Kamta & Others vs State Of U.P.
2012 Latest Caselaw 5240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 580 of 2002
 
Petitioner :- Kamta & Others
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Pratap Vikram Singh,J.S. Kashyap,Som Prakash Pandey,Sushil Tiwari
 
Respondent Counsel :- D.G.A.,Prem Chandra
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

This appeal has been filed by three appellants Kamta, Shiv Prasad and Shiv Das against the judgement of the Sessions Court dated 6.2.02 passed in Sessions Trial No.390/99 arising out of Case Crime No.75/99, under Sections 302/34,323/34, 504 IPC, PS Marka, District Banda.

The appellants have been found guilty for an offence under Sections 302/34 IPC and have been convicted with life imprisonment and fine of Rs.1000/-each. In case of default, to undergo additional six months simple imprisonment. Appellant Shiv Das has also been convicted for an offence under Section 323 IPC and has been sentenced to  undergo six months rigorous imprisonment. The appellants have been acquitted for the offence under Sections 504,506 IPC.

Under the same judgment, Sessions Trial No.392/99 arising out of Case Crime No.80/99 under Section 25 of the Arms Act against Shiv Prasad has also been decided and he has been acquitted of the said offence.

The case of the prosecution as reflected from the records is as follows:-

On 9.8.99 at 7.30 AM Smt.Butua, mother of the deceased Ram Murat got a first information report  lodged with the police station Marka, District Banda. In the first information report, it was stated that her son Ram Murat had gone for easing himself in the early morning of 9.8.99 near the field of Nanhu Chikwa. She also  followed her son for the same purpose. Ram Murat and the informant were sitting at some distance. The land was uneven. Kamta, s/o Chunua Kumhar, Shiv Prasad, s/o Rajua Arakh,r/o Augasi and Shiv Das, s/o Ram Kumar Kumhar, r/o Andhav, PS Marka arrived at the scene. Shiv Prasad and Kamta were carrying country made pistol in their hands, while Shiv Das was armed with a lathi. On seeing the aforesaid persons, Ram Murat stood up. Kamta exhorted and asked his companions to kill Ram Murat. Immediately thereafter Shiv Prasad and Kamta fired with the firearms. Ram Murat fell down being hit by gun shot and started palpitating. The informant made an attempt to save her child. Shiv Das abused her and hit her with lathi. The informant started shouting and hearing her shouts, villagers ran towards the site. The accused seeing the villagers fled away from the place brandishing their weapons. The informant reached the place where her son was lying and could see that he has been hit on his chest and on his temple. The victim expired on the spot. She came to inform the police of the incident leaving her child at the site. This information was reduced in writing on the dictates of the informant by one Bade Ram, son of Shivraj.

On the basis of the said information, Case Crime No.75/99 under Sections 302,323,504, read with Section 34 IPC was registered at the police station. Inquest report of the dead body was prepared on 9.8.99 at 8.30 PM. The post mortem was performed at the District Hospital, Banda at 3.15 PM on 10.8.99.

The ante mortem injuries as recorded in the post mortem report were as follows:-

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1- pksV ua0 1 vfXu vkL= dk izos'k ?kko 3 lseh0 x 1&[email protected] lseh0 [kksiM+h esa ck;h rjQ ck,sa dku ls 3 lseh0 mij o ck;h vka[k ds ckgjh fdukjs ls 4 lseh mij

?kko ds ekjftUl buoVsZM Fks o ,czsMsM dkyj ekStwn FkkA iSjkbVy cksu esa QzSDpj Fkk o ijQksjsVsM FkhA ,d /kkrq dh cqysV dzkfu;y dsfoVh ls cjken gq;h FkhA

2- pksV ua02 vkXus; vkL= dk izos'k ?kko 3 lseh x 2 lseh Nkrh esa nkfgus rjQ mij ds fgLls esa nkfgus fuiy ls 11 lseh mij 1 cts dh iksth'ku esa ?kko ds fdukjs vUnj dh rjQ Fks o ,cszMsM dkyj ekStwn FkkA yxHkx 2 fyVj [kwu psLV dsfoVh esa feyk o ,d cM+s vkdkj dh /kkrq dh xksyh psLV dsfoVh ls cjken gqbZ FkhA g`n; dk jkbV ,fjdy ijQksjsVsM FkkA

3- pksV ua03 vkXus;vL= ds cgqr lkjs izos'k ?kko 30 lseh x 20 lseh ds {ks=Qy esa ,aVhfj;j ,CMksfeuy oky jkbZV lkbZM vkQ fn ,aVhfj;j ,CMksfeuy oky ij ekStwn FksA e/; ykbu ls nkfgus ukfHk ds mij uhpsA ?kko dk {ks=Qy 0-5 lseh x 0-2 lseh xgjkbZ esa ely rd xgjh 6 isysV~l vkQ Leky lkbZt 6 ?kkoksa ls izkIr gq;hA nks ?kkoksa ds chp dh de ls de nwjh 1 lseh o vf/kd ls vf/kd nwjh 6 lseh FkhA

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The Doctor performing the post mortem specifically opined that the death has been caused due to excess bleeding and shock because of gun shot injuries suffered by the victim. He also deposed that the time of death would be around 6.30 AM in the morning on 9.8.99.

The informant who also suffered injury from lathi blows was medically examined by the Doctor O.P. Gagil, Senior Psychiatric on 9.8.99. In his injury report, the following injuries were recorded:-

1- dUV;wtu 1 lseh x 3 lseh ck;h vij vkeZ ds ihNs rFkk cxyh ls ck;s da/ks dh fVi ds 5 lseh uhps tks fd yky jax dk FkkA

2- dUV;wtu 3 lseh x 2 lseh yky jax jkbZV vij fyEc tks da/ks ls 6 lseh uhps gSA

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pksV dh izd`fr& nksuks pksVs lk/kkj.k FkhA

M~;wjs'ku & nksuksa pksVksa dh vof/k rktk FkhA

The Doctor clearly opined that the said injuries were fresh and could have been caused around 6.30 AM on 9.8.99 by a lathi. It was recorded that the injured witness was bought to the hospital by Constable  561, Ram Kishore Dubey along with a letter for medical examination.

After the investigation of the crime, charge sheet was filed before the Magistrate concerned on 28.10.99 under Sections 302,323,504/34 IPC against all the three accused. A separate charge sheet under Section 25 Arms Act was filed against Shiv Prasad on 4.9.99. Since the offence was triable by the Sessions Court, the same was committed to the Sessions Court vide order dated 8.12.99 of the Chief Judicial Magistrate. Charges were framed by the Sessions Court on 18.1.2000.

Butua the eye witness, mother of the deceased and the informant was examined as PW1. She in her testimony narrated the entire incident as took place on 9.8.99. It was also stated by her that in fact three injuries had been suffered by the victim- one in the chest, the other in the temple and the third one in the abdomen. It was also specifically stated that three gunshots had been fired upon- two by Shiv Prasad and one by Kamta from country made pistol. She has also specifically stated that when she made an attempt to save her child, she was inflicted two lathi blows by Shiv Das.

PW2 Dashrath, brother of the deceased in her testimony disclosed the details of the enmity between the family of the deceased and the accused. Reference was made to a dispute of landed property, which was pending in the court of law.

PW3 Bade Ram who wrote the first information report was examined as PW3. However, he turned hostile.

Dr. Keshav Gupta who had performed the post mortem of the deceased was examined as PW4. He proved the post mortem report and the injuries as noted thereunder. He also specifically stated that the injuries have been caused by gunshot and in all likelihood in the morning around 6.30 AM on 9.8.99. He clearly opined that death was caused due to excess bleeding and shock as a result of gunshot injuries, which were fatal.

Dr. O.P. Gagil, PW5, who had examined the informant Smt.Butua, proved his medical report and categorically stated that the injuries had been caused to the informant at around 6 AM on 9.8.99 and could be by blow of lathies.

Sub-Inspector R.K. Upadhyay who was the Investigating Officer of Case Crime No.75/99, under Sections 3032,504,323/34 IPC was examined as PW6. He proved the GD entries, the site plan prepared by him as well as the inquest report and charge sheet.

Constable Chatrapal Singh who was one of the witnesses of the recovery of the country made pistol on the pointing out of Shiv Prasad was examined as PW7.

Head Constable Sant Ram PW8 proved the Chik FIR of Case Crime No.75/99, under Sections 302,323,504,34 IPC.

Constable Ranjit Prasad was examined as PW9 who proved the chik FIR of Case Crime No.80/99 under Section 25 Arms Act.

Sub-Inspector Rajendra Singh who was the Investigating Officer of Case Crime No.80/99 under Section 25 Arms Act was examined as PW10.

The documents produced by the prosecution were marked as Exhibit Ka1 to Ka 25.

The accused were examined under Section 313 Cr.P.C.. They denied the offence alleged and stated that they have been falsely implicated.

The defence produced Ganga Prasad said to be a co-employee along with Kamta, the accused as DW1 for establishing that on the relevant date, Kamta was actually present at Kanpur in course of his employment in a private concern. In support thereof, he produced the attendance register marked as Exhibit Kha1.

Accused also produced the certified copy of the first information report after obtaining the same from the court of Special Judge ( E.C.Act) in ST no.510/95, copy of the charge sheet in Case Crime No.127/95 under Sections 302,307,201 IPC as well as in ST No.510/95, copy of the order dated 3.2.10 passed in Case No.1491/99, certified copy of the order dated 29.11.99 passed in Sessions Trial No.31/90, copy of the bail order of the Hon'ble High Court passed in Misc. Case No.770/2000, dated 19.5.2000.

The trial court after examining the evidence brought on record and after considering the submissions made by parties vide judgement and order dated 6.2.2002 held that the accused were guilty of the offence under Sections 302/34 IPC and accused Shiv Das was also found guilty under Section 323 IPC and accordingly sentenced them as noted above.

So far ST No.392/99, under Section 25 Arms Act is concerned, the trial court found that the prosecution has not been able to establish the offence by any cogent evidence and has, therefore, acquitted Shiv Prasad in the aforesaid case.

Challenging the order passed by the Sessions Court in ST No.390/99, counsel for the appellants no.1 and 2, Kamta and Shiv Prasad, the amicus curiae Sri Sunil Singh, Advocate and Sri G.P. Dixit, Advocate on behalf of appellant no.3 Shivdas contended before us that the mother of the deceased was the only eye witness. She was an interested and chance witness. Her evidence has to be judged with caution and from the material discrepancies as pointed out, it is their case that her evidence was not truthful and, therefore, the prosecution cannot be said to have established its case beyond all reasonable doubts.

He explained that in the first information report only two injuries were pointed out by the informant to have been suffered by the victim Ram Surat- one in the temple and the other in the chest. There was no mention of the injury suffered by the victim in the abdomen. It is only by way of improvement that in her testimony she has referred to one more injury in the abdomen for explaining the post mortem report which reflected that three gunshot injuries had been suffered by the deceased.

He then contends that in her testimony the mother Butua had admitted that she did not have a good eye sight and she could see upto a distance of 20-25 feet. From the site plan as prepared by the Investigating Officer, it is apparent that the distance between the mother and the place where her son Ram Surat is said to have been fired upon was 40 meters, and therefore, in all likelihood, she could not have seen the assailants nor could have identified them. He further submits that in the first information report as well as in the testimony of PW1, there is absolutely no averment qua Shiv Prasad having reloaded his firearm so as to inflict the second gunshot injury. These material discrepancies in the statement of the PW1 and the injuries actually suffered by the victim falsify the entire case of the prosecution.

He then explains that from the testimony of PW1, it is apparent that the injury caused on the temple and the one caused in the abdomen of the victim had been inflicted by Shiv Prasad, which according to him is an impossibility inasmuch as the injuries suffered in the temple was from a bullet which was recovered during post mortem, while the injury inflicted in the abdomen was from pellets. It is his case that same firearm cannot be used to fire bullet and a cartridge which contains pellets at the same time. He further contended that the first information report was ante timed and had been recorded on the dictates of the Investigating Officer. For the purpose, he refers to the statement of PW3( who turned hostile) that the first information report was recorded on the dictates of the Investigating Officer. Even otherwise from the last line of the first information report wherein the scribe has recorded his caste,it can be safely inferred that it was recorded on the asking of the Investigating Officer.

He points out that PW1 initially stated in cross examination that the inquest was prepared at Ramza Dera, while latter he disclosed that the inquest report was prepared at the site where the deceased Ram Murat was lying after being fired upon. He also points out that the evidence of PW1 is not trustworthy inasmuch as she in her statement had stated that she was dragged only 15-20 feet in the field which contained pointed roots of Arhar which had been cut away, yet no lacerations were noticed by the Doctor on her medical examination on 9.8.99.

It is his case that the person who could have inflicted injuries upon Ram Murat was Dashrath inasmuch as during the period, Dashrath was in jail, a child is said to have born to his wife through Ram Murat.

Finally it was contended that if there was doubt with regard to the gunshot injuries inflicted upon the deceased on the temple and in the abdomen being from the same country made pistol, the court should have obtained the opinion of the ballistics expert and having failed to do so, benefit of doubt must accrue in favour of the accused.

Sri G.P.Dixit on behalf of the appellant no.3 contended that the injuries on the arm of the informant Butua had been caused because of her having fallen on the ground repeatedly and for the purpose reference has been made to the statement of the Doctor who examined PW1 and as per his opinion the said injuries could have been caused by falling on the ground.

He then contended t hat it was practically impossible that the woman who was dragged in a field which had pointed roots of Arhar did not suffer lacerated wounds despite such dragging having been for more than 15-20 feet. He therefore submits that the entire story of the prosecution is nothing but falsehood.

According to Sri Dixit, so far the appellant no.3 Shivdas is concerned, the only role assigned to him was of assaulting Butua by lathi,therefore, in view of judgment of the apex court in the case of Vithal Laxman Chalawadi Vs. State of Karnataka 2010-SCALE- 11-65 para 9, he could not be convicted for an offence under Section 302 IPC. He submits that there is no evidence on record that Shivdas had any common intention with the other co-accused Kamta and Shiv Prasad to murder Ram Murat. Therefore, offence under Section 302 IPC read with Section 34 is not made out.

Learned AGA Sri Arunendra Singh submits that the first information report in the present case is prompt. It has been lodged within one hour of the incident. The eye witness Butua is an injured witness. The facts narrated in the first information report were fully established by her testimony and corroborated by the medical evidence. The prosecution has thus been able to establish its case. He explains that in the first information report, the number of gunshots fired had not been stated and, therefore, the alleged contradiction with regard to number of shots fired by the accused is only an imagination of the counsel for the appellants.

So far as dragging of PW1 and no apparent injury being caused to her despite such dragging in the field said to be containing pointed roots of Arhar also has no substance inasmuch as from the testimony of PW1, it is apparently clear that at the relevant time when she was dragged, there was water in the field. She was covered by mud while being dragged and that some minor bruises/cuts may have been caused which were not noticeable. He further submits that merely because the Doctor had not noticed any bruises/minor cuts on the body of the PW1 during medical examination, no adverse inference can be drawn.

With regard to the statement of PW3 that the first information report was recorded on the dictates of the Investigating Officer, it is pointed out that PW3 turned hostile and,therefore, his testimony has no relevance.

Learned AGA points out that the plea that the First Information report was ante time is totally misconceived inasmuch as the Doctor performing the post mortem in his testimony had specifically stated that along with the dead body, he received 11 papers, which included the first information report, the inquest report, GD entries, letters addressed to the Chief Medical Officer etc. He submits that the inquest report had been prepared within one hour of the lodging of the first information report. He submits that in the facts and circumstances of the case, the inference drawn by the Sessions Judge in arriving at a conclusion that the accused were guilty of offence under Sections 302,323, 505 read with Section 34 IPC is based on true and correct appreciation of evidence on record. Hence no interference with such a reasoned order of the trial court is called for in the facts and circumstances of the case.

We have heard learned counsel for the parties and have examined the records.

We find that the incident took place on 09.08.1999 at 6.30 a.m. The first information report was lodged on the information of Smt. Butua, mother of the deceased, who was an eyewitness, within one hour of the incident, to be precise at 7.30 a.m. on the same day. The inquest report was prepared at 8.30 a.m. and the dead body was forwarded for post-mortem to the District Hospital where post-mortem was performed at 3.15 p.m. on the next day. The first information report being prompt, the testimony of the injured eyewitness of the incident stood corroborated by medical evidence. The prosecution has then established its case. Suffice is to refer the latest judgement of the Hon'ble Supreme Court in the case of Atma Ram and others vs. State of M.P. Reported in 2012 (5) SCC, 738 wherein in paragraph 22 the Apex Court after noticing that the F.I.R. had been lodged within two hours of the incident and the eyewitnesses PW-1 and PW-2 had given the eyewitness version of the occurrence which had been corroborated by the medical report has held that the prosecution had been able to establish its case. For the same reasons we are also fully satisfied that in the facts of the present case the prosecution has been able to establish its case.

Now turning to the discrepancies, which have been pointed out in the evidence of the prosecution, we find that from the site plan it was apparent that as soon as the accused reached the place where the deceased was sitting for his daily necessities he stood up. The accused Kamta exhorted his companions. On witnessing all this the mother informant started running towards her child. The distance from the place where the victim was shot dead and the place which the informant had reached at the relevant time is less than 20 feet. Therefore, the plea, that the informant, who did not have good eye sight, could not have identified the assailant, has rightly not been accepted by the trial court.

Further we find that in the first information report the number of shots inflicted upon the victim had not been disclosed. What was stated was that the victim had been fired upon by Shiv Prasad and Kamta. Therefore, the allegation that in the first information report only two gunshots were stated to have fired upon the deceased is factually not correct. In her examination-in-chief the eyewitness had specifically disclosed that her son had received three injuries, one in the chest, the other in the temple and the third one in the abdomen. Two gunshots were fired by Shiv Prasad and one by Kamta. Therefore, we find that there is little or no discrepancy as suggested by the counsel for the appellant in that regard.

Although there is no averment in the testimony of P.W.-1 or in the first information report that Shiv Prasad had re-loaded his gun for firing the second shot but such trivial fact is of not such relevance so as to disbelieve the prosecution case.

The motive for firing upon the victim has also been disclosed by the prosecution as was established from the evidence of Dasrath, the brother of the deceased. The plea that Dasrath himself could have killed his brother Ram Murat, as a child was born to the wife of Dasrath when he was in jail, was merely a suggestion made during the cross-examination but was not established by any cogent evidence. Dasrath in his testimony had specifically denied any such child having been born when he was in jail.

We further find that Kamta had set up a plea of alibi by producing D.W.-1 qua his being present at Kanpur on the relevant date and time. The attendance register produced on behalf of Kamta by D.W.-1 could not be approved to be attendance register maintained in regular course of business, as it did not contain signature of any authority. It has rightly not been believed. Therefore, the plea of alibi could not be established by Kamta.

We may further record that the eyewitness Smt. Butua was an injured eyewitness. She herself was examined by Dr. O.P. Gagil on 09.08.1999. The Doctor had opined that she had been inflicted two blows on both of her arms by a Lathi, as was the fact narrated in the first information report. There is little or no reason to disbelieve the testimony of the injured witness.

So far as the issue of Butua having not suffered any lacerated wounds because of her being dragged in field which contains roots of Arhar crop, which had been cut away earlier, is concerned, suffice is to record that in her testimony P.W.-1 specifically stated that the field was filled with water, she was covered with mud when she was dragged and that there may have been minor bruises/cuts because of such dragging but not noticeable. In view of the same, we do not find much substance in the plea of the counsel for the appellants that the testimony of Butua be not accepted.

Counsel for the appellants has also contended that wounds inflicted on the temple by gunshot and that inflicted on the abdomen have been attributed to Shiv Prasad. Such can be by different kinds of cartridges which cannot be fired by same country made pistol. The plea has been raised before us for the first time and no material has been produced to substantiate the same.

We may record that it is basically an issue of fact as to whether two different kinds of cartridges could be fired from the same country made pistol or not. It is worthwhile to mention that the weapon used was a country made pistol which has no prescribed standard nor any literature in respect of various kinds of cartridges, which can be fired upon, is known. Therefore, such plea cannot be accepted by us at the appellate stage for the first time.

Lastly it is submitted that since country made pistol, which has been recovered on the pointing out of the accused and the bullet which was recovered from the body of the deceased had been sent for testing to the forensic laboratory and further since the forensic laboratory had opined that the bullet had not been fired upon from the country made pistol, as recovered. The entire case of the prosecution stood belied.

We find that such recovery of the weapon had taken place after more than 15 days of the alleged incident and on the pointing out of the accused himself. If the forensic laboratory report has gone in favour of the accused, the story of the prosecution cannot be disbelieved. The benefit of the forensic laboratory report has been granted to the appellants in the proceedings under Section 25 of the Arms Act and he has been acquitted thereunder.

So far as the plea raised by Sri Dixit Advocate on behalf of appellant no. 3 Shiv Das is concerned, suffice is to record that the trial court has recorded a specific finding on the basis of the evidence brought on record that Shiv Das with a common intention along with other co-accused Kamta and Shiv Prasad had surrounded the deceased on the fateful day and further he also restrained the informant mother from protecting her child. Shiv Das had abused and had hit the informant on head with the Lathi. Thus the plea that there was no common intention does not appeal to us. The offence under Section 302 read with Section 34 IPC is clearly made out.

Having heard learned counsel for the parties and having examined the records, we find that the findings recorded by the trial court are based on true and correct appreciation of evidence brought on record. We see no good reason to interfere with conviction as recorded by the trial court as well as the sentence imposed. Appeal lacks merit and is dismissed.

Kamta and Shiv Prasad are in jail. Shiv Das is on bail, his bail is cancelled, bail bond is forfeited. He may be arrested to undergo the sentence.

Before concluding the judgment, we record our appreciation for the assistance provided by the Amicus Curiae Sri Sunil Singh, who had argued on behalf of the appellants Kamta Prasad and Shiv Prasad. A fee of Rs. 15,000/- be paid to the Amicus Curiae for his assistance by the State within two months.

18.10.2012

Pkb/580-02