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2018 DIGILAW 2167 (ALL)

Manoj v. State of U. P.

2018-10-09

K.J.THAKER, PRITINKER DIWAKER

body2018
ORDER : Pritinker Diwaker, J. 1. This appeal arises out of impugned judgment and order dated 08.11.2013 passed by Additional Session Judge, Court No. 12, Meerut in S.T. No. 217 of 2010 (State of U.P. vs. Manoj) arising out of Case Crime No. 191 of 2009, convicting the appellant under Section 302 of I.P.C. and sentencing him for life imprisonment alongwith fine of Rs. 20,000/-. Under Section 504 of I.P.C. for one year imprisonment, plus default stipulations. 2. As per prosecution case, the accused-appellant was required to pay Rs. 25,000/- to the deceased Ripudaman, which despite repeated demand was not paid by him. It is said that on 27.06.2009 sometime in the morning, the accused-appellant had promised to pay Rs. 25,000/- to the deceased Ripudaman and when in the evening at about 6.30 P.M. the deceased Ripudaman had gone to collect his money, instead of giving his money, the accused-appellant took out his country made pistol, which was hidden by him and caused gunshot injury on the chest of the deceased resulting his instant death. At 9.15 P.M. prompt FIR (Ex. Ka-15) was lodged by PW-1 Omveer Singh, father of the deceased against the appellant under Section 302 and 504 of I.P.C. Inquest on the dead body of the deceased was conducted on 27.06.2009 vide Ex. Ka-6 and the dead body was sent for postmortem, which was conducted on 28.06.2009 by PW-3 Dr. V.P. Singh vide Ex. Ka-2. As per the autopsy surgeon, following injuries have been noticed: "Gun shot would entry on left side chest, 9 cm below and medial to left nipple, size 1 cm x 0.75 cm blackening present, margins inverted on probing prob goes to downward and laterally damage the mesentery and piercing the vertebra column at L2 and L3 and and fracturing the vertebra and goes to the right side abdominal wall. One bullet recovered from lateral wall right side abdominal wall." 3. PW-3 Dr. V.P. Singh has opined the cause of death due to shock and hemorrhage as a result of ante mortem injuries. 4. During investigation, name of one Vikas also figured as co-accused. However, he remained absconded and, therefore, the trial court proceeded with the case of the appellant alone. 5. PW-3 Dr. V.P. Singh has opined the cause of death due to shock and hemorrhage as a result of ante mortem injuries. 4. During investigation, name of one Vikas also figured as co-accused. However, he remained absconded and, therefore, the trial court proceeded with the case of the appellant alone. 5. While framing the charge, the trial judge has framed the charge against the accused appellant under Sections 302/34 and 504 of I.P.C. So as to hold the accused appellant guilty, prosecution has examined ten witnesses, namely, PW-1 Omveer Singh, PW-2 Vinod Kumar, PW-3 Dr. V.P. Singh, PW-4 Vikas, PW-5 Dharmendra Kumar, PW-6 Virendra Kumar, PW-7 Head Constable Bijendra Singh, PW-8 Sub Inspector Madan Pal, PW-9 Rajkumar and PW-10 Amar Singh. The statement of accused-appellant was also recorded under Section 313 of Cr.P.C. in which he has pleaded his innocence and false implication. 6. In a separate trial i.e. S.T. No. 218 of 2010, the appellant has also been tried for the offence under Section 25 of Arms Act, but in the said case he has been acquitted by the trial judge. 7. Learned counsel for the appellant assailing his conviction under Sections 302 and 504 of I.P.C. submits as under: (i) that though there are two eye witnesses i.e. PW-4 and PW-5, but they are not reliable and trustworthy. (ii) there was no occasion for PW-5 to remain present at the place of occurrence, but yet his presence has been shown and he has been cited as an eye witness, who under no circumstances can be relied upon. 8. On the other hand, supporting the impugned judgment, it has been argued by State counsel that conviction of the appellant is in accordance with law. He submits that a very prompt FIR was lodged by PW-1 Omveer clearly mentioning the name of the appellant. He further submits that in the FIR itself, the presence of PW-4 and PW-5, as an eye witnesses to the incident have been shown and, thus, it cannot be said that any of the eye witness to the incident has been planted by the prosecution. He further submits that PW-2 saw the appellant fleeing from the spot and most importantly at the instance of the appellant, the weapon used in the commission of offence has been seized, which has been duly proved by the prosecution. 9. Heard learned counsel for the parties and perused the record. He further submits that PW-2 saw the appellant fleeing from the spot and most importantly at the instance of the appellant, the weapon used in the commission of offence has been seized, which has been duly proved by the prosecution. 9. Heard learned counsel for the parties and perused the record. 10. PW-4 Vikas is the brother of the deceased while supporting the prosecution case, has stated that on 27.06.2009 at about 7 to 8 A.M. his brother demanded his money back from the accused-appellant and accused-appellant promised him to return the same in the evening. He has stated that in the evening at about 6.30 P.M. instead of returning his money to the deceased, the accused-appellant fired gunshot injury on his chest resulting his death. He has further stated that he and other witnesses have made an attempt to catch hold the appellant, but he escaped from the place of occurrence. In the cross examination, these witnesses remained infirmed and nothing can be elicited from them. 11. PW-5 Dharmendra Kumar is another eye witness to the incident, who was also present at the time of occurrence. He too has categorically stated that he saw the accused-appellant causing gunshot injury to the deceased. 12. PW-2 Vinod Kumar who reached the place of occurrence after the incident has stated that he saw the appellant fleeing from the spot, who was wearing cream colour shirt. 13. PW-1 Omveer Singh is the father of the deceased, who lodged the FIR. He has stated that on the fateful evening his son Ripudaman had gone to the field of Dharmendra @ Chotu, where the incident had taken place and soon after the incident, he was informed that his son has been killed by accused-appellant. He has further stated that at his instance the FIR was lodged. 14. PW-6 Virendra Kumar is the witness of seizure Ex. Ka-3 by which pistol was seized from house of the appellant. 15. PW-7 Head Constable Bijendra Singh, assisted during the investigation. 16. PW-8 Sub Inspector Madan Pal Singh is the witness of inquest. 17. PW-9 Constable Rajkumar assisted in the investigation. 18. PW-10 Station Officer Amar Singh is the investigating officer. 19. Close scrutiny of evidence makes it clear that on 27.06.2009 at about 6.30 A.M. the deceased Ripudaman had demanded his money from the appellant Manoj and Manoj promised him to give the said amount by evening. 17. PW-9 Constable Rajkumar assisted in the investigation. 18. PW-10 Station Officer Amar Singh is the investigating officer. 19. Close scrutiny of evidence makes it clear that on 27.06.2009 at about 6.30 A.M. the deceased Ripudaman had demanded his money from the appellant Manoj and Manoj promised him to give the said amount by evening. In the evening, he instead of giving money to Ripudaman, committed his murder by causing gunshot injury to him. The incident has been witnessed by PW-4 Vikas and PW-5 Dharmendra. Both these eye witnesses have duly supported the prosecution case and their names also find figure in the FIR as an eye witness. PW-2 saw the appellant fleeing from the spot. The postmortem of the deceased also confirms the version of two eye witnesses. Furthermore at the instance of the appellant, country made pistol was seized vide Ex. Ka-3 and the witness PW-3 has also duly proved the said fact. 20. In the recent judgment of Apex Court in the case of State of Maharashtra vs. Damu, JT 200 (5) SC 575 : 2000 (6) SCC 269 , the Court held as under: "13. While dealing with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. 14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it." 21. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it." 21. Considering the entire evidence as it is, we are of the view that trial court was justified in convicting the appellant. 22. The appeal has no substance and it is, accordingly, dismissed. 23. As the appellant is already in jail, therefore, no further order is required to be passed.