Krishna Kumar @ Gabbar & Ors. vs State Of U.P.
2016 Latest Caselaw 3487 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 21
 
Case :- CRIMINAL APPEAL No. - 1487 of 2013
 
Appellant :- Krishna Kumar @ Gabbar & Ors.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.B.S. Rathaur,A.K.Srivastava,Manish Pratap Singh,Manish Vikram Singh Chauh
 
Counsel for Respondent :- Govt. Advocate,J.P. Yadav,K.S.Rastogi
 

 
with
 
Case :- CRIMINAL REVISION No. - 498 of 2013
 
Revisionist :- Reena Yadav & Another
 
Opposite Party :- State Of U.P. & 7 Ors.
 
Counsel for Revisionist :- K.S. Rastogi,J.P.Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Umesh Chandra Srivastava,J.

Criminal appeal no. 1487 of 2013 (Krishna Kumar @ Gabbar & others vs. State of U.P.) has been filed against the judgement and order dated 03.10.2013, passed in Sessions Trial Nos. 116-A and 116 of 2011, (State of U.P. vs. Krishna Kumar @ Gabbar and another and State of U.P. vs. Brijesh @ Sonu & 4 others respectively), where in the learned Special Judge (E.C. Act)/ Additional Sessions Judge, Sultanpur has convicted and sentenced the appellants Krishna Kumar @ Gabbar, Balram Yadav, Mahendra Yadav, Brijesh @ Sonu, Shiv Bahadur, Narendra Kumar Yadav @ Guddu and Pushpendra Kumar Yadav with one year imprisonment under sections 147, 148, 504 I.P.C. each and five years imprisonment and Rs. 5000/- fine each and in default an additional imprisonment of three months, under section 307 read with section 149 I.P.C.

Injured Smt. Reena Yadav and the first informant Sanjay Kumar Yadav of the aforesaid Sessions Trials have filed criminal revision no. 498 of 2013 (Smt. Reena Yadav and another versus State of U.P. And others) for the enhancement of punishment for the offence in question awarded to the aforesaid appellants.

Both the aforesaid criminal appeal and criminal revision having been arisen from the same Judgement and order are being disposed of together by a common judgement which is being passed in criminal appeal no. 1487 of 2013.

Brief facts of the case are that first informant Sanjay Kumar Yadav submitted a written report dated 10.11.2010 at P.S. Kurebhar, District Sultanpur on 11.11.2010 at 00:45 A.M. Stating therein that all seven appellants namely Krishna Kumar @ Gabbar, Balram Yadav, Mahendra Yadav, Brijesh @ Sonu, Shiv Bahadur, Narendra Kumar Yadav @ Guddu and Pushpendra Kumar Yadav, armed with fire arms, came to the door of his house in the night of 10.11.2010 at 11:00 P.M. and started hurling filthy abuses to him. He had further stated in the report that when after hearing abuses he, his wife Smt. Reena Yadav and uncles Hari Prasad Yadav and Jagdeo Prasad Yadav came to the door of his house and objected to appellants from hurling abuses, appellants Krishna Kumar @ Gabbar and Balram Yadav opened fire at him from their country made pistols which misdirected and hit his wife Smt. Reena Yadav causing grievous injuries to her. He had stated that appellants Krishna Kumar and Balram Yadav had shot the fires in furtherance of common object of all appellants to kill him and, after receiving the fire arm injuries his wife Smt. Reena Yadav fell down on the earth where after appellants ran away from the place of occurrence. On this report, a cognizable report under sections 147, 148, 149, 307 and 504 I.P.C. Was registered against the appellants as case crime No. 699 of 2010, under sections 147, 148, 149, 307 and 504, I.P.C. and after investigation chargesheet was filed. The case of the appellants was committed to the Court of Sessions which was ultimately tried in the Court of Special Judge (E.C. Act) /Additional Sessions Judge under sections 149, 148, 504 & 307 read with 149 I.P.C., and the learned Additional Sessions Judge on the strength of evidence available on record found all appellants guilty for the offence they were charged. Consequently, the learned Additional Sessions Judge recorded the judgement of conviction against all seven appellants and convicted them with one year imprisonment under sections 147, 148, 504 I.P.C. each and five years imprisonment and Rs. 5000/- fine each and in default three months additional imprisonment under section 307 read with section 149 I.P.C. impelling appellants to file this criminal appeal.

Injured Smt. Reena Yadav and the first informant Sanjay Kumar Yadav being not satisfied with the quantum of punishment awarded to appellants for the offence punishable under section 307 read with section 149 I.P.C., have filed criminal revision with a prayer therein that punishment of appellants should be enhanced to at least ten years rigorous imprisonment under Part-II of section 307, I.P.C.

I have heard Shri R.B.S. Rathaur and Shri Manish Pratap Singh, learned counsel for the appellants, Shri J.P. Yadav learned counsel for the revisionists and Shri Balkeshwar Srivastava, learned AGA for the State and have perused the record.

Learned counsel for the appellants has sought to be contended that prosecution story does not inspire confidence and does not find support from the evidence adduced on record also and even then the learned Additional Sessions Judge has proceeded to record conviction and sentenced the appellants which is not proper and legal and therefore Judgement and order in question need to be quashed.

The learned counsel has further contended that it is no where stated in the F.I.R. in question lodged by the husband of the injured Smt. Reena Yadav, that there was any source of light at the scene of occurrence at the time of occurrence and a new case has been developed in this regard in the evidence of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Smt. Reena Yadav that they had identified appellants in the light of an electric bulb and by voice of the accused.

He has contended that as a matter of fact there was no source of light at the place of occurrence because had it been there then the investigating officer, who has prepared the site plan Ex-Ka-8, would have shown the same in the site plan and both P.W.-1 Sanjay Kumar Yadav, and P.W.-2 Reena Yadav would have also stated in this regard to the Investigating Officer when they were interrogated by the Investigating Officer.

The learned counsel has contended that a new theory regarding availability of source of light at the place of occurrence has been deliberately developed by the prosecution by way of evidence of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Smt. Reena Yadav with an oblique motive to falsely implicate the appellants in the alleged crime by fixing their identity but, the same being not liable to be believed, the learned Sessions Judge instead of believing and convicting appellants on its basis ought to have discarded the same and recorded the order of acquittal of appellants.

The learned counsel for the appellants has further contended that defence has examined D.W.-1 Amar Pal, who at the time of alleged occurrence was posted as Lineman at Dhanpat Ganj, Mayung Feeder. He has contended that electricity to Village-Dihwa Patna is supplied from Dhanpat Ganj, Mayung Feeder and D.W.-1 Amar Pal has clearly stated in his evidence that there was no supply of electricity to Village-Dihwa Patna between 02:00 P.M. to 12:00 O clock in the night of 10.11.2010 from Dhanpat Ganj, Mayung Feeder. He has contended that this statement of D.W.-1 Amar Pal is very relevant and it completely washes out the development made by P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav made in their statements that an electric bulb was lighting at the door of their house at the time of occurrence and they had identified the appellants in the light of that bulb. He has contended that despite there being a strong evidence on record to the effect that there was no supply of electricity in the night of 10.11.2010 in village Dihwa Patna, the learned Additional Sessions Judge did not care to take any notice of it, as he has not discussed the same in his Judgement and has believed the most improbable and false evidence of P.W.-1 Sanjay Kumar Yadav and P.W. -2 Reena Yadav that they had identified the appellants in the light of an electric bulb which was lighting at their door at the time of alleged occurrence.

He has contended that act of learned Additional Sessions Judge believing statements of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav that they had identified the appellants in the light of Electricity being contrary to evidence and law, it can not be allowed to sustain rather it needs to be disbelieved and discarded.

Learned counsel for the appellants has further contended that P.W.-2 Smt. Reena Yadav has admitted in her evidence that she is a "Pardanaseen" lady and, being such, men of the village do not talk with her. She has further stated in her statement that there was no eating terms of her family with the appellants since more than 10 years. Thus, he has contended that if P.W.-2 Smt. Reena Yadav is a "Pardanaseen" lady and being such men of the village do not talk with her and there was no eating terms of the appellants with her family since many years then there could be no question of her having identified the appellants in the night of the incident by their voice. He has contended that this also establishes that P.W.-1 Sanjay kumar Yadav and P.W.-2 Reena Yadav had not identified the appellants as assailants in the night of the incident and appellants have been falsely implicated at behest of others due to village politics and enmity.

Learned counsel for the appellants has further stated that despite incident in question being of a close vicinity no independent witness has been named in the F.I.R. He has contended that prosecution has examined only two witnesses of fact and they being husband and wife are closely related with each other, and their evidence being not supported by any independent witness is not liable to be believed. He has contended that learned Additional Sessions Judge did not consider this important aspect of the case while believing the prosecution story and held appellants guilty for the offence which is not proper.

He has contended that in the given facts of the case where possibility of false implication is probable, non examination of independent witness by the prosecution becomes fatal and the learned Additional Sessions Judge should have considered this aspect while considering the evidence of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav, and based on the same, instead of holding conviction of appellants he should have acquitted them.

Learned counsel for the appellants has drawn my attention to the statement of P.W.-1 Sanjay Kumar Yadav, in which he has stated that he had taken his wife to Medical College, Lucknow in the morning of 11.11.2010 and reached there at about 08:00 A.M., and after having remained there for about two hours, he had left the place for his home. The learned counsel has contended that if the first informant reached Lucknow at about 08:00 A.M. and stayed there about two hours before leaving this place for home then in that case, looking to the distance between Lucknow and his home around 180 K.M., he could not reach home before 01:00 P.M., and in that case it could not be possible for him to be present on the place of occurrence at 10.40 A.M. when P.W.-5 S.I. Tej Bahadur Singh prepared memo of recovery of empty cartridge and pellet. Thus, he has contended that this also suggests that no fair investigation was done in the case in question and charge-sheet against appellants was filed under pressure of father of the first informant, who is a practising Advocate at Allahabad.

Learned Counsel for the appellants has further contended that prosecution story does not match with the evidence led in support thereof, as according to prosecution story, one 315 bore country made pistol has been said to be recovered from the possession of appellant Balram Yadav when he was arrested on the next day of occurrence. His contention is that in the normal course if a 315 bore country made pistol is stated to have been recovered from the appellant Balram Yadav only after few hours of the occurrence then it shall be presumed that the said fire arm had been used in the commission of crime, and in that case the fire arm injuries found on the body of the injured should have been of the same bore of fire arm and not of 12 bore fire arm as in the present case. Thus, he has contended that recovery of 315 bore country made pistol from the possession of appellant Balram Yadav and no injury of such fire arm being found on the body of sole injured Smt. Reena Yadav clearly indicates that the appellant Balram Yadav was not involved in the alleged crime and he has been implicated in the crime due to enmity.

The learned counsel for the appellants has further contended that it has come in the evidence of P.W.-1 Sanjay Kumar Yadav that, after receiving fire arm injuries, his wife Reena Yadav was profusely bleeding and the 'Sari' she had wore had been soaked in blood and blood had also fallen down on the earth and his clothes had also soaked in blood due to him having taken his wife in his lap for making her to lie on the earth. He has contended that if the clothes of P.W.-1 Sanjay Kumar Yadav and his wife had been soaked in blood, it raises a big question mark to the credibility of the prosecution story as to why those clothes were not handed over to the Investigating Officer and why the Investigating Officer had not taken those clothes into possession for being sent for chemical examination to establish the truthfulness of the prosecution case. He has contended that if the incident had occurred at the place and in the manner as stated by the prosecution then blood of injured would certainly fall on the clothes of injured and the blood stained clothes and earth would be shown and handed over to the Investigative officer and the Investigating Officer would take the same and send it to Forensic Science Laboratory for Chemical examination.

The learned counsel for the appellant has further contended that F.I.R. of the incident in question, which is said to have been lodged on 11.11.2010 on 00:45 A.M., appears to be ante time as under the facts and circumstances of the case it was not possible to be lodged at this time. In this regard, he has contended that incident in question had allegedly taken place on 10.11.2010 at 11:00 P.M. and as per statement of P.W.-1 Sanjay Kumar Yadav, after the incident he had called a vehicle from Village-Belwari for taking his injured wife Smt. Reena Yadav to Police Station-Kurebhar for reporting the incident to the police. He has further contended that distance of village-Belwari from village Dihwa Patna is not less than 55 kms and looking to this it was not possible for the vehicle to reach the place of occurrence in less than one and half hour and in that situation F.I.R. was not possible to be lodged at P.S. Kurebhar at 00:45 A.M., as distance between village Dihwa Patna and P.S. Kurebhar is 19 kms. and to cover this distance minimum 30 minutes would be required for a vehicle like Jeep.

The learned counsel has further contended that both P.W.-3 Dr. Gopal Prasad Rajak and P.W.-4 Const. Durga Prasad Mishra have admitted in their statement that memo of medical examination, on which basis the medical examination of Smt. Reena Yadav was conducted in District Hospital, Sultanpur on 11.11.2010 at 04:30 A.M., does not bear crime number and sections of the offence in which the F.I.R. was lodged and this clearly indicates that no F.I.R. was lodged by the time when the memo of medical examination was prepared otherwise there could be no reason for not mentioning the crime number and sections of the offence in it. Thus, on this strength, the learned counsel has contended that F.I.R. is ante-time and this suggests only one thing that incident did not occur in the manner it is stated rather it had happened differently and the appellants have been falsely implicated due to village politics and enmity.

In support of above contention, the learned counsel for the appellants has contended that recovery of 1 empty cartridge of .12 bore and a pellet from a place near a Neem Tree situated in-front of the house of the first informant is suggestive of the fact that the fire which hit Smt. Reena Yadav was not shot from the place as stated by the prosecution rather it was shot from the place where husband of the injured was standing. He has contended that if the fire had been shot from the place near Pakad Tree, which has been shown by letter- "B" in the site plan, then recovery of 1 empty cartridge and pellet would be made from place "B" and not from place "A" which is situated at a distance of 20 steps from this place. Thus, he has contended that recovery of 1 empty cartridge of .12 bore and a pellet from a place near the door of the first informant completely falsifies the prosecution's story that appellants had shot the fires at the first informant from the place shown by letter "B" which misdirected and hit the appellants wife causing grievous injuries to her.

Learned counsel for the appellants has contended that under the facts and circumstances of the case the possibility of Smt. Reena Yadav having sustained injuries from the fire shot by her husband cannot be ruled out. In this regard, he has contended that it is the case of the prosecution that both the first informant and his wife were standing at the door of their house when the fire was shot aiming at the first informant which misdirected and hit the first informant's wife. His further contention is that recovery of an empty cartridge from a place where the first informant was standing along with his wife suggests only one thing that first informant was having a loaded country made pistol which ran during the time the wife of the first informant, in order to save the first informant from the appellants, was scuffling and trying hard in taking her husband inside the house and hit her causing fire arm injuries to her and the first informant in order to settle score from the appellants falsely implicated them into the alleged incident by lodging false report against them.

Learned counsel for the appellants has further contended that the statement of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav are full of major contradictions and it makes their statements wholly unreliable. For this, the learned counsel has drawn my attention to the statement of P.W.-1 Sanjay Kumar Yadav in which he has stated that it were he, his brother-in-law and uncle who, after the incident, had taken injured to Medical College, Lucknow and he had met with his father Shri J.P. Yadav, a practising Advocate at Allahabad, for the first time after the incident after three days of the incident at Sultanpur where his wife was staying in the house of his relative. However, he has contended that P.W.-2 Smt. Reena Yadav has differently stated in this regard saying it is her father-in-law Shri J.P. Yadav who had taken her to Medical College, Lucknow on 11.11.2010 and she had reached there in the evening at 07:00 P.M. and had been admitted therein and remained admitted for three days. He has contended that if Shri J.P. Yadav had taken the injured to Medical College, Lucknow and got her admitted therein and the injured remained admitted therein for three days then the question of meeting of the first informant with his father is at Sultanpur on the third day of the incident does not arise, and this falsifies the prosecution's story that it were appellants whose fires hit the wife of the first informant and she was injured.

The learned counsel for the appellants has further contended that looking to seat of injuries and its nature, it could hardly be said that appellants had any intention to kill the first informant or his wife. He has contended that if the appellants had any intention to kill the first informant and shot fire at him with the same intention then appellants being seven in number and armed with fire arms, as stated by the prosecution, there could be no chance of escaping of the first informant in the incident. He has contended that pellet injuries that have been found on the right thigh, right lower abdominal portion, right arm and on a finger suggest only one thing that appellants had no intention to kill the first informant nor they had shot fire at him with the same intention, and in that situation if the learned Sessions Judge was of the view that prosecution story was liable to be believed then in that case he should not have convicted the appellants under section 307 I.P.C., rather he should have convicted and sentenced them under section 324 I.P.C. only. Thus, he has contended that in view of the facts and circumstances of the case and the evidence which has come on record in this regard, no charge under section 304 I.P.C. is proved and, in view of this, if this Court comes to the conclusion that prosecution story is liable to be believed then in that case instead of upholding conviction under section 307 I.P.C. It should be held proved under section 324, I.P.C. and appellants should be sentenced accordingly.

As regards revision, learned counsel for the appellants has contended that no charge under section 307 I.P.C has been found proved, but at the most it being found proved under section 324 I.P.C., the question of enhancement of punishment does not arise rather it needs to be reduced.

In reply, learned counsel appearing for the revisionists and the learned AGA have contended that learned counsel for the appellants has wrongly contended that incident in question did not occur at the place and in the manner it is stated and appellants were not involved in the crime and they have been falsely implicated at behest of others due to village politics and enmity. They have contended that it were appellants who, armed fire arms, came to the door of first informant in the night of 10.11.2010 at 11:00 P.M. and started hurling abuses to first informant and when upon hearing abuses the first informant and his wife and uncles came to the door of the house of the first informant and objected to appellants from hurling abuses, appellant No. 1 Krishna Kumar @ Gabbar and appellant No. 2 Balram Yadav opened fire at the first informant with their country made pistols with intention to kill him which misdirected and hit his wife who was standing by the side of her husband. They have further contended that there is no discrepancy in the F.I.R. so that it could be said to be not true and fair. They have further contended that F.I.R. being not an encyclopaedia, every minute detail is not necessary to be incorporated therein, and so if source of light has not been mentioned therein, the F.I.R. cannot be called in question saying prosecution has developed a new case to fill up lacuna by way of evidence of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav that they had identified appellants in the light of an electric bulb. They have contended that appellants are not outsiders but they are the residents of the same village in which the first informant and his wife reside and they are familiar to both of them from years before as they live in the same vicinity in which the first informant and his wife live in. They have contended that where appellants are the resident of the village of the first informant and they live in the same vicinity in which the first informant and his wife live in and are known since years before, they could be easily identified even by their voice and, looking to this, even if it is believed for a short while that there was not any source of light at the place of occurrence, statements of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav that they had identified appellants by their voice would be believed.

Learned counsel for the revisionists and learned AGA have further contended that F.I.R. is not ante time as contended by learned counsel for the appellants. They have further contended that distance between village Belwari and the place of occurrence is not 55 Km. as said by learned counsel for the appellants rather it is only 20 to 22 Km., and looking to this distance as well as distance of 19 Km. between the place of occurrence and P.S. Kurebhar, if the F.I.R. in question has been lodged at the concerned police station within less than two hours of the incident then there is nothing wrong in it so that F.I.R. may be called ante time. They have further contended that F.I.R. cannot be said to be ante time for not mentioning of crime number and sections of the offence in the memo of Medical examination as this is a lapse on the part of P.W.-4 Const. Durga Prasad Mishra , who had prepared the memo, for which prosecution cannot be blamed nor prosecution story can be disbelieved.

The learned counsel have contended that prosecution has no where stated that Smt. Reena Yadav had sustained injuries from the same fire arm which was recovered from the possession of appellant No. 2 Balram Yadav on the next date of the incident. They have contended that it has been the case of the prosecution since beginning that all applicants were armed with fire arms and only two of them, namely appellant No. 1 Krishna Kumar @ Gabbar and appellant no. 2 Balram Yadav fired from their country made pistols which misdirected and hit the wife of first informant. Thus, they have contended that when it is not the case of the prosecution that Smt. Reena Yadav had sustained injuries from the same fire arm which has been recovered from the possession of appellant no. 2 Balram Yadav, it could not be open to appellants to put a case that recovery made from the possession of appellant no. 2 Balram Yadav being not matched with the injuries sustained by the wife of first informant, prosecution story is not liable to be believed.

The learned counsel has further contended that it is also not liable to be believed that incident did not occur at the place and in the manner as stated by the prosecution. They have stated that both P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav have categorically stated that incident in question had occurred at the door of their house. They have further contended that there is no material contradiction in the statement of both eyewitnesses with regard to place of occurrence and the manner in which the offence was committed, as they have clearly stated that when the first informant objected to appellants from hurling abuses appellant no. 1 Krishna Kumar @ Gabbar and appellant no. 2 Balram Yadav opened fire on him from their country made pistols. They have also categorically stated that appellants had opened fire at the first informant from a place which has been shown by letter "B" in the site plan which is at a distance of 20 steps from the place shown by letter "A" where the first informant and his wife were standing. They have contended that if recovery of an empty cartridge of .12 bore and a pellet has been made from the place shown by letter "A" and not from the place shown by letter "B", this could not be the basis to assume that incident did not occur at the door of house of the first informant and in the manner as stated by both fact witnesses and that wife of the first informant was hit from the fire shot from the country made pistol of her husband. They have contended that appellants have not taken this plea either in their statements under section 313, Cr.P.C. nor they have adduced any evidence in this regard, and in the absence of it, now it is not possible for them to set up a new story in their defence by saying some thing which is not probable.

Learned counsel have further contended that it is not material as to who had taken the injured to Medical College, Lucknow for her treatment but the material thing is that wife of the first informant had sustained fire arm injuries in the alleged incident and and had been taken to Medical College, Lucknow for her treatment. They have contended that it is established from the evidence that wife of the first informant had sustained fire arm injuries and had been taken to Medical College, Lucknow for her treatment. They have further contended that it is also established from the evidence that injured had been admitted in TRAUMA Centre of the Medical College, Lucknow where X-ray of her injures and Ultrasound were done. They have contended that learned counsel for the appellants has admitted the genuineness of documents relating to X-ray and Ultrasound under section 294(3) of Cr.P.C. wherefore these documents are admissible in evidence. They have further contended that from oral evidence of the fact witnesses, injury report of injured, x-ray and ultrasound reports and x-ray plates it is well established that injuries caused to the wife of the first informant were fire arm injuries and serious in nature. Thus, they have contended that this clearly establishes the case of the prosecution that it were appellants who caused injures to the wife of the first informant and the injuries were of fire arm and serious in nature and, in view of this, it is not relevant and material as to who had taken the injured to Medical College and for how many days injured remained admitted therein and when and where the first informant had met with his father after the incident in question.

The learned counsel have further contended that appellants had a motive to cause the incident. It has come in the evidence of P.W.-1 Sanjay Kumar Yadav that prior to the incident, Panchayat election had taken place in the village. It has also come in his evidence that wife of appellant Pushpendra Kumar Yadav had contested that election and wife of Ragmani Tiwari was also one of the contestants. This has also come in his evidence that appellants had asked him to cast his vote for the wife of appellant Pushpendra but he did not agree to this as he was supporting the wife of Ragmani Tiwari. Wife of Pushpendra had won the election. Thus, they have contended that there was a strong motive for the appellants to commit the offence as they were annoyed from the first informant for not supporting and casting vote for the wife of appellant Pushpendra but supporting and casting his vote for the wife of Ragmani Tiwari. Thus, they have contended that it is also established from the evidence that appellants had strong motive to commit the offence.

The learned counsel have further contended that if Investigating Officer did not take blood stained clothes of the first informant and his wife and blood stained earth from the place of occurrence for Chemical Examination then this is a latch on the part of him and not the prosecution and prosecution story cannot be disbelieved for this. They have contended that when it is established form the evidence that wife of the first informant had sustained fire arm injuries on her body which were serious in nature and she had been taken to Medical College for the treatment of the said injuries, possibility of clothes of the injured and the earth where incident occurred being soaked with blood can easily be assumed and, in view of this, if P.W.-1 Sanjay Kumar Yadav has stated in his evidence that clothes of his wife she worn at the time of occurrence and his also, had been soaked into blood as, after the incident, he had lifted his wife in his lap and made her to lie on earth then the same cannot be said to be exaggerated and false saying had it been true then blood soaked clothes would certainly be handed over and the blood soaked earth would be shown to the Investigating Officer and in that case the Investigating Officer would have taken the same in his possession and sent for Chemical Examination. They have contended that if an Investigating Officer fails to perform his duties properly, this could be a ground for taking action against him. But this could not be a ground for belying the prosecution story and, in view of this, if in the case on hand Investigating Officer did not take blood soaked clothes of the injured and her husband and blood stained earth for being sent to Forensic Science Laboratory for Chemical Examination to establish that incident had occurred at the place and in the manner as stated by the fact witness, and there is no any infirmity or discrepancy in the statements of fact witnesses, then it is the evidence of fact witnesses which will prevail and not the latches on the part of Investigating Officer.

F.I.R. is not an encyclopaedia that every minute thing relating to incident should necessarily be mentioned in it. It is merely a report regarding commission of a crime which brings the law into motion. It can be authored by any one irrespective of the fact whether author has any personal knowledge about the crime or not. In this regard, mental state of the author at the time of authoring is very relevant and if the author himself is the victim or relative of the victim then it becomes more relevant as to in what state of mind the report was authored. The F.I.R. cannot be said to be doubtful and discarded merely on the reason that some facts left to be mentioned therein. If necessary facts constituting the crime have been mentioned in the F.I.R. and they appear to be true and probable, the prosecution story cannot be rejected or discarded for the reason that some facts have been left to be mentioned in the F.I.R.

From the facts of the case on hand it is clear that first informant was attacked with fire arms in the night of 10.11.2010 at about 11:00 P.M. by the appellants with intention of being killed. However, the fires which were shot misdirected and instead of hitting the first informant they hit his wife in her right thigh, right lower part of the abdomen, right arm and a finger. The wife of first informant sustained grievous fire arm injuries in the incident. After the incident, she was firstly taken to P.S. Kurebhar in a vehicle where her husband lodged report regarding the incident and there after he took her to Primary Health Centre for treatment and Medical examination. No Medical Examination of injured was done in the Primary Health Centre rather she was referred to District Hospital from there where-after she was taken to District Hospital, Sultanpur where medical examination was done and first-aid was also given to her. After the Medical Examination was over, injured was taken to TRAUMA Centre of Medical College, Lucknow where she was made to be admitted and X-ray of injuries and Ultrasound were done. This sequence of events is sufficient to assume that first informant was not in normal state of mind when he lodged the report and therefore, if he could not mention in the report that he had identified the appellants in the light of an electric bulb and by their voice then it is not such a big thing that F.I.R. should be disbelieved or discarded.

The F.I.R. cannot be disbelieved and discarded for this reason also that a new story has been tried to be developed during the course of evidence that first informant and his wife had identified appellants in the light of an electric bulb and also by the voice of the appellants. The F.I.R. cannot be disbelieved and discarded for this reason also that on 10.11.2010 between 02:00 P.M. To 12:00 O Clock in night there was no supply of electricity in village Dihwa Patna. It is to be noted here that appellants are not outsiders or strangers to first informant and his wife. They are the resident of the same village of which the first informant and his wife are and they all reside in the close vicinity. It has come in the evidence of P.W.1 Sanjay Kumar Yadav that house of appellants are close to his house and they are his immediate neighbours. In the case where appellants are the resident of the same village of which the first informant and his wife are and they all reside in the close vicinity, it is possible for appellants to contend that they were not identifiable and first informant and his wife could not identify them by their voice.

Contrarily, all appellants being immediate neighbourers were known to first informant and his wife from years before and, in view of this, they were easily identifiable even in the absence of light and, in view of this, if it is believed that on 10.11.2010 between 02:00 P.M. to 12:00 O Clock in the night there was no supply of electricity in village Dihwa Patna, as suggested by the appellants on the basis of evidence of D.W.-1 Amar Pal, evidence of fact witnesses that they had identified appellants by their voice would be believed, as it has been the prosecution case since beginning that at the time of occurrence all appellants were hurling abuses to the first informant and they kept it continued when the first informant came to his door along with his wife and objected to them from hurling abuses. Thus, so far as this contention of the appellants is concerned that there was no source of light and therefore first informant and his wife could not identify them at the time of occurrence is not liable to be believed, rather what is liable to be believed is that they being identifiable by their voice, they could be easily identified by the first informant and his wife even in the absence of light.

The Hon'ble Apex Court in the case of Sayed Darain Ahsan @ Darain vs. State of West Bengal and another, 2010 (77) ACC 680 has held that "if eyewitness are the resident of the same locality and have no problem in identifying the assailants, their testimony of identifying the assailants cannot be repelled on the ground that there was no source of light available on the place of occurrence and in the absence thereof it was not possible for the witnesses to identify the accused".

The similar view has been taken by the Uttarakhand High Court in the case of Mrinal Dhali vs. State of Uttaranchal, 2012 (77) ACC 607. The Division Bench of Uttarakhand High Court has held in this case that "if the accused is the resident of neighbourhood and known and familiar to the witnesses, he could be easily recognized and identified by his voice even in poor light conditions".

In view of the aforesaid case laws, it is explicit that appellants and witnesses namely P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav are not only the resident of the same locality but appellants are their immediate neighbourers and, in view of this, appellants could be easily identified and recognized by their voice and therefore if the fact witnesses have said that they have identified the appellants in the light of electric bulb and their voice, their testimony cannot be disbelieved on the ground that there was no supply of electricity.

Now, I come to the question whether testimony of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav being not supported with the evidence of any independent witness is liable to be believed or not. In this regard, it is suffice to say that both fact witnesses have clearly stated in their evidence that all 7 appellants came to the door of first informant in the night of 10.11.2010 and started hurling abuses to him and when upon hearing abuses first informant and his wife came to the door of their house they shot fires at him with their country made pistols which misdirected and hit the wife of first informant. In a lengthy cross-examination being made from them they have not shaken but have remained intact to their version. Some minor contradictions have come in their evidence but the same is not such that their testimony could be disbelieved. They have remained fully intact on the fact that all 7 appellants, armed with fire arms, came to their house and started hurling abuses to first informant and on being resisted they shot fires at first informant which did not hit to him but it hit to his wife causing injuries to her. The discrepancies in their statements are not major but minor and for these their testimony cannot be disbelieved and it cannot be disbelieved on this reason also that no independent witness has been examined in support of their evidence.

The Hon'ble Apex Court in the case of Mano Dutt and another vs. State of U.P., 2012 (77) ACC 209, has said that "evidence of an injured witness enjoys greater credibility as the sufferer himself would not like to protect the real culprit by implicating an innocent falsely." The Hon'ble Apex Court has further said in this case that "Court can convict an accused on statement of sole witness, even if relative of the deceased, provided the testimony of the witness satisfies the legal parameters laid down by the Hon'ble Apex Court." The Hon'ble Apex Court has further held that "non examination of independent witness would not affect the prosecution case."

In view of above case law, it is clear that conviction could be based on the testimony of sole witness provided the same should be free, fair and trustworthy. It is also clear that for basing conviction it is not necessarily required to examine independent witness, and if the testimony of sole injured witness is free, fair and trustworthy, the same can be believed and conviction could be based on it. If the case on hand is is examined on this parameter, it would be found that despite both fact witnesses examined by the prosecution being husband and wife are closely related with each other, but one of them being a sufferer due to having sustained injuries in the incident, her testimony would be believed and it can not be discarded on the reason that it is not supported with the evidence of any independent witness.

The Hon'ble Apex Court in the case of State of U.P. vs. Naresh and others, 2011 (75) ACC 215, has said that Court should not give weightage to minor discrepancies in prosecution evidence rather it should discard such discrepancies and believe the prosecution case, if it is otherwise fair, intact and trustworthy. The Hon'ble Apex Court has further held in this case that nominal discrepancies in evidence of prosecution witnesses are bound to occur due to normal error of observation and due to lapse of time. Judging the case in this view of the matter also it would be proper and adequate to say that evidence of fact witness cannot be disbelieved merely on the ground of minor discrepancies as pointed out by the appellants.

The minor discrepancies pointed out in the evidence of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav cannot be made basis for belying the prosecution case as in the normal course they are bound to occur. It is not material as to who had taken the wife of first informant to Medical College, Lucknow for her treatment and how long she remained admitted there; it is also not very relevant as to when the first informant met with his father after the incident but what is relevant is whether accident has occurred at the place and in the manner as stated by the prosecution and this question is answered in affirmative because testimony of both eyewitnesses on this point is intact.

The reasons suggested by the defence for discarding the testimony of the fact witness are not so strong and sufficient so that prosecution case could be disbelieved. The prosecution case could not be disbelieved on this reason also that F.I.R. is ante time. There is nothing on record to suggest that distance between Village-Belwari and Patna Dihwa is 55 Km. as appellants suggest, contrarily, it has come in the evidence of P.W.-1 that this distance is only 20 to 22 Km. and the distance between Village-Patna Dihwa and Kurebhar is 19 Km. Looking to this, if the F.I.R. of the incident in question has been lodged within less than two hours of the occurrence, there is nothing unusual in it and therefore F.I.R. cannot be discarded saying ante time. The F.I.R. being lodged within less than two hours of the incident is a prompt one which negates the possibility of false implication. The F.I.R. cannot be said to be ante time for the reason of not mentioning crime number and sections of offence in the memo of Medical Examination. This is a latch on the part of Police Constable who has prepared it and he alone would be blamed and liable for it and not the prosecution.

The prosecution cannot be blamed for this reason also that blood soaked clothes of the first informant and his wife were not handed over to the Investigating Officer for being sent for Chemical Examination. It was the duty of the Investigating Officer to ask about the same from the first informant and his wife, take them in his possession and sent for chemical examination and if he has failed in discharging his duties, he alone would be liable for the same and not the prosecution. Reference of decision of Hon'ble Apex Court in the case of Dayal Singh & others vs. State of Uttaranchal, 2012 (3) JIC 428 (SC) can be have in this regard. The Hon'ble Apex Court has held in this case that "defective investigation can be held no ground of acquittal and further a Doctor did not act with requisite professionalism in recording the post mortem report again is required to be directed against him but for no reason the prosecution case could be believed on".

I do not find force in this submission of the appellants also that injuries sustained to the wife of the first informant were not caused from the fire arms of the appellants but were caused from the fire arm of the first informant. The reason that has been assigned behind this plea is that if the fire had been shot from the place shown by letter "B" in the site plan then empty cartridge of .12 bore and a pellet had also been found from the same place and not from the place shown by letter "A". In regard to this, I would like to say that it is not the case of prosecution that appellants had fired only one shot from their fire arms rather its case is that they had fired many shots, and if appellants had fired many shots and some of them hit the wife of the first informant, and recovery of one empty cartridge of 12 bore and a pellet has not been made from the place from where the fire was shot but from the place where first informant and his wife were standing then it could not be presumptive of the fact that first informant had a loaded 12 bore country made pistol with him which ran during the incident and hit his wife. The appellants have taken this plea for the first time in appeal only, they had not taken this plea before the learned Additional Sessions Judge. They have also not said a single word in this regard in their statements under Section 313 Cr.P.C., nor they have led any evidence to this effect. When appellants had not taken this plea before the learned Additional Sessions Judge and have stated nothing in this regard in their statements under section 313 Cr.P.C. rather have taken this plea for the first time in appeal which is not supported with any evidence, the plea being based on assumption cannot be believed nor the appellants could be given any benefit of decision of the Hon'ble Apex Court rendered in the case of Mangu Singh vs. Dharmendra and another, 2016 (93) ACC 510. The Hon'ble Apex Court has held in this case that " it is the settled law that defence needs to only establish its case based on probability, whereas the prosecution has to proved the guilty of the accused beyond the reasonable doubt".

The appellants cannot be accorded benefit of the Division Bench decision of this Court rendered in the case of Ramesh vs. State of U.P., 2001 (Suppl.) ACC 210. The Division Bench of this Court has held in this that "section 294(3) of the Cr.P.C. only exempts the formal proof of the document but it does not mean that it will be presumed that the document without any scrutiny conclusively proves the fact". The appellants have referred this case law in reference to X-ray report, Medical slips, Ultrasound report, X-ray Plates and other material exhibits, genuineness of which has been admitted by them through their counsel under section 294 (3) Cr.P.C.. Their learned counsel has submitted that appellants have not admitted the genuineness of the contents of the documents and the material exhibits but they have admitted execution of documents only. In this regard, I would again like to say that this plea is also not acceptable. Documents in question clearly speak that genuineness has been admitted under section 294(3), Cr.P.C. without any endorsement to the effect that contents of the documents are denied. When genuineness of documents has been admitted under section 294(3), Cr.P.C., without denying contents, it shall be presumed that genuineness of both the execution and contents of the documents has been admitted and not only the execution of document.

On a careful consideration of testimony of P.W.-1 Sanjay Kumar Yadav and P.W.-2 Reena Yadav, it is established that it were appellants, who armed with fire arms, came to the door of the first informant and started hurling abuses to him and when upon hearing abuses first informant and his wife came to the door of their house and objected to appellants from hurling abuses, appellant no. 1 Krishna Kumar @ Gabbar and appellant no. 2 Balram Yadav, in furtherance of common object of all the appellants, opened fire at the first informant with intention to kill him which misdirected and instead of hitting the first informant hit his wife Smt. Reena Yadav and caused grievous injuries to her. The testimony of fact witness is fully supported with Medical evidence of P.W.-3 Dr. Gopal Prasad Razak, who had conducted Medical Examination of Smt. Reena Yadav and prepared report Ext-Ka-3, wherein it has been clearly stated that multiple pellet injuries were found present over right lateral thigh to fat aspect of right side of abdomen and over left index, right elbow and forearm. It has also been stated therein that fire arm injuries were fresh in duration and serious in nature. This is indicative of the fact that though wife of first informant was not chosen as prey by the appellants but their intention behind opening fire was to kill the first informant and, charges under sections 147, 148, 504 and 307 read with section 149 I.P.C. are fully proved against all appellants as held by the learned Additional Sessions Judge. Thus, so far as finding of conviction recorded by learned Additional Sessions Judge is concerned, it is absolutely correct and needs no interference.

The learned Sessions Judge has sentenced appellants with one year imprisonment for the offence under sections 147, 148, 504 I.P.C. and 5 years imprisonment and Rs. 5000/- as fine and in default in payment of fine an additional imprisonment of 3 months for the offence under section 307 read with section 149 I.P.C. The learned counsel for the revisionists has no objection with regard to punishment provided for the offence under sections 147, 148 and 504 I.P.C. His grievance is with regard to quantum of punishment provided under section 307 read with section 149 of the I.P.C and his submission in this regard is that incident in question has not happened at spur of moment rather it was a deliberate act of the appellants who, armed with fire arms, came to the house of the first informant in the night and started hurling abuses to him and on being protested they opened fire at him which misdirected and hit his wife who was standing to the side of her husband. Learned counsel has contended that intention of appellants was to kill the first informant and it was his good-luck only that the shot misdirected and instead of hitting him it hit his wife causing grievous injuries to her. He further contended that if the shot would not misdirect and hit the first informant then he would die and in this view of matter, appellants instead of being punished with 5 years simple imprisonment under section 307 I.P.C. ought to have been punished under Part-II of section 307 and at least 10 years rigorous imprisonment ought to have been awarded to them, as maximum punishment provided for the offence under Part-II of section 307 I.P.C. is life imprisonment.

Learned counsel has further contended that in the case on hand appellants had not only attempted to commit murder of the first informant by opening fire at him but wife of the first informant had received grievous fire arm injuries also and, in view of this, quantum of punishment awarded to appellants being only 5 years simple imprisonment is not adequate in any manner and needs to be suitably enhanced.

The learned counsel has further contended that it is incorrect on the part of appellants by submitting that injuries sustained to the wife of the first informant were not on the vital parts of her body. He has contended in this regard that it is explicit from the injury report as well as from the evidence of P.W.-3 Dr. Gopal Prasad Razak that pellet injuries were found to be present on the body of the wife of the first informant were not only on her right thigh, right arm and index finger but it were on abdomen also which is a vital part of the body.

He has further contended that for awarding punishment for the offence under section 307 I.P.C. it is not the seat and nature of the injuries which is relevant but what is relevant is that with what intention injuries have been caused. He has contended that if injuries have been caused with intention to kill, punishment for the offence should be given as provided under Part-II of section 307 I.P.C. irrespective of number and nature of injuries, because in such a case the number and nature of the injuries has no significance.

In reply, learned counsel for the appellants has contended that it is being incorrectly said by the revisionists' learned counsel that appellants had intention to kill the first informant and they had opened fire at him with the same intention. The learned counsel has contended that had appellants been intended to kill the first informant and opened fire at him with the same intention, then looking to their number and that they were armed with fire arms, not only two of the appellants would open fire at the first informant but in that case all appellants would simultaneously fire leaving no scope for the first informant to escape.

He has contended that even if it is believed for a short while that appellants intention was to kill the first informant and they opened fire at him with the same intention which misdirected and instead of hitting him hit his wife, but since injuries found on the body of injured were not on the vital parts of the body, the quantum of punishment awarded to appellants is not inadequate and insufficient and does not need any enhancement.

Having heard the submissions of learned counsel for the parties, the factual position that has been so emerging is that out of 7 appellants only 2 of them namely Krishna Kumar @ Gabbar and Balram Yadav opened fire at the first informant which misdirected and instead of hitting the first informant, hit his wife causing injuries to her in her right thigh, right abdomen, left index finger and right elbow and forearm. None of the injuries, except those found on the abdomen, were on the vital part of the body. Although injured was taken to Medical College for the treatment and she remained admitted therein but she remained admitted for a day only, as is established from the evidence of P.W.-1 Sanjay Kumar Yadav in which he has stated that when after the incident he met with his father at Sultanpur for the first time where he and his wife were staying in the house of his relative and it was the third day of the incident and, looking to this, it can only be said that she was treated for only one day in the Medical College and thereafter she was discharged from there. This shows that injuries sustained to injured were not dangerous to her life as argued by the learned counsel for the revisionists. Non of the injuries, except those found on the lower abdomen were on the vital part of the body of the injured. Injured remained admitted in hospital for treatment for a day only and there is nothing on record to suggest that she was treated any further thereafter. Taking a note of all these facts into consideration, I would like to say that punishment of five years and Rs. 5000/- as fine awarded to appellants by the learned Additional Sessions Judge for the offence under section 307 I.P.C. is not inadequate so that the same should be enhanced. Contrary to this, under the facts and circumstances of the case, the punishment awarded to appellants under section 307 read with section 149 I.P.C. appears to be sufficient and adequate.

In view of the aforesaid discussions, both, the Criminal Appeal and Criminal Revision sans merit and therefore, deserves to be dismissed.

Both the Criminal Appeal and Criminal Revision are dismissed. The Judgement and order dated 03.10.2013 recorded by the learned Additional Sessions Judge are confirmed. Appellants Krishna Kumar @ Gabbar is already in jail and he need not surrender to serve the punishment. Other appellants namely Balram Yadav, Mahendra Yadav, Brijesh @ Sonu, Shiv Bahadur, Narendra Kumar Yadav @ Guddu and Pushpendra Kumar Yadav are on bail, their bonds are cancelled and sureties are discharged and they are directed to surrender before the learned Additional Sessions Judge within 15 days from the date of Judgement of this Court to serve the punishment provided to them, failing which learned Additional Sessions Judge shall ensure compliance of the order by issuing Non Bailable Warrant against them.

A copy of Judgement be immediately sent to Court concerned for compliance under intimation to this Court.

Order Date :- 10.6.2016

Bhanu