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2019 DIGILAW 444 (ALL)

Shiv Babu v. State of U. P.

2019-02-20

PRITINKER DIWAKER, RAJ BEER SINGH

body2019
JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of impugned judgment and order dated 16.11.2005 passed by the Additional Sessions Judge/Fast Track Court No. 1, Chitrakoot in Sessions Trial No. 50 of 2002, convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and a fine of Rs. 5,000/- in default thereof, to further undergo six months' additional imprisonment. 2. Brief facts of the case are that there exists an old enmity between the deceased family and that of the accused, number of criminal cases were registered against each other on different reports lodged by them. On 29.11.2001, deceased (Chandrika) and his brother (PW-1) Nankoo had gone to the house of Ram Milan Chamar for sharpening an agricultural weapon, commonly known as gandasa and as Ram Milan Chamar was not present, they decided to wait there. While they were waiting for Ram Milan Chamar, at 10:30 am, accused appellant reached there carrying 12 bore gun and after seeing the deceased (Chandrika), he fired two gunshot injuries to him, resulting his instantaneous death. FIR Ex. Ka.16 was lodged on the same day, i.e. 29.11.2001 at 12:55 in the afternoon by (PW-1) Nankoo (brother of the deceased) against the appellant under Section 302 of IPC. The distance between the place of occurrence and the police station is 9 kms. 3. Inquest on the dead body of the deceased was conducted vide Ex. Ka.4 on 29.11.2001 and the body was sent for postmortem, which was conducted on the same day by (PW-3) Dr. A.K. Mohan vide Ex. Ka.2. 4. As per postmortem report, following injuries were found on the body of the deceased: "1. Firearm entry wound present on middle of forehead size is 4 cm x 4 cm, about oval in shape, frontal, parietal bones are fracture, bone loss of frontal bone is present margins are burned, directed posteriorly. 2. Firearm exit wound present on occipital size of Head in mid line, size of wound is 07 cm x 03 cm, margins diverted, occipital & temporal bone on fractured brown melter is coming out from wound, margins inverted. 3. Firearm entry wound present on Lt. side of chest just lateral to left border of sternum 05 cm below the medial end of clavicle, about oval in shape, margins are blackish (burned) size is 03 cm x 02 cm directed posteriorly & toward Rt. 3. Firearm entry wound present on Lt. side of chest just lateral to left border of sternum 05 cm below the medial end of clavicle, about oval in shape, margins are blackish (burned) size is 03 cm x 02 cm directed posteriorly & toward Rt. side, margin inverted. 4. Firearm exit wound present on Rt. side of back just medial to medial border of Rt. scapula 03 cm above the inferior angle of scapula size 04 cm x 03 cm, margin inverted. 5. Laceration present on Rt. forearm on Radial border of forearm 07 cm above the radial styloid process size 03 x 02 cm skindeep." 5. According to autopsy surgeon, the cause of death of the deceased is Neurological shock & Haemorrhage as a result of abovementioned antemortem firearm injury. 6. One 12 bore gun was seized from Pankaj Rao, Proprietor of Vishnu Gun House, Jabalpur and on the memorandum of accused appellant, two empty cartridges were seized, which were hidden by him in his house near a tree and as per Forensic Science Laboratory Report (un-exhibited), cartridges were fired from the DBBL gun, seized from the Proprietor of Vishnu Gun House, Jabalpur. 7. While framing charge, trial Judge has framed the charge against the appellant under Section 302 of IPC. 8. So as to hold accused appellant guilty, prosecution has examined six witnesses. Statement of the accused appellant was also recorded under Section 313 of Cr.P.C. in which he pleaded his innocence and false implication. 9. By the impugned judgment, the trial Judge has convicted the appellant under Section 302 of IPC and sentenced him as mentioned in paragraph no. 1 of this judgment. Hence, this appeal. 10. Learned counsel for the appellant submits: (i) that FIR is ante-timed and ante-dated. (ii) that (PW-1) Nankoo was never present along with deceased and a very improbable story has been put forth that he had gone along with deceased for sharpening an agricultural weapon, commonly known as gandasa, as from the place of occurrence, no such gandasa has been seized by the prosecution. According to him, deceased appears to have been killed by some third person, but the appellant has been falsely implicated as there was previous enmity between the two families. (iii) that the medical report of the deceased does not support the prosecution case. According to him, deceased appears to have been killed by some third person, but the appellant has been falsely implicated as there was previous enmity between the two families. (iii) that the medical report of the deceased does not support the prosecution case. If 12 bore gun had been used for assaulting the deceased, nature of injuries would have been different and pellets would have been found in the dead body of the deceased especially when the gun had been fired from a distance of about 9 feet. (iv) that seizure of cartridges and gun have not been proved by the prosecution, as required under the law. (v) that the important witnesses, who have been named in the FIR, have not been examined by the prosecution and only interested witness (PW-1) Nankoo has been examined, who has falsely implicated the accused. (vi) that (PW-2) Suresh had never seen the incident but he too has been planted as witness just to fulfil the lacuna in the prosecution case. None of the inquest witness has been examined by the prosecution and only interested witnesses have been examined to prove the so called case against the accused. (vii) that accused appellant has already served more than 10 years jail sentence. 11. On the other hand, supporting the impugned judgment, it has been argued by the State counsel: (i) that a very prompt FIR has been lodged by (PW-1) Nankoo, incident occurred at 10:30 am on 29.11.2001, whereas FIR was lodged at 12:55 in the afternoon and the distance between the place of occurrence and that of police station is about 9 kilometres. (ii) that (PW-1) Nankoo appears to be a very natural eye witness to the incident, who was accompanying the deceased at the time and place of occurrence. Testimony of PW-1 cannot be simply ignored or discarded just because he happens to be the brother of the deceased. (iii) that (PW-2) Suresh, who immediately after the incident reached to the place of occurrence, saw the appellant fleeing from the spot and thus, presence of appellant has also been proved by him. (iv) that medical report of the deceased duly supports the prosecution case. (v) that forensic expert report also supports the prosecution case. (iii) that (PW-2) Suresh, who immediately after the incident reached to the place of occurrence, saw the appellant fleeing from the spot and thus, presence of appellant has also been proved by him. (iv) that medical report of the deceased duly supports the prosecution case. (v) that forensic expert report also supports the prosecution case. (vi) that non examination of certain persons, who have been named in the FIR, will not damage the prosecution case in any manner because the prosecution case rests upon the statement of (PW-1) Nankoo, the first informant and the trustworthy eye witness to the incident. 12. We have heard learned counsel for the parties and perused the record. 13. (PW-1) Nankoo is the informant and the brother of the deceased. He states that the incident occurred at 10:30 am when he and deceased (Chandrika) had gone to the house of Ram Milan Chamar for sharpening gandasa, but Ram Milan Chamar was not there. While he and the deceased were sitting near the door of Ram Milan Chamar waiting for him, accused appellant reached there carrying 12 bore gun in his hand and from the door itself, he caused two firearm injuries on the head and chest of his brother Chandrika (deceased) resulting his instantaneous death. He states that immediately after committing the offence, accused-appellant fled away from the spot and upon hearing his cries, Ram Khelawan (not examined), Ram Sajeevan (not examined) and other persons reached there and saw the incident. In cross-examination, this witness remained firm and has reiterated as to the manner in which his brother was done to death by the accused. He has given the details of previous incident of quarrel between the two families. He has further stated that as he was not having watch, he could not tell the exact time as to when the other persons, who had seen the incident, reached at the place of occurrence. He states that firearm might have been used from six steps. He has further clarified that he was accompanying his brother Chandrika as there was danger to his life. 14. (PW-2) Suresh has stated that while he was taking his meal, he heard the sound of firearm and when he rushed to the place of occurrence, he saw accused appellant fleeing from the place of occurrence. He has further clarified that he was accompanying his brother Chandrika as there was danger to his life. 14. (PW-2) Suresh has stated that while he was taking his meal, he heard the sound of firearm and when he rushed to the place of occurrence, he saw accused appellant fleeing from the place of occurrence. He has stated that quite often the deceased and (PW-1) Nankoo used to come to the house of Ram Milan Chamar. In cross-examination, this witness also remained firm and nothing could be elicited from him. 15. (PW-3) Dr. A.K. Mohan conducted postmortem on the body of the deceased. Cause of death of the deceased is Neurological shock & Haemorrhage, as a result of abovementioned antemortem firearm injury. No proper questions were put to this witness regarding the nature of weapon used, nature of injury sustained by the deceased and that as to what quality of meal could have been taken by the deceased. 16. (PW-5) Sunderpal Gautam, Sub Inspector, completed investigation and filed the challan. (PW-6) P.K. Pandey, is the first Investigating Officer, who carried out major part of investigation. 17. Close scrutiny of the evidence makes it clear that on 29.11.2001, it is the appellant who caused two firearm injuries to the deceased, resulting his instantaneous death. Incident has been witnessed by (PW-1) Nankoo, brother of the deceased, who within 2 hours and 45 minutes lodged the FIR and in the Court also, he remained firm. Statement of PW-1 cannot be simply ignored just because he happens to be the brother of deceased. It is well settled principle of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. Anil Rai vs. State of Bihar, (2001) 7 SCC 318 , State of U.P. vs. Jagdeo Singh, (2003) 1 SCC 456 , Bhagalool Lodh and Another vs. State of U.P. (2011) 13 SCC 206 , Dahari and Others vs. State of U.P. (2012) 10 SCC 256 , Raju @ Balachandran and Others vs. State of Tamil Nadu, (2012) 12 SCC 701 , Gangabhavani vs. Rayapati Venkat Reddy and Others, (2013) 15 SCC 298 , Jodhan vs. State of M.P. (2015) 11 SCC 52 . The Supreme Court in the matter of Bur Singh and Another vs. State of Punjab, (2008) 16 SCC 65 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in the matter of Sudhakar vs. State, AIR 2018 SC 1372 and Ganapathi vs. State of Tamil Nadu, AIR 2018 SC 1635 relying in its earlier judgments held as under: "18. Then, next comes the question what is the difference between a related witness and an interested witness? The plea of "interested witness" and "related witness" has been succinctly explained by this Court that "related" is not equivalent to interested. Then, next comes the question what is the difference between a related witness and an interested witness? The plea of "interested witness" and "related witness" has been succinctly explained by this Court that "related" is not equivalent to interested. The witness may be called interested only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW-1 and 5 were not only related witness, but also interested witness as they had pecuniary interest in getting the accused petitioner punished. State of U.P. vs. Kishanpal and Others, (2008) 16 SCC 73 : 2008 AIR SCW 6322. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution." Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as interested. The term interested postulates that the witness has some direct or indirect interest in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an interested witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the sole testimony of such witness. Harbans Kaur and Another vs. State of Haryana, 2005 AIR SCW 2074, Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835, Sonelal vs. State of M.P. 2008 AIR SCW 7988 and Dharnidhar vs. State of Uttar Pradesh and Others, (2010) 7 SCC 759 . 18. There is absolutely no evidence on record as to why (PW-1) Nankoo would falsely implicate the accused. 18. There is absolutely no evidence on record as to why (PW-1) Nankoo would falsely implicate the accused. There may be previous animosity between the two families, but this can also be treated as a double edged weapon. In a series of litigations, when parties are assaulting each other, possibility of accused appellant killing the deceased is more considering the statement of the eye witness. Furthermore, there was hardly any opportunity for PW-1 to cook a story and make false allegations against the accused. At least, no such evidence has been adduced by the defence. Furthermore, statement of PW-1 has been duly supported by (PW-2) Suresh, who at the time of occurrence, was taking his meal and immediately after hearing the sound of gunshot injuries, he came out from his house and saw the accused-appellant fleeing from the spot. Assuming PW-2 has not seen the actual occurrence but his statement not only supports the statement of PW-1, but is good enough to reach to the conclusion that it is the accused appellant who killed the deceased. Furthermore, at the instance of the appellant, two empty cartridges were seized and as per prosecution case, those cartridges were used from the weapon seized from one Pankaj Rao, the Proprietor of Vishnu Gun House, Jabalpur. Hence, we find no substance in the argument of the defence that seizure of cartridges and gun have not proved by the prosecution. 19. Medical report of the deceased also supports the prosecution case because as per the eye witness, two gunshot injuries were caused to the deceased and as per postmortem report, two gunshot injuries were noticed on the body of the deceased. We find no substance in the argument of the defence that pellets have not been found in the dead body of the deceased, and therefore 12 bore gun may not have been used in commission of offence. 20. As per Parikh's Medical Jurisprudence, Forensic Medicine and Toxicology, Seventh Edition, in Lesson 17, classification of firearms reads thus: "Smooth-bored firearms: These include (sporting) shotguns, muzzle loaders, and muskets, the shotgun being more common. In these weapons, the bore (inside of the barrel) is perfectly smooth. The barrel length of the shotgun usually varies from 24 to 30 inches. 20. As per Parikh's Medical Jurisprudence, Forensic Medicine and Toxicology, Seventh Edition, in Lesson 17, classification of firearms reads thus: "Smooth-bored firearms: These include (sporting) shotguns, muzzle loaders, and muskets, the shotgun being more common. In these weapons, the bore (inside of the barrel) is perfectly smooth. The barrel length of the shotgun usually varies from 24 to 30 inches. The bore (sometimes called gauge) is measured by the internal diameter in inches (e.g. 0.410") or by the number of lead balls of size almost fitting the barrel, which can be made from one pound of lead. The most common bore is a 12 bore (diameter 0.729"). Thus, the 12 bore gun is one whose bore diameter is that of a ball of lead of such a size that 12 balls can be made from one pound of lead. It is obvious that the greater the bore number, the smaller the size of the lead shot, and vice versa. The cartridge is loaded in the chamber which is larger than the actual bore and is connected to the bore by a taper. The weapon is made to break (open) on a hinge for loading a cartridge or extraction of the fired cartridge case. The shotgun cartridge has as its projectile lead or steel pellets or shot which vary in size from single spherical ball to a number of small pellets depending upon the type of cartridge employed. The shot charge is generally 1-1½ oz for a 12 bore gun. When the weapon is fired, the pellets disperse soon after their exit from the muzzle and this dispersion increases with the range. The degree of dispersion can be controlled to some extent by a relatively small but significant reduction near the muzzle end commonly amounting to no more than 1 mm. This is called choke. It imparts compactness to the shot so as to keep the main charge closer together for a greater effective distance. Some modern weapons are designed to convert a cylinder barrel to a choke barrel. ..................... This is called choke. It imparts compactness to the shot so as to keep the main charge closer together for a greater effective distance. Some modern weapons are designed to convert a cylinder barrel to a choke barrel. ..................... (g) Usually, shotgun projectiles do not move out of the body unless: (1) the shot size is sufficiently large or large calibre buckshots or rifled slugs are used, (2) the firing has taken place from a sufficiently near distance, (3) the part of the body hit is not massive, e.g. extremities or neck (4) the victim is a child or lean adult, or (5) the gun is discharged suicidally in the mouth. A close discharge, that is between actual contact and about six inches, is likely to show the following features: (a) Where clothing is present, it will trap most of the soot and power grains, and may reduce the flame effect. (b) Scorching of skin, singeing of hair and blackening and tattooing (far less with smokeless power) of skin are generally seen. (c) Depending on the angle of firing, the wound is circular or elliptical, and the edge may be smooth or crenated depending on the size of the pellets. There are no separate pellet holes. (d) The wound track and adjacent tissues appear pink due to absorption of carbon monoxide. Any felt or cardboard over-shot wads or plastic cups from the cartridge will be found in the wound. A mid-range discharge, that is from about six inches to six feet (two yards), is likely to show the following features. The findings are similar to the close range discharge except that: (a) soot soiling is less and will disappear at over 8 to 16 inches and (b) with increasing distance: (i) The edge of the wound will be abraded and crenated (rat hole) especially with larger shot. (ii) The pellet holes will progressively increase around the main wound. A long-range discharge, that is beyond two yards, is likely to show the following features: (a) There will be no burning or soot beyond about two yards. Sparse tattooing may be seen on careful search up to about three yards. Infrared photography to detect power marks particularly on dark-coloured clothing is of help to estimation the range. (b) Wadding injury may be seen up to about five yards. The wad may cause an independent impact abrasion. Sparse tattooing may be seen on careful search up to about three yards. Infrared photography to detect power marks particularly on dark-coloured clothing is of help to estimation the range. (b) Wadding injury may be seen up to about five yards. The wad may cause an independent impact abrasion. The plastic cup device, if present, opens us in flight and, may produce a characteristic abrasion or bruise. (c) The charge of shot progressively spreads so that small apertures due to separate pellets appear round the main wound. With further increase in range, this is followed by more even distribution of pellet injuries with disappearance of the central aperture. At far longer ranges, the shot, depending upon its size and velocity, may not lodge in the body. 0.33" and 0.36" buckshots are extremely dangerous even at 100 yards." As per Dr. K.S. Narayan Reddy's Medical Jurisprudence and Toxicology under Chapter 13, Country-made firearms & Balling Or Welding of Shot reads thus: "COUNTRY-MADE FIREARMS: The injuries caused to the victim vary considerably depending upon the nature of projectiles. Metal scraps may produce small incised or incised-looking wounds; punctured wounds may be produced by nails, and lacerations and contusions by stone pieces. The distance up to which the smoke, flame and carbon particles travel is approximately half of that from factory made firearms. The pellets begin to disperse at a distance of 30 to 45 cm. The muzzle velocity is low and the barrel can accommodate a sub-calibre projectile or cartridge. As the characters of the firearms and components of the cartridge vary widely in country-made firearms, the date applicable to factory-made firearms to calculate the distance of firing cannot be applied. For estimating the distance of firing, the only ideal method is to carry out test firing with the suspected weapon. ..................... BALLING OR WELDING OF SHOT: Balling of shotgun pellets results in the conversion of shot into a compact mass, which can travel for few metres in this form. In such cases, a circular or oval entrance would of about 5 to 10 mm. in diameter and widespread, small, circular punctures are seen, suggesting the use of two different weapons, one a shotgun at distant range and the other a rifle. This can be due to faulty manufacture or old ammunition, but this is rare. In such cases, a circular or oval entrance would of about 5 to 10 mm. in diameter and widespread, small, circular punctures are seen, suggesting the use of two different weapons, one a shotgun at distant range and the other a rifle. This can be due to faulty manufacture or old ammunition, but this is rare. It can be due to hand-loading of cartridges, if too much powder is used, if wads of incorrect kind are inserted, or sealing pressure on the wads is too high. The most likely cause is due to pouring of paraffin wax into the cartridge after removing the outer cardboard or by replacing some of the pellets by a large ball-bearing which is held in place with wax." 21. We find no substance in the argument of the defence that if 12 bore gun had been used for assaulting the deceased, nature of injuries would have been different and pellets would have been found in the dead body of the deceased especially when the gun had been fired from a distance of about 9 feet. From the above discussion, it is crystal clear that firstly, shotgun cartridge may have as its projectile lead or steel pellets or shot which vary in size from single spherical ball to a number of small pellets depending upon the type of cartridge employed. Secondly, shotgun projectiles do not move out of the body unless the shot size is sufficiently large or large calibre buckshots or rifled slugs are used and thirdly, shotgun can also give an impression of causing injuries suggesting the use of two different weapons, one a shotgun at distant range and the other a rifle, which is attributed to faulty manufacture or old ammunition or due to hand-loading of cartridges. 22. We find no substance in the argument of the defence that as no gandasa has been seized from the place of occurrence, the same doubts the credibility of the prosecution case. As per prosecution case, the deceased and (PW-1) Nankoo had gone to the house of Ram Milan Chamar for sharpening gandasa and non seizure of the said article will not make any difference especially when gandasa has never been used in commission of offence. As per prosecution case, the deceased and (PW-1) Nankoo had gone to the house of Ram Milan Chamar for sharpening gandasa and non seizure of the said article will not make any difference especially when gandasa has never been used in commission of offence. We further find no substance in the argument of the defence that important witnesses, named in the FIR, have not been examined and only interested witness PW-1 has been examined, who has falsely implicated the accused. Non examination of certain persons, who have been named in the FIR, will not damage the case of the prosecution in any manner because the prosecution case rests upon the statement of PW-1, the first informant and the eye witness to the incident. Further we find no substance in the argument of the defence that (PW-2) Suresh had never seen the incident but has been planted as witness just to fulfil the lacuna in the prosecution case. As per prosecution case, PW-2 immediately after the incident reached to the place of occurrence and saw the appellant fleeing from the spot and thus, presence of appellant has also been proved by him. 23. Considering cumulative effect of the evidence, we are of the considered view that the trial court was justified in convicting the accused-appellant. The appeal has no substance and the same is accordingly dismissed. The accused-appellant is on bail. His bail bond stands cancelled. He be taken into custody forthwith for serving the remaining sentence. 24. From the office note, it appears that for the trial of one Pankaj Rao in relation to S.T. No. 315 of 2004, trial court is in need of original record. 25. Registry to send the original record to the trial court immediately and the trial court shall conclude the said trial expeditiously as the same is pending since last 14 years.