Dhanveer vs State Of U.P.
2017 Latest Caselaw 133 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                           Reserved                                                       
 
Case :- CRIMINAL APPEAL No. - 3989 of 2007              AFR
 
Appellant :- Dhanveer
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anil Srivastava,A.K.Sachan,Arvind Kumar Srivastava A,K.K.Singh,Sanjay Kumar
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.)

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 22.05.2007 passed by Additional Sessions Judge, Court No.1, Budaun, in Sessions Trial No.184 of 1999, State of U.P. Vs. Dhanveer, arising out of Case Crime No.856 of 1998, under Section 302 IPC, Police Station- Civil Lines, District- Budaun, whereby the appellant has been sentenced to life imprisonment under Section 302 IPC coupled with fine Rs.2000/-, in default of payment of fine, he will have to suffer additional two months' simple imprisonment.

Heard Sri Arvind Kumar Srivastava, amicus curiae for the appellant, Sri Awadhesh Narayan Mulla, learned AGA and Smt. Manju Thakur, brief holder for the State and perused the record of this appeal.

Facts germane giving rise to this appeal as discernible from record appear to be; that the informant Ram Bharose Singh son of Beni Singh lodged the written report at Police Station Civil Lines, District Budaun, on 09.11.1998 at 4:30 p.m. against the accused-appellant Dhanveer for causing death of the informant's daughter Vineeta by shooting her to death with the allegations that the informant's daughter Vineeta and his niece Km. Kamlesh were present at his home. The informant and his wife were not present at home as they had gone to another place. The accused-appellant Dhanveer whose relative Avesh Singh is neighbour of the informant, used to visit that place. The accused-appellant Dhanveer came over to his house and fired on his daughter Vineeta around 3:00 p.m., due to which she died in the house. The accused-appellant Dhanveer also took some intoxicant and is lying over there under influence of intoxicant. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-6.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.856 of 1998 under Section 302 IPC at and also at Case Crime No.857 of 1998 under Section 309 IPC, Police Station Civil Lines, District Budaun, on 09.11.1998 at 04:30 p.m. Check FIR is Ext. Ka-2.

On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.33 on 09.11.1998 at 04:30 p.m. at the aforesaid Case Crime Numbers at Police Station Civil Lines, under aforesaid Sections of I.P.C. against accused-person. General diary copy is Ext. Ka-3.

However, the case before us for consideration is confined to that of Case Crime No.856 of 1998, under Section 302 IPC. Reference of another Case Crime No.857 of 1998 will not be taken into consideration as that pertains to Section 309 IPC wherein the accused-appellant has been acquitted of the same in same trial.

After registration of the case, the investigation ensued and was taken over by the Investigating Officer S.I. Ranvir Singh who has been examined as CW-2. He proceeded to the spot where he found the accused-appellant lying under influence of some intoxication. He also recovered one countrymade gun lying on the ground from the spot. He took the accused-appellant Dhanveer in his custody. Thereafter, the accused-appellant was referred to the District Hospital Budaun for medical examination where he was medically examined by Dr. Rajiv Kumar Awasthi PW-5 on 09.11.1998 at 7:13 p.m. wherein he found following injury on the person of the accused-appellant Dhanveer:

1. Condition usually low, pulse 92 per minute, blood pressure-110/50, unconscious, respiration irregular, pupil pin point.

2 Abrasion over left inner side of arm 2.0 cm x 1.5 cm x 1.5 cm above to left elbow.

Dr. Rajiv Kumar Awasthi PW-5 has proved injury report as Ext. Ka-4.

The inquest of the deceased Vineeta was held by S.I. R.K. Trivedi. It commenced at 5:40 p.m. on 09.11.1998. Inquest report is Ext. Ka-9.

In the opinion of the inquest witnesses and the Investigating Officer, it was suggested that post mortem of the dead body of Vineeta be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared such as photonash Ext. Ka-10, specimen seal Ext. Ka-11, letter to CMO Ext. Ka-12, letter to R.I. Ext. Ka-13 and Police Form 13 challan dead body Ext. Ka-14.

Thereafter, dead body was sent for post mortem examination in the mortuary at Budaun where post mortem examination on the cadaver of the deceased Vineeta was done by Dr. V.P. Bhardwaj on 10.11.1998 at 12:30 p.m. wherein he noted the following ante mortem injuries:

One gunshot wound of entry 2 cm x 1.4 cm x cavity deep on epigastrium. On dissection track followed, which produced 1 cm x 1 cm wound one back of trunk, 2 cm right to spinal cord (wound of exit).

At the level of (L-2) vertebra stomach, intestine, liver and vessels found lacerated, 1.8 litre clotted blood found in abdomen cavity.

In the opinion of the doctor, cause of death was due to shock and haemorrhage as a result of ante mortem firearm injuries. This post mortem examination report is Ext. Ka-5.

In the meanwhile, the investigation continued. The Investigating Officer also inspected spot and prepared site plan Ext. Ka-7 and took sample of blood stained plastic gunny-bag on which the dead body of the deceased Vineeta was lying and made memo of the same Ext. Ka-8 and recorded statement of various persons. The Investigating Officer, after completing the investigation, filed charge sheet Ext. Ka-15, under Section 302 IPC against the accused-appellant Dhanveer.

Pursuant thereto committal proceeding took place and after compliance with Section 207 Cr.P.C., the case was committed to the court of Sessions from where it was transferred to the Additional Sessions Judge, Court No.1, Budaun, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No.184 of 1999 State Vs. Dhanveer. Learned trial Judge heard the prosecution and the accused-appellant on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charge under Section 302 IPC. Charge was read over and explained to the accused-appellant who abjured charge and claimed to be tried.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the accused-appellant to prove his guilt, whereupon the prosecution produced the following witnesses whose reference is being sketched hereinbelow.

Ram Bharose PW-1 is the informant and he has lodged the written report. Kamlesh Rothore PW-2 is eyewitness of the occurrence. Mahendra Nath Singh PW-3 is Head Constable who has entered relevant entry in the concerned Check FIR and general diary. Dr. Neeta Chandel PW-4 is Pathologist. Dr. R.K. Awasthi PW-5 has medically examined the accused-appellant Dhanveer and has proved his injury report as Ext. Ka-4. Anoj Kumar PW-6 is scribe. Awesh is PW-7, although his testimony has become irrelevant for consideration in this case because that was basically a testimony pertaining to charge under Section 309 IPC against the accused-appellant. Relevant to mention here that the accused-appellant has been acquitted of charge under Section 309 IPC.

Dr. V.P. Bhardwaj CW-1 has conducted post mortem examination on the cadaver of the deceased Vineeta on 10.11.1998 at 12:30 p.m. and has proved post mortem examination report Ext. Ka-5. S.I. Ranvir Singh CW-2 is the Investigating Officer. He has proved investigation conducted by him and filing of charge sheet against the accused-appellant.

After that much, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein it has been stated that the deceased Vineeta wanted to marry him but he was unwilling. The father of the deceased Vineeta killed her and falsely implicated him in this case. But he had no concern with this incident. No testimony, whatsoever, has been given by the accused-appellant. Thereafter, evidence for the defence was also closed and the case was posted for arguments.

The trial court after considering the case on merit and appraisal of facts and evaluation of testimony on record, recorded conviction under Section 302 IPC and sentenced the accused-appellant to imprisonment for life which eventually gave rise to this appeal.

Hence, this appeal.

It has been contended on behalf of the accused-appellant that it is a case of honour killing where Ram Bharose, the informant, father of the deceased, himself killed his daughter and on the pretext to conceal the offence, he has falsely implicated the accused-appellant in this case. Fact is that the accused-appellant had nothing to do with the crime. There is no eye account testimony of the incident. The only eyewitness produced by the prosecution is Kamlesh Rathore PW-2, whose statement does not inspire confidence and is contradictory in material particulars. Incident of shooting took place inside the room, whereas, fact is that Kamlesh Rathore PW-2 was outside the room, therefore, there was no occasion for her to ever witness the incident taking place.

Moreover, it has been contended on behalf of the accused-appellant that the dead body of the deceased Vineeta was lying inside the room and shot hit on her abdomen but no blood was found inside the room where the dead body was lying. There is no mention of any place in the site plan where the dead body was lying inside the room, whereas, the dead body was allegedly brought and placed in front of the door of the house on a plastic gunny-bag which spot alone was shown by the Investigating Officer.

It has been further contended on behalf of the accused-appellant that the actual place of the occurrence remained uncertain. Why dead body was removed from the actual spot has not been verified by the prosecution. Assuming it to be; that the dead body was lying inside the room where shot was fired then looking to the nature and seat of injury caused to the deceased Vineeta, it is most probable that blood must have oozed out and spilled on the floor of the room, but surprisingly no mark of blood, whatsoever, was recovered from inside the room by the Investigating Officer. Therefore, in absence of ascertainment of the actual place of occurrence , the whole prosecution story falls flat.

It has been next contended on behalf of the accused-appellant that testimony of the prosecution witnesses is highly improved and full of embellishments. Several prosecution witnesses are relatives and partisan. The investigation conducted was motivated and there is no worthy motive for the accused-appellant to commit the crime. The entire prosecution story lacks coherence and appears to be improbable. The prosecution has not been able to prove its case beyond reasonable doubt.

Per contra, learned AGA retorted to aforesaid arguments by submitting that in this case, the first information report was lodged by the father of the deceased Vineeta. When he came to his house, he knew about the incident that the accused-appellant Dhanveer had shot dead his daughter Vineeta inside the room and he himself consumed some intoxicant which rendered him unconscious, therefore, he fell down on the ground. He was found lying in front of door when the police visited the spot. After the report was lodged, he was taken into custody from the spot by the Investigating Officer, therefore, presence of the accused-appellant on the spot is established by the prosecution.

Learned AGA has next submitted that description of manner and style of the incident as narrated by Kamlesh Rathore PW-2 is, on the face, clinching, consistent and inspiring confidence. There is no occasion for the informant to kill his own daughter for no obvious reason. Submission to the extent that the deceased Vineeta was willing to marry the accused-appellant has no base to stand on.

Learned AGA has further submitted that there is no contradiction in the testimony of the prosecution witnesses, particularly Ram Bharose PW-1 and Kamlesh Rathore PW-2. The prosecution has proved its case beyond reasonable doubt. The trial court has rightly convicted the accused-appellant for the offence committed by him.

We have also considered the rival submissions and taken into consideration rival claims. In view of above, core consideration which engages our attention for determination of this appeal basically relates to fact whether the prosecution has been able to establish its case beyond reasonable doubt against the accused-appellant?

Insofar as the allegations in the first information report are concerned, we come across fact that the first information report was lodged by the informant Ram Bharose who was not present on the spot at the time of the incident. The first information report describes about the incident that on 09.11.1998, the deceased Vineeta was inside her house along with Km. Kamlesh and the parents of the deceased Vineeta were not present at home. Around 3:00 p.m., the accused-appellant Dhanveer son of Ram Charan who visited house of Avesh Singh, his relative who lives in the neighbourhood of the informant, fired on the deceased Vineeta due to which she died inside the room. Accused-appellant Dhanveer consumed some intoxicating substance and was lying over there.

In the light of the aforesaid contention, testimony of Kamlesh Rathore PW-2 assumes wider relevance than testimony of Ram Bharose PW-1 who was admittedly not present on the spot at the time of occurrence.

Testimony of PW-2 reflects that she has described the incident in a manner that she used to reside with the informant and his family after death of her father and the deceased Vineeta was her cousin sister. She knew the accused-appellant. He is resident of village Mongar. Kamla sister of the accused-appellant had been wedded in the village of this witness and the accused-appellant used to visit house of his sister.

Insofar as the incident is concerned, PW-2 has testified that it was around 3:00 p.m., she along with her cousin sister Vineeta were present in the house. The informant and his wife had gone somewhere. His cousin brother Anoj Kumar was also not present at home. The accused-appellant Dhanveer came to her house and began to cajole Vineeta, whereupon, Vineeta admonished him which infuriated him and he rushed to assault Vineeta. Thereafter, Vineeta ran inside her room when the accused-appellant fired with countrymade gun on her which shot hit on her abdomen. She died on the spot. The accused-appellant consumed some intoxicant substance after taking the same out of the pocket and he became unconscious. None arrived on the spot after she raised alarm. After sometime, the parents of the deceased and Anoj Kumar arrived on the spot. The villagers also arrived on the spot. The dead body of the deceased Vineeta was taken in the courtyard of the house and was kept on a plastic gunny-bag.

Before we discuss merit of the case, it would be relevant to take note of testimony of Ram Bharose PW-1 who lodged the first information report. PW-1 has stated that he came to his house after 15-20 minutes when the incident had occurred. He has stated that the incident was witnessed by his son Anoj Kumar and niece Kamlesh Rathore. The accused-appellant was lying outside house in intoxicating condition. He was informed about the incident by his son Anoj Kumar and niece Kamlesh Rathore. He also saw dead body of his daughter Vineeta lying in the courtyard. He has testified to the ambit that he got the report scribed by his son Anoj Kumar and thereafter lodged and proved the same.

Obviously, testimony of Ram Bharose PW-1 regarding presence of his son Anoj Kumar stands negatived by testimony of Kamlesh Rathore PW-2 that at the time of occurrence, she along with Vineeta were present inside the house. Therefore, it is obvious that presence of Anoj Kumar on the spot has been tried to be deliberately brought in on the spot. PW-1 has stated on page 11 of the paper-book that he was not present on the spot at the time of occurrence.

It is apparent from perusal of testimony of Kamlesh Rathore PW-2 that the death took place inside the room and the shot hit on the abdomen of the deceased Vineeta. The post mortem examination report indicates one ante mortem injury in shape of gunshot wound of entry 2 cm x 1.4 cm x cavity deep on epigastrium. On dissection track followed, which produced 1 cm x 1 cm wound one back of trunk, 2 cm right to spinal cord (wound of exit), at the level of (L-2) vertebra stomach, intestine, liver and vessels found lacerated, 1.8 litre clotted blood found in abdomen cavity.

This post mortem examination report also indicates that blood must have been oozed out of this ante mortem injury.

The Investigating Officer has shown the place inside the room where shot allegedly hit the deceased on her abdomen, but the Investigating Officer on being cross examined by the defence has categorically stated that at the time of his visit to the spot, he found the dead body lying in the courtyard of the house. But he has stated that shot was hit on the bed inside the room. This place lies at a distance of 8-10 steps away from the place where dead body was brought and kept in the courtyard. He has also testified to fact that at the time of his visit to the spot, he did not find any blood stain on the bed but he found blood on a plastic gunny-bag where the dead body had been kept in the courtyard. This piece of testimony is self-speaking of certain relevant fact which cannot be overlooked and ignored in the light of the testimony that the deceased Vineeta was shot inside the room and she had died inside the room after the fire hit the deceased (Vineeta). Meaning thereby that blood must have been oozed out on the spot inside the room where the dead body was lying.

It is surprising that no vestige or any mark of blood was found inside the room by the Investigating Officer when he visited the spot. Had the deceased Vineeta been killed inside the room, blood stains must have been found inside the room. How and why the dead body was brought out from inside the room and kept in the courtyard of the house has not been clarified by the prosecution. This aspect, on the contrary shows that the genesis of the incident has been tried to be suppressed.

Testimony of PW-1 on page 10 of the paper-book in his examination in chief reveals that he saw dead body of his daughter kept in courtyard. It means the original place of the incident had been changed within 15-20 minutes of the incident, because it is admitted position that Ram Bharose PW-1 arrived at his house 15-20 minutes after the occurrence.

This aspect of the case very much changes the actual place of occurrence and it creates doubt as to on what place, the shot in fact hit the deceased Vineeta. This is admitted case of the prosecution that the dead body of Vineeta was bought out of the room and kept in the courtyard of the house. This is an intriguing factual situation of this case. It does not clarify the immediate need and hurrying situation to swift the dead body from the room to the courtyard of the house. This gives rise to several possibilities that the deceased Vineeta might have been killed somewhere else and the dead body was brought in the courtyard of the house.

In the backdrop of the aforesaid discussion, we may reasonably explore possibility of worthy corroboration either from circumstances or from testimony. It is the admitted case that only eyewitness present and claimed by the prosecution is Kamlesh Rathore PW-2 and her testimony for the aforesaid reason does not solidify the case of the prosecution and probability of the case is, on the whole, exposed primarily on account of absence of blood stain/mark inside the room where the deceased Vineeta was allegedly shot dead. This particular aspect of the case creates dent in the testimony of Kamlesh Rathore PW-2 and shakes her veracity.

That way, we discover that no worthy corroboration surfaced in this case giving strength to or credence to the testimony of PW-2 that her testimony is innocuous, consistent and clinching. Thus, evidentiary value of Kamlesh Rathore PW-2 becomes improbable and genesis of the case appears to have been deliberately supprressed and testimony on point of genesis of the offence will not be acted upon by us in absence of reasonable corroboration. That way, we may conclude that statement of PW-2 that the deceased Vineeta rushed inside the room where she was shot dead by the accused-appellant and her body was lying inside the room, is rendered improbable. That way, testimony of Kamlesh Rathore PW-2 is impeachable and she is unworthy of credit.

We are aware of fact that corroboration need not be sought in every case, but in cases where testimony of prosecution witnesses becomes shaky and intriguing and the circumstances become opaque losing conspicuousity then rule of caution demands some worthy corroboration. In the absence of any worthy corroboration, prosecution testimony is stripped off its truthfulness and it falls short of the target in shape and form of legal barrier - say - beyond reasonable doubt.

As per the Investigating Officer, she (Vineeta) was shot on the bed kept inside the room then blood mark or blood stain must have been seen or found inside the room anywhere but no blood mark was found inside the room. This factual aspect creates lot of doubt about presence of Kamlesh Rathore PW-2 being eyewitness of the incident. This way, it appears that testimony of Kamlesh Rathore PW-2 is outcome of tutoring and her testimony is full of embellishment and she is not worthy of credence as factual position very much disclaims her version. It is established law that in case testimony of the witnesses is found to be shaky and impeachable which does not inspire confidence then the same is to be discarded unless it is supported by some independent corroboration. Cautious approach requires that such testimony should not be acted upon.

We have already observed that there is no independent corroboration of the incident in this case. It is quite surprising that after the incident had taken place, the sound of firing must have been heard by the villagers/neighbours but no one arrived on the spot after the incident. However, when the parents of the deceased Vineeta arrived on the spot after 15-20 minutes of the occurrence then the villagers also arrived on the spot. This fact by itself shakes veracity of Kamlesh Rathore PW-2 that she in fact raised any alarm or she was present on the spot at the time of occurrence. In view of above factual position, it cannot be said with certainty that the actual incident of firing took place inside the room in presence of Kamlesh Rathore PW-2.

In view of above, it can be summed up that wholesome analysis of the facts, circumstances and evidence on record profusely reflects that the prosecution version regarding the occurrence as alleged has not been substantiated by evidence on record and a reasonable doubt is created in the prosecution version. Consequently, charge under Section 302 IPC made against the accused-appellant Dhanveer has not been reasonably proved by the prosecution.

Learned trial court while evaluating evidence on record and appraising facts and circumstances of the case misread into evidence and circumstances and erroneously recorded finding of conviction and awarded sentence which finding of conviction and sentence being erroneous is not to be sustained by us and the same is liable to be set aside.

The arguments extended on behalf of the appellant deserve merit. Therefore, judgment and order of conviction dated 22.05.2007 passed by Additional Sessions Judge, Court No.1, Budaun, in Sessions Trial No.184 of 1999, State of U.P. Vs. Dhanveer, arising out of Case Crime No.856 of 1998, under Section 302 IPC, Police Station- Civil Lines, District- Budaun, is set aside. Consequently, the present appeal succeeds and the same is allowed. The appellant is acquitted of charge under Section 302 IPC.

In this case, the appellant is in jail. He shall be set at liberty forthwith unless and until he is wanted in connection with any other case. However, he shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt. 05.05.2017

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