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2018 DIGILAW 1653 (ALL)

Vijay Shankar v. State of U. P.

2018-07-27

MAHENDRA DAYAL, RITU RAJ AWASTHI

body2018
JUDGMENT : Mahendra Dayal, J. We have heard Mr. Nagendra Mohan, learned counsel for the appellants and Mr. Hari Shanker Bajpai learned Additional Government Advocate for the State and also perused the record. 2. The trial Court, 4th Additional Session Judge, Unnao convicted the appellants vide judgment and order dated 02.02.1984 in two different Session Trial Nos.309 of 1982 and 592 of 1982, both arising out of the same Case Crime No.46 of 1982, under Section 302/34 IPC relating to Police Station Purwa, District Unnao. All the appellants have been convicted for the offence under Sections 302/34 IPC and have been sentenced to undergo life imprisonment. They have also been convicted under Section 323/34 IPC and have been sentenced to undergo six months imprisonment. Both the aforesaid sentences are to run concurrently. 3. Brief facts leading to this appeal are that the occurrence as alleged by the prosecution is said to have been taken on 07.03.1982 at 05:00 P.M. The first information report of this case was lodged on the same day at 07:00 P.M. The informant is Suraj Prasad. The prosecution case is that when the injured and the deceased were coming back together from Village Atwa and reached near the shop of Saddan, the accused-appellants came armed with firearms. One of the accused, namely, Chandra Bhal @ Puttu was having Axe. It is further said that the appellant No.3 Karuna Shankar exhorted the rest of the accused-appellants, upon which, all of them opened fire. It is further said that Ram Chandra @ Phunnar was dragged to a nearby field of Prem Shanker where he was killed by the accused-appellants. The appellants Uma Shankar and Karuna Shankar assaulted Durga Prasad @ Bade Lal with butt end of the pistols. The occurrence was seen by several persons of the village including Suraj Prasad, his wife and Suresh. It is further said that after killing Ram Chandra @ Phunnar, the accused-appellants threatened all the villagers that if anyone gave evidence against them, he would be killed. The motive as stated in the first information report is that 4-5 years prior to the occurrence, the accused-appellants Karuna Shankar and Vijay Shankar had killed the Block Pramukh Shiv Shankar, in which, the deceased Ram Chandra @ Phunnar was doing pairvi against them. 4. The motive as stated in the first information report is that 4-5 years prior to the occurrence, the accused-appellants Karuna Shankar and Vijay Shankar had killed the Block Pramukh Shiv Shankar, in which, the deceased Ram Chandra @ Phunnar was doing pairvi against them. 4. The first information report was lodged by the father of the deceased, namely, Suraj Prasad, upon which, the case was registered against the accused-appellants. The investigation of the case was handed over to Station House Officer, Ram Narain Singh, who conducted investigation and submitted charge-sheet. The accused Chandra Bhal died during pendency of the trial and as such the proceedings of trial stood abated against him. 5. The learned trial court framed charges against the accused-appellants under Section 302/34 IPC and charges were read over and explained to them. The accused-appellants denied charges and claimed to be tried. The prosecution examined seven witnesses to prove its case. After the prosecution evidence was over, the statement of the accused-appellants was recorded under Section 313 Cr.P.C., in which, they denied the occurrence and stated that they had been falsely implicated due to enmity. They also stated that in the murder case of Shiv Shankar, Block Pramukh, they had been acquitted by the Hon'ble High Court. 6. The learned trial court, after hearing the defence counsel and the Public Prosecutor, came to the conclusion that the charge against the accused-appellants was proved beyond doubt and after giving them opportunity of hearing on quantum of sentence, the impugned judgment and order was passed. 7. Mr. Nagendra Mohan learned counsel for the appellants has argued that the informant of this case, namely, Suraj Prasad has been examined as PW-1. He has claimed himself to be the eye-witness of the occurrence. His statement clearly suggests that he did not see the occurrence. Learned counsel has referred to his statement, recorded before the trial court, in which, he has stated that Village Atwa is the neighbouring village. The accused-appellant Uma Shankar belongs to Village Atwa while the remaining accused-appellants were residents of the village where the occurrence took place. The accused-appellant Karuna Shankar and Vijay Shankar had killed Shiv Shankar few years prior to killing of his son, in which, his son Ram Chandra @ Phunnar was doing Pairvi. The accused-appellants Karuna Shankar and Vijay Shankar were convicted and were sentenced to undergo imprisonment of twenty years each. The accused-appellant Karuna Shankar and Vijay Shankar had killed Shiv Shankar few years prior to killing of his son, in which, his son Ram Chandra @ Phunnar was doing Pairvi. The accused-appellants Karuna Shankar and Vijay Shankar were convicted and were sentenced to undergo imprisonment of twenty years each. There was also a cross case, in which, his son Ram Chandra @ Phunnar was accused. It was on account of the aforesaid litigation that there was enmity between the deceased and the accused-appellants Vijay Shankar and Karuna Shankar. This witness has further stated that on the date of occurrence, his son Ram Chandra @ Phunnar had gone to Village Atwa for repairing of a house. Durga Prasad @ Bade Lal was also with him. When both of them were coming back from Village Atwa and reached near the shop of Saddan, the accused-appellant on the exhortation, assaulted him. The accused-appellants Uma Shankar and Karuna Shankar caught hold of Durga Prasad @ Bade Lal while Chandra Bhal and Vijay Shankar caught hold of the deceased. It is said that Durga Prasad @ Bade Lal was given blow with butt end of the pistols as a result of which, he received injuries. Vijay Shankar and Chandra Bhal forcibly dragged his son Ram Chandra @ Phunnar to a nearby grove of Ram Kumar. This witness has further stated that in the meantime, Uma Shankar and Karuna Shankar after leaving Durga Prasad also reached at the grove of Ram Kumar. The accused appellant Karuna Shankar also fired at the deceased and thereafter he was again assaulted by the accused-appellants with Axe and firearms. This witness has further stated that the deceased was also having gun, but the accused-appellants had snatched his gun and destroyed the same by pushing the same on the ground. After his son was killed, all the accused-appellants went towards Village Atwa after giving threats. This witness, in order to show his presence at the time of occurrence, has stated that he had gone to find out as to whether the flour-mill of Suresh was running or not. The flour-mill of Suresh is about 50 paces away from the place of occurrence. 8. This witness, in order to show his presence at the time of occurrence, has stated that he had gone to find out as to whether the flour-mill of Suresh was running or not. The flour-mill of Suresh is about 50 paces away from the place of occurrence. 8. It has been argued by the learned counsel for the appellants that this witness has admitted in his cross-examination that the noise of flour-mill is audible in the entire village and as such the version of this witness that he had gone to find out as to whether the flour-mill of Suresh was opened or not, is not believable. The learned counsel for the appellants has referred to the post-mortem examination report of the deceased to show that as many as twelve ante-mortem injuries were found on the body of the deceased. Out of these twelve injuries, only one is in the nature of firearm wound while rest injuries except one, are in the nature of incised wounds. Injury No.9 of the deceased is punctured wound. The firearm wound is on the abdomen. The margins of the wound were inverted and the injury was cavity deep. It has been argued by the learned counsel that punctured wound is unexplained by the prosecution. None of the accused-appellants were said to have been armed with any pointed and sharp-edged weapon. The ocular evidence is, therefore, contradictory to the medical evidence. The learned trial court has observed in the judgment that this punctured wound might have been caused by dried mustered plant, which according to the counsel, is not possible. The informant has said that the deceased was first fired and thereafter when he fell down, he was taken to the nearby field of Prem Shankar, where he was again assaulted. The submission of the learned counsel is that when the accused-appellant had firearms and had fired at him near the shop of Saddan, there was no need to take him away to a nearby grove. There was also no need to assault Durga Prasad @ Bade Lal because there was no motive to either kill him or assault him. The injuries of Durga Prasad @ Bade Lal are simple in nature and these injuries have been fabricated only to show his presence at the time of occurrence. There was also no need to assault Durga Prasad @ Bade Lal because there was no motive to either kill him or assault him. The injuries of Durga Prasad @ Bade Lal are simple in nature and these injuries have been fabricated only to show his presence at the time of occurrence. Had there been any intention to kill Durga Prasad @ Bade Lal also, the accused-appellants were armed with dangerous weapons and instead of assaulting him with butt end of the pistol, they could have fired at him, but instead of doing so, they only caused simple injuries. According to the learned counsel, there is strong possibility that the injuries of Durga Prasad @ Bade Lal were self-inflicted wounds and these injuries were manufactured only to make him an eye-witness, while in fact he was not present. According to the informant, his deceased son Ram Chandra @ Phunnar had gone to another village for repairing of someone's house and, therefore, there was no occasion for Durga Prasad @ Bade Lal to have accompanied the deceased. 9. Learned counsel has further referred to the statement of second prosecution witness, namely, Durga Prasad @ Bade Lal, who has given contradictory statement. Some minor contradictions have been pointed out by the learned counsel for the appellants to suggest that both the prosecution witnesses of fact are not reliable. 10. Learned counsel for the appellants has referred to the statement of PW-2, namely, Durga Prasad @ Bade Lal to show certain contradictions in his statement. He has stated in his statement in chief that on the date of occurrence when he was coming back along with deceased from Village Atwa and reached near the shop of Saddan at about 05:00 P.M., he saw the accused-appellants standing near the shop with dangerous weapons. Chandra Bhal was having an Axe while Karuna Shankar, Vijay Shankar and Uma Shankar were having country made pistols. As soon as they saw the deceased, all of them caught hold of him and Uma Shankar snatched the gun of the deceased. In the meantime, Karuna Shankar fired at the deceased. Another accused-appellant Uma Shankar fired at him also but the fire missed and he escaped unhurt. This witness has denied any previous enmity with Karuna Shankar or any other accused-appellant. In the meantime, Karuna Shankar fired at the deceased. Another accused-appellant Uma Shankar fired at him also but the fire missed and he escaped unhurt. This witness has denied any previous enmity with Karuna Shankar or any other accused-appellant. When he was cross-examined, he stated that when the deceased was caught by the accused-appellants, he had raised alarm but he was not attacked. After the fire missed, he shifted from the place of occurrence. However, before he could shift from that place, he was assaulted with butt end of the pistols. When it was asked from the witness that when the fire missed, then why he stayed there to which he replied that he was afraid of further assault because in the meantime, the accused-appellant had taken away the deceased in the nearby field of Prem Shankar. However, he did not follow them. This witness has stated in his examination-in-chief that the field of Prem Shankar in which the deceased was killed, was not having any crop because the crop was already harvested. 11. The contention of the learned counsel for the appellants is that this statement of the witness PW-2 was knowingly introduced to explain the punctured wound on the body of the deceased because the prosecution wanted to establish that the punctured wound was caused by dried stem of mustard plant. It has also been argued that the conduct of PW-2 Durga Prasad is such that it creates doubt as to his testimony. It is not the case of the prosecution that he at any stage of the crime resisted assault on the deceased. There was, thus, no occasion for the accused-appellants to have assaulted Durga Prasad. In fact, the prosecution story has been developed in order to show his presence and that is why minor injuries have been shown on his body while as a matter of fact there is no eye witness of the alleged occurrence. The presence of PW-1, who is the informant of this case, is also doubtful. In these circumstances, the prosecution has not been able to prove its case beyond doubt and the accused-appellants are entitled to be given benefit of doubt. 12. Learned Additional Government Advocate while replying to the arguments of the accused-appellants has argued that there is no improbability in the prosecution story. Both the prosecution witnesses of fact have stated the correct facts. 12. Learned Additional Government Advocate while replying to the arguments of the accused-appellants has argued that there is no improbability in the prosecution story. Both the prosecution witnesses of fact have stated the correct facts. The injuries of Durga Prasad, who is an injured witness, reveals that these injuries could not have been manufactured. The prosecution witness Durga Prasad does not belong to the family of the deceased and as such he could not have taken the risk of manufacturing such injuries. Learned Additional Government Advocate has referred to the injury report of Durga Prasad to show that as many as seven injuries have been found, out of which, three injuries are on the skull and are in the nature of lacerated wounds, which are skull deep. The nature of injury fully falsifies the defence arguments that these injuries are manufactured. Learned Additional Government Advocate has referred to the statement of the prosecution witness Durga Prasad to show that his testimony is most natural and he has narrated every stage of the crime as to in what manner the accused-appellants have committed the crime. This witness being an injured witness is most reliable and his presence cannot be doubted for any reason. It has also been argued by the learned Additional Government Advocate that although the presence of the informant is established on the basis of his testimony but even if his statement is ignored, the testimony of PW-2 Durga Prasad is sufficient to prove the charges against the accused-appellants. So far as the punctured wound is concerned, the same is on the lower jaw and is bone deep. The muscles on the jaw are very thin and bone deep injury can be caused even by dried stem of a plant. The prosecution has explained this punctured wound by giving reliable evidence and the learned trial court while appreciating the evidence has recorded a finding that the prosecution evidence is reliable and the charges against the accused-appellants are proved beyond doubt. 13. Having heard learned counsel for the accused-appellants and the learned Additional Government Advocate and on appreciation of evidence on record, we find that the informant, who has also been examined as PW-1, is an eye-witness and his testimony cannot be doubted for any reason. 13. Having heard learned counsel for the accused-appellants and the learned Additional Government Advocate and on appreciation of evidence on record, we find that the informant, who has also been examined as PW-1, is an eye-witness and his testimony cannot be doubted for any reason. The learned counsel for the appellants has raised doubt only on the ground that since noise of flour mill can be heard from any corner of the village, therefore, there was no occasion for this witness to have checked by coming near the flour mill, as to whether the flour mill was running or not. We fully agree with the submissions of the learned Additional Government Advocate that the testimony of the informant cannot be doubted only on this ground. This witness has narrated in detail as to how the occurrence has taken place and there is no material contradictions in the statement of this witness and the statement of the injured witness Durga Prasad. If there are some minor contradiction in the statement of these two witnesses, the same cannot be a ground to discard the entire prosecution evidence, which is otherwise believable and reliable. Durga Prasad is injured eye witness and his presence cannot be doubted. The nature of injuries found on his body, falsifies the defence version that his injuries were manufactured to show his presence on the spot. He is a natural witness and has narrated in detail the manner in which the occurrence took place. This witness Durga Prasad has also stated in his cross-examination that he was close associate of the deceased and very often they used to go together. If this witness had gone to Atwa with the deceased, there was no reason to disbelieve his testimony on this ground alone. Although it is not a prosecution case that the witness Durga Prasad resisted assault on the deceased, but it appears that he was assaulted by the accused-appellants so that he may not resist taking away of the deceased by the accused-appellants. Since, there was no intention to kill Durga Prasad, therefore, the accused-appellants caused only that much of injuries, which were necessary to prevent him from making any attempt to resist taking away of the deceased. The punctured wound found on the body of the deceased, has been sufficiently explained by the prosecution and the prosecution case cannot be thrown away on this ground alone. The punctured wound found on the body of the deceased, has been sufficiently explained by the prosecution and the prosecution case cannot be thrown away on this ground alone. The accused appellants were armed with firearms and Axe and the post-mortem report fully corroborates the manner of assault. The doctor, who conducted the post-mortem of the deceased, has found incised wounds and firearm wound. All these injuries were sufficient to cause death. The learned trial court has rightly found the accused-appellants guilty of causing intentional death of the deceased and has rightly convicted them for the offence under Section 302/34 IPC. Since, they have also caused simple injuries to Durga Prasad, therefore, their conviction under Section 323/34 IPC is also not against the evidence. 14. On careful scrutiny of the prosecution evidence and the material on record and on appreciation of the arguments of the learned counsel for the accused-appellants and the learned Additional Government Advocate, we are of the considered view that the learned trial court has correctly appreciated the evidence and has found the accused-appellants guilty for the offence of murder and causing simple injuries. We, therefore, do not find any merit in this appeal. 15. The appeal is dismissed and the sentence awarded by the learned trial court is confirmed. The accused-appellants are already in jail. They will serve the sentence awarded by the learned trial court. 16. Let a certified copy of this judgment and order be sent to the learned trial court concerned along with the record, for information.