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2015 DIGILAW 4067 (ALL)

Kishori (Jail Appeal) v. State of U. P.

2015-12-18

PRATYUSH KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Rajesh Kumar Dwivedi, learned Amicus Curiae for the appellant and Mr. Mohd. Yusuf Ansari, learned AGA for the State were heard at length. 2. This jail appeal has been preferred by appellant Kishori challenging the judgment and order dated 24.02.2010 passed by Additional Sessions Judge, Court No.9, Barabanki, in Sessions Trial Nos. 18 of 2008 and 17 of 2008, which were tried together, arising out of Case Crime No.133 of 2007, Police Station Satrikh, District Barabanki, whereby the present appellant Kishori was convicted for the offence under Section 3 02 read with Section 3 4 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one year's rigorous imprisonment. He was further convicted for the offence under Section 3 /25 of the Arms Act and was sentenced to undergo rigorous imprisonment for a period of two years and also with fine of Rs. 2,000/- with default stipulation of two months' additional rigorous imprisonment. Both the sentences were directed to run concurrently. 3. In brief, the case of the prosecution was that complainant Raju lodged a first information report at Police Station Satrikh District Barabanki on 10.05.2007 at 04.00 AM alleging therein that his cousin Munna son of Panchu had eloped with the wife of appellant Kishori due to which Kishori was nursing grudge against him and he had asked Munna for return of his wife failing which he will have to face the consequences. Munna did not return his wife and because of the said enmity in the night at about 01.30 AM when Munna was sleeping outside his house on a cot, Kishori fired on him due to which he suffered serious injury. Hearing the noise of fire, some other persons, who were sleeping near the deceased, got up and they had seen Kishori armed with country made pistol (Tamancha) in the moon light. Injured Munna was taken to the police station and the first information report of this case was lodged. Hearing the noise of fire, some other persons, who were sleeping near the deceased, got up and they had seen Kishori armed with country made pistol (Tamancha) in the moon light. Injured Munna was taken to the police station and the first information report of this case was lodged. After registration of the case, injured Munna was sent to district hospital Barabanki where he was medically examined on 10.05.2007 at 04.35 AM and the following ante-mortem injuries were reported by the doctor on his person: - (i) Lacerated wound 1.25 cm x. 1.25 cm x depth cannot be measured on right side of chest, 17 cm below nipple fresh bleeding present. Blackening and tattooing present. Margins inverted. X-ray advised. (ii) Lacerated wound 2 cm x 1 cm x depth cannot be measured (due to bleeding) on left side of chest, 10 cm below nipple. Fresh bleeding present. Margins of wound were averted. X-ray advised. Injuries no.1 and 2 were kept under observation. Injuries were caused by some fire arm object. Injury no.1 was the wound of entry and injury no.2 was the wound of exit. Duration was fresh. 4. Injured Munna was taken to King Georges Medical College, Lucknow, where he succumbed to the injuries and information of death was given by one Ram Swaroop of Medical College at the police station. Inquest proceedings were conducted at mortuary and after completing other necessary formalities, the dead body was sent for postmortem, which took place on 10.05.2007 at 11.20 AM at Lucknow and following ante-mortem injuries were reported by the doctor: - (i) Firearm wound of entry 1 cm x 1 cm x abdominal cavity deep on outer aspect of right side abdomen 12 cm above to right iliac crest margins inverted irregular collar of abrasion ring present around wound, blackening, tattooing and charring present in an area 6 cm x 5 cm around wound. (ii) Firearm wound of exit 2 cm x 2cm x chest cavity deep on front of left side chest 10 cm below to left nipple, margins evert ed and irregular. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. 5. During course of investigation, at the time of registration of the case the statement of the deceased under Section 161 Cr.P.C. was recorded on 10.05.2007. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. 5. During course of investigation, at the time of registration of the case the statement of the deceased under Section 161 Cr.P.C. was recorded on 10.05.2007. Appellant Kishori and Khilla alias Ram Khelawan were arrested on the information of a secret informer and on the pointing out of appellant Kishori, the weapon of offence i.e. country made pistol of 315 bore along with one empty cartridge and one live cartridge was recovered. A separate recovery memo was prepared and on the basis of this recovery memo, a separate case under Section 3 /25 of the Arms Act was registered against the appellant, which was tried together with the main offence. During investigation name of other accused Khilla alias Ram Khelawan had come into light as he was also accompanying the appellant and on his exhortation the appellant is alleged to have fired on the deceased causing his death. However, accused Khilla alias Ram Khelawan was acquitted of the charges levelled against him by the learned trial court. Admittedly, no appeal against acquittal of accused Khilla alias Ram Khelawan has been preferred either by the State or by the complainant. 6. After completing the investigation, charge sheet was filed against the appellant. 7. The case of the defence was of total denial and his false implication due to enmity. 8. In order to prove its case, the prosecution has examined PW-1 Raju -the complainant, PW-2 Suresh - an eyewitness, PW-3 Panchu - father of the deceased and an eyewitness of this incident, PW-4 B.K. Singh, who has arrested the appellant along with Khilla alias Ram Khelawan on 12.05.2007 and on the pointing out of the appellant, the weapon of offence was recovered, PW-5 Dr. V.K. Gupta, who has medically examined the deceased on 10.05.2007 at 04.35 AM, PW-6 P.K. Mishra - Investigating Officer of this case, PW-7 Constable Nazeemuddin, who has prepared the chik report and GD of this case, PW--8 Yashwant Singh who took up investigation from 11.06.2007, the second Investigating Officer of this case, PW-9 Constable P.K. Singh, who has prepared the Chik Report and GD of the case under Section 3 /25 of the Arms Act, PW-10 B.N. Dixit - Investigating Officer of the case under Section 25 of the Arms Act, and PW-11 Dr. B.S. Nigam, who has conducted the postmortem on the body of the deceased. 9. No evidence in defence was adduced on behalf of the appellant. 10. After appreciating the evidence on record, learned trial court convicted the appellant, as above, hence, the instant appeal. 11. The submission of learned counsel for the appellant was that it is a case of hit and run. No one has witnessed this incident. The incident had taken place in the night. Witnesses got up hearing the noise of fire and have not seen the incident because of that involvement of accused Khilla alias Ram Khelawan was made subsequently simply to create noise of exhortation so that the witnesses may get up and witness the incident. It has also been submitted that even according to the version of the first information report it was not mentioned therein that appellant Kishori was seen firing on the deceased. Learned trial court has failed to appreciate that the incident of this case had taken place in the night. There was no source of light. It was 01.30 AM, dead of night. No one is expected to be awake at that time in normal course. Learned trial court has not considered the prosecution evidence in correct perspective which has rendered its judgment unsustainable under law. 12. Learned AGA has submitted that in the instant case a prompt first information report was lodged in which appellant Kishori was named. There was strong enmity between them which served as a motive for commission of the offence. 13. In the instant case, apparently the first information report of this case was lodged with promptness. The incident of this case had taken place on 10.05.2007 at 01.30 AM and the first information report of this case was lodged at 04.00 AM. As per the Chik Report, the distance of police station from the place of occurrence was 9 kilometres. It has come in the evidence that after the incident, injured Munna was immediately taken in the injured condition on a tractor trolley to the police station. The tractor trolley was stopped 500 meters before the police station and the first information report was scribed there and thereafter it was submitted at the police station and on the basis of the same, the case was registered. After recording the statement of the injured Munna, he was referred for medical examination. The tractor trolley was stopped 500 meters before the police station and the first information report was scribed there and thereafter it was submitted at the police station and on the basis of the same, the case was registered. After recording the statement of the injured Munna, he was referred for medical examination. His medical examination took place in the same very night at district hospital Barabanki at 4.35 AM. Thus, there cannot be any doubt that the first information report was not registered at the time as stated by the prosecution and as mentioned in the documents. So, in the instant case, a prompt first information report has been lodged. 14. The prosecution has come with a definite motive for appellant Kishori that his wife was taken away by the deceased Munna 8 years prior to this incident and thereafter the appellant had asked the deceased for return of his wife and when his wife was not returned then he had extended threats of dire consequences and this is the alleged motive for this offence. 15. Admittedly, in this case neither any report of elopement of wife of the appellant against the deceased was lodged nor any first information report regarding threats alleged to have been extended by the appellant Kishori to the deceased was registered. The incident of elopement of wife of the appellant by the deceased had taken place about 8 years ago. So, this period was long enough to make the motive stale. The submission of learned counsel for the appellant has substance that since the motive has become stale, therefore, a story was cooked up that appellant had extended threats of dire consequence. Since it is a case of direct evidence, therefore, the motive pales into significance and we will have to consider the ocular testimony of the witnesses. Whether their presence on the place of occurrence was natural, whether they were in a position to see and identify the deceased and whether their testimony was wholly reliable. 16. As per version of the first information report, neither anyone had seen appellant Kishori firing at the deceased nor the name of any other person who was with appellant Kishori was mentioned in the first information report. As per the version of the first information report, hearing the noise of shot these persons got up. 16. As per version of the first information report, neither anyone had seen appellant Kishori firing at the deceased nor the name of any other person who was with appellant Kishori was mentioned in the first information report. As per the version of the first information report, hearing the noise of shot these persons got up. There was absolutely no averment that they heard the noise or the complainant saw the accused persons coming to the place of occurrence. It was alleged that accused Kishori was identified in the moon light. The complainant has explained that since he was not in a fit state of mind because of the incident, therefore, name of accused Khilla alias Ram Khelawan could not be mentioned in the first information report. But as per the case of the prosecution after the incident, arrangement of tractor and trolley was made and thereafter the complainant brought the injured on tractor trolley to the police station after covering a distance of about 9 kilometres. The first information report was scribed on the dictation of the complainant but it was not mentioned in the first information report that the complainant had seen the appellant firing on the deceased or had also seen Khilla alias Ram Khelawan exhorting appellant Kishori to fire at the deceased. These were such important facts of this case that it is hard to believe that the same could have been missed by mistake only. 17. Learned AGA has placed reliance on the statement of the deceased Munna recorded by the Investigating Officer under Section 161 Cr.P.C. It was such a detailed statement which was not expected from a person who has sustained a gun shot injury on his abdominal region which went through and through and made his condition serious. The Investigating Officer has stated that after receiving the investigation, he made copy of the chik report, GD of this case in the case diary and thereafter he recorded the statement of injured Munna. The first information report of this case was lodged at 4.00 AM. Thereafter the Chik report and GD would have been prepared and after preparation of the Chik report and GD the same would have been handed over to the Investigating Officer. The first information report of this case was lodged at 4.00 AM. Thereafter the Chik report and GD would have been prepared and after preparation of the Chik report and GD the same would have been handed over to the Investigating Officer. Only thereafter he could have copied the same in the case diary and only thereafter he could have recorded the detailed statement of the injured under Section 161 Cr.P.C. This statement was recorded at the police station and thereafter the injured was sent for medical examination and as per the medical examination report, he reached district hospital Barabanki where he was medically examined by the doctor at 4.35 AM. So practically it appears to be absolutely impossible that within a period of less than 35 minutes the Chik and GD were prepared and thereafter the Investigating Officer copied the Chik Report, GD of this case and recorded the statement of the injured and thereafter the injured came from Satrikh to District Hospital Barabanki where he was medically examined at 4.35 AM. Thus, all these circumstances lead to only conclusion that the statement of injured Munna was own thought of the Investigating Officer and no such statement was virtually recorded. Even otherwise compliance of Regulation 114 of the Police Regulations was not made. Learned trial court has also not considered the said dying declaration as a ground to hold conviction of the appellant. So, we also concur with the view of the learned trial court that the alleged dying declaration of the deceased recorded in his statement under Section 161 Cr.P.C. was not worth to place reliance. 18. During trial the prosecution has developed its case and has come with a definite case that the complainant and other witnesses were viewing a film on TV and after conclusion of the film when they came to their bed, immediately thereafter the incident occurred so by that time they were not asleep. But during trial, PW-2 Suresh has stated that TV and CD player were his own and the film started at 07.00 PM. He has also disclosed the name of the film which was seen by them in his cross examination and has also admitted that the film concludes within a period of three hours. So, according to the evidence of this witness, viewing of film on TV must have concluded at 10.00 PM or little thereafter. He has also disclosed the name of the film which was seen by them in his cross examination and has also admitted that the film concludes within a period of three hours. So, according to the evidence of this witness, viewing of film on TV must have concluded at 10.00 PM or little thereafter. PW-2 has also stated that while they were viewing TV, Khilla had come and had shaken hand with the deceased and had told Munna, when a person would die, nobody can say. After viewing TV, they all went to their bed, which were lying separately. So, the case of the prosecution that since they had gone to their beds immediately after viewing TV and therefore they were not sleeping stands falsified by the evidence of PW-2. Thus, according to the evidence of PW-2, these persons went to their beds around 10.00 PM. But the incident of this case is alleged to have taken place at 01.30 AM i.e. after about 3½ hours of the said time. So it cannot be presumed that at that point of time the witnesses were not sleeping. This fact also finds support from the first information report wherein the complainant has not claimed to have seen the appellant firing on the deceased but he claims to have seen the appellant with country made pistol in his hand in the moon light. 19. Now the question that emerges for our consideration is whether there was sufficient light to recognise the assailant and whether the witnesses were in a position to recognise the assailant. The prosecution has not come with a case that there was any other source of light except the moon light. The witnesses have also admitted during trial that there was no other source of light. It was month of May and the witnesses and the deceased were lying on their separate cots out of their houses. We have seen the position of moon on 10.05.2007 on internet and on the said night visibility of moon was only 44%. Admittedly, in this case, there was absolutely no other source of light except the moon light which the witnesses claim to be a bright night. According to the version of the first information report, none of the witnesses had seen the incident of firing. It was the complainant who saw the appellant armed with country made pistol in his hand. Admittedly, in this case, there was absolutely no other source of light except the moon light which the witnesses claim to be a bright night. According to the version of the first information report, none of the witnesses had seen the incident of firing. It was the complainant who saw the appellant armed with country made pistol in his hand. But during trial he has improved the version of the first information report and has narrated long standing enmity of the deceased with the appellant. He has also stated that hearing the sound of foot steps he got up because after viewing TV he had just come to his bed. So, he got up and saw the incident. But this part of the evidence of this witness is belied by the evidence of PW-2 wherein he has stated that the film on TV started at 07.00 PM and it takes only three hours to conclude. So the film must have ended by 10.00 PM. Therefore, the statement of this witness that hearing sound of foot steps he got up is an after thought to show that he was an eyewitness of this incident. In case he comes with a case that he was sleeping and hearing noise of the fire shot he got up then it was not possible for him to see and recognise the assailant. So a deliberate and planned somersault was taken by the prosecution and case was improved. PW-2 in his cross examination has stated that the night was not bright. He had seen Khilla alias Ram Khelawan from a distance of 10 paces while he was running away. He first ran towards north side and thereafter from street he went to the west direction. Thus, this witness had seen co-accused Khilla alias Ram Khelawan from a distance of 10 paces. According to the evidence of PW-2, Khilla alias Ram Khelawan and present appellant ran together. He has stated that on his alarm and hearing the noise of fire shot the other witnesses namely Suresh, Lachai and Panchu also got up. When a person is asleep and hearing an unusual noise he gets up all of a sudden then he take some time to regain his senses and to assess the position. According to the evidence of PW-2 after the fire the appellant immediately ran away. When a person is asleep and hearing an unusual noise he gets up all of a sudden then he take some time to regain his senses and to assess the position. According to the evidence of PW-2 after the fire the appellant immediately ran away. So the other witnesses could have seen the accused while they were running away. So their identification from backside and that too in the night from some distance does not appear to be probable. Likewise the evidence of PW-1, which goes contrary to his own version as narrated by him in his first information report also makes his evidence unworthy of credence. The omission in the first information report regarding involvement of another accused and whether the complainant had seen the appellant firing on the deceased were such important aspects of the case that could not have been omitted. So the explanation furnished by the prosecution does not appeal to reason and this weakness of the case of the prosecution renders the evidence of the complainant also unworthy of credence. PW-3 Panchu is the father of the deceased. He has also given details of the earlier enmity. This witness in his examination in chief has also made a verbatim corroboration of the evidence of PW-1 that he got up hearing sound of foot steps and has also stated that on the exhortation of Khilla, Kishori fired with his country made pistol on his son and thereafter they ran away. This witness has nowhere stated that he or any other witness was viewing TV. He has stated that all of them were sleeping on their respective cots. It is a case of single fire. So what transpires from the perusal of the entire evidence is that the incident had taken place in the night and after committing the offence the accused ran away. Admittedly there was long standing enmity of the appellant with the deceased. Therefore, he was named in the first information report on the basis of suspicion only and subsequently Khilla alias Ram Khelawan, who happens to be the brother of appellant Kishori, was also made an accused. The manner in which the offence has taken place, it makes it highly improbable that the appellant could have been recognised by the witnesses in the night while he was running away. So, in this back ground, the appellant becomes entitled for the benefit of doubt. The manner in which the offence has taken place, it makes it highly improbable that the appellant could have been recognised by the witnesses in the night while he was running away. So, in this back ground, the appellant becomes entitled for the benefit of doubt. Since the case of the prosecution has been found to be doubtful, therefore it will adversely affect the alleged recovery of country made pistol on the pointing out of appellant Kishori. Hence, the appeal deserves to be allowed. Learned trial court has not considered these weaknesses of prosecution case in correct perspective which has rendered its judgment unsustainable under law. 20. Accordingly, this appeal is hereby allowed. Appellant Kishori is hereby acquitted of all the charges levelled against him. He be set at liberty. He is in custody. He shall be released forthwith if not wanted in any other case. 21. Office is directed to communicate this order to the court concerned and to send back the lower court record. Appeal Allowed.