Kapil Dev & Another vs State Of U.P.
2012 Latest Caselaw 5108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 53
 

 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6265 of 2009
 

 
Petitioner :- Kapil Dev & Another
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- R.B. Singh,Lav Srivastava,Raghuraj Kishore
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Arun Tandon, J.

Hon'ble Ramesh Sinha, J.

Heard Shri Dilip Kumar, Shri Vivek Kumar Singh & Shri Pramod Bharadwaj Advocates on behalf of the appellants. A.G.A. on behalf of the prosecution and Shri Raghuraj Kishore, Advocate on behalf of the complainant.

This criminal appeal is directed against the judgment and order of the Additional District & Sessions Judge, Baghpat in Sessions Trial No. 229 of 2004 decided on 01.10.2009 arising out of Case Crime No. 13 of 2004 under Section 302/307 I.P.C., P.S. Ami Nagar Sarai, District Baghpat. The appellants Kapil Dev and Udham Singh have been convicted of an offence under Section 302/307 IPC. They have been sentenced with life imprisonment and fine of Rs.25,000/- each under Section 302 I.P.C. and imprisonment of 7 years with fine of Rs.5000/- each under Section 307 I.P.C. Under the same judgment, Sessions Trial No. 230 of 2004 has also been decided. Udham Singh has been convicted of an offence under Section 25 Arms Act and has been sentenced to one year imprisonment.

The facts borne out from the records of this appeal are as follows :

A First Information Report was lodged on 13.02.2004 at 7:00 p.m. with Police Station Ami Nagar Sarai, District Baghpat by one Ravindra Singh. It was informed that on 13.02.2004 at around 5:30 p.m. when the informant along with Ram Pal and Dharam Pal had gone to see off the son of Brahma Pal Singh namely Rajeev at the bus stand of the village Putti, P.S. Binauli. While they were standing, a request was made to Rajeev to fetch a bundle of Bidi from the shop situate at some distance from the place where the informant and other were standing. As soon as Rajeev, who was aged about 16 years reached the shop for purchase of Bidi, he was surrounded by the accused Kapil Dev and Raj Dev, sons of Jabar Singh and one Chandveer. They stated that Rajeev was providing security to Ravindra, he shall be taught a lesson for providing such security. After such statement Kapil Dev and Raj Dev caught hold of Rajeev and Udham Singh fired from his country-made pistol from very close range. The bullet hit Rajeev on hip joint. The informant and others rushed towards the bidi shop but Chandveer threatened them by firing in the air. The informant took shelter behind the wall of the shop. The assailants left the place. Rajeev was thereafter brought to the police station where F.I.R. was lodged under Section 307 I.P.C.

Rajeev was taken to the District Hospital, Baghpat. The doctor referred him to the Hospital at Shahdara, Delhi. While he was being taken to Shahdara, he expired. Information of death was communicated to the police station by phone at around at 9 O' Clock in the evening. On such information being received, the offence was converted into 302 I.P.C. A G.D. entry was made for the purpose. The inquest report of the dead body was prepared at 9:10 hrs. in the morning on 14.02.2004. The body was sent for postmortem to the District Hospital, Baghpat. The postmortem was performed at around 1:00 p.m. The anti-mortem injuries suffered by Rajeev as per the report is as follows :

?Chot No. 1- Ek Agneyastra Ka Goli Ghusne Ka Ghav Pet Per Bayin Taraf Bahar Ki Oar 2 c.m. x 1.5 c.m. x Cavity Jisse Ormruntus Bahar Aa Raha Tha. Ghav Mein Charon Oar 5 c.m. x 4 c.m. Kshetraphal Mein Kalima Maujood Thi. Yeh Ghav Bayen Nippil Se 20 c.m. Neeche 5:00 Baje Ki Awastha Mein Tha Tatha Nabhi Se 16 c.m. Ki Doori Per 2 Baje Ki Awastha Mein Tha. Ek Bullet Dahini Taraf Peeth Mans Peshi Se Dhasi Hui Baramad Hui Jo Skepla Se 4 c.m. Neeche Thi.?

According to the report of the doctor who had performed the postmortem, cause of death was excess bleeding and shock due to gun shot injury suffered by the deceased. The postmortem report further discloses that one bullet was recovered from the back of the chest of deceased.

The informant Ravinder is stated to have been murdered on 04.08.2004. Similarly, it is also recorded that accused Chandveer who is stated to have fired in the air to stop the informant and other persons from proceeding towards Rajeev at the relevant time was also murdered during the pendency of the trial.

After the investigation was completed a charge-sheet under Sections 302, 307 I.P.C. against the accused and one under Section 25 of the Arms Act against Udham Singh alone was filed. The offence being triable by Sessions Court was referred accordingly. Under the order dated 03.08.2006 charges were framed against the accused. Ram Pal, the eyewitness was examined as PW-1. He disclosed the factum of death of Rajeev but also proved the information dated 13.02.2004 supplied to the police about the incident of firing upon Rajeev. He also reiterated what had been stated in the F.I.R. and pointed out that Rajeev was caught hold by Raj Dev and Kapil Dev and he was fired upon by Udham Singh. He also disclosed that Rajeev was examined at District Hospital and was referred to hospital at Shahdara, Delhi. Before they could reach the hospital at Delhi, Rajeev expired near village Loni.

The father of the deceased, Brahmapal who was also an eye-witness of the incident was examined as PW-2. Brahmapal also narrated the incident as was disclosed in the F.I.R. It was stated by him that Rajeev was caught hold by Raj Dev and Kapil Dev when he had gone to fetch the bundle of Bidi on his asking. Thereafter he was fired upon by Udham Singh from close range. He also narrated that Rajeev was brought to the police station in injured state and F.I.R. in that regard was lodged.

Sub Inspector, Ram Vilas Verma who had prepared the inquest report and the chik F.I.R. under Section 307 and thereafter converted the case under Section 302 on receiving the information of death of Rajeev was examined as PW-3.

The Investigating Officer, S.I. Shri R.N.Singh Yadav was examined as PW-4. He proved the search memo prepared at the residence of the accused and the recovery made which was recorded in his own writing and marked as Ka-7. He also proved the entry made in the Case Diary as well as copy of the postmortem report received. He also stated that site plan was prepared under his own handwriting and he proved the same. The firearm used by Udham Singh was also recovered. The recovered firearm, a country-made pistol and an empty cartridge of 315 bore kept in a plastic bag was proved by him. He also proved the charge-sheet which was filed by him after investigation. The Constable Mohd. Abbas was examined as PW-5 who proved the G.D. Entries recorded in his handwriting. The doctor who had performed the postmortem namely Dr. S.K.Tyagi was examined as PW-6. He proved the postmortem report. He specifically stated that the cause of death was due to excess bleeding and shock as a result of single gun shot injury suffered by the deceased. He further stated that the injury could be 3/4th of a day prior to the time of postmortem. In his statement it is further stated that there was blackening around the point of entry of the bullet which was recovered from the muscles at the back of the chest. It was his opinion that if the gun shot had been fired from the firearm in contact with the skin then scrotching takes place and if the shot is fired from a distance of nearly 6 feet tattooing takes place. He stated that there were no marks of scrotching and tattooing on the gun shot wound of deceased Rajeev.

S.I. Mewa Ram who was one of the witness to the recovery of the firearm recovered on the pointing out of Udham Singh was examined as PW-7 and he proved the factum of the recovery and the report prepared.

The statement of the accused was recorded under Section 313 Cr.P.C. They stated that they have been falsely implicated because of old standing enmity between the Ravindra and the accused. It was stated that the father of the accused had been done to death by the son of Dharam Pal and the brother of Ram Pal. For the purpose of bringing undue pressure upon the accused that they had been falsely implicated in the case.

On behalf of the accused eight documents were filed for establishing that the informant and his brother were involved in criminal cases pertaining to the murder of their father as well as in other cases.

The Sessions Court, after considering the evidence brought on record, held that the prosecution has been able to establish the charge against accused beyond reasonable doubt, therefore, proceeded to convict both the accused of the offence under Sections 302/307 I.P.C. Both the accused were imprisoned with life imprisonment and fine of Rs.25,000/- each under Section 302 I.P.C. and imprisonment of 7 years with fine of Rs.5000/- each under Section 307 I.P.C. Udham Singh was also convicted of an offence under Section 25 Arms Act and has been sentenced to one year imprisonment. In addition thereto a compensation of RS.50,000/- has also been awarded to the father of the deceased Rajeev.

Challenging the order so passed by the Sessions Court, Shri Dilip Kumar, Advocate counsel for the appellant contended that the evidence of PW-1 and PW-2 were highly partisan. Firstly, because PW-1 was the brother of the informant and was facing trial for murder of the father of the accused person. PW-2 is the father of the deceased. It is, therefore, his case that their evidence should have been considered by the Trial Court with caution. With reference to the following facts he submits that there are serious discrepancies in the evidence of the aforesaid two witnesses and, therefore, should have been rejected being interested witnesses. He explains that PW-1 and PW-2 in their statement under Section 161 Cr.P.C. had stated before the Investigating Officer that Kapil Dev and Raj Dev had caught hold of Rajeev by waist (koli bhar li). He submits that in such a situation it would be practically impossible for any gun shot injury being caused to Rajeev by country made pistol at the hip joint. Even otherwise it is beyond comprehension of any reasonable man that one of the accused would fire upon Rajeev in such a situation as it could have resulted in injury to his own companion. It is then submitted that both in the F.I.R. as well as in their testimony on oath the informant and the witnesses had stated that the gun shot was fired upon by Udham Singh from a very close range (Sata Ke) i.e. practically touching the skin of the deceased but from the postmortem report of the deceased it was apparent that no scrotching or tatooting was found. He submits that the prosecution story as narrated in the F.I.R. sought to be supported by the statements of the eye witnesses, PW-1 and PW-2 was not corroborated by medical evidence. He then submits that the father of the deceased in his testimony had stated that he did not know the appellants from before. Therefore, the accused could not have been named in the F.I.R. Their names have been falsely implicated by the informant as Udham Singh was an eye-witness in the murder trial of the father of the accused wherein informant and his brother were the named accused. He lastly points out that admittedly there were other persons present at the time of the incident but no independent witness was present in support of his case. He submits that from the statement of PW-5, it is apparently clear that the date and time when the information of the F.I.R. was forwarded to the concerned Magistrate has not been mentioned nor it is known as to when the information actually reached the Magistrate. Similarly, there is no date and time mentioned about the information of the F.I.R. being sent to the Circle Officer and that there was over-writing in the chik report.

Shri Dilip Kumar further suggested that the father of the deceased in his testimony had admitted that there was no enmity between his son and the accused. Therefore, according to him there is complete absence of motive on the part of the accused. On the contrary, there is every likelihood of the accused being falsely implicated by the informant because of his being involved in the murder of the father of the accused. According to him such false implication is for the purposes of bringing undue pressure upon the accused to compromise the criminal trial qua the father of the appellant having been done to death by the informant and his brother. It is also stated that once it was the case of the prosecution that the firearm used had been recovered on the pointing out of Udham Singh and the bullet had been recovered from the body of the deceased, it was obligatory upon the prosecution have sent the same for the opinion of ballistic expert. Since the prosecution had failed to do so, the same would be fatal in the facts of the case and the prosecution story had to be disbelieved.

So far as the conviction of Udham Singh under Section 25 of the Arms Act is concerned, it is stated that the prosecution had not put any question in that regard under Section 313 Cr.P.C., therefore, there had been a violation of Section 313 (i) Cr.P.C.

Counsel for the prosecution Shri Mahendra Singh Yadav submitted that the incident had taken in broad day light at 5:30 p.m. First Information Report is prompt and had been lodged at 7:30 p.m. on the same day. At the relevant time Rajeev was injured. He submits that two eye-witnesses namely PW-1 and PW-2 had specifically narrated the entire incident, no material discrepancies could be highlighted in that regard. According to the witnesses only one gun shot was fired upon the deceased by Udham Singh which fact was specifically corroborated by the medical report. He also submits that the prosecution in the facts of the case has proved the guilt of the accused beyond reasonable doubt and the discrepancies and contradiction in the statement of the eyewitnesses and other witnesses as pointed out by the counsel for the appellants are trivial in nature. It is his case that the evidence was recorded in the year 2007-8 i.e. after nearly three years of the alleged incident. There are bound to be memory lapses, therefore, minor contradictions be ignored. He lastly submits that there is no good reason for this Court to interfere with the finding of the guilt as recorded by the Trial Court, in the facts of the case.

Shri Raguraj Kishore, counsel for the complainant supports, what has been stated by the A.G.A. It is his case that there is no contradictions in the statement of eye-witnesses as has been pointed out by the counsel for the appellants qua catching hold of the deceased Rajeev by Kapil Dev and Raj Dev. He submits that the statement of a witness has to be read as a whole. He further explains that any lapse on the part of the Investigating Officer qua not sending of the recovered pistol and the cartridge from the body of the deceased may at best be an error on the part of Investigating Officer. But it cannot be said to be fatal to the case of the prosecution. He also submits that the First Information Report is prompt, the eye witness account is corroborated by medical evidence, therefore, this Court may not interfere with the judgment of the Trial Court.

We have heard heard learned counsel for the parties and have examined the records of the present Criminal Appeal.

Before adverting to the contentions raised on behalf of the appellants, it is worthwhile to mention that the incident had taken place at 5:30 p.m. in the month of February, 2004. The First Information was lodged within an ½ hour of the incident. Although the F.I.R. is not a substantive piece of evidence yet its promptness rules out the possibility of consultation and deliberations or introduction of unnecessary facts. The story as narrated in the F.I.R. was corroborated by the statement of the eyewitnesses namely PW-1 Ram Pal as well as PW-2 Brahma Pal (father of the victim) which was supported by the medical evidence. In view of the aforesaid the prosecution had established its case.

Now turning to the plea of absence of motive as contended on behalf of the counsel for the appellants, suffice is to refer to the latest judgment of the Apex Court in the case of Lokesh Shivakumar vs. State of Karnataka reported in 2012 (3) SCC, 196 wherein it has been held that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, issue of motive practically loses all relevance. However, in the instant case the deceased Rajeev was living with the informant Ravinder Singh being the son of his brother-in-law and has been disclosed that the deceased was protecting the informant Ravinder who is an accused in the murder case of father of appellants which was disliked by the appellants and, therefore, he was shot at. Thus, it cannot be said that there was no motive on the part of accused to commit the murder of the deceased.

The next plea raised on behalf of the appellants qua the discrepancies in the testimony of PW-1 and PW-2, who are stated to be interested and partisan witnesses, specifically with reference to the manner in which Kapil Dev and Raj Dev are stated to have caught hold of Rajeev, the deceased before he was fired upon. We have examined the F.I.R. as well as the statement of PW-1 and PW-2 as well as the statement Investigating Officer on the issue of holding of Rajeev, the deceased by Kapil Dev and Raj Dev. PW-1 in his statement before the Trial Court had specifically stated that he never made any statement under Section 161 Cr.P.C. before the Investigating Officer to the effect that deceased Rajeev was caught hold of by Kapil Dev and Raj Dev by waist and if any such fact had been recorded by the Investigating Officer he cannot explain.

Similarly, PW-2 the father of the deceased had stated in his testimony that the deceased was caught hold by Kapil Dev and Raj Dev. They were at a distance of 4 to 5? inches from the body of the deceased.

It is in this background that the statement of PW-1 and PW-2 has to be read as a whole. The Apex Court has repeatedly held that that statement of witnesses are not to be picked up in bits and pieces for pointing out the discrepancies and contradictions. The statement has to be read as a whole. On examining the entire statement of PW-1 and PW-2, we find that the discrepancies and contradictions in the matter of catching hold of Rajeev by Kapil Dev and Raj Dev is too trivial and does not in any way effect the prosecution case.

Now turning to the issue that it was stated in the F.I.R. that gun shot was fired from very close range (Sata Ke) upon the deceased by Udham Singh whereas from the medical report it was established that only blackening was present around the gun shot wound.

We have gone through the statement of PW-1 and PW-2. It had been stated that gun shot was fired from very close range. The use of the word (Sata Ke) in the statement cannot be read to mean that the barrel of the country-made pistol was touching the skin of the deceased. The word (Sata Ke) only signifies the close range as is apparent from the statement of PW-2.

It may be recorded that in the F.I.R. it was specifically mentioned that only one gun shot was fired and which fact was also corroborated by the statement of PW-1 and PW-2 in their testimony and from the medical report it was established that the victim had suffered only one gun shot injury.

We may also refer to the judgment of the Apex Court in the case of Sampath Kumar vs. Inspector of Police, Krishnagiri reported in (2012) 4 SCC, 124 wherein it has been held that minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person. Discrepancy in testimony of a witness caused by lapse of memory are acceptable. We find that the evidence of PW-1 was recorded between 09.02.2007 to 01.06.2007 while that of PW-2 was recorded on 02.011.2007 when the incident had occurred in the month of February, 2004. The argument of the learned counsel for the appellant has to be rejected.

Counsel for the appellants had contended that since the firearm had been recovered on the pointing out of the accused Udham Singh and the bullet was recovery from the body of the deceased, it was necessary for the prosecution to get it examined in the Forensic Lab so that it could be ascertained as to whether the bullet recovered from the body of the deceased had been fired from the recovered firearm or not.

In our opinion if the Investigating Officer has not forwarded the recovered country-made pistol and the bullet to the Forensic Lab for examination, the prosecution story shall not fail. It would at best be a lapse on the part of the Investigating Officer. For the purpose reference may be had to paragraphs 46 to 49 of the judgment of the Apex Court in the case of Shyamal Ghosh vs. State of West Bengal reported in (2012) 7 SCC, 649 wherein it has been held that every variation may not be enough to adversely affect the case of prosecution. The Court must examine the statement of a witness in its entirety along with the statement of other witnesses in order to arrive at a rational conclusion. Court has to see whether variations are material and affect prosecution case substantially. Similarly in paragraph 58 of the said judgment it has been explained that if the Investigating Officer failed to send the bloodstained gunny bags containing part of the body of victim and other recovered weapons to FSL, to take photographs and to prepare site plan thereof, etc. then these discrepancies/lapses are of not immaterial consequence.

In the facts and circumstances of the present case, after going through the entire material on record and the evidence of PW-1 and PW-2, the two eyewitnesses of the incident, we find that there is nothing which could lead us to discard their testimony. The Trial Court has rightly convicted and sentenced the appellants for committing murder of deceased Rajeev. Thus, we uphold the judgment and the order passed by the Trial Court.

The appellant Kapil Dev is on bail. His bail is cancelled. He shall be taken into custody and confined to prison to serve out the sentence as awarded by the Trial Court. The appellant Udham Singh is already in jail. He shall also serve out the sentence as awarded by the Trial Court.

The appeal lacks merit and is accordingly dismissed.

Dated :15.10.2012

VR/