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2018 DIGILAW 2187 (ALL)

Babloo Ghosi v. State of U. P.

2018-10-11

MAHENDRA DAYAL, RITU RAJ AWASTHI

body2018
JUDGMENT : Ritu Raj Awasthi, J. 1. Heard Mr. Subodh Kumar Shukla, learned counsel for the appellant as well as Mr. Umesh Verma, learned Additional Government Advocate assisted by Mr. Ashok Kumar Sharma, learned AGA for the State and perused the material available on record along with lower Court record. 2. The instant criminal appeal has been preferred by the appellant, namely, Babloo Ghosi challenging the judgment and order dated 24.3.2006 passed by learned Additional Sessions Judge, Court No. 1, Unnao in Sessions Trial No. 621 of 2004, relating to case Crime No.1140 of 2004, under Section 302/34 IPC, Police Station Kotwali, District Unnao and Sessions Trial No.622 of 2004 relating to case Crime No.1151 of 2004 and 1152 of 2004, under Section 3/25 Arms Act, Police Station Kotwali, District Unnao, whereby the appellant has been convicted for the offence under Section 302/34 IPC and sentenced with imprisonment for life and fine of Rs. 5000/-, in default of payment of fine to undergo six months additional imprisonment and has been convicted for the offence under Section 3/25 Arms Act and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs. 2000/-, in default of payment of fine three months additional imprisonment. Both the sentences shall run concurrently. 3. It is to be noted that Criminal Appeal No. 734 of 2006 (Babu Khan vs. State of U.P.) preferred by the co-accused Babu Khan, son of Habib Khan has been dismissed as abated vide order dated 20.12.2016 as the co-accused Babu Khan has died during pendency of the appeal. 4. Both the sentences shall run concurrently. 3. It is to be noted that Criminal Appeal No. 734 of 2006 (Babu Khan vs. State of U.P.) preferred by the co-accused Babu Khan, son of Habib Khan has been dismissed as abated vide order dated 20.12.2016 as the co-accused Babu Khan has died during pendency of the appeal. 4. In brief, the case of the prosecution is that on 13.9.2004 at about 2 PM the nephew of the informant, namely, Gaurav @ Monu (deceased) had some altercation with the appellant, Babloo Ghosi and co-accused, Babu Khan (now dead), son of Habib Khan and it was because of this enmity that on the same day at 7 PM, when his nephew along with Manjeet Yadav was going on victor motorcycle bearing registration No. UP 35D/9001 which was driven by Manjeet Yadav and the deceased was a pillion rider and in the other hero honda motorcycle bearing registration No. UP 78Y/2938 driven by the informant and Neeraj was the pillion rider when they reached in front of the house of Ram Jeevan, the accused who were present there had got the motorcycle of Manjeet Yadav fallen down by pushing it. Gaurav @ Monu had also fallen down. Immediately thereafter the appellant, Babloo Ghosi and co-accused Babu Khan (now dead) who were carrying firearms in their hands fired at the deceased. The incidence was seen by the informant and all persons who were on the motorcycles. There was sufficient light of the motorcycle and the light due to generator and inverter operating nearby. The accused-persons were duly seen and identified. On the shouting of the informant, the accused-persons ran-away showing their firearms. The informant and his accomplice took Gaurav @ Monu to the Regency Hospital, Kanpur where the doctor declared Gaurav @ Monu as brought dead. The corpus of the deceased was kept at the Government Hospital, Unnao and thereafter he had got the first information report lodged. 5. On the basis of first information report, a case was registered under Section 302/34 IPC and charge-sheet was submitted in the Court. The accused, Babloo Ghosi and Babu Khan (now dead) were apprehended on 16.9.2004. The police had recovered one each local made firearm along with one each live cartridge from the possession of the accused-persons. 6. 5. On the basis of first information report, a case was registered under Section 302/34 IPC and charge-sheet was submitted in the Court. The accused, Babloo Ghosi and Babu Khan (now dead) were apprehended on 16.9.2004. The police had recovered one each local made firearm along with one each live cartridge from the possession of the accused-persons. 6. After completing the requirement of Section 207 Code of Criminal Procedure, the case was committed to the Court of sessions. After hearing the accused and going through the evidence on record, charges were framed under Section 302 read with 34 IPC and 3/25 Arms Act separately. The accused persons denied the charge and requested for trial. Both the sessions trial were heard together and decided by the impugned judgment. 7. The prosecution in order to prove its case had examined PW-1 Dr. S.A. Rizvi, PW-2 Manjeet Yadav, PW-3 Anand Mohan Dwivedi, PW-4 Head Constable Ram Baran Pandey, PW-5 Head Constable Om Prakash Singh, PW-6 Sub Inspector D.D. Mishra and PW-7 Sub-Inspector Randhir Singh Chauhan and PW-8 Inspector Suresh Babu. 8. After completion of examination of prosecution witnesses, the statement of accused under Section 313 Code of Criminal Procedure was recorded. The accused has stated that the first information report was lodged after due deliberation and consultation and prosecution witnesses have given false statement. The accused in their additional statement stated that they have been falsely implicated due to political rivalry. 9. PW-1 Dr. S.A. Rizvi has got the postmortem examination of the corpus of the deceased. As per postmortem report, the deceased had sustained two firearms injuries. One firearm wound of entry 1cm X 1cm chest cavity deep with inverted margins on front of chest in the middle over sternum, wound is at the level of 5th rib in the line and level of both nipples. Wound is 11 cm medial to left nipple and 11cm medial to right nipple. Direction of wound is backward. Blackening and tattooing present around wound. A metallic bullet recovered from posterior wall of the chest at the same level (5th rib). Second firearm of entry 1cm X 1cm trachea ring deep on left of neck just behind left pinna of inverted margins over mastorid process. Blackening and tattooing present around the wound the wound is downward and obliquely towards middle of front of neck. Bullet recovered from front of neck just lateral trachea. Second firearm of entry 1cm X 1cm trachea ring deep on left of neck just behind left pinna of inverted margins over mastorid process. Blackening and tattooing present around the wound the wound is downward and obliquely towards middle of front of neck. Bullet recovered from front of neck just lateral trachea. Pinna of the left ear found lacerated 1cm X 1cm just in front of injury no. 2. Internal examination indicated temporal bone fractured under injury no. 2. According to the opinion of the Doctor, the cause of death was due to shock and hemorrhage as a result of antemortem firearm injuries. 10. PW-2 and PW-3 are the witnesses of facts whereas all other witnesses are formal witnesses and they have certified the prosecution evidence disclosed in various exhibits. PW-2 and PW-3 in their statement have described the incidence in detail. They were present at the place of occurrence and had seen the incidence. They were cross-examined by the defense and nothing contradictory was found in their statements. 11. Learned counsel for appellant has argued that the deceased was murdered at an unknown place. No one had seen the occurrence. In fact, it was a blind murder and the appellant and co-accused, Babu Khan (now dead) were falsely implicated due to old enmity. 12. It has been contended that the prosecution story that the deceased was taken to the Regency Hospital, Kanpur is totally false and has been concocted to explain the delay in lodging of first information report. As per prosecution case, the incidence had taken place at 7.30 PM. The distance of police station from the place of incidence is about 150 meter. The first information report was allegedly lodged at 9.30 PM. The Government Hospital, Unnao was in near close vicinity and there was no reason for the informant to have taken the deceased to a far off place at Regency Hospital, Kanpur which is 25 kilometer away. It appears that the deceased was murdered at an unknown place and his body was brought to the Government Hospital, Unnao at about 9 PM and thereafter the first information report was lodged. There is no evidence to show that the deceased was taken to Regency Hospital, Kanpur. 13. It appears that the deceased was murdered at an unknown place and his body was brought to the Government Hospital, Unnao at about 9 PM and thereafter the first information report was lodged. There is no evidence to show that the deceased was taken to Regency Hospital, Kanpur. 13. It is also argued that as per statement of PW-3, Anand Mohan Dwivedi, the deceased was taken to Regency Hopsital, Kanpur for better treatment and witness, namely, Manjeet Yadav and Neeraj Tripathi had not accompanied him to Regency Hospital, Kanpur and they were left at Unnao, however, neither of them went to the police station to lodge the first information report, meaning thereby that the first information report has been lodged with due deliberation and consultation and the appellant has been falsely implicated. 14. It is further argued that as per prosecution case an empty cartridge (khoka) was recovered from the place of occurrence, however, according to the ballistic report the said cartridge could not have been used in the firearms recovered from the possession of the appellant and co-accused. 15. It is next argued that the prosecution has intentionally and deliberately not produced Neeraj although he was an important witness as it is the case of the prosecution that he had accompanied the informant who had seen the incidence and was present at the place of occurrence when the deceased was murdered by the appellant and other co-accused. It is submitted that there is no independent witness to the alleged incidence although the place of occurrence is in the vicinity of having thick population. 16. Learned Additional Government Advocate, on the other hand, denied that there was any delay in lodging of first information report. It is submitted that the informant after seeing the incidence in which his nephew was killed had gone to his house to get the car and in the car he had taken the deceased to Regency Hospital, Kanpur as he thought that in the said hospital the deceased will get better treatment. When the deceased was taken to the Hospital, he was alive, however, in a very serious condition. When the informant reached Regency Hospital, Kanpur, the Doctor examined the deceased and declared him dead. When the deceased was taken to the Hospital, he was alive, however, in a very serious condition. When the informant reached Regency Hospital, Kanpur, the Doctor examined the deceased and declared him dead. It was thereafter that the body of the deceased was brought to the Government Hospital, Unnao and after making the arrangement to keep the body in the Government Hospital, the informant went to police station to lodge the first information report, as such, there was no delay in lodging of first information report. 17. It is contended by the learned Additional Government Advocate that the accused-appellant along with co-accused were arrested after three days of the date of occurrence and it was on their pointing out that the empty cartridge was recovered from the place of occurrence. 18. It is submitted that even in case the said empty cartridge was not used in the firearms recovered from the possession of the appellant and co-accused, it will not demolish the case of the prosecution as there are other credible evidence including the ocular witnesses who have stated on oath before the Court that they were present at the time of incidence and had described in detail the manner of occurrence and have recognized the accused-persons. The statement of ocular witnesses is trustworthy and cannot be brushed aside. 19. It is also argued by the learned Additional Government Advocate that when there is cogent, credible and trustworthy evidence available on record which is corroborated with the medical evidence, motive to prove is not very relevant. 20. We have considered the submissions made by the parties’ counsel and gone through the record along with lower Court record. 21. PW-2, Manjeet Yadav was driving the motorcycle on which the deceased was a pillion rider. As per prosecution case, when the motorcycle had reached in front of the house of Ram Jeevan the accused along with co-accused, Babu Khan (now dead) were present and were sitting on the chabutara of Ram Jeevan. They came near to the motorcycle and pushed it. Motorcycle was driven at a very slow speed of 4-5 Kilometer per hour. Due to the same, the deceased as well as Manjeet Yadav (PW-2) fell down. The accused along with co-accused took off the firearms they were carrying and fired at the deceased from a very close range. They came near to the motorcycle and pushed it. Motorcycle was driven at a very slow speed of 4-5 Kilometer per hour. Due to the same, the deceased as well as Manjeet Yadav (PW-2) fell down. The accused along with co-accused took off the firearms they were carrying and fired at the deceased from a very close range. PW-2 has stated that the informant PW-3 and Neeraj who were on another motorcycle and were behind them had also seen the occurrence. PW-2 has also stated that he along with deceased used to go from the same place (road) everyday. PW-3 in his statement has corroborated the case of the prosecution as set out in the first information report and has also stated in detail the manner in which the crime was committed. Source of light at the time of occurrence is said to be light emerging from two motorcycles as well as from the generator and inverter running nearby. Postmortem report corroborates the case of the prosecution. As per postmortem report, two firearm injuries were inflicted on the deceased from close range and as per the statement of PW-1 the Doctor who had carried out the postmortem the cause of death was due to shock and hemorrhage as a result of ante-mortem firearm injuries. As such, we find that the statements of PW-2 and PW-3 were trustworthy. We do not find that there was any substantial delay in lodging of first information report. The contention raised in this regard by the counsel for the appellant has no force, hence rejected. 22. The Apex Court in the case of Gosu Jayarami Reddy and Another vs. State of Andhra Pradesh, 2011 (11) SCC 766 has observed that there is no need to prove that the accused were knowing that the deceased would be visiting the place and they were lie in wait and would assault and kill the deceased. Relevant paragraph 37 of the judgment is reproduced below: “37. There is indeed no evidence to show that the accused persons knew about the visit of the deceased to his factory but that does not in our view, make any material difference. What is important is that the stone polishing factory was owned by the deceased and was not far from his house at Tadipatri. There is indeed no evidence to show that the accused persons knew about the visit of the deceased to his factory but that does not in our view, make any material difference. What is important is that the stone polishing factory was owned by the deceased and was not far from his house at Tadipatri. A visit by the owner of the factory was not so improbable that the accused could not expect the same especially when those with a sinister design like a cold blooded murder, could lie in wait if necessary to strike at an opportune time. The fact that a factory owned by Accused No. 1 was in close proximity to the factory of the deceased, made it all the -more easy for the assailants to carry out their nefarious design. That the deceased had been killed in the factory, is not even questioned by the defence as indeed the same cannot be questioned in the light of the deposition of the witnesses examined by the prosecution. The depositions of the eye witnesses PWs 1 to 3 are clear and free from any embellishments hence completely reliable. It is also difficult to believe that the witnesses who are closely related to the deceased would screen the real offenders and falsely implicate the Appellants only because of the political rivalry between the two groups. ” 23. In the case of Ram Bharosey vs. State of U.P., 2010 CRI.L.J. 871 the Apex Court has held that while proving the case it was not obligatory at all for the prosecution to adduce evidence to establish that the accused had knowledge that deceased was to come to the place of occurrence at a particular time. It is well settled that no direct evidence of knowledge on the part of the accused that he knew that the deceased was to come at a particular place can be led in a criminal trial. Relevant paragraph 8 of the judgment is reproduced below: “8. The plea that prosecution having failed to adduce evidence to establish that the accused had knowledge that deceased Puran Singh was to come to the petrol pump at the appointed time and therefore the conviction of the appellant should be set aside, has no substance. Relevant paragraph 8 of the judgment is reproduced below: “8. The plea that prosecution having failed to adduce evidence to establish that the accused had knowledge that deceased Puran Singh was to come to the petrol pump at the appointed time and therefore the conviction of the appellant should be set aside, has no substance. The prosecution in this case never approached the Court with a case that the accused had pre-meditated the murder of the deceased after hatching a conspiracy. Bhure Lal who is first informant and father of the deceased has stated in paragraph 3 of his testimony that when he along with his son and others came near the octroi barrier, they were accosted by the accused who were standing there. The simple case of the prosecution is that when Bhure Lal and others reached near the octori barrier, they saw the four accused standing there and the accused challenged Puran and fired shots at him. While proving this case, it was not obligatory at all for the prosecution to adduce evidence to establish that the accused had knowledge that deceased Puran was to come to petrol pump with his father at a particular time. It is well settled that no direct evidence of knowledge on the part of an accused that he knew that the deceased was to come at a particular place can be led in a criminal trial. It is only from the proved circumstances of a particular case that the Court would attribute such a knowledge to an accused. It may be that the accused persons had come to Shamsabad in connection with their work and when they saw their target, they decided to do away with him. In this case the case of the prosecution is that out of the four, two accused had fired arms and had used the same to murder the deceased. To prove this case, direct evidence has been tendered by the prosecution. Therefore, so called failure of the prosecution to adduce evidence to establish that accused had knowledge that the deceased was to come to the petrol pump at the specified time, is of no consequence.” 24. To prove this case, direct evidence has been tendered by the prosecution. Therefore, so called failure of the prosecution to adduce evidence to establish that accused had knowledge that the deceased was to come to the petrol pump at the specified time, is of no consequence.” 24. So far as the contention of learned counsel for appellant that as per ballistic report empty cartridge recovered from the place of occurrence was not used by the firearms recovered from the possession of the accused-appellant and co-accused, as such, the entire case of the prosecution is false and fabricated is concerned, we are of the view that when there is reliable ocular testimony as we have noted above there is no reason to come to conclusion that the prosecution story is false and fabricated. The Apex Court in the case of Himanshu Mohan Rai vs. State of Uttar Pradesh and Another, (2017) 4 SCC 161 has rejected the contention and has observed that if the eye-witness is absolutely acceptable then such evidence could be accepted even if there is some contradiction in the medical or ballistic reports. Relevant paragraphs 21, 22, 23 and 24 are reproduced below: “21. Apparently the police recovered a licensed gun from the accused Imran Afreen while he was boarding a train and the ballistic report showed that the licensed gun was not used for the killing. This means that the Police did not recover the actual weapon used for the killing and the accused had ample time to dispose off the weapon. It is however not possible to reject the credible ocular evidence of the eyewitness who witnessed the shooting and who are found be truthful. 22. It is possible that the prosecution may not recover the actual weapon in some cases. However, this cannot have the effect of discrediting reliable ocular testimony as we have here that the accused shot and killed the deceased, particularly when the lead bullets have been recovered and are found belonging to a commonly used 7.65 m.m. caliber i.e. .32 bore weapon. 23. In Anvaruddin vs. Shakoor, (1990) 3 SCC 266 , this Court considered the effect of obscure and oscillating evidence of the ballistic expert. 23. In Anvaruddin vs. Shakoor, (1990) 3 SCC 266 , this Court considered the effect of obscure and oscillating evidence of the ballistic expert. The Court observed that: "10.....In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements...." 24. In the case of Brijpal Singh vs. State of M.P., (2003) 11 SCC 219, this Court observed that there was reliable ocular evidence of the accused having shot the deceased. However, the ballistic expert as in this case reported that though both the guns were found to have been discharged recently, the empty cartridges that were seized from the spot did not match the rifle that was recovered. This Court observed that normally, if the eyewitness's evidence is absolutely acceptable, then such evidence could be accepted even if there is some contradiction in the medical or ballistics reports. However, the oral evidence was not found acceptable in this case. In contrast, we find the oral evidence in the present case, particularly that of P.W. 1, to be completely acceptable and truthful. There is no iota of evidence on record which would suggest any motive on his part to falsely implicate the accused. We might add that there is no evidence as argued by the learned counsel for the respondent, that the police conspired to frame the accused who was a congress leader and had protested against police high handedness.” 25. So far as the contention of learned counsel for appellant that Neeraj who was an important witness as he had allegedly seen the occurrence was not produced by the prosecution is concerned, suffice is to observe that the burden is on the prosecution to prove its case and in case the prosecution has been able to establish its case beyond doubt, it is not necessary that each and every evidence which may be relevant is brought on record. 26. 26. It is to be noted that the Apex Court in the case of Amar Singh vs. Balwinder Singh and others, 2003 SCC (Cri) 641 has held that the Court should be circumspect in evaluating the evidence but prosecution case cannot be rejected solely on certain shortcomings in the investigation. It is not fatal to the prosecution case when the case is fully established from the testimony of the eye-witnesses. Relevant paragraph 15 of the judgment is reproduced below: “15. Coming to the last point regarding certain omissions in the DDR, it has come in evidence that on the basis of the statement of PW4 Amar Singh, which was recorded by PW14 Sardara Singh, S.I. in the hospital a formal FIR was recorded at the Police Station at 9.20 p.m. In accordance with Section 155 Cr.P.C. the contents of the FIR were also entered in the DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in the DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. In Karnel Singh vs. State of M.P. (1995) 5 SCC 518 it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav & Ors. V. State of Bihar (1999) 2 SCC 126 while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav V. State of Bihar (1998) 4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.” 27. In view of above, we are of the considered view that the appellant has committed the offence under Section 302 read with 34 IPC and the learned Trial Court has rightly convicted him under Section 302 reach with 34 IPC. In view of above, we are of the considered view that the appellant has committed the offence under Section 302 read with 34 IPC and the learned Trial Court has rightly convicted him under Section 302 reach with 34 IPC. The appellant has also committed the offence under Section 3/25 Arms Act. The conviction of the accused-appellant under Section 302/34 IPC and 3/25 Arms Act is confirmed. He is in jail. He shall serve out the sentence as awarded by the Trial Court. 28. Having going through the entire evidence and the impugned judgment, we are fully satisfied that the learned Trial Court has rightly held the case of the prosecution to be proved beyond doubt and has rightly convicted the appellant. The appeal has no force and is hereby dismissed. 29. Office is directed to send a certified copy of the judgment with all original documents to the concerned Court below for compliance.