Vijay Pal Yadav vs State Of U.P.
2017 Latest Caselaw 8101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- JAIL APPEAL No. - 8191 of 2009
 
Appellant :- Vijay Pal Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Lokesh Kumar Mishra,Pawan Singh Pundir, Rakesh Ojha
 
Counsel for Respondent :- A.G.A.
 
and
 
Case :- JAIL APPEAL No. - 8192 of 2009
 

 
Appellant :- Kadir Ansari
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Hari Om Khare,Lokesh Kumar Mishra,P.S. Pundir
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Pawan Singh Pundir, learned counsel for the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for the State and perused the record.

2. Since both the appeals arising out of a common impugned judgment and order dated dated 06.11.2009, passed by the Additional Session Judge, Meerut in Session Trial No.509 of 2007, therefore, both the appeals are being decided by this common judgment.

3. Both the appeals have been filed against the common impugned judgment and order dated 06.11.2009, passed by the Additional Session Judge, Meerut in Session Trial No.509 of 2007, whereby the present appellant had been convicted for offence punishable under Section 302 I.P.C. Accused Kadir was convicted for the offence punishable under Section 302 read with Section 34 I.P.C. Both the appellants sentenced to undergo for life imprisonment along with fine of Rs.20,000/- each. In default of non-payment of fine, they shall suffer further one year rigorous imprisonment. The appellant Vijay Pal Yadav and Kadir Ansari were convicted for offence punishable under Section 452 I.P.C. and sentenced them for 5 years rigorous imprisonment with fine of Rs.5,000/-. In default of non-payment of fine, they shall undergo one year rigorous imprisonment. The accused persons were convicted for offence punishable under Section 506 I.P.C. and sentenced for 5 years rigorous imprisonment and fine of Rs.5,000/-. In default of non-payment of fine, they shall suffer further 6 months rigorous imprisonment. In other Session Trial No.673 of 2007, the appellant Vijay Pal Yadav was convicted under Section 25 of Arms Act and sentenced to 3 years R.I. with fine of Rs.5,000/-. In default of non-payment of fine he shall suffer 6 months further rigorous imprisonment. All the sentences shall run concurrently.

4. Brief facts of the case.

(I) On 02.04.2007, the complainant Naiyyar Alam wrote a complaint and stated therein that at about 1:30 p.m., the appellant Vijay Pal Yadav with his friend Kadir came to his house and started quarreling with his brother (deceased) and abusing him. They were asking money of Rs.2,000/- which was taken by his brother from accused Vijay Pal Yadav. The accused Vijay Pal Yadav asked the money returned back to him by his brother. His brother Kabul told him that at this time, he had no money and he will return back after sometime. The appellant taken out the country-made pistol and fired upon his brother with intention to kill him. Due to the fire arm injury his brother had collapsed, the accused persons while abusing the others present at site, fled away from the scene. The complainant and other persons present on the site admitted injured Kabul to medical college for treatment. He stated in the complaint that after admitted the deceased Kabul, he went to police station to lodge the F.I.R. against accused persons. The F.I.R. was lodged under Section 307 read with Section 504 and 506 I.P.C. against the accused persons. After the death of the deceased, the F.I.R. which was lodged under Section 307 I.P.C. against accused persons was converted into 302 I.P.C.

(II) The dead body was sent for post-mortem and PW-7 Dr. A.K. Gupta conducted the post-mortem of the dead body of the deceased and found the following injuries :

i. Stubbornness in whole body.

ii. Swelling and blackening on right (daily) eye.

iii. Lacerated wound of 2 cm x 1 cm x cavity deep on left eye around which there was blackening on internal examination, it was found that internal layers were lacerated.

III. At the instance of the accused Vijay Pal Yadav, Sub-Inspector Jayant had recovered a country-made pistol of 315 bore along with a live and an empty cartridges and made recovery memo as Ex.Ka-8. The accused Vijay Pal Yadav and accused Kadir were arrested and arrest memo was prepared as Ex.Ka-15. After completion of the investigation, charge-sheet under Section 302, 504 and 506 I.P.C. read with Section 34 I.P.C. was filed against the accused Vijay Pal Yadav and Kadir before competent court. The charge-sheet under Section 25 of Arms Act against the accused Vijay Pal Yadav was separated filed before the competent court. The charge-sheet was read before the accused persons and explained the charges under which they were charged and after understanding the charges both the accused pleaded not guilty and asked for trial.

IV. On 02.08.2007, the Additional Session Judge, Court No.8, Meerut framed charge against the accused Vijay Pal Yadav for offence punishable under Section 302 I.P.C., against accused Kadir Ansari, the charge was framed under Sections 302/34 I.P.C. The additional Session Judge, merely framed charges under Sections 452, 504 and 506 I.P.C. against the accused persons Vijay Pal Yadav and Kadir Ansari vide separate order dated 02.08.2007. The accused Vijay Pal Yadav was also charged under Section 25 of Arms Act.

V. The prosecution has examined eight witnesses and exhibited 22 documents for proving its case beyond reasonable doubt.

VI. The Additional Session Judge entered a finding that appellants had the common intention of killing the deceased' when the accused Vijay Pal Yadav fired the country made pistol on the deceased and appellant Kadir was with him, due to which he suffered serious injuries and died in the hospital. The accused Vijay Pal Yadav was convicted under Section 302 I.P.C. and accused Kadir was convicted under Section 302/34 I.P.C. they were also convicted under Sections 452 and 504 I.P.C. The accused Vijay Pal Yadav was convicted under Section 25 of the Arms Act.

5. Mr. Pawan Kumar Pundir, learned counsel appearing for the appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubt. There are a lot of material contradictions in the deposition of the testimonies of the eye witnesses. The ocular evidences are not corroborating with the medical evidence and other material evidences. The alternative arguments of counsel for the appellants that there were no intention to kill the deceased and therefore, there conviction under Section 302 I.P.C. may be altered under Section 304 Part-II. He submitted that only one gun shot injury sustained by the deceased and accused persons have not repeated the other gun shot on him. Therefore, there were no intention to kill him but may be knowledge was there.

6. On the other hand, learned A.G.A. appearing for the State has vehemently opposed the submission made by the Amicus Curiae and stated that the accused persons along with co-accused came with loaded gun in the house of the deceased with intention and motive to kill him. He further submitted that he fired the gun on the vital part of the body of the deceased, therefore, due to that gun shot injury he died during the treatment in the hospital after sometime. The prosecution has proved its case beyond reasonable doubt and therefore, the appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by learned counsel for the parties and perused the materials on record. Before analyzing the impugned order and judgment passed by Additional Session Judge, Meerut, we are going to analyze the testimonies of the witnesses and other material evidences on the record in the aforesaid case.

8. PW-1, Naiyyar Alam who was complainant in the aforesaid case stated in his deposition that on 02.04.2007, the accused person came with other co-accused Kadir in his house and met the deceased and demanded the money back and on refusal of his brother, the accused person had fired with country-made pistol of 315 bore and he sustained fire armed injury due to that injury he died during the treatment in the hospital. He stated in the testimony that panchnama of the dead body of deceased was prepared in front of him and he filed the complaint against the accused person at police station. He proved his signature on the panchnama and complaint both. In the cross-examination he reiterated the same deposition as stated in the chief statement. Therefore, no contradictions were made out in the testimony of PW-1.

9. PW-2, Saheb @ Sadab Alam stated in his chief testimony that the accused person along with other co-accused Kadir came in the house and met with her brother (deceased). He demanded his money back which was taken by his brother Kabul. On the demand of the money, the deceased told the accused person that he will return back the money after sometime as now he had no money. On such statement, the accused person started quarreling with his brother Kabul. After some time he taken out the country-made pistol and fired on him and he sustained serous fired arm injury due to that injury, he fell down. The accused person fled away from the scene while abusing other who were present there. The witness further stated that he, Naiyyar Alam and other people who were present there went to the hospital with injured Kabul and get admitted him in the hospital for the treatment. After some time during treatment, he died in the hospital. In cross-examination, he reiterated the same version as stated in chief testimony.

10. PW-3, S.I. Om Prakash Verma, Sector 39, he prepared panchnama and taken signature of panch witnesses on the panchnama of the dead body of deceased on the instruction of S.I. Jayant Singh who was Investigating Officer in the aforesaid case. He proved his signature on the documents which were prepared by him during investigation. He arrested the accused person at the instance of the information received by informer. He searched the accused Vijay Pal Yadav and recovered the revolver of 315 bore from his pant and one live cartridge and an empty cartridge from country-made pistol. He also submitted in the deposition that the other accused Kadir was also searched but nothing was found from his position. On the site Fard was prepared and signature was taken of the accused person and he also signed on the fard, he proved his signature on the fard. In the cross-examination, he reiterated the same facts as stated in the chief testimony.

11. PW-4, S.I. Janam Singh Pudik, he stated in his deposition that initially Jayant Singh was Investigating Officer of this case but later on the case was transferred to him. After transfer of the case, he started the investigation. He filed charge-sheet against the accused Vijay Pal Yadav and Kadir Ansari before competent court. He stated in the deposition that on 11.04.2007, he had taken the statement of Head Constable Om Prakash Verma and Head Constable Vinod Tyagi regarding the recovery of the weapon and other articles at the instance of the accused person. He has taken the statement of the witnesses of the panchnama and after completing the investigation in the aforesaid case he filed a charge-sheet against the accused persons Vijay Pal Yadav and Kadir Ansari. He has also filed charge-sheet against Vijay Pal Yadav for offence punishable under Section 25 of Arms Act. He stated in the cross-examination that the dead body was sent for the post-mortem by the earlier Investigating Officer, Sub-Inspector Jayant Singh not by him. In his cross-examination no material has come to contradict the prosecution story.

12. PW-5, Head Constable Madan Pal Singh stated in his testimony that he went to the site on 07.04.2007 and made a site plan. He also stated in the deposition that he has sent the charge-sheet to District Magistrate for permission of the prosecution under the Arms Act against accused person. On 15.05.2007 permission for prosecution has been received from then District Magistrate, Meerut. The witness PW-5, proved the signature of the District Magistate as he stated in the deposition that he knew the signature of District Magistrate Mukesh Kumar. In the cross-examination, he submitted that he did not know from where the country-made pistol was recovered and seized, as the seized country-made pistol forwarded to him for writing a letter to the then D.M., Meerut for permission of the prosecution under the Arms Act against accused persons. He also stated that he had made the site plan before filing the charge-sheet under the Arms Act.

13. PW-6, S.I. Jayant Singh who was the Investigating Officer in the earlier stage, he recovered and sealed dead body of the deceased and after making panchnama of the dead body, he sent the dead body for post-mortem. He recovered the other articles on the site and seized. After seizure of the articles, same were sent for chemical examination. He recovered the weapon used in the crime from the possession of the accused Vijay Pal Yadav. He had taken the statement of the complainant under Section 161 Cr.P.C. and arrested the accused person. At his instance he recovered the country-made pistol and live cartridge as well as empty cartridge of country-made pistol. He proved the signature on the panchnama.

14. PW-7, Dr. Amrish Kumar Gupta, who conducted the post-mortem of the dead body and found the following injuries:

i. Stubbornness in whole body.

ii. Swelling and blackening on right (daily) eye.

iii. Lacerated wound of 2 cm x 1 cm x cavity deep on left eye around which there was blackening on internal examination, it was found that internal layers were lacerated.

He proved the signature on the post-mortem. He opined that death of the deceased occurred due to fire arm injury. In the cross-examination he reiterated the same version and no material had been come in cross testimony given by PW-7 to contradict the prosecution story.

15. The accused person had given statement under Section 313 Cr.P.C. and denied all the charges. They stated in their statements that they were falsely implicated in the present case and they had not done any crime as stated above, therefore, they are not the guilty for offence punishable under Section 302 I.P.C. and other charges which were leveled against them.

16. In Ram Narain Singh vs. State of Punjab, AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution's case and unless reasonably explained it is sufficient to discredit the entire case.

17. In State of Haryana vs. Bhagirath and others, (1999) 5 SCC 96, it was held as follows:-

"The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."

18. Drawing on Bhagirath's case (supra.), the Hon'ble Supreme Court held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".

19. In State of U.P. vs. Hari Chand, (2009) 13 SCC 542, this Court re- iterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

20. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

21. There is no substance in the plea that the prosecution version is not acceptable. It is noted that the trial court found the evidence of eye-witnesses to be credible. The testimony of PW-1 and PW-2, the eye witnesses, is quite natural, trustworthy and wholly reliable. There are no hard and fast rules to test the veracity of the witnesses. One way of testify the veracity fo the witness is the simplicity of the statement. Simplicity of the statement is indicative of the naturalness and truthfulness. In the instant case, testimony of the eye witnesses reflects the naturalness and the truthfulness.

22. In the instant case, it is admitted fact that the accused came with gun at the residence of the deceased and demanded the money back from the deceased. The deceased requested to return back his money as at that moment he had no money to return the accused. The accused started abusing him, and in hit of anger, he fired on him. The accused sustained bullet injury on the right side eye, therefore, after some time he died during the treatment, co-accused was there but not administered any role.

23. There are obviously two principle questions involved in the case; firstly, whether appellant gave five arm injury on vital part of the body which is fatal for the life of deceased; secondly, if the answer to the first question is in the affirmative, whether there are any ground which can be urged on his behalf in justification of investigation of his act. So far as the first question is concerned, the answer is in the affirmative and there the matter rests. As to the second question, the argument is that the appellants had fired only one gun shot and not repeated the gun shot, in hit of the anger as deceased refused to return his money, therefore, the appellants had no intention or motive to kill the deceased.

24. The next question which arises upon the judgment of the trial court, is whether the case falls under exception 4 to Section 300 I.P.C. According to this exception:

"culpable homicide is not murder if it is committed without premeditation is a sudden fight in the heat of position upon a sudden quarrel and without the offender's having acted in a cruel or unusual manner."

In the case in hand all eye witnesses stated in their testimony that the appellants had given a gun shot to the deceased in the heat of passion as he did not repeat any other gun shot.

25. In these circumstances, it seems to us that the argument of the prosecution that the appellant is not entitled to the benefit of exception 4 to Section 300 I.P.C. cannot be sustained, and that being so, the conviction under Section 302 cannot stand. In our opinion, the case comes within the second part of Section 304, which deals with the punishment for culpable homicide not amounting to murder where the act is done with the knowledge that it is likely to cause death or cause such bodily injury as it likely to cause death.

26. After analyzing the facts and circumstances of the Criminal Jail Appeal No.8191 of 2009, we are of the opinion that the case of the appellant Vijay Pal Yadav comes within the second part of Section 304 of I.P.C., which deals with the punishment for culpable homicide not amounting to murder, when the act is done with knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. Therefore, the conviction of the appellant is altered to Section 304, and he is sentenced to undergo rigorous imprisonment for 10 years. He has already served the sentence awarded by the trial court for offence punishable under Section 452 I.P.C., 506 I.P.C. and 25 of Arms Act as he is in the jail since 02.04.2007. Therefore, it is directed to release the appellant Vijay Pal Yadav from jail forthwith, if he is not required to any other case. Accordingly, the Criminal Jail Appeal No.8191 of 2009 is partly allowed.

27. In the case of co-accused Kadir, the prosecution has not attributed any role in the instant case, he just accompanied with the accused Vijay Pal Yadav and came to the place of incident but he has not been assigned any role or given any blow to the deceased and he had not participated in the incident. He was just standing on the spot with the accused Vijay Pal Yadav.

Therefore, in view of the above, Criminal Jail Appeal No.8192 of 2009 is allowed and appellant Kadir acquitted for the offence punishable under Section 302 read with Section 34 I.P.C. and other charges leveled against him. It is directed to release him from the jail forthwith, if he is not required in any other case.

28. Accordingly, the Criminal Jail Appeal No.8192 of 2009 is accordingly allowed.

29. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

30. The learned Amicus Curiae Mr. Pawan Singh Pundir shall be paid Rs.10,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Order Date :- 19.12.2017.

Jitendra

(Chandra Dhari Singh,J.) (Shri Narayan Shukla, J.)