Raju @ Rajesh vs State Of U.P.
2014 Latest Caselaw 4353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									Reserved
 
Criminal Appeal No. 1053 of 2004
 
Raju @ Rajesh Versus State of U.P.
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Anil Kumar Agarwal,J.

Heard Sri Mewa Lal Shukla, Amicus curiae for the appellant and the learned A.G.A. for the State of U.P.

This appeal has been preferred by the appellant Raju @ Rajesh against the judgement and order dated 24.1.2004 passed by the learned Additional Sessions Judge/F.T.C.-3 Ghazipur in S.T. No. 100 of 2002 connected with S.T. No. 101 of 2002 whereby the appellant has been convicted for the offence punishable under section 302 I.P.C. and has been sentenced for the life imprisonment with a fine of Rs. 30,000/-, in default of payment of fine the appellant was to further undergo six months R.I. The appellant has been further convicted under section 25 Arms Act and sentenced for 3 years R.I. with a fine of Rs. 10,000/- in default of payment of fine, the appellant was further to undergo three months R.I. all the sentences shall run concurrently.

The facts in brief of this case, as mentioned in the FIR are :

That the first informant Raj Kumar son of Roop Chand( P.W.1) is a resident of Village Onhaich P.S. Sarai Lakhansi district Mau. He was married with the daughter of the deceased Tilakdhari Ram r/o Mardaha district Ghazipur. The deceased Tilakdhari Ram was having no son, the first informant used to come and stay at his Surural Mardaha Bazar for looking after the family affairs of the deceased, at the time of the alleged incident, after taking the dinner, he was lying and sleeping along with the deceased in the Varandah of the house. A lantern was illuminating there. The appellant Raju who has taken his education in his Nanihal, was also residing there in Mardaha Bazar, he had developed illicit relationship with the wife of Indrajeet for which a Panchayat of the villagers was called in which indrajeet was ousted from the caste, in the said incident the deceased Tilakdhari had played major role, which was ill felt by the appellant Raju, due to this enmity he came to the house of the deceased at about 11.30 p.m. on 6.2.2002 and called the deceased by his name, on his calling both the deceased and the first informant awoke, all of sudden the appellant discharged two shots which hit on the chest of the deceased, after sustaining the gun shot injury the deceased fell down on the ground and started writhing in pain. On the sound of hearing the neighbour Bhola and Sanehi came at the place of occurrence by flashing the torch light, the appellant was properly identified in the torch light, after sustaining the gun shot injury, the deceased had died and with the help of the villagers, the deceased was taken to the police station where the first information report was lodged on 7.2.2002 at 00.15 a.m. after lodging the FIR inquest report was prepared at the police station by the Officer-in-Charge of the police Station Mardaha on 7.2.2012 from 2.00 a.m. to 4.00 a.m. and thereafter the dead body was sent to the police line, the same was received at the police line on 7.2.2002 at 12.30 p.m. From the police line, the dead body was sent to mortuary where it was received on 7.2.2002 at 3.55 p.m. The post mortem examination report was done on 7.2.2002 at 4.00 p.m. where the paper were received on 7.2.2002 at 3.30 p.m. The I.O. came to the place of incident, he prepared the spot inspection note, the recovery memo of two torches and one lantern was prepared in the presence of the witnesses. Thereafter, both the torches were returned to Bhola Ram and Ram Sanehi, the same were given in their Supurdgi. The lantern was returned to the first informant Rajesh Kumar in his Supurdgi on 7.2.2002, a bullet was recovered from the place of incident, its recovery memo was prepared on 7.2.2002 in the presence of the witnesses Raj Kumar Ram and Hari Narain Ram.

During investigation the appellant was arrested on 26.2.2002 and at his pointing out one country made pistol kept in a polythene bag was recovered from Sarpatha and he confessed before the police that it was the same country made pistol by which the deceased was killed, the barrel of the country made pistol was having a cartridge, the recovery memo has been prepared on 26.2.2002. In the present case, all the witnesses namely, Sanjay Kumar, Rajesh Kumar alias Raju, Shyam Dhari and Lal Muni and police constable Arvind Tiwari, Virendra Yadav, put their signatures on recovery memo, the copy of recovery memo was given to the appellant who had put his signature.

According to the post-mortem examination report, the dead body of Tilakdhari Ram sent by Officer in charge of Police Station Maradaha, District Ghazipur through constable Shyam Dhari and Home Guard Kamla Prasad was received in sealed cloth. The seal was found intact, the post mortem examination was done on 7.2.2002 at 4.00 P.M., the age of the deceased was about 55 years, the duration of death was about one day. The deceased has sustained 3 ante mortem injuries.

1. Fire arm wound of entry size of 1 cm x 1 cm x cavity deep present on left side of chest, 2.5 cm above the left nipple, blackening and tattooing present around the wound. Margins inverted.

2. Fire arm wound of entry size 1 cm x 1 cm x cavity deep present on left side of epigastrium 22 cm below left clavicle, blackening and tattooing present around the wound. Margins inverted.

3. Fire wound of exit size of 2 cm x 1.5 cm x cavity deep present on left side of back 9 cm below 7th cervical spino process on probing and dissection. Wound no. 1 and 3 are communicated to each other.

According to X-Ray of chest and abdomen done at Sl.No. 638 dated 07.02.2002, a cylindrical bullet was lying in left para vertebral space at the level of D-9 which was dissected and taken out thereafter it was sent to S.P.Ghazipur.

The stomach was having semi-digested food material, the small intestine was having gases and liquid, the large intestine was having gases and faecal matter.

The cause of death was due to haemorrhagic shock as a result of ante-mortem fire arm injuries.

During the investigation, the clothes of the deceased, two bullets in which one was recovered from the place of incident and the second was recovered from dead body, were sent to Vidhi Vigyan Prayogshala, U.P. Lucknow. The report of Vidhi Vigyan Prayogshala, U.P.Lucknow dated 22.8.2002 shows that the clothes were six in number in which item no. 1 ( Kurta), item no. 2 Swatter, item no.3 Baniyan, item no. 6 (Kardhan) were having human blood. On item no. 5 (Lungi), item no. 7 and 8 (bullets) were having disintegrated blood. Two bullets, country made pistol recovered at the pointing out of the appellant and a cartridges were sent to the ballistic expert.

According to the report of Vidhi Vigyan Prayogshala, Lucknow dated 13.9.2002 the country made pistol recovered at the pointing out of the appellant (marked as 1/2002)was having the residue of firing as nitriate and nickel. The cartridge E.C.1( found in barrel) was found to be fired from the recovered country made pistol. The disputed bullet marked as E.B.-2 (which was taken out from the dead body) was found to be fired by the recovered country made pistol. But with regard the bullet marked as E.B.1 no proper opinion could be given because it was lacking with comparative characteristic. After completing the investigation Sri Virendra Kumar Singh, the officer In-charge of P.S. Mardaha, District Ghazipur submitted the charge sheet no. 62 of 2002 under section 302 IPC on which the learned Magistrate concerned took the cognizance and after completing all the required formalities, the case was committed to the court of sessions. Sri Ramanand Ram, P.W. 10 also completed the investigation of case crime No. 1421 of 2002 under section 25 Arms Act. During investigation of the case under section 25 Arms Act the sanction for the prosecution was obtained by the I.O. from the District Magistrate, Ghazipur and submitted the charge-sheet against the appellant, the same was also committed to the court of sessions on 14.2.2002. On the same day the case arising out of the charge-sheet of case crime No. 62 of 2002 under section 302 IPC was also committed to the court of sessions. The learned Sessions Judge, Ghazipur framed the charge for the offence punishable under section 302 IPC and 25 Arms Act separately on 4.10.2002. Both the charges were read over and explained to the appellant who denied the charges and claimed for the trial.

At the stage of the trial, from side of the prosecution P.W. 1 Rajesh Kumar, P.W. 2 Bhola, P.W. 3 Ram Sanehi, P.W. 4 Raj Kumar, P.W. 5 Dr. Sanjay Rai, P.W. 6 constable Ram Bali, P.W. 7 Lal Muni, P.W. 8 Shyam Dhari, P.W. 9 S.I. Virendra Kumar Singh, P.W. 10 S.I. Ramanand Ram and P.W. 11 Constable Umesh Kumar Yadav have been examined. The necessary documents have been produced before the trial court. The statement of the appellant has been recorded under section 313 Cr.P.C. but in defence no witness has been produced/ examined by the appellant. After evaluating the evidence available on the record and hearing both the sides, the trial court recorded finding of conviction for the offence punishable under section 302 I.P.C. and 25 of the Arms Act. The appellant has been sentenced for the offence punishable under section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 30,000/- in default of payment of fine to undergo further imprisonment of six months R.I. He has been sentenced under section 25 of the Arms Act for three years R.I. with a fine of Rs. 10,000/- in default of payment of fine to undergo further imprisonment of three months with a direction that all the sentences shall run concurrently. The appellant was taken to the custody and he was sent to Jail. Being aggrieved from the judgement and order dated 24.1.2003, the appellant filed the present criminal appeal no. 1053 of 2004.

The present appeal was admitted on 24.9.2004 but the prayer for bail of the appellant was refused on 8.10.2004, the second bail application of the appellant was rejected on 19.2.2010 but the hearing of this appeal was expedited. In pursuance of the order dated 19.2.2010, this appeal was listed for final hearing on 2.7.2012 but no one appeared on behalf of the appellant to argue this appeal. Notice was issued to the appellant through the Superintendent of District Jail Ghazipur to engage the counsel of his choice in default as to why this appeal be not heard and disposed of finally after appointing an Amicus curiae on the State expenses, but after receiving such notice the appellant did not engage any counsel of his choice, thereafter on 2.7.2013 Sri Mewa Lal Shukla, Advocate was appointed as Amicus curiae to argue this appeal on behalf of the appellant.

We have perused the record which reveals that in the present case the time of incident is 6.2.2012 at about 11.30 p.m., the place of incident is the house of the deceased near village Mardaha Bazar P.S. Mardaha district Ghazipur. The appellant is the only accused. The allegation against him is that on 7.2.2002 at about 11.30 p.m. he came to the house of the deceased, he called the deceased by his name, then the deceased and the first informant awoke, all of sudden he discharged two shots by his country made pistol causing injury on the chest of the deceased, consequently, the deceased fell down on the ground and started writhing in pain, on hearing the sound of firing, the neighbours Bhola and Sanehi came to the place of incident in running condition by flashing the torch light. The appellant Raju was properly identified in torch light, when he was running away. The alleged motive is that the deceased Raju alias Rajesh had got his education in his Nanihal and he was residing there, where he had illicit relationship with the wife of Indrajeet for which a Panchayat was arranged in which Indrajeet was out-casted in which the deceased had played a very important role, which was not relished by the appellant and due to this grudge, he came to the house of the deceased, the deceased was called by name, thereafter, the appellant discharged two shots causing injuries on the chest of the deceased.

In the present case first informant Rajesh Kumar( P.W. 1) claimed himself to be an eye witness of the whole of the incident. The witness Bhola. P.W. 2 and Ram Sanehi, P.W. 3 saw the appellant immediately after the commission of the alleged offence, when he was running away from the place of incident. During investigation the appellant Raju alias Rajesh Kumar was taken on police remand from the court, he made a confessional statement before the police on 26.2.2002 by confessing that on 6.2.2002 at about 11.30 p.m. he committed the murder of the deceased Tilakdhari Ram by country made pistol, the same was hidden by him when he was running away from the place of incident near jodhani bridge and stated that the same may be discovered by him, relying upon the statement of the appellant the I.O. Virendra Kumar Singh, Constable Shyamdhari, constable Arvind Tiwari and Constable Virendra Yadav came to the place of discovery of the country made pistol, but before reaching to the place of incident, the public witness Lalmani and Sanjay Kumar were also taken in the company by the I.O. for witnessing the recovery. The appellant taken out the country made pistol, which was kept in a polythene bag from Sarpatha. He stated that it was the same country made pistol by which the deceased was killed, the country made pistol was taken in possession by the I.O. and saw that an empty cartridge was embedded in its barrel, both the country made pistol 315 bore and the empty cartridge recovered from the barrel were sealed in cloths, its recovery memo was prepared on the spot, the same was read over to the witnesses. The recovery was made at about 7.00 a.m. it was signed by Sri Virendra Kumar Singh constable Shyamdhari, constable Arvind Tiwari and Constable Virendra Yadav, public witness Sanjay Kumar and Lalmani, P.W. 7 and the appellant Rajesh Kumar alias Raju, its copy was given to the appellant Rajesh Kumar alias Raju, who thrown it away after tearing it into pieces. At the police station, its nakal chik was prepared by the constable moharrir Umesh Kumar Yadav, P.W. 11.

Sri Mewa Lal Shukla, Amicus Curiae has submitted that the alleged occurrence has taken place, even according to the prosecution version on 6.2.2002 at about 11.30 P.M. when the deceased Tilakdhari Ram and the first informant Rajesh Kumar, P.W. 1 were sleeping, there was a good opportunity to commit his murder by way of causing the gun shot injury and there was no need to call the deceased by his name. The story of calling the deceased by his name has been concocted only to show that the first informant also awaken and identified the accused. The presence of the first informant Rajesh Kumar at the alleged place of the occurrence was highly doubtful. The first informant is son-in-law of the deceased.

The first informant Rajesh Kumar is not resident of the village Mardaha Bazar where the alleged occurrence had taken place. He was resident of another village. The deceased himself was not an old person, he was aged about 55 years, he himself was looking after the family affairs. There was no reason of the presence of the first informant at the place of incident, to show his presence, he stated that the deceased was issueless, to look after the family affairs he used to come to village of the deceased. According to the FIR he was also sleeping along with the deceased after taking the meal. But according to the examination- in-chief of the P.W.1 he did not depose that he was sleeping along with the deceased. He simply stated that he and the deceased were sleeping in a Varandah where one lantern was illuminating. The first informant did not sustain any injury in the firing done by the accused persons and he himself has not made any attempt to rescue the life of the deceased. The presence of the other witnesses,namely, Bhola and Sanehi was also highly doubtful because they are not independent witnesses, they came at the place of the incident after commission of the alleged offence. It is alleged that they saw the accused when he was running away after commission of the alleged offence,in such a case witnessing of the appellant by them was not possible because after hearing the sound they came to the place of incident whereas according to the FIR itself, the appellant discharged the shots causing injuries to the deceased and fled away.

The prosecution story is not corroborated with the medical evidence. According to the post mortem examination report, the deceased had sustained two fire arm wounds of entry, both the injuries were having blackening and tattooing. The injury no. 3 was exit wound of injury no. 1. On X-ray of chest and abdomen, one cylindrical bullet was found lying therein, the same was dissected and taken out by the doctor. It shows that the injuries were caused from a very close range. The story of calling the deceased by name does not appear to be probable. It appears that the deceased was lying alone, somebody came in the night, caused injuries on his person and fled away and on the basis of doubt and suspicion, having ulterior motive, the appellant has been made the accused. The FIR of this case is ante-timed. The distance of the police station was only two furlongs from the place of incident. The FIR has been lodged within 1.45 hours. The recovery of country made pistol has been planted, in fact, no confessional statement has been made by the appellant. The trial court has not properly appreciated the evidence and without proper reason, the finding of conviction has been recorded, the same may be set aside and the appellant may be acquitted for the offence in which he has been convicted.

In reply of the above submission, it is submitted by learned A.G.A. that P.W.1 Rajesh Kumar had witnessed the whole incident. There is no material contradiction in his statement, he categorically stated in the FIR and the statement before the court that he was son- in- law of the deceased, the deceased was not having any son that is why he often visited the village of the deceased to look after the family affairs,he lodged the FIR promptly. The prosecution story is fully corroborated by the medical evidence. According to the prosecution version, the appellant discharged two shots which hit on the chest of the deceased. According to the post mortem examination report, the deceased had sustained two fire arm wounds of entry on the chest and Stomach. One bullet was recovered from the place of the incident and one bullet was taken out from the dead body of the deceased. At the pointing out of the appellant one country made pistol along with empty cartridge was recovered. The country made pistol, empty cartridge and two bullets were sent to the ballistic expert. According to the report of the public analyst one bullet recovered from the body of the deceased was fired by the country made pistol recovered at the pointing out of the appellant. The alleged incident was witnessed by the witnesses Bhola and Ram Sanehi in which Ram Sanehi has been examined as P.W. 3. According to his deposition, he saw the appellant when he was running away after committing the murder of the deceased, witness Ram Sanehi was having no enmity with the appellant. Specific motive has been attributed to the appellant because the appellant had played an important role in outcasting Indrajeet. The trial court has appreciated the evidence and has relied upon the deposition of the witnesses including eye witnesses. The findings of the conviction recorded by the trial court is based on the evidence available on the record. There is no good ground to interfere in the findings of the conviction. The impugned order is not suffering from any illegality or irregularity, the same may be upheld.

For evaluation of the evidence, we have gone through the statements of the witnesses recorded by the trial court. The recoveries memos, report of the public analyst, post mortem examination report, the statement of the appellant recorded under section 313 Cr.P.C., the impugned judgement and other documents available on the record. From the record it reveals that according to the prosecution version the alleged occurrence had taken place on 6.2.2002 at about 11.30 P.M. at the house of the deceased where he and his son-in-law Rajesh Kumar, P.W. 1 were sleeping. The FIR of this case has been lodged by one P.W. 1 Rajesh Kumar on 7.2.2002 at 00.15 A.M. The distance of the police station was only two furlong from the place of the incident. The appellant Raju @ Rajesh is named in FIR. The material facts are that on 6.2.2002 at about 11.30 P.M. when the deceased and the first informant were sleeping after taking the meal in the Varandah of the house belonging to the deceased, the appellant came there, he called the deceased by name on which the deceased and first informant were awaken. All of sudden the appellant discharged two shots by his country made pistol causing the injuries on the chest of the deceased. After sustaining the injuries the deceased fell down on the ground. Hearing the sound of the fire the neighbours Bhola and Sanehi by flashing the torch light came at the place of incident in a running condition. The appellant was seen by them in torch light in a running condition. On account of the injuries sustained the deceased died on spot. There after the first informant with the help of the villagers brought the dead body of the deceased to the police station and lodged the FIR. The written report was scribed by the first informant Rajesh Kumar himself.

During investigation the appellant was taken on police custody remand, he made a confessional statement before the police and he got made the recovery of country made pistol kept in a polythene bag from a Sarpatha in the presence of the witnesses. The recovery of the country made pistol was having an empty cartridge in its barrel. From the place of the incident one bullet was recovered by the I.O. on 7.2.2002. The recovery was made in the presence of the Raj Kumar, P.W. 4 and Hari Narayan. One bullet was recovered from the dead body by the doctor after dissection. The I.O. sent the country made pistol, empty cartridge and two bullets to the public analyst. According to the report of the public analyst the bullet recovered from the body of the deceased was fired by the country made pistol, whose recovery was made by him on 26.2.2002 after twenty days of the alleged incident. According to the post mortem examination report the deceased had sustained two fire arms wounds of entry and one exit wound as injury No. 1. Both fire arms wounds of entry on left side of the chest and spigastriaum and both the injuries were having the blackening and tattooing. Semi digested food was found in the stomach of the deceased, gases and liquid were found in small intestine and gases and faecal matter were found in the large intestine. The post mortem examination was done on 7.2.2002 at about 4.00 P.M. by Dr. Sanjay Rai, P.W. 5 and duration of death was about one day old.

The written report dated 7.2.2002 has been proved by P.W. 1 Rajesh Kumar which has been exhibit as Ka-1. Rajesh Kumar, P.W. 1 claimed himself to be eye witness of the alleged incident. According to his deposition the deceased Tilakdhari was his father in law. He was having no son, he was having only one daughter, who was married with him, being alone son in law of the deceased, he was visiting the house of the deceased off and on to look after the family affairs and the agriculture, on the day of the alleged incident, he was in his sasural, after taking meal, he was sleeping, his father in law was also sleeping in the same Varandah. The appellant had got the education from his Nahihal, his Nahihal was at Godhni in village Mardaha bazar. He had developed illicit relationship with the wife of Indrajeet, Indrajeet was the son of the elder brother of the deceased. On this issue a Panchayat of caste people was arranged in which the deceased had played a very important role, in outcasting Indrajeet, due to this reason the appellant was having enmity with the deceased, on 6.2.2002 at about 11.30 the appellant came to the house of the deceased, he called the deceased by name on which the deceased and the first informant were awoke all of sudden, the appellant discharged two shots on the chest of the deceased, after sustaining the injuries the deceased fell down on the ground and was writhing with pain, there was lantern lighted in the Varandah in which he appellant was identified by the first informant, on the shouting made by his wife neighbour Bhola and Sanehi flashing torch light came at the place of incident, they saw and identified the appellant, he with the help of the villagers brought the dead body to the police station where he handed over a written report to the officer in charge, the written report paper no. 5-A was shown to P.W. 1, he identified his signature and the writing and admitted that on that written report a case was registered. He stated that his statement was recorded by the I.O., in cross examination he admitted that Sanjay was the son of Bhola, who was younger to his father in law. He was having no knowledge, in High School record of Sanjay his father name Tilakdhari was mentioned. At the time of the alleged incident the mother in law of the wife were also residing along with the deceased. He admitted that there was no door in the Varandah in which he and the deceased was sleeping. He stated that after sustaining the injuries, the deceased was taken to Dr. Nagendra, which was at a distance of 10-15 Gattha form the house of the deceased. Dr. Nagendra saw the deceased and declared him dead but this fact was not mentioned in the FIR and the statement recorded under section 161 Cr.P.C. In cross examination he stated that at the time of the commission of the alleged offence he had seen and identified the appellant, the appellant was known to him prior to the alleged incident, and the appellant was covering his face by Dhata. He denied the suggestion that at the time of the commission of the alleged incident, he was in his village in district Mau. He also denied the suggestion that the deceased was murdered by some unknown person and he also denied the suggestion that he was called from his village by his uncle in law Bhola and thereafter written report was scribed. He also denied the suggestion that on the character of the appellant and the wife of Indrajeet, there was a suspicion, that is why the appellant has been falsely nominated. According to the FIR and deposition of P.W. 1 appellant discharged two shots causing injuries on the chest of the deceased and the first informant. The deposition of P.W. 1 Rajesh Kumar is not having any material contradiction, even according to the cross examination, the presence of the first informant does not appears to be doubtful at the place of incident, it does not appear that the appellant was falsely implicated by him.

According to the FIR and deposition of P.W. 1 appellant discharged two shots causing injury on the chest of the deceased, the deceased and the first informant after taking the meal were sleeping, this fact has been corroborated by the post mortem examination report and the testimony of Dr. Sanjay Raj, P.W. 5. According to the deposition of Dr. Sanjay Rai, P.W. 5 the deceased has sustained two gun shots wound of entry in which one entry wound was having the exit wound. Both the wounds were having blackening and tattooing, both the wounds of entries were caused by separate shots, the death of the deceased was possible at about 11.30 p.m. on 6.2.2002, the stomach of the deceased was having semi-digested food, which support the fact that after taking the meal deceased was sleeping. According to the deposition of P.W.2 Bhola, who is younger brother of the deceased, at about 11.30 P.M. on 6.2.2002, he heard the sound of two fires, on sound of firing and hue & cry made by Rajesh and his wife, he came out from his room, flashing the torch light, he saw the appellant in running condition who had come out from the room of the deceased by discharging the shots. He deposed that the deceased was real brother, both the shots hit the chest of the deceased, the deceased was taken to hospital of Dr. Nagendra Singh, where he was declared dead. He supported the motive part by deposing that the appellant had illicit relationship with Smt. Hausila wife of Indrajit, the daughter in law of his elder brother Hardeo. In this regard there had been a Panchayat in the village in which Indrajit was out-casted. The appellant was also out-casted. There had been a terahi of maternal grand father of the appellant on 26.1.2002 in which the deceased had refused to take the meal. The maternal uncle of the appellant, namely, Dukhanti was too much annoyed with the deceased, it was told by the deceased that in case the appellant takes the food, no member of the caste will take food. On this account, the appellant had become to much annoyed and after extending the threat to the deceased and son in law he left the place. He categorically stated that the torch by which he and Sanehi saw the incident were shown to the I.O. Its recovery memo was prepared , the supurdginama was also prepared, the lantern illuminating at the place of incident was also taken into possession by I.O. and its recovery memo was prepared and supurdginama was also prepared. The recovery memo was bearing his and Sanehi's signatures. The witness Bhola P.W.2 is witness of a part of the incident, he saw the appellant when he was running away after committing the murder of the deceased. He has supported the motive part also though he is real brother of the deceased. But from his deposition there is no material contradiction on the fact of witnessing the appellant. The witness Ram Sanehi P.W.3 has categorically stated that at about 11.30 P.M. after hearing the sound of firing and hue & cry, he came at the place of incident flashing the torch light he saw that the appellant was armed with country made pistol when he was coming out from the room after committing the murder of the deceased. He also supported the deposition of P.W.1 and P.W.2 with regard to motive part, admittedly he was also one of the neighbours. No material inconsistency was found in his deposition and there is no reason to disbelieve the testimony of P.W.2 Bhola and P.W. 3 Ram Sanehi.

Raj Kumar P.W.4 deposed that the deceased was killed in the night in the village. The I.O. had come to the place of incident in the next morning, bullet was recovered in his presence. In his presence, it was sealed by the I.O. and recovery memo was prepared on which he had put his signature. He proved the recovery memo which was marked as Ka-3. In cross examination he deposed that in the next morning of the incident, the bullet recovered from the place of incident was given to the I.O., thereafter he was taken to the police station, his signature was not obtained at the place of incident. First of all, the bullet was sealed, thereafter recovery memo was prepared which was signed by him. The bullet was recovered under the wooden cot on which the deceased was sleeping.

Dr. Sanjay Rai, P.W.5 proved the post mortem examination report. According to his deposition, the deceased had sustained two gun shot wounds of entry, the incident would have been occurred on 6.2.2002 at about 11.30 P.M. he had received the police paper and dead body for the purpose of Autopsy, the deceased was having semi-digested food in his stomach, the small intestine was having liquid and gasses, the large intestine was having gasses and faecal matter. When the P.W. 5 was recalled, he deposed that along with police paper he had received the chick FIR and carbon copy of G.D. By which the case was registered on which enclosure Nos. 3 and 4 were marked by putting the initial signature. The same were proved which were marked as Exhibit Ka-5 and ka-6. The statement of P.W. 6 Ram Bali has been recorded, he was posted as constable moharrir at the police, Marda, on the basis of the written report of Raj Kumar he prepared the chik FIR, the same was proved by him which was marked as Exhibit Ka-7. He proved the G.D. of lodging the FIR, the same was marked as Exhibit Ka-8. He categorically stated that G.D. of lodging the FIR was written by Head Moharrir Ram Awadh, he identified his writing and his signature. He stated that on 7.2.2002 through constable Ram Bachan Shashtri, special report was sent, its G.D. entry was made by Head Moharrir Ram Awadh vide Rapat no. 4 at 3.45 A.M. It was proved by him which was marked as Exhibit Ka-9. He categorically stated that he prepared the chik on the basis of the written report given by Rajesh Kumar, he denied the suggestion that chik report was not prepared by him. No suggestion has been given to P.W. 6 Ram Bali with regard to ante timed of the FIR. Lalmuni P.W. 7 is witness of the recovery of country made pistol, he stated that recovery of country made pistol was made by the appellant and he had stated that by that country made pistol he had committed the murder of Tilak Dhari. In his presence the country made pistol was sealed by the I.O. and recovery memo was prepared, the same was ran over to him and other witnesses, he identified his signature on the recovery memo, he proved the recovery memo of the country made pistol, the same was marked as Exhibit Ka-10. He stated that one empty cartridge was also found in the barrel of the country made pistol. No suggestion with regard to the planting the country made pistol has been made, even no suggestion has been given that recovery was not made as alleged by the prosecution. The statement of Shyamdhari P.W. 8 has been made, he brought the dead body to the police station, he deposed that the dead body was brought to the police line on 7.2.2002 at 12.30 P.M. He handed over the dead body and documents to the doctor. He brought the bullet recovered from the dead body to the police station. In his presence the appellant taken out the country made pistol having an empty cartridge in the barrel, he had put his signature on the recovery memo. He stated that copy of the recovery memo was given to the appellant who tore it into pieces and thrown away. No other suggestion with regard to the recovery of the country made pistol has been given to the witness. The statement of Virendra Kumar Singh P.W. 9 has been recorded by the trial court. He was I.O. of the present case, he categorically stated that in his presence on 7.2.2002 the case was registered at Mardaha, he had put his signature chik FIR Exhibit Ka-7. He prepared the inquest report and other relevant documents, he sent the dead body along with inquest report through Shyam Dhari and Home Guard Kamta Prasad for autopsy. On 7.2.2002 he recorded the statement of the constable Moharrir Ram Bali Ram, first informant Rajesh Kumar, his wife Smt. Savitri Devi and Smt. Keshari Devi. wife of the deceased, he come on the same day, he made the spot inspection and prepared the site plan and spot inspection note, the same has been proved and marked as Exhibit Ka-17. He stated that from the place of the incident one blood stained bullet was recovered , it was sealed by him and the recovery memo was prepared, the same was witnessed by Raj Kumar and Hari Narain Ram, he made the recovery memo of the Lantern and torch also. During investigation the appellant was taken on police station, he made the confessional statement by assuring that country made pistol used in the commission of the offence may be recovered by him. The appellant made the recovery of the country made pistol having the empty cartridge in its barrel, both were sealed, its recovery memo was prepared, the same has been proved by him. It has been categorically stated by him that the copy of the recovery memo was given to the appellant but he tore it into pieces and thrown away. This recovery memo was marked as Exhibit Ka-10. He deposed that the country made pistol, its empty cartridge and two bullets were sent to the public analyst, after completing the investigation he submitted the charge sheet. The report of the public analyst was also received. He proved the charge sheet is marked as Exhibit Ka-20 and he proved the public analyst report and ballistic expert report which was marked as Exhibit Ka-21 and Exhibit Ka-22 respectively. In cross examination no such question has been put before him to show that any of the proceedings were ante timed. The statements of S.I. Rama Nand Rai was recorded as P.W. 10, he stated that on 26.2.2002 he was posted at police station, Mardaha, on 26.2.2002 at 8.15 A.M. an FIR was registered, its investigation was entrusted to him, he obtained the sanction of the prosecution from District Magistrate, Ghazipur on 13.3.2003 and after completing the investigation he submitted the charge sheet, the same was proved by him which was marked as Exhibit Ka-25. This witness is I.O. of the case punishable under section 25 Arms Act. From the examination-in-chief and cross examination he does not reveals that the recovery of the country made pistol was planted. The statement of Umesh Kumar Yadav was recorded as P.W.-11, he deposed that on 26.2.2002 he was posted as constable moharrir at police station, Mardaha, he registered the case on the basis of the recovery memo of the fire arm in case crime No. 72 of 2002 under section 25 Arms Act against the appellant. He proved the chick, which has been marked as exhibit Ka-26, he proved its G.D. also, which has been marked as Exhibit Ka-27. The statement of the appellant has been recorded under section 313 Cr.P.C. in which he stated that to usurp the property of the deceased, he was made the accused, Sanjay was the son of Bhola, to usurp the property of the deceased, he disclosed the the name of the deceased as his father.

After evaluating the testimony of the witness and perusing the record, the trial court record the finding of conviction. We have also perused the record and deposition made by the witnesses. We have considered the deposition of P.W. 1, who is the son in law of the deceased very carefully and deposition of P.W. 2 Bhola, who is the brother of the deceased and deposition of P.W. 3 Ram Sanehi, neighbour of the deceased with care and caution, we do not find any infirmity in their deposition to disbelieve their testimonies, they appear to be reliable witnesses. The prosecution story is fully corroborated by the medical evidence, the report of the ballistic expert shows that the bullet recovered from the dead body of the deceased was fired by the country made pistol, which was recovered at the instance of the appellant from Sarpatha, the recovery of the country made pistol was made after 20 days of the alleged incident, it also connects the appellant with the commission of the alleged offence. The prosecution has successfully proved its case beyond shadow of doubt against the appellant and the prosecution has successfully proved its case punishable under section 25 of the Arms Act against the appellant, in any manner the recovery, which has been made voluntary by the appellant, may not be said to be doubtful. The trial court has not committed any error in convicting the appellant for the offence punishable under section 302 I.P.C. and section 25 of the Arms Act and the trial court has not committed any error in recording the finding of conviction against the appellant for the offence punishable under section 302 I.P.C. and section 25 of the Arms Act and awarding the sentence to undergo life imprisonment and 3 years R.I. with fine. The impugned order dated 24.1.2004 passed by the Additional Sessions Judge/ F.T.C. Ghazipur in S.T. No. 100 of 2002 and 101 of 2002 is not suffering from any illegality or irregularity, the impugned order does not require any interference by this court, therefore, the finding of conviction and sentence awarded by the trial court is hereby affirmed. The appellant is in jail, he shall serve out the sentence as awarded by the trial court vide impugned judgement and order dated 24.1.2004.

Accordingly this appeal is dismissed.

Let a copy of this order may be communicated to the District and Sessions Judge/Chief Judicial Magistrate, Ghazipur forthwith.

Dated 13.8.2014

NA/Su/RPD