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2016 DIGILAW 4138 (ALL)

Tung Nath Pandey. v. State of U. P.

2016-12-21

PRASHANT KUMAR, SHEO KUMAR SINGH-I

body2016
JUDGMENT Prashant Kumar, J. 1. Heard Sri Mukul Rakesh, learned counsel for the appellants and Sri Umesh Chandra Verma, learned Additional Government Advocate for the State-respondent. 2. This appeal has been filed against the judgment of conviction and order of sentence dated 17.03.2004 and 20.03.2004 respectively, in connection with Sessions Trial No.19 of 1993 & Sessions Trial No. 29 of 1997 corresponding to case crime no. 143 of 1992 of Kaudia police station, District Gonda by Additional Sessions Judge, FTC 4, Gonda, whereby and whereunder he convicted appellant-Tung Nath Pandey under Section 302 of the IPC and sentenced him to undergo imprisonment for life. The appellant- Dharam Kumar Pandey was convicted under Sections 302/307/323 of the IPC and sentenced to undergo imprisonment for life for the offence under Section 302 of the IPC. He was further sentenced to undergo rigorous imprisonment for five years and pay fine of Rs. 10,000/- for the offence under Section 307 of the IPC. He was further sentenced to undergo rigorous imprisonment for six months and pay fine of Rs. 1,000/- for the offence under Section 323 of the IPC. Learned court below further directed that if he defaulted in making payment of fine of Rs. 10,000/-, the appellant- Dharam Kumar Pandey will have to further undergo imprisonment for four months. Learned court below further directed that if he defaulted in making payment of Rs. 1,000/-, he will have to further undergo imprisonment for two months. Learned trial court had further directed that out of the above fine amount, Rs. 5,000/- be given to the injured as compensation. 3. The case of prosecution, in short, as per the written report of Ramashish Pandey (P.W. 1) is that the appellants digged a ditch near the window of informant for collecting dirty water. Informant and his brother- Puja Ram Pandey (deceased) objected about the same. When the appellant had not filled up the ditch, then the informant and his brother filed a civil case. It is further alleged that on 25.08.1992 at about 10.00 AM, while the deceased came out of the house for going to attend duties, the appellants and co-accused Vinod Kumar came and asked the deceased to settle the dispute relating to ditch. It is stated that during that period some quarrel took place, hearing that informant's sister-in-law and mother also came out of the house. It is stated that during that period some quarrel took place, hearing that informant's sister-in-law and mother also came out of the house. It is then alleged that at that time itself, co-accused Munni Devi, wife of Tung Nath, came out of her house and stated that till the deceased remain alive, the dispute will not be solved, thus, she exhorted them to kill Puja Ram Pandey. Thereafter appellant- Tung Nath Pandey went inside the house and brought a gun and then fired upon the deceased. It is stated that deceased fell on the ground then the informant's mother and sister-in-law had gone near the deceased. Then, co-accused Vinod Kumar stated that the deceased was still alive. Thereafter, appellant Dharam Kumar took the gun from Tung Nath and made two fires, which hit the deceased, informant's mother and sister-in-law. It is stated that hearing the sound of fire, Buddhi Sagar, Krishna Kumar, Raksha Ram and Nankau arrived, then the accused persons went away. Thereafter, the informant and others brought all the three injured to Rupaidiha Hospital, where Puja Ram Pandey was declared dead. Then the informant took the dead body of Puja Ram Pandey and two injured to the police station and lodged the first information report. 4. On the basis of aforesaid first information report, case crime no. 143 of 1992 instituted under Sections 302 & 307 of the IPC and police took up investigation. During the investigation, the injured were sent for medical examination, whereas the dead body of deceased was sent for postmortem examination. Thereafter, the Investigating Officer recorded statements of witnesses under Section 161 of the Cr.P.C. and then inspected the place of occurrence and seized blood stained earth and one empty cartridge of 12 bore gun from the place of occurrence in presence of witnesses. 5. It appears that after completing investigation, police submitted charge-sheet under Sections 302, 307/34 IPC against the appellants and co-accused Munni Devi and Vinod Kumar. The learned Chief Judicial Magistrate, Gonda took cognizance of the offences and committed the case to the court of sessions as the offences under Sections 302 & 307 of the IPC are exclusively triable by the court of sessions. It further appears that the learned trial court had framed charges against the accused persons under Sections 302, 307 r/w Section 34 of the IPC. It further appears that the learned trial court had framed charges against the accused persons under Sections 302, 307 r/w Section 34 of the IPC. It is relevant to mention that during the trial, co-accused Smt. Munni Devi died, thus trial against her has been abated. It further appears that the prosecution had examined altogether ten witnesses in support of its case. The prosecution had also produced documentary evidence in support of its case. After close of the case of prosecution, statements of the appellants and co-accused Vinod Kumar recorded under Section 313 Cr.P.C., in which their defence is of total denial. It then appears that after considering the evidence available on the record and also after hearing the arguments advanced on behalf of accused persons, the learned court below acquitted co-accused Vinod Kumar from all the charges framed against him. However, by the same judgment, appellants Tung Nath Pandey and Dharam Kumar Pandey convicted and sentenced as stated hereinabove. Against that, the present appeal filed. 6. While assailing the judgment of the court below, Sri Mukul Rakesh, learned counsel for the appellant submits that the entire case of the prosecution based upon the testimony of P.Ws. 1, 2, 3 & 4, who are brothers, mother and widow of the deceased. Thus, they are highly interested in the case of prosecution. 7. It is further submitted that independent witnesses are present at the place of occurrence, but they have not been examined in this case and no explanation given for their non-examination. It is submitted that evidences of P.Ws. 1, 2, 3 & 4 are contradictory to each other. It is submitted that the aforesaid witnesses made developments in the prosecution case. It is submitted that though prosecution witnesses stated that appellants inflicted only gun-shot injuries on the person of the deceased, but the doctor, who conducted postmortem examination, had found other injuries caused by hard and blunt substance. Thus, it is submitted that eye-witness versions are not consistent with the medical evidence. 8. It is further submitted that P.W. 10 had produced one blood stained dhoti, one red colour underwear, one sweater and one torn kurta and three dandas (sticks), apart from a gun. It is submitted that production of aforesaid articles in the court creates a serious doubt on the truthfulness of eye-witnesses, who stated that at the time of occurrence, deceased was wearing underwear and Baniyan. It is submitted that production of aforesaid articles in the court creates a serious doubt on the truthfulness of eye-witnesses, who stated that at the time of occurrence, deceased was wearing underwear and Baniyan. It is further submitted that appellant Dharam Kumar is in Army Service and on the date of occurrence, he was present on duty in Ahmednagar. It is submitted that the aforesaid fact has been proved by the defence by producing Exhibits kha-1 & kha-2, but the learned court below dis-believed the aforesaid plea on some flimsy grounds. It is submitted that for the reasons stated hereinabove, the impugned judgment of conviction and order of sentence cannot be sustained. 9. On the other hand, Sri Umesh Chandra Verma, Additional Government Advocate submits that there is no significant contradictions in the evidences of P.Ws. 1, 2, 3 & 4. He further submits that if some minor contradictions were found in their evidences, the same have no bearing on the prosecution case, because such contradictions are bound to occur as all the witnesses were examined after lapse of about eight years of the occurrence. It is submitted that P.Ws. 2 & 3 are injured witnesses. Thus, their evidence cannot be discarded on the ground that they are close relative of deceased and highly interested in the prosecution case. It is further submitted that doctor had found three gunshot injuries. 10. The injuries of contusion, abrasion and laceration found on the dead body of the deceased is possible, because the deceased fell on the ground, after receiving gun-shot injury. It is submitted that the deceased was brought to the hospital on a tractor trolley. Thus, keeping in view the condition of village side road, the said injuries are possible. Thus, only because the doctor had also found contusion, abrasion and laceration on the body of the deceased, the evidence of P.Ws. 1, 2, 3 & 4 cannot be discarded. He further submitted that blood stained dhoti, red colour underwear, sweater, torn kurta and three dandas (sticks) had not been seized in this case. Under the said circumstance, it appears that due to lapses on the part of prosecutor above articles proved in the present case. It is submitted that it is well settled that due to the lapses on the part of prosecution, the evidences of eye-witnesses cannot be thrown overboard. 11. Under the said circumstance, it appears that due to lapses on the part of prosecutor above articles proved in the present case. It is submitted that it is well settled that due to the lapses on the part of prosecution, the evidences of eye-witnesses cannot be thrown overboard. 11. It is further submitted that appellant Dharam Kumar Pandey had failed to prove the plea of alibi. It is submitted that the occurrence took place on 25.08.1992 at about 10.00 AM. It is submitted that Exhibit kha-1 & kha-2 show that appellant was on leave on 25.08.1992 and he joined duty on 26.08.1992 in the forenoon. It is submitted that the plea of appellant that he took leave on 24th and 25th of August for the treatment of his wife, who was admitted in Ahmednagar Hospital, has not been proved. 12. Having heard the submission, we have gone through the record of the case. 13. From perusal of evidence of P.W. 8- Dr. B.N. Prasad, who conducted autopsy on the dead body of the deceased, we find that deceased had received altogether six ante-mortem injuries, out of which injury no. 1, 3 & 6 are caused by gun-shot injury, whereas injury nos. 2, 4 & 5 are abrasion, laceration and contusion. In the opinion of doctor, the deceased died due to shock and hemorrhage, as a result of ante-mortem injuries. The defence had not challenged the aforesaid findings of P.W. 8. Under the said circumstance, we find that the deceased died a homicidal death. Now the question arose for determination, whether the appellants have any hand in the commission of present crime ? 14. In the first information report, it is alleged that in course of occurrence, P.W. 2 & 3, who are mother and widow of the deceased respectively, have also received gun-shot injuries and they have been medically examined by the doctors. Exhibit ka-4 is the injury report of P.W. 2, whereas Exhibit Ka-3 is the injury report of P.W. 3. The aforesaid injury reports were proved by P.Ws. 5 & 6. P.W. 5 had examined injured witness no. 3 (Savitri Devi), whereas P.W. 6 had examined injured witness no. 2 (Basanta Devi). They found that the above witnesses had received firearm injuries. Under the said circumstance, we found that the presence of P.Ws. 2 & 3 at the place of occurrence had been proved by the prosecution. 15. 5 & 6. P.W. 5 had examined injured witness no. 3 (Savitri Devi), whereas P.W. 6 had examined injured witness no. 2 (Basanta Devi). They found that the above witnesses had received firearm injuries. Under the said circumstance, we found that the presence of P.Ws. 2 & 3 at the place of occurrence had been proved by the prosecution. 15. The aforesaid two witnesses stated that while the deceased was changing his dress for going to attend the duty, he was called by the appellants. They further deposed that on the said call, deceased came out of the house in Nekar and Baniyan. Then some quarrel took place in between deceased and accused persons relating to ditch. They further deposed that in course of the said quarrel, on being exhorted by co-accused Munni Devi, the appellant Tung Nath Pandey brought a gun from his house and fired on the deceased. They further deposed that when the deceased fell down, they went running towards the deceased. At that time itself, co-accused Vinod Kumar said that deceased still alive, then Dharam Kumar Pandey took the gun from the hand of Tung Nath Pandey and again fired, due to that deceased and these witnesses received injuries. From perusal of cross-examination of these two witnesses, we do not find any discrepancies, on the basis of which their evidences can be discarded. 16. P.Ws. 1 & 4 are brothers of the deceased, thus, their presence at the place of occurrence, which situates in front of their house, appears to be natural. These witnesses also deposed about the manner of occurrence, which is consistent to the statements made by the above two injured witnesses. There is some minor contradictions in the statement of P.W. 4, which in our opinion, is not very much significant, because the witness was examined after about eight years of the occurrence. Thus, such contradiction bound to occur due to lapse of time. 17. The contention of learned counsel for the appellants, that the statement of P.Ws. 1, 2, 3 & 4 are not consistent with the medical evidence, has no legs to stand. It is consistent story of the prosecution that after receiving gun-shot injuries, the deceased fell on the ground and just after the occurrence, he was taken to the hospital on a tractor trolley. 1, 2, 3 & 4 are not consistent with the medical evidence, has no legs to stand. It is consistent story of the prosecution that after receiving gun-shot injuries, the deceased fell on the ground and just after the occurrence, he was taken to the hospital on a tractor trolley. Thus, keeping in view the condition of countyside road, injuries of contusion, abrasion and laceration are possible as the deceased was traveling on a tractor trolley in Nekar and Baniyan. Thus, only on the basis of aforesaid injuries, the evidence of P.Ws. 1, 2, 3 & 4 cannot be discarded. 18. Now coming to the contention of production of blood stained dhoti, torn kurta, sweater, red colour underwear and three dandas, it is worth mentioning that the Investigating Officer had not seized aforesaid articles in connection with this case. It is worth mentioning that the doctor, who conducted autopsy on the dead body of deceased, had found only Baniyan and underwear on his body. According to the Doctor, underwear of deceased was of blue colour. The aforesaid physical finding of the doctor is consistent with the statement of P.Ws. 1, 2, 3 & 4, who stated that at the time of occurrence, deceased was wearing underwear and Baniyan. Under the said circumstance, it appears that due to fault of prosecutor, the above articles, which might be seized in some other case had been produced in this case. It has been held by Hon'ble Supreme Court in the case of Ajay Kumar Singh vs. Flag Officer Commanding in Chief and Ors. reported in [(2016) 3 SCC (Cri.) 426] that the lapse in the prosecution cannot result in acquittal of the appellants. The evidence adduced by the prosecution must be scrutinized independently of such lapses. Their Lordship further observed that the result of criminal trial would not depend upon the level of investigation and conduct of the prosecution. The criminal trial should not be made casualty for such lapses in the investigation or prosecution. 19. Under the said circumstance, the production of aforesaid articles, which was never seized by the Investigating Officer have no bearing on the evidence of P.Ws. 1, 2, 3 & 4,, which in our view otherwise trustworthy and truthful. 20. The criminal trial should not be made casualty for such lapses in the investigation or prosecution. 19. Under the said circumstance, the production of aforesaid articles, which was never seized by the Investigating Officer have no bearing on the evidence of P.Ws. 1, 2, 3 & 4,, which in our view otherwise trustworthy and truthful. 20. Now coming to the plea of alibi, it is worth mentioning that Exhibits kha 1 & 2 show that appellant was on leave on the date of occurrence and he joined his duties in the forenoon of 26.08.1992. Thus, the statement of appellant under section 313 Cr.P.C. that on the date of occurrence, he was on duty in Ahmednagar, is not correct. D.W. 1, who has proved exhibit Kha- 1, had stated in his cross-examination that he did not know how much leave taken by Dharam Kumar and during the leave he was staying at which place. It further appears that the defence suggested to P.W. 9 that wife of Dharam Kumar Pandey was admitted in a hospital at Ahmednagar for treatment, but in support of the same, no oral or documentary evidence produced. It is well settled that if a person takes the plea of alibi in a criminal case, he is bound to prove the same with absolute certainty, so as to exclude the possibility of his presence at the place of occurrence. Reference in this connection may be made to a judgment of Hon'ble Supreme Court in the case of Vinay Kumar Singh vs. State of Bihar and analogous cases [AIR 11997 SC 322]. Since in this case, the defence had not proved the aforesaid fact, therefore, we find that the learned trial court had rightly rejected the plea of alibi. 21. In view of the discussions made above, we find that the prosecution has proved the charges framed against the appellants by the evidence of P.Ws. 1, 2, 3 & 4, which find full corroboration from the physical findings of Investigating Officer and Doctors. Thus, in our view the learned trial court had rightly convicted and sentenced the appellants for the charges framed against them. 22. In the result, this appeal fails and is accordingly dismissed. It appears that the appellants are on bail. 1, 2, 3 & 4, which find full corroboration from the physical findings of Investigating Officer and Doctors. Thus, in our view the learned trial court had rightly convicted and sentenced the appellants for the charges framed against them. 22. In the result, this appeal fails and is accordingly dismissed. It appears that the appellants are on bail. Thus, their bail bond is hereby canceled and they are directed to surrender in the court below immediately to serve out the sentence awarded by the trial court. The trial court is also directed to take all coercive steps for the appearance of the appellants. 23. Office is directed to send back the lower court record along with copy of the judgment to the court concerned forthwith, to ensure compliance.