Kallu & Another vs State Of U.P.
2012 Latest Caselaw 5346 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO.  45
 
Reserved
 

 
Criminal Appeal  No. 199  of 2008
 

 
1.Kallu
 
2.Jageshwar.....................................................................Appellants
 

 
                                                       Versus
 

 
State  of U.P..........................................................................Respondent
 

 
                                             
 
Counsel for the appellant: Sri Narendra Singh and Sanjay Kumar 				     for appellant no. 1
 
				     Sri R. S. Shukla for appellant no. 2
 

 
Counsel for the respondent : Sri S. A. Murtaza, A.G.A.
 

 
Hon. Rakesh Tiwari, J.

Hon. Anil Kumar Sharma, J.

( By Hon. Anil Kumar Sharma, J.)

The appellants have challenged the judgment and order dated 18.12.2007 passed by Addl. Sessions Judge Court no.1, Shahjahanpur in S.T. No. 282 of 2002 State Vs. Kallu and another (crime no. 6 of 2002) u/s 302, 307 IPC, and S.T. no. 976 of 2002 State of Kallu u/s 25 Arms Act (crime no. 31/2002) whereby all the three accused-appellants aforesaid, have been found guilty for the offence punishable under section 302/307 IPC and each appellant has been sentenced to imprisonment for life and fine of Rs. 5,000/- each u/s 302/34 IPC and 10-years R.I. u/s 307/34 IPC and fine of Rs. 2000/- each with default stipulation. Accused Kallu had been further found guilty u/s 25 Arms Act and sentenced to undergo R.I. for two years and fine of Rs. 1,000/- with default imprisonment for 15 days. All the sentences were to run concurrently.

2. Succinctly stated the prosecution story is that on 4.1.2002 at 7.00 p. m. Dragpal Singh s/o Nanhey Singh r/o village Barua Khurd P.S. Kant, District Shahjahanpur submitted a written report at P.S. Kant stating that about nine months ago his brother Surnedra singh lodged a report of theft against Nanhaku Singh @ Dinakku Singh of his village and they were challaned. They bore enmity with the complainant on this count. On 2.1.2002 his animals entered in the field of Dinakku Singh and then he came to his brother for protest and then hot words and abuses were exchanged. Dinakku Singh threatened Surendra Pal Singh to see him very soon and due to this enmity Dinakku Singh, his son Kallu and associate Jageshwar s/o Sivraj Singh wanted to eliminate Surendra Pal Singh. The report stated that today at about 5 p.m. Surendra Pal Singh and Ram Gopal brothers of complainant and his nephew Shyam Singh and his son Avanish were returning from their fields and when they reached in front of the house of Dinakku Singh, he with licensed SBBL gun, Jageshwar with licensed gun and Kallu with country made pistol in order to kill them opened fire. His brother Surendra Pal and Ram Gopal sustained injuries. Surendra Pal instantaneously died at the spot. At the time of incident co-villagers Ram Pher s/o Nawab Singh and Bade Singh s/o Vishram Singh and several others arrived at the scene of occurrence and challenged the accused who making fires and threatening to kill if any body depose against them he would also be killed, made their escape good. Along with injured brother Ram Gopal, the complainant reached at the police station and submitted report, on the basis whereof case at crime no. 6/2002 u/s 302/307 IPC was registered. S.O. Purshottam Sharan took over the investigation and after interrogating the complainant he reached at the spot and collected samples of simple and blood stained earth. Two empties were also recovered from the spot. These articles were sealed through memo Ex. Ka-3 and Ka-4. Thereafter he prepared inquest of the cadaver of the deceased and along with usual papers sent the dead body for autopsy in sealed condition.

3. Injured Ram Gopal was examined by Dr. Sudhir Kumar Yadav, E.M.O. District Hospital, Shahjahanpur on 4.1.2002 at 8.00 p.m. and he found the following injuries on his person:

1.Multiple fire arm wounds of entry on the whole of abdomen and inguinal area on the front in an area of 37 cm x 28 cm. Size of individual wounds varying from 0.3 cm x 0.25 cm x depth not probed to 0.4 cm x 0.3 cm x depth not probed. Fresh blood is oozing on the wounds. No exit wound seen. Edges inverted. No blackening/ tattooing seen. Wounds are oval to round shape.

2.Multiple fire arm wounds on the dorsum of left hand in an area of 18 cm x 10 cm in size. Depth not probed but size varying from 0.3 cm x 0.25 cm to 0.4 cm x 0.3 cm. Oozing of blood seen. No blackening/tattooing seen.

3.Multiple fire arm wounds of entry on dorsum of right hand in an area of 8 cm x 6 cm size varying from 0.3 cm x 0.25 cm to 0.4 cm x 0.3 cm. Oozing of blood seen. No blackening /tattooing seen.

General condition of the patient was very low. B.P. and pulse were not record able. B.S. Absent and abdomen showed muscle gasting. In the opinion of the doctor all the injuries were grievous in nature. Duration was fresh and caused by some fire arm weapon. The patient was admitted and x-ray was advised. Dr. A. K. Singh conducted autopsy of the dead-body of Surendra Pal Singh on 5.1.2002 at 4 p.m. He found that the 40-years' old deceased was having average built body. Rigor mortis was present in all found limbs. He found the following ante-mortem injuries on his person:

1.Multiple firearm arm wound of entry size 0.3 cm x 0.3 cm x brain to muscle deep on head, right side face in area of 28 cm x 25 cm. No blackening or tattooing.

2.Multiple fire arm wound of entry size 0.3 cm x 0.3 cm x muscle deep on upper part of chest, right shoulder, right arm and upper half of front of fore arm area of distribution 40 cm 50 cm.

3.Abrasion size 0.5 cm 0.5 cm on front of left thigh 6 cm above knee.

4.Three fire arm wound of entry on front of right thigh size 0.3 cm x 0.4 cm x muscle deep to skin 6 cm above knee.

5.Four fire arm wound of entry on lower abdomen size 0.3 cm x 0.3 cm x muscle deep.

6.Abrasion size 3 cm x 9.3 cm on lower lateral right aspect of right chest.

In internal examination the doctor recovered 16 small metallic pellets from the body - five from head and face, seven from chest, arm and fore-arm, two each from right thigh and abdomen. Both the lungs, pleura, spleen and kidneys were lacerated. 150 Gms semi-digested food was found in the stomach. In the opinion of the doctor, the deceased suffered death about a day before due to coma as a result of fire-arm injuries.

4. The investigating officer interrogated the witnesses on different dates and arrested accused Jageshwar on 5.1.2002 along a SBBL gun 12 bore with 10-cartridges 12-bore. On 23.1.2002 at 8.00 p. m. during police custody remand of accused Kallu on his pointing out he recovered a country made pistol and prepared memo, on the basis whereof a case u/s 25 Arms Act was registered against the accused on 23.1.2002 at 9.30 p.m.. Investigation of this case was entrusted to SI R. K. Singh. The investigation in both the cases ended in charge-sheets against the accused persons.

5. After committal of the case to the Court of Session, charges for the offences punishable u/s 302 and 307 IPC read with section 34 IPC were framed against all the accused persons. A separate charge u/s 25 Arms Act was also framed against accused Kallu. The accused abjured their guilt and claimed trial.

6. In order to prove its case, the prosecution had examined complainant Drag Pal PW-1, injured Ram Gopal PW-2, Ram Pher Singh PW-3, Inspector Purshottam Sharan PW-4, Constable Amar Singh PW-5, Dr. A. K. Singh PW-6 and Dr. Sudhir Kumar Yadav as PW-7.

7.During trial case against accused Dinakku Singh stood abated on account of his death.

8.Both the accused in their separate statements u/s 313 CrPC have again denied the entire prosecution story. Accused Kallu has stated that he has been falsely implicated on account of his father's enmity, while accused Jageshwar denied any enmity with the complainant or his family and stated that the police was enraged with him so he has been falsely indicted in the case. However, no evidence in defence has been adduced by any of the accused.

9.We have heard the learned counsel for the parties and have perused the original record of the case carefully.

10.Learned counsel for the appellants have argued that -

1.the FIR is ante-timed;

2.there was no motive against Jageshwar, who has no enmity with the family of the deceased or the complainant;

3.interested/ partisan witnesses have been examined and no independent witness has been produced by the prosecution;

4.there was no common intention to make assault on injured or the deceased;

5.the deceased was having so many enemies;

6.the deceased had suffered injuries on right side of his body, so the medical evidence does not corroborate with alleged eye witness account of the incident; and

7.No report of Forensic Science Laboratory has been filed in the case so adverse inference should be drawn against the prosecution.

11.Per contra the learned AGA contended that the FIR has been promptly lodged by the complaint; that it is a day light incident based on the evidence eye witnesses which also include an injured witness; that all the accused persons sharing common intention have opened fire on the deceased and his companions without any provocation on account of previous enmity; that the medical evidence available on record fully corroborate the eye witness account of the incident and if the report of Forensic Laboratory could not be procured it does not affect the otherwise reliable and trustworthy prosecution story.

12.The alleged incident took place on 4.1.2002 at about 5.00 p. m. in village Barua Khurd and its written report was submitted by complainant Drag Pal Singh PW-1 the same day at about 7.00 p.m. in P. S. Kant District Shahjahanpur. The distance between the place of occurrence and the police station, as per check report Ex. Ka-13 is about 5 kilometers. In the incident deceased Surendra Pal Singh and Ram Gopal PW-2 suffered firearm injuries. The medical examination of the injured was conducted by Dr. Sudhir Kumar Yadav PW-7 in District Hospital, Shahjahanpur on 4.1.2002 at 8.00 p.m. on a letter of police brought by Constable Shyam Singh of P.S. Kant. PW-1 has stated that after the incident he took his injured brother Ram Gopal in a tractor-trolly to P.S. Kant leaving the dead body of Surendra Pal at the spot. He has also mentioned this fact in his written report Ex. Ka-1. Similar is the statement of PW-2. Inspector Purshottam Sharan PW-4 has stated that this case was registered in his presence at the police station. He has proved the check report Ex. Ka-13 and copy of GD Ex.Ka-14 regarding registration of the case in the general diary, wherein it has been mentioned that the complainant and injured Ram Gopal have arrived at police station in a tractor-trolly. PW-2 has stated that doctor was not available in PHC, Kant so he was taken to District Hospital, Shahjahanpur for treatment in police jeep. The inquest proceedings on the corpse of deceased Surendra Pal were held between 9.30 p.m. and 11.00 p.m. on 4.1.2002. No suggestion had been given to PW-4 in cross-examination that the FIR has been ante-timed by the police. Thus, the external checks available on record show that the FIR had been lodged at police station Kant on 4.1.12002 at 7.00 p. m. , which in the facts and circumstances of the case is not in any manner delayed or ante-timed. The principal object of FIR is to set the criminal law in motion through investigating agency of the police. It is a valuable piece of evidence inasmuch as it is the earliest version that can be compared with what is later on told during trial. All material variations and omissions can be considered in judging the truth or otherwise of the version. The beauty of the instant FIR is that it contains almost all necessary particulars which are required to begin investigation by the police. Apart from date, time and place the written report of the complainant contains motive, names with full particulars of accused, injured/deceased and witnesses, role of each accused. Thus, from any angle it cannot be said that the FIR suffers from any infirmity. In fact it is a prompt report about the crime given to the police at the earliest.

13.The complainant has noted in his written report that about nine months ago his Surendra Singh lodged a report of theft against accused Nanhaku Singh @ Dinakku Singh of his village, wherein they were charge-sheeted, so they bore enmity with them. A day before the incident the animals of the complainant had entered in the field of Dinakku Singh and he came to Surendra Pal Singh for protest and at that time abuses and hot words were exchanged between them. Dinakku Singh told his brother to see him soon. Learned counsel for the appellant has contended that no motive whatsoever has been alleged for appellant Jageshwar, who was not having any type of enmity with the complainant, deceased or their brothers. It is true that both PW-1 and PW-2 have not stated any motive for accused Jageshwar, but only on this basis it cannot be said that he had not participated in the crime. Accused Jageshwar is next-door neighbour of accused Dinakoo Singh. All the three witnesses of fact examined in the case including injured Ram Gopal PW-2 have stated in unison that accused Jageshwar also opened fire from his licensed gun along with other two accused persons on Surendra Pal Singh and his brothers with intention to kill them. We agree with the contention of the learned AGA where he stated that since this case is based on direct eye-witness account of witnesses, so motive loses its importance. Ultimately the complicity of the accused in the crime or otherwise will have to be judged on the basis of other evidence available on record including the medical evidence.

14.Now as regards the next contention of the learned counsel for the appellants that the prosecution has examined interested and partisan witnesses in the trial and have not examined any independent witness in the case, so an adverse presumption should be drawn against the prosecution that had the prosecution examined independent witnesses they would not have supported the prosecution story. Refuting the argument the learned AGA has submitted that the prosecution had examined three eye witnesses to prove its case which included an injured witness and there was no need to examine any other witness in support of the charge. No doubt PW-1 and PW-2 are real brothers, and the deceased was also their uterine brother, but their testimony cannot be rejected simply on the ground of their inter se relationship. The only caution is that their evidence would be subjected to close scrutiny with careful approach. Ram Pher PW-3 is not closely related with the deceased. He is brother-in-law (bahnoi) of Bade Singh who is father's sister's son of the complainant. He was coming behind the complainant and his brothers at the time of incident after taking grass from his field, which is situated near the house of Nanhku Singh. Other eye-witnesses were also cited in the charge-sheet, but there was no need to examine all of them to prove the same fact. It is the prerogative of the State counsel to chose among the witnesses for examination in the Court. Merely because independent witnesses were not examined by the prosecution, a criminal court would not lean to draw an adverse inference that if they were examined, they would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non- examination of a witness even if the witness is a material witness. It is pertinent to note here that the defence has not examined any witness in support of their case or to contend that the incident has not taken place in the manner as alleged by the prosecution. Thus, the question raised about non-examination of any independent witness or producing only interested, partisan or related witness does not affect the prosecution story at all.

15.Learned counsel for the appellants has urged that since accused Jageshwar has no enmity with the family of the deceased so the prosecution could not prove that there was any common intention among the accused to eliminate the deceased or make murderous assault on his brothers. This argument too is fallacious. It has come in evidence of all the eye witnesses namely PWs 1 to 3 that when they reached in front of the houses of Dinakku Singh and Jageshwar all the three named accused were standing having fire-arms in their hands outside their house, which are adjacent and seeing the deceased and his brothers shot fires on them. The investigating officer has depicted the spot position in site-plan Ex. Ka-2 which has been corroborated by the eye witnesses. It has come in cross-examination of PW-1 that on the day of Dinakku Singh had not gone to Pipraula, rather he had gone to the jungle for irrigating wheat crop in his field at about 9 a.m. He irrigated his field up to 4.30 p.m. The complainant and his brothers had also irrigated the field of deceased on the day of incident during the day and when they reached in front of the house Dinakku Singh all the accused simultaneously opened fire on them. Surendra Pal Singh after sustaining fire-arm injury fell down 6-7 steps ahead. The fires were made from a distance of about 5-6 steps, which finds corroboration from the testimony of Dr. A. K. Singh PW-5. Ram Gopal was behind Surendra Pal Singh and he was by his side, but he did not sustain any injury. The consistent case of the prosecution is that all the three accused were standing in front of their houses armed with fire-arms when the complainant, deceased and their companions reached there and then all the three opened fires from their respective weapons after Dinkku Singh exhorted them. Specific roles of making fires had been assigned to each accused. Section 34 IPC does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The constructive liability under this Section would arise if following two conditions are fulfilled: -

(a) there must be common intention to commit a criminal act; and

(b) there must be participation of all the persons in doing of such act in furtherance of that intention. Common intention requires a prior concert or pre- planning.

Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed. It is difficult, if not impossible, to procure direct evidence of common intention. In most cases it has to be inferred from the act or conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which he could be convicted. Therefore, from the facts and circumstances of the case it can safely be inferred that all the accused had acted in further of their common intention to lay murderous assault on the deceased and his brothers and accused Jageshwar is no exception.

16.The contention of the learned counsel for the appellants is that the deceased was a person of rowdy character and had so many enemies. He was killed by some of his unknown enemy and the accused persons have been falsely implicated in the case. Countering this argument the learned AGA has submitted that it is a broad-day light murder committed in the abadi of the village in front of the houses of accused persons, so there is no question of mis-identity of any of the accused. In this connection it is significant to note that none of the accused has stated even a single word in their statements u/s 313 Cr.P.C. about bad character or criminal activity of the deceased. No documentary evidence had been filed by the accused persons in this regard. It was further contended that on the day of incident it was heavy fog, so the complainant and witnesses could not see and identify the real culprits. This argument is also without force. No doubt in cross-examination of all the witnesses of fact it was suggested that it was heavy fog, but they have denied the same stating that it was very cold, but there was no fog. Considering the time of incident the statements of PWs inspire confidence.

17.Ram Gopal Singh PW-2 is an injured witness. In order to appreciate testimony of injured witness the under-noted legal principles enunciated by the Courts are required to be kept in mind:-

(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not screen the real offenders and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such inconsistency, contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.

Examining the evidence of Ram Gopal Singh PW-2 on the touch-stone of above principles we find that his statement with regard to real incident is consistent and finds corroboration from the deposition of PW-1 and PW-3 with regard to date, time and place of incident, number of accused persons, arms carried by each of them and their roles. The only contradiction pointed out by the learned counsel for the appellants is that in his examination-in-chief he has stated that after sustaining fire-arm injury when his brother Surendra Pal was likely to fall he tried to catch him by both hands then all the accused fired on him and he sustained fire-arm injuries. Learned counsel for the appellants has castigated this statement of PW-2 as an improvement in order to make his testimony in tune with his medical report. In cross-examination this witness has stated that he told the investigating officer about this fact and if he has not written it in his deposition he cannot assign any reason. On this point the investigating officer has stated that PW-2 has not given any such statement to him. If for the sake of argument, we assume the contention of the learned counsel as correct, even then in our opinion it is not an improvement but amount to elaboration or explanation by the witness as to how he had received injuries. No other person except PW-2 can depose on this point. If we label it as an improvement, even then it will not obliterate otherwise reliable testimony of Ram Gopal Singh PW-2 who had sustained fire arm injuries in the incident not only on the back side of both fore-arms but on whole abdominal area and lower part of the body on front side. The posture indicated by the witness could explain only injury no. 2 and 3. Dr. Yadav PW-7 who had medically examined PW-2 on 4.1.2002 at 8.00 p.m. in District Hospital, Shahjahanpur has stated about the general condition of the injured in his examination-in-chief. To quote his own words -

" ejht dh lekU; n'kk vR;Ur xEHkhj FkhA jDr pki o ukM+h eglwl ugha dh tk jgh FkhA lkal dh xfr eUn o 18 izfr feuV FkhA vkarks dh vkokt vuqifLFkr FkhA isV dh ckgjh nhokj dM+h gks jgh FkhA

esjh jk; esa et:c mijksDr dh leLr pksaVs xEHkhj Fkh] rktk Fkh rFkk fdlh Qk;j vkeZ ls dkfjr dh xbZ FkhA "

Thus, we find that the testimony of injured Ram Gopal Singh PW-2 is not in any way inconsistent or contradictory with any part of the prosecution story and there is no hesitation in accepting the same.

18. PW-1 and PW-2 have also corroborated the prosecution story on all material particulars and there are no contradictions or inconsistencies therein. No doubt complainant is the real brother of the deceased and injured Ram Gopal Singh, while Ram Pher Singh PW-3 is distantly related with them, but presence of these witnesses on the place of occurrence at the time of incident is duly proved. PW-1 had gone along with his brothers to irrigate the field of deceased on the day of incident and were returning home in the evening when the incident took place in front of the house of the accused. The field of PW-3 is situated near the house of accused persons as has also been shown by the investigating officer in the site plan. He has stated that he was returning from the field after taking grass, which he had weeded out since 4.00 p. m. on the day of incident. According to him at the time of incident he was behind the complainant. The other witnesses have also stated that they were coming one after the other. Surendra Pal Singh was ahead of them and he was followed by Ram Gopal Singh and by his side was Drag Pal Singh PW-1. Thus, the entire incident of firing by the accused persons on the deceased and Ram Gopal Singh stands fully proved beyond any shadow of doubt.

19. Learned counsel for the appellants has next argued that all the injuries found on the person of the deceased are on right side of his body, which does not fit in the prosecution story. It is true that out of six ante-mortem injuries, the deceased has sustained four on right side of his body and the other two were on left thigh and stomach. As we have already noted that the incident had taken place in broad day light and the firing was opened by the accused persons while the deceased and injured with witnesses were going from south to north and accused persons were a bit ahead of them on their west side, so it is quite possible that the deceased might have turned back on hearing the exhortation given by accused Dinakku Singh and sustained the injuries. The deceased was a living person and would not be static when assault was made on him. Significantly PWs 1 to 3 have not been cross-examined at all on this point. They were the best persons to unfold the so-called discrepancy about the manner in which the deceased sustained fire-arm injuries.

20. The last argument of learned counsel for the appellants is that no report of Forensic Science Laboratory has been filed in the case so adverse inference should be drawn against the prosecution. No doubt PW-4, the investigating officer has stated in his examination-in-chief that the case property was sent to Forensic Science Laboratory for examination and has also proved the case property in his deposition before the trial Court, but no report of the Laboratory has been filed by the prosecution. Two empty cartridges were also recovered from the spot. It would have been better if the report of Laboratory was filed during trial, but if it could not be brought on record for any reason what so ever it would not affect the merits of the case which is based on testimony of eye witnesses including an injured witness.

21. No other point has been argued before us by the learned counsel for the appellants.

22. In view of afore stated reasons we find that the prosecution has been successful in proving its case beyond all reasonable doubt against the accused-appellants. The learned trial Court has correctly appreciated the evidence on record and has not erred in convicting the accused-appellants for the offence punishable u/s 302/34 and 307/34 IPC and accused Kallu u/s 25 Arms Act as well. The sentences awarded are also proper and adequate. Thus, the appeal fails and is accordingly dismissed.

23. Let a certified copy of the judgment be sent to the court concerned as also to Chief Judicial Magistrate, Shahjahanpur for compliance, which should be report in a month.

..........................................Rakesh Tiwari, J

................................Anil Kumar Sharma, J

October 30, 2012

Imroz/-