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Allahabad High Court · body

2019 DIGILAW 986 (ALL)

Pappu v. State of U. P.

2019-04-17

PANKAJ NAQVI, UMESH KUMAR

body2019
JUDGMENT : Umesh Kumar, J. 1. This appeal has been preferred against the judgment and order dated 19.03.2005 passed by Addl. Sessions Judge, Etah in S.T. No. 1173 of 2002 (State v. Pappu alias Naval Kishor), convicting the appellant under Sections 307/34, IPC and sentencing him to undergo 6 year rigorous imprisonment with a fine of Rs. 2000/- and further sentencing him under Section 302/34, IPC to undergo life imprisonment with a fine of Rs. 5000/-, in default of payment of fine, to further undergo one month imprisonment. 2. The prosecution case, in brief, is that on 10.07.2001 at about 9.00 in the night, Smt. Sona Devi sister-in-law of informant Mahesh Chand (PW-1) was sitting in front of her house; accused Pappu alias Naval Kishor along with three other persons came there, they fired three shots; first shot hit Yogesh alias Bhola on his arm and face, second shot hit Sona Devi on head and third shot missed the target; after receiving the injuries, Sona Devi fell down and the assailants along with accused- Pappu alias Naval Kishor ran away towards the house of accused-Pappu alias Naval Kishor. The event was witnessed by Tillu alias Bharat Singh, Bhola, Shailendra Savita and Dr. Panna Lal in front of whose shop, the incident took place. He witnessed the occurrence in petromax light glowing at the shops of Dr. Panna Lal and Shailendra. One of the assailant was having a flat nose; he could identify all miscreants on appearance. Both the injured were sent to District Hospital, Etah. The said information was registered as check FIR (Ex. Ka-5) at police station, City Kotwali, Etah. Its G.D. entry No. 75,(Ex. Ka-6) was executed at 21.40 hours under Section 307, IPC on 10.7.2001. Thereafter, police started investigation of the case; collected blood-stained and plan earth from the spot as (Ex. Ka-4). The injured Sona Devi expired on 11.7.2001 at Agra, on the same day, case was converted to section 302, IPC by making entry in GD No. 25 at 12.30 p.m. After the death of Sona Devi, inquest was conducted by S.I. Rameshwar Dayal Shukla i.e. (Ex. Ka-8) along with other relevant police papers (Ex. Ka-9 to Ex. Ka-12). i.e. challan lash, photo lash, letters to CMO and RI. Post mortem of deceased-Sona Devi was conducted by P.W. 6 Dr. Ka-8) along with other relevant police papers (Ex. Ka-9 to Ex. Ka-12). i.e. challan lash, photo lash, letters to CMO and RI. Post mortem of deceased-Sona Devi was conducted by P.W. 6 Dr. Yogesh Bhargava and during autopsy, following injuries were found on the body of deceased; e`R;q iwoZ pksVs&¼1½ ,d flyk gqvk ?kko 1 lh-,e- xq.kk 1 lh-,e- nkW;s duiVh ij rFkk 6 lseh- nkW;s dku ds mij fLFkr Fkk] vUnj dh gM~Mh esa 1 lh-,e- xq.kk 1 lh-,e- Nsn Fkk ftldk vkdkj xksy FkkA pksV ds pkjksa rjQ VSVqbax] psgjs ds nkW;s rjQ nkW;s dU/ks rFkk nkW;s gkFk ij ekStwn FkhA ¼2½ ckW;h vkW[k dh iyd [kwu Hkjus ls lwth gq;h FkhA ¼3½ nkW;s gkFk dh chp dh mWxyh esa [kjkSp dk fu'kku tks 1 lh-,e- xq.kk 0-5 lh,e- ds vkdkj dk FkkA vkUrfjd ijh{k.k %& flj ds vkUrfjd ijh{k.k esa ckW;s duiVh ds vanj [kwu dh otg ls lwtu ekStwn Fkh mlds dkVus ds i'pkr ,d /kkrq dh cqySV ftldh lkbt 3 lh-,e- xq.kk 3 lh-,e- [kky ds vanj ekStwn FkhA ckW;s duiVh ij Vseiksjsy cksu esa 4 lh-,e- xq.kk 3 lh-,e- dk QszDpj Fkk ftlesa ls cqySV cgj vkdj fLdy [kky ds vUnj ekStwn FkhA pksV ua- 1 ls bl pksV esa lIykbZ vkj ikj gks tkrh gSA cszu dsfoVh esa [kwu tek gqvk FkkA efLr"d dh f>fYy;kW QVh gq;h Fkh rFkk efLr"d Hkh QVk gqvk FkkA ân; ds nkfguh vksj [kwu Hkjk gqvk Fkk rFkk ckW;k Hkkx [kkyh FkkA isV esa ,d vkSal ikuh tSlk rjy inkFkZ ekStwn FkkA NksVh vkWrksa esa v/kipk Hkkstu o xSl ekStwn Fkh rFkk cMh vkWr esa ey rFkk xSl ekStwn FkhA fiRr dh FkSyh Hkjh gq;h FkhA ;wVjl [kkyh Fkk] Bhd FkkA e`R;q dk dkj.k e`R;q iwoZ vk;h gq;h pksVks ds dkj.k dksek ls gq;h gSA 'ko dk okg~; ijh{k.k %& dndkBh lkekU; Fkh nksuksa vkW[ks can Fkh 'ko ds iwjs 'kjhj esa vdMu ekStwn FkhA ckW;h vkW[k lwth gq;h Fkh eq[k can FkkA ukd ls [kwu vk jgk FkkA 'ko ds flj vkSj ckW;s gkFk dh chp dh mWxyh esa lftZdy iV~Vh ca/kh gq;h FkhA 3. P.W. 4, Mahesh Chandra Shamra, I.O. prepared site plan (Ex-Ka-3), collected evidence and after recording statements of witnesses, submitted charge sheet (Ex. Ka-2). 4. P.W. 4, Mahesh Chandra Shamra, I.O. prepared site plan (Ex-Ka-3), collected evidence and after recording statements of witnesses, submitted charge sheet (Ex. Ka-2). 4. Learned Trial Judge framed charges against the appellant on 30.5.2003, which is quoted below; Charges I, Vikrama Jeet Singh, Sessions Judge, Etah, do hereby charge you- Pappu alias Nawal Kishore, as follows; First that you, along with three others, on 10.7.2001, at about 9:00 p.m. in front of the house of complainant Mahesh Chandra, situate in Mohalla Nagla Pota, within Police Station Kotwali City, district- Etah had common intention to kill Sona Devi and Yogesh alias Bhola, and in furtherance of your said common intention, caused hurt to Yogesh aforesaid by firing shots upon him with such intention or knowledge and under such circumstances that if by that act you had caused the death of said Yogesh you would have been guilty of murder and thereby committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code within the cognizance of this Court. Secondly, that you along with said others, on the aforesaid date, time and place, in furtherance of your said common intention, caused such bodily injuries to Sona Devi aforesaid which resulted into her death on the following day during treatment and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the said charges. May 30, 2003. S/d (Vikrama Jeet Singh) Sessions Judge, Etah Charge read over and explained in Hindi to the accused who pleaded not guilty and claimed to be tried. May 30, 2003. S/d (Vikrama Jeet Singh) Sessions Judge, Etah 5. The appellant denied charges and claimed trial. 6. The prosecution, in support of its case has examined 8 witnesses. P.W. 1 Mahesh Chandra, P.W. 2 Bharat Singh, P.W. 3 Yogesh alias Bhola said to be eye-witnesses, P.W. 4 Mahesh Chandra Sharma, Investigating Officer, P.W. 5 Mahabir Prasad Gupta, S.I., P.W. 6 Dr. Yogesh Bhargava who conducted autopsy, P.W. 7 Rameshwar Dayal Shukla and P.W. 8 Rajguru are police personal who have proved police documents which were prepared during investigation. 7. We have heard Sri. Amit Tripathi, learned counsel for appellant and Sri. S.R. Pandey, learned AGA for State. 8. Yogesh Bhargava who conducted autopsy, P.W. 7 Rameshwar Dayal Shukla and P.W. 8 Rajguru are police personal who have proved police documents which were prepared during investigation. 7. We have heard Sri. Amit Tripathi, learned counsel for appellant and Sri. S.R. Pandey, learned AGA for State. 8. Learned Counsel for appellant argued that injuries caused to injured Yogesh alias Bhola are simple in nature; fire shot which hit Sona Devi-deceased was fired by some unknown assailants and the sentence is against the weight of evidence available on record. 9. On the contrary, learned AGA opposed the arguments of learned Counsel for appellant. 10. P.W. 1-Mahesh Chandra (informant) has supported the prosecution case. He stated that on the fateful night at 9.00, when his sister-in-law was sitting on chabutra of Sheelendra along with her son Yogesh alias Bhola, Dr. Panna Lal, the accused-Pappu alias Naval Kishor and two others having country made pistols in their hands came there and fired at his sister-in-law, which hit on her head and subsequent shot hit Yogesh alias Bhola on his arm and face. Receiving fire arm injury, Sona Devi fell down. He took away her to district hospital, Etah. The occurrence was witnessed by Dr. Panna Lal, Sheelendra and Tillu, in the light of petromax (handa) burning at the shop of Sheelendra. He proved check FIR (Ex. Ka-1). When, this witness was confronted with the first information report, he admitted that Pappu alias Naval Kishor fired on deceased-Sona Devi and if this fact is not written in the first information report, he cannot assign any reason thereof. He also stated that in his tahrir, he has not written that Pappu alias Naval Kishor was having country made pistol and he fired from the same. In cross-examination, he stated that prior to 10-12 minutes of the occurrence, he reached the house of victim and she was sitting in verandah. He further stated that Yogesh alias Bhola received fire arm injuries on his hand and face, but he could not disclose on which hand, he received injuries. He was medically examined at Etah hospital. Yogesh alias Bhola was having several marks on his hands. The Investigating Officer collected blood-stained and plain earth and he had put his signatures on it (Ex. Ka-4), but on Ex. Ka-4, his signatures are missing. He was medically examined at Etah hospital. Yogesh alias Bhola was having several marks on his hands. The Investigating Officer collected blood-stained and plain earth and he had put his signatures on it (Ex. Ka-4), but on Ex. Ka-4, his signatures are missing. From close scrutiny of P.W. 1, it can be said that he supported the prosecution version and he is a reliable witness. His presence on the spot and witnessing the event cannot be doubted as FIR has been lodged within 40 minutes of the occurrence. 11. P.W. 2-Bharat Singh alias Tillu is the son of deceased-Sona Devi. He stated that at about 9.00 in the night, his mother was sitting in the verandah in front of shop of Dr. Panna Lal, where accused-Pappu alias Naval Kishor along with three other assailants armed with country made pistols came there. The accused-Pappu alias Naval Kishor fired which hit Yogesh alias Bhola who was sitting near his mother. Yogesh received injuries on his face and arm. Second fire was made by other miscreants which hit his mother on head. After receiving fire arm injury, his mother fell down. He saw the occurrence in the light of Petromax (handa). He identified accused- Pappu alias Naval Kishor and his companions. On the sound of fire, he and his uncle Mahesh Chandra (PW-1), Dr. Panna Lal, Sheelendra and several other persons of the locality assembled at the scene. Accused- Pappu alias Naval Kishor and other assailants ran away towards the house of Pappu alias Naval Kishor. He and his uncle saw the occurrence and took her mother and his brother Yogesh to the hospital, and from there, they were referred to Agra hospital, where his mother died. He further stated that the injuries of fire arm(Pellets) were on the face and hand of Yogesh alias Bhola. He stated that his mother and Yogesh were examined at district hospital in the night and also in the hospital at Agra. He stated that at the time of occurrence, he and other members of family were outside the house; her sister Saroj, brother-in-law Veer Singh were sitting on the roof. This witness supported the prosecution and stated that he saw entire occurrence, in the light of petromax (handa). From a perusal of the testimony of the witness, his presence and witnessing the occurrence is established, thus, he appears to be natural and reliable. 12. This witness supported the prosecution and stated that he saw entire occurrence, in the light of petromax (handa). From a perusal of the testimony of the witness, his presence and witnessing the occurrence is established, thus, he appears to be natural and reliable. 12. P.W. 3-Yogesh alias Bhola has also supported the prosecution case. He is said to be an injured witness, as per prosecution version. Although, there is no medical report available on record, yet, he stated that he received fire arm injuries on his face and hand. Non-filing/collecting the injury report might be a negligence on the part of Investigation Agency, but this short coming cannot be interpreted that testimonies of P.W. 1 and P.W. 2 are not reliable in reference to the injuries of P.W. 3. His statement that he and his mother Sona Devi were sitting in the verandah of Sheelendra, his uncle Mahesh Chandra (PW-1) and his brother Tillu alias Bharat Singh were outside the house. This does not create any doubt that P.W. 1 and P.W. 2 did not witness the occurrence, because the site plan (Ex. Ka-3) clearly shows that house of deceased-Sona Devi is just in front of the place where the occurrence took place. From the perusal of testimonies of P.W. 1, P.W. 2 and P.W. 3, it is established that they saw the occurrence and they have narrated before the Court what they witnessed. They supported the prosecution case. They are natural and reliable witnesses of the occurrence. 13. P.W. 4-Mahesh Chandra Sharma, SHO completed the investigation and submitted charge sheet(Ex. Ka-4) under Section 302, IPC before the Court. P.W. 5 Mahabir Prasad Gupta, SI is another Investigating Officer who collected blood-stained, plain earth, prepared recovery memo and site plan. He proved relevant police papers (Ex. Ka-3, Ex. Ka-4, Ex. Ka-5 and Ex. Ka.6) as secondary evidence. 14. In his statement, P.W. 5 stated that on interrogation, informant-Mahesh Chandra never informed that shot fired by Pappu hit on the head of deceased and shots fired by other assailants hit Yogesh alias Bhola. Whereas, Mahesh Chandra stated to him that Pappu along with three unknown assailants came out from the shop of Panna Lal and they fired. The first fire hit on the arm and face of Yogesh alias Bhola and second shot hit Sona Devi-deceased on her head and third shot missed the target. Whereas, Mahesh Chandra stated to him that Pappu along with three unknown assailants came out from the shop of Panna Lal and they fired. The first fire hit on the arm and face of Yogesh alias Bhola and second shot hit Sona Devi-deceased on her head and third shot missed the target. He stated that Mahesh Chandra-informant never said that Pappu fired. He investigated the matter only on 10.7.2001; thereafter, investigation was transferred. 15. P.W. 6 Dr. Yogesh Bhargava conducted autopsy of the deceased- Sona Devi, prepared report (Ex. Ka-7) and proved the same. 16. P.W. 7 Rameshwar Dayal Shukla, S.I. conducted inquest of the body of deceased Sona Devi, prepared relevant police papers i.e. challan lash, photo lash, letters to R.I. and CMO. He proved inquest report (Ex. Ka-8). 17. P.W. 8 Rajguru is also a police Inspector, who also conducted investigation. He visited place of occurrence, recorded statements of witnesses and stated that after his transfer, investigation was completed by other Investigating Officer. 18. We have carefully gone through the testimonies of ocular witnesses and from conjoint appraisal of their statements, the guilt of the accused-appellant is established, in the present case. 19. On closer scrutiny of the evidence of the prosecution witnesses for conviction of the appellant under Section 307/34, IPC, we feel, it is not safe to rely upon the evidence in respect to injuries caused to (P.W. 3)- injured-Yogesh alias Bhola. No doubt, prosecution has proved presence of the injured on the spot, but the fact that he received injuries, cannot be believed to arrive at a conclusion that he received injuries, in absence of injury report/medical examination, which in the present case is not available on record. One of the cardinal principles which has always to be kept in mind is that in our system of administration of criminal justice, an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by producing evidence as may show him to be guilty of the offence under which, he is charged. This initial burden of proving the guilt is certainly on the prosecution and unless it relieves of that burden, the Court cannot record a finding of guilt against him. This initial burden of proving the guilt is certainly on the prosecution and unless it relieves of that burden, the Court cannot record a finding of guilt against him. Another golden thread which runs through the web of this administration of criminal justice is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. The benefit of doubt must be given to the accused and not to the prosecution. While appreciating the evidence, it is the duty of the Courts to appreciate the same minutely and carefully. 20. For the purpose of Section 307, IPC, what is material is the intention or knowledge not the consequence of the actual act done for the purpose of carrying out the intention. The question that emerges for determination in the present case is that whether the prosecution has succeeded in discharging the burden of proving the necessary intention or knowledge as specified in Section 300, IPC. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances. The ocular evidence, in so far it relates to the injury said to have been caused to injured -Yogesh alias Bhola suffers from material discrepancy, as it was said that injured was medically treated firstly at Etah and then in the hospital at Agra also, but no chitthi mazroobi, medical prescription, injury report, x-ray or any papers showing the injury has been produced before the Court, so as even to infer that so called injured- Yogesh alias Bhola actually received any kind of injury or not. In the circumstances of the present case, in absence of injury report, the prosecution has not been able to fully and cogently establish its case. We may also consider in the present case, whether the injury was of a grievous nature. It may be mentioned at this stage that as there is no injury report/medical examination report available on record. We are unable to assess the nature of injury or the nature of weapon used for infliction of injury. We may also consider in the present case, whether the injury was of a grievous nature. It may be mentioned at this stage that as there is no injury report/medical examination report available on record. We are unable to assess the nature of injury or the nature of weapon used for infliction of injury. Although the eye witnesses stated that P.W. 3 Yogesh alias Bhola received firearm injuries on his arms and face and he was medically examined at Etah and then in the hospital at Agra, but the facts remain that no such medical report/injury report is available on record, nor produced before the Trial Court during trial thus, conviction of the appellant under Section 307, IPC, in absence of medical evidence cannot be sustained. 21. The argument of learned Counsel for the appellant that eye-witnesses, in the case are relatives and thus, they are interested witnesses, has no substance. 22. 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 actual culprit and implicate the accused falsely. 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 trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is not a ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. So far as the worth of the evidence of a relative is concerned, their Lordships of the Supreme Court reiterated the same principles in Ashok Kumar Chaudhary v. State of Bihar, (2008) 12 SCC 173 : ( AIR 2008 SC 2436 ). In the case of Namdeo v. State of Maharashtra, 2007 AIR SCW 1835, it has been observed that a close relative cannot be termed as 'interested' witness. 23. Thus, on the totality of the facts and circumstances of the present case discussed above, we are persuaded to accept that the accused-appellant in furtherance of their common intention committed the said offence by firing at Sona Devi, who died out of the injuries caused by firearm. 23. Thus, on the totality of the facts and circumstances of the present case discussed above, we are persuaded to accept that the accused-appellant in furtherance of their common intention committed the said offence by firing at Sona Devi, who died out of the injuries caused by firearm. The prosecution case is supported by ocular evidence duly corroborated by medical evidence, which left no room for doubt that the appellant-accused was actively involved in the commission of the offence. The judgment of learned Trial Judge whose pregnability is under challenge, cannot be disturbed as the same is well discussed, based on proper appreciation of evidence and thus, we concur with the finding of facts recorded by Trial Judge and confirm the same. Conviction under Section 302/34, IPC is upheld, whereas the conviction and sentence awarded to the appellant by learned Trial Judge under Section 307/34, IPC is hereby set aside, for the reasons assigned above. 24. The appeal is allowed in part. The conviction/sentence under Section 307/34, I.P.C. is set aside and conviction/sentence under Section 302/34 is maintained. 25. The appellant is in jail. Registry is directed to transmit the Trial Court's record for compliance of the judgment, in accordance with law. Compliance report be submitted within a month.