as by the medical evidence. The case of the prosecution was well established by reliable ocular evidence of eye witnesses, as well as by the medical evidence. The Trial Court has rightly held that prosecution has been able to establish the charge with certainty. In support of his plea, he has placed reliance upon the judgement of the Apex Court in the case of Lokesh Shivakumar vs. State of Karnataka reported in (2012) 3 SCC 196 . The Trial Court has rightly held that prosecution has been able to establish the charge with certainty. In support of his plea, he has placed reliance upon the judgement of the Apex Court in the case of Lokesh Shivakumar vs. State of Karnataka reported in (2012) 3 SCC 196 . We have considered the submissions made by the learned counsel for the parties and have examined the records of the present appeal. On examination of the records of the present appeal, we find that the first information report had been lodged within half an hour of the incident and at the relevant time injured Koil was alive. Therefore, the first information report disclosed an offence under Section 307 of the Indian Penal Code. We further find that the role of throwing of bomb on the deceased Koil had been assigned in the first information report to the appellant Badan only. The injured Koil was sent with the head constable for medical treatment to Primary Health Centre but because of non-availability of the medical officer he was referred to the District Hospital, Gorakhpur, where he was reported to be brought dead. The prosecution story as disclosed in the First Information Report is well supported by ocular testimony of eye witness accounts of P.W.-1, P.W.-2 and P.W.-3, whose presence at the place of incident could not be disputed. What we further find is that P.W. 3 Komal was an independent witness and that the accused had been identified with the help of electricity light, which was available at the place of incident. It is true that the evidence of related witnesses has to be judged with caution but in the facts of the case, nothing material could be referred to this Court so as to disbelieve the ocular testimonies of P.W.-1, P.W.-2 and P.W.-3. So far as the medical evidence is concerned, we find from the post mortem report that three ante mortem injuries were found on the dead body of the deceased and all these three injuries, which were reported to be one which may be caused by gun shot injury. Dr. O.P. Gupta had specifically opined that injuries could have been caused because of explosion of the bomb also. From the aforesaid, it is apparent that in the facts of the case the first information report is prompt. Dr. O.P. Gupta had specifically opined that injuries could have been caused because of explosion of the bomb also. From the aforesaid, it is apparent that in the facts of the case the first information report is prompt. Specific role of throwing of bomb upon the deceased Koil had been assigned to Badan. The prosecution story is well supported by ocular evidence and eye witness accounts of P.W.-1, P.W.-2 and P.W.-3, which is further corroborated from the medical testimony of Dr. O.P. Gupta as well as from the post mortem report. The Apex Court in the case of Lokesh Shiv Kumar (Supra) has laid down that if the first information report is prompt and the incident, as stated therein, is supported by the ocular evidence and the medical evidence, then the prosecution can be said to have brought home the charge with certainty. In view of what has been recorded herein above and as also in view of the law laid down by the Apex Court in the case of Lokesh Shiv Kumar (Supra), we are satisfied that the finding of conviction returned by the Trial Court under the impugned judgement is strictly in accordance with law. In view of the aforesaid, we find no good ground to interfere with the judgement and order of the trial court. The conviction of the appellant, namely, Badan for an offence under Section 302 of the Indian Penal Code for having committed murder of deceased Koil is affirmed. The appeal lacks merit and is accordingly dismissed. The appellant, namely, Badan is on bail, his bail bond is cancelled. Sureties are discharged. He shall be taken into custody forthwith to serve out the sentence, awarded to him by the trial court. The Chief Judicial Magistrate, Gorakhpur may ensure compliance of the judgement delivered by this Court today. ——————