Dharmendra Naik vs State Of U.P.
2018 Latest Caselaw 1825 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 1056 of 2012
 

 
Appellant :- Dharmendra Naik
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Naveen Yadav, K. Kumar Tripathi, Sanjay Singh Sengar
 
Counsel for Respondent :- Govt. Advocate, Sudama Ji Shandilya
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bachchoo Lal,J.

Heard Sri Sanjay Singh Sengar, learned counsel for the appellant and Sri Ajit Ray, learned A.G.A. for the State.

The appeal arises out of a conviction of the appellant in a case of murder where the appellant has been found guilty of having committed the offence punishable coupled with the offence under Section 302 I.P.C. with the offence under Section 25 of the Arms At for which he has been sentenced to undergo life imprisonment with Rs.5,000/- as fine and in default thereof to undergo six months further imprisonment. He has been further awarded one year rigorous imprisonment with Rs.1,000/- as fine for offence under Section 25 of the Arms Act and in default of payment of fine to undergo two months of further imprisonment.

The incident as disclosed in the first information report is of 06.09.2009 in the evening at about 7.00 p.m. The first informant Uma Shanker is the real uncle of the deceased and the written report was transcribed by Pradeep Sahu. The same was registered at the police station by Head Constable Mohd. Ishhaq. Uma Shanker has been examined as PW-1 and Mohd. Ishhaq has been examined as PW-6.

The first information report narrates that the appellant armed with a country-made pistol arrived at the shop of the deceased and an altercation took place between them with regard to some financial transaction whereafter the appellant pulled out the weapon and shot the deceased in the neck through and through. This incident was witnessed by his father Prem Shanker and another neigbour Mohan. Prem Shanker has been examined as PW-2 but the other witness nominated therein has not been examined. It is also alleged that after having committed the offence Dharmendra walked away hurling abuses at the deceased. The first information report which has been Exhibited as Ka-6 was lodged promptly at 7.45 p.m. at police station Srinagar, district Mahoba.

It is stated that the injured was immediately taken towards Chattarpur to some hospital for being treated on a Marshall vehicle but he expired on the way and consequently the witnesses along with the dead-body returned back and gave a written information about the death of the deceased as the first information report had already been lodged earlier. The case was accordingly converted into an offence punishable under Section 302 I.P.C.

The inquest was prepared in the presence of Investigating Officer PW-7 and PW-5 who is the Constable who prepared the police papers including the entry in the diary that was proved by him. The inquest was carried out on the same day which is exhibited as Ka-14 and the post-mortem was carried out on the next day i.e. 07.09.2009 by Dr.R.B.Arya who was examined as PW-4.

The Investigating Officer was examined as PW-7 and Constable Mata Prasad was examined as PW-8 who had proved the site-plan prepared by Sub-Inspector of Police Dhan Raj Singh.

The statement of the accused was recorded under Section 313 Cr.P.C. whereafter the conviction and sentence was pronounced by the impugned judgment dated 27.02.2012.

Sri Sengar while advancing his submissions has urged that there is a discrepancy in the ocular testimony of PW-1, PW-2 and PW-3 read together which explains that PW-1, who has admitted not having actually seen the incident has sought to corroborate the testimony of PW-2 whose presence at the scene of occurrence is doubtful. The sitting posture of PW-3 inside the premises was such that she could not have seen the occurrence herself and consequently the entire ocular testimony belies the presence of the witnesses. In such circumstances the testimony of these witnesses of fact namely PW-1, PW-2 and PW-3 is highly doubtful. For this Sri Sengar further submitted that there is an improvement in the statement of PW-3, mother of the deceased about the source of light, whereas there is no such recital either in the first information report or in the statements of PW-1 or PW-2. There is no such recovery of any such source of light nor was it proved during the trial through the genuine testimony of any of the witnesses. The Investigation Officer on being cross-examined has also not been able to support the same.

He then submits that the nature of the injury caused according to the post-mortem report does not appear to be an injury that could have been caused by the weapon used and accordingly this mis-match also creates a doubt about the participation of the appellant and he having fired at the deceased. He submits that the oral testimony about the deceased taking the name of the appellant after the occurrence is highly unbelievable, inasmuch as, the nature of the injury indicates that such an injured person would entered into the stage of coma and he would not be in a position to narrate or to specify any individual about the commission of any such offence. He submitted that if the medical report is correct about the hammoerage caused then it is unbelievable that the deceased would have been in his senses to nominate the appellant. There is no corroboration and in the above background the testimony of the witnesses of fact should be discarded.

While advancing his submissions he also contends that, if the narration of facts are matched with the site-plan, then it would be evident that it was not possible either for PW-1 or PW-2 or for that matter PW-3 to have actually seen the appellant assaulting the deceased. For this he submits that PW-1 Uma Shanker was admittedly sitting inside his shop which is partitioned by two walls, and the fact that he did not see the commission of the offence is admitted by him in his statement. The standing position of PW-2 is absolutely unnatural inasmuch as there is no explanation in the evidence as to how PW-2 arrived and was standing outside on the road and for what purpose. He then urges that the mother has been shown to be seated inside the house in the room behind the shop and near the door which is facing the court-yard on the opposite side. In such circumstances there was no possibility of PW-3 having seen the occurrence which is depicted alleged to have taken place almost outside infront of the shop. He therefore contends that if this is perused closely it would be evident that the placement of these witnesses having been shown in the site plan virtually makes them impossible to have witnessed the occurrence.

Sri Sengar then submits that the Investigating Officer has nowhere been able to substantiate as to how the occurrence could have taken place and the appellant could have been identified at about 7.00 p.m. in the evening. In the absence of any such explanation by the Investigating Officer during his statement about the occurrence there was no material either during investigation nor any evidence brought-forth during the trial so as to corroborate the stand of the prosecution.

Sri Sengar further submits that there was a jute sack on which the deceased was sitting and it was stained with blood but there is no forensic report or any evidence to corroborate the same. He therefore contends that in the absence of any such corroborating material about the deceased having been shot while sitting, the said narration remained uncorroborated.

Replying to the above submissions Sri Ajit Ray, learned A.G.A. on the other hand contends that this is a case of direct ocular testimony where the witnesses have clearly specified the manner in which the incident took place and there were no embellishments or exaggerations their trustworthiness can not be discredited on any count. He submits that the timing of the incident in the evening at 7.00 p.m. in the month of September is evidently when there was enough light so as to identify individuals who were standing close by and in the aforesaid circumstances the contention raised with regard to the source of light is meaningless. Even otherwise no evidence to contradict the same has been led by the defence to establish by way of cross-examination about the dispute of identity of the assailants. He is a person of the same locality and a neighbour living a couple of houses away. The contention is that the manner in which the incident occurred has been witnessed by PW-2 clearly, and stands supported by the version of PW-1 and PW-3, and consequently there is no reason to doubt either the occurrence or the participation of the appellant.

Sri Sengar in rejoinder has urged that on an assessment of the entire evidence the prosecution has failed to prove any motive on the part of the appellant so as to cause the death of the deceased and in the circumstances of the case there was absolutely no material to bring home the guilt as urged on behalf of the prosecution. The punishment therefore is contrary to the evidence on record and hence the judgment of the trial court deserves to be reversed. He further submits that even the appellant is the only child of his parents and is also married, therefore this Court should take a compassionate view of the matter while proceeding to consider the rival arguments.

Having considered the submissions raised we begin with the narration in the first information report where the appellant has been clearly nominated as having arrived with a country-made pistol at the shop of the deceased. This manner of arrival gets corroborated with the evidence of PW-2 and with the statement of PW-1 and PW-3. A conjoint reading of the same would indicate that the appellant armed with a country-made pistol arrived at the shop of the deceased and entered into an altercation and after heated exchanges between them, that was over-heard by the witnesses relating to a transaction of Rs.5,000/-, the appellant aimed his pistol on the vital part of the body and fired a shot that proved to be fatal. The appellant was therefore clearly an aggressor. This part of the prosecution story clearly establishes that the appellant had arrived with the intent to commit the offence and this was not an incident at the spur of the moment. The carrying of a weapon from before and its utilization at the time of the occurrence by injuring the deceased on a vital part of the body leaves no room for doubt that the intention was clearly to finish off the deceased. The immediate cause of altercation may have been a catalyst in the entire transaction but the manner in which the offence was executed by an aggressor at the residence/shop of the deceased sufficiently establishes that the appellant clearly intended to commit the murder of the deceased as he arrived possessed with a fire arm that was recovered on his pointing out.

At this stage, we may consider the argument of motive as advanced by the learned counsel for the appellant. There is an allegation of a demand of Rs. 5,000/- by the appellant. There is also an allegation that a sum of Rs. 1,000/- was due on him that remained unpaid. Those allegations in the oral testimony are not supported by any documentary evidence but the statements of the witnesses as well as their depositions in court do indicate that this was the only cause of differences between the two. There is not much evidence on this but there is no other hypotheses of the murder. The cross-examination on behalf of the defence nowhere seeks to diminish their doubt by any suggestions or counter questions being put to the prosecution witnesses during their deposition during trial. No other evidence on behalf of the appellant was led in defence. An inference can be therefore drawn from these circumstances. However, the question of motive pales into insignificance in view of the direct ocular testimony on record. The prosecution has therefore successfully discharged it's burden and it was for the defence to have raised doubts.

The fact of an altercation having taken place has been narrated by the three witnesses of fact. After the shot was fired, PW-1 arrived at the scene and he also corroborates the aforesaid fact by stating that he was informed by his brother PW-2, that it was the appellant who had fired the shot.

PW-1 has further stated in his testimony that after having committed the offence, when the appellant was walking away, PW-1 saw him with his fire arm, and therefore, he had every reason to believe that the offence had been committed by him.

Learned counsel with the aid of the site plan has urged that the appellant had come from the north direction and returned back in the same direction, and therefore, in such circumstances, PW-1 even if he saw somebody it was from behind and not from the front, and consequently, he would not have recognized the appellant at the timing of the incident. We do not find any such evidence coming forth that PW-1 has sighted the appellant from behind, and even if the site plan is correct it is quite possible that when the appellant was turning around his face was visible to the witness. This probability cannot be ruled out, and appears to be nearer the truth.

Apart from this, PW-2 has categorically seen him while standing besides another person namely Mohan. It is true that the prosecution sought discharge of Mohan as a witness by moving an application and Mohan was not examined but that by itself cannot dilute the ocular testimony of PW-2 who has categorically stated about the arrival of the appellant and his departure after the commission of the offence with a fire arm. This testimony remains unimpeached and we find that the argument raised by the learned counsel for the appellant about the direction of the face of this witness is not in doubt. He has seen the murder of his own son and has described it specifically in his statement which we find to be flawless.

Coming to the statement of PW-3, she is the mother of the deceased and the contention is that since she was sitting inside the room, and at the door which faces the courtyard, she could not have seen what was going on behind her at the front of the shop. We are unable to accept this submission, inasmuch as, the site plan clearly demonstrates that there are two doors in the room which she was sitting and they are in one linear position. Sitting at the place where PW-3 is said to have been seated, the shop is clearly visible, as it also has a door opening in the room. Thus the mother was seeing her son from behind as per the site plan. Her place of presence therefore which is sought to be criticized by the learned counsel for the appellant is not borne out from a perusal of the site plan as also from the statement of PW-3 by corroborating that she was sitting only a few faces away from where she saw the incident. The statement of PW-1 also corroborates this fact that the place where PW-3 was sitting was a place from where PW-3 could have seen her son.

In the above background, the contention raised that the witnesses could not have seen the incident does not appear to be acceptable for all the reasons hereinabove. So far as, PW-2 is concerned he himself has stated that he came out of his shop after he heard the shot having been fired, and then he saw the appellant walking away and hurling abuses at the injured. There is therefore neither any embellishment or any exaggeration in any of the statements so as to doubt the veracity of the contents of their deposition.

The formal witnesses including the Investigating Officer have supported the prosecution story.

Coming to the injury, we find that it is a through and through 315 bore bullet injury and is on a vital part. The injury was sufficient in the normal course of things to cause death. Thus, this medical evidence supported by the testimony by PW-4 clearly corroborates the entire testimony led on behalf of the prosecution including that of the other witnesses. We do not find any contradiction much less any material infirmity so as to construe any perverse finding in the judgment of the trial court.

Accordingly, we do not find any merit in the appeal which is hereby dismissed and the judgment and order of the trial court dated 27.02.2012 is confirmed.

The appellant is still in jail and shall serve out the sentence as awarded by the trial court.

Order Date :- 03.08.2018

R./Arif