Shiv Kumar vs State Of U.P.
2018 Latest Caselaw 1358 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Court No. - 31
 
Case :- CRIMINAL APPEAL No. - 1373 of 1997
 
Appellant :- Shiv Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Babu Sharma
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Krishna Singh,J.

(Delivered by Hon'ble Krishna Singh,J.)

The instant criminal appeal has been preferred on behalf of accused-appellant Shiv Kumar @ Shibbu s/o Sri Raj Kumar, r/o Khurja, P.S Khurja Nagar., District Bulandshahar challenging the impugned judgment and order dated 16.7.1997 passed by Additional Sessions Judge, Bulandshahar in Sessions Trial No.503 of 1996 (State vs. Shiv Kumar @ Shibbu) arising out of Case Crime No.101 of 1996, under Section 307 of the Indian Penal Code, Police Station Khurja Nagar, District Bulandshahar whereby the accused-appellant has been convicted for commission of offence punishable under Section-307 of the Indian Penal Code and sentenced to undergo seven years of rigorous imprisonment and to pay a fine of Rs.2,000/- with default sentence of six months rigorous imprisonment.

The origin of facts emanating from the prosecution in a short conspectus is that on 5.3.1996 at 11:05 A.M., an oral report was got registered by Constable 501 Shish Pal at PS Khurja Nagar to the effect that on 5.3.1996 he and Constable 1533 Rajesh Kumar were deputed at Padam Singh Gate and Mohalla Dukani to maintain law and order situation on the occasion of Holi. At around 10:30 am, a fire sound came, acting which both of them went towards there and saw a huge gathering of people. Shiv Kumar alias Shibu Nai s/o Rajkumar had fired gunshot on Rahul s/o Khem Singh Chaudhary r/o House No 83, Mohalla Dukani Kasba, P.S. Khurja, Bulandshahr causing gunshot injury on his face who became critically injured. Shiv Kumar alias Shibbu was caught by the local people and someone from the crowd took away his country-made pistol. Subsequently, Rahul was taken for medical treatment by his family members. The complainant with the help of fellow employee taking away Shiv Kumar alias Shibbu from the clutch of residents of the locality lodged him to police station.

On the basis of aforesaid oral report, chik FIR (Ext. Ka-1) of the said incident was registered on 5.3.1996 at 11:05 A.M. at Police Station Khurja Nagar against the accused-appellant under Section-307 of the IPC mentioning entry thereof at G.D. No. 19 (Ext. Ka-5). The investigation of this case was entrusted to S.I. Ram Babu Singh.

After registration of the case, the Investigating Officer swung into action and recorded the statement of informant and other witnesses, prepared site-plan (Ext. Ka-6) and on receipt of injured's medical report submitted charge-sheet (Ext. Ka-7) against accused-appellant under Section-307 of the IPC.

The case was committed by the Additional Chief Judicial Magistrate, Khurja to the Court of Sessions for trial. The Trial Court after hearing the prosecution as well as defence and perusing the material available on record, framed charge against the accused-appellant under Section 307 of the IPC. The charge framed was read over and explained to the accused-appellant, he abjured the guilt and claimed to be tried, hence, the prosecution was called upon to lead the evidence.

In order to prove guilt of the accused-appellant, prosecution had examined nine witnesses in support of its case namely Khem Singh (P.W.1), Rahul [injured] (P.W.2), Lalit Mohan alias Bobby (P.W.5). Constable Shish Pal Singh (P.W.3), Dr. R.C. Singh (P.W.4), Dr. S.C. Sood (P.W.6), Constable Clerk 1104 Jai Prakash (P.W.7), Investigating Officer S.I. Ram Babu Singh (P.W.8) and Dr. Rakesh Bansal (P.W.9).

Khem Singh (P.W.1) is the father of the injured Rahul (P.W.2). He has stated in his statement on oath that 5.3.1996 was the day of Dulhandi. Accused Shiv Kumar was walking some 40-50 feet ahead and his son Rahul alongwith his friend Bobby was coming towards Chhoti Holi from his home. When he reached in front of Rajkumar Khanna's house, Shiv Kumar was walking ahead. No sooner did he reach in front of the said house, Shiv Kumar fired gun shots on Rahul. It was around 10.30 am. The gunshot caused injuries on Rahul's face, which was fired from a 12 bore country-made pistol. On firing sound two policemen came over the spot and crowd had gathered there. Policemen caught hold of Shiv Kumar from the spot itself. His son's condition was very critical and chance of his survival was very little. He took him to Khurja hospital where doctor was not available. Then he took him to Bulandshahr hospital. His son's condition was critical, hence he was referred to Ghaziabad from Bulandshahr hospital. Hence, he took him to Ghaziabad and got admitted to Yashoda Hospital where doctors informed him that he could be saved but he had lost both his eyes vision.

Rahul (P.W.2) is the injured witness. He has stated in his statement on oath that it was an occurrence of 5.3.1996. It was the day of Dulhandi. Lalit Mohan alias Bobby reached his home and told him to come and celebrate Holi. He and Bobby started to move towards Chhoti Holi and reached near the Khanna's house and Shiv Kumar came from the front. He told him to give money for taking liquor, whereupon he refused saying that he had no money. He further threatened saying him to give money, otherwise he would shoot him. On being refused, Shiv Kumar took out a country made pistol and fired gunshot which hit his face. He does not know what happened thereafter. As a result, he lost his vision. This occurrence took place at 10.00 - 10.30 am. His father had got him treated.

Constable 501 Shish Pal Singh (P.W.3) is the complainant/informant of the occurrence, who has got his oral report registered at Police Station Khurja Nagar. He has stated in his statement on oath that on 4.12.1996, he was posted at P.S. Khurja Nagar as Constable. It was the day of Holi and the Dulhandi and people were playing colours. He had left police station with Constable 1533 Rajesh Kumar to maintain law and order situation. He was deputed at Padam Singh Gate, Chhoti Holi and Mohalla Dukani. When they came towards Chhoti Holi from Padam Singh Gate, they heard firing sound at Chhoti Holi. Then they reached Dukani Mohalla where public had caught hold of Shiv Kumar, present in the court and informed them that he had fired gunshot at Rahul. Name of Shiv Kumar was suggested to him by the public. Rahul sustained gunshot injury on his face. Rahul was taken out to some hospital by his family members. Country made pistol was not recovered from the accused. It was informed that country made pistol was taken by someone from the crowd. They had come to PS Khurja Nagar along with the accused Shiv Kumar, who had been caught hold by the public. There he got registered the FIR of the occurrence on his dictation. The witness seeing chik no. 97/96 available on record identified it to be same which was got registered on his dictation and which bears his signature.

Dr. R.C. Singh (P.W.4) has conducted medical examination of injured Rahul. He has stated in his statement on oath that on 5.3.1996, he conducted medical examination of Rahul, aged about 18 years s/o Khem Singh r/o Dukani Gate Khurja, PS Khurja Nagar, District Bulandshahr. Following injuries were shown on his person:

Multiple pellet shot wound of firearm on the entire face, size 0.4 cm x 0.3 cm to 0.4 cm x 0.5 cm. Blackening was present and gunpowder was wiped off. Blood was oozing out from all those injuries. One teeth each of upper and lower side was broken and blood was oozing out. Swelling was present on right eyelid. These injuries were kept under medical observation. The dentist and eye-surgeon were advised to be consulted. X-ray of face was advised.

According to witness, injuries were fresh and had been caused by any firearm and likely to have been inflicted on 5.3.1996 at 10:30 am. On the same day i.e. 5.3.1996 at 1:00 p.m. injured was sent to Superior Centre in view of his critical condition. The witness has proved the photo copy of the injury report as Ext. Ka-2 and reference report as (Ext. Ka-3).

Lalit Mohan alias Bobby (P.W.5) has stated in his statement on oath that he is acquainted with accused Shiv Kumar who resides in his locality. Around one year back it was 10.30 a.m. he along with Rahul was coming home after playing Holi. When they reached near Raj Kumar's house, Shiv Kumar met there. Shiv Kumar carrying a country made pistol was coming from the side of Chhoti Holi. Coming over there he immediately fired gunshot on Rahul, which hits his face. At the same time Rahul's father came over there. Rahul sustained pellets injuries on his eye, nose and ear causing him critically injured. Some people of the locality came over who caught hold of him. At the same time two policemen also came over there and Shiv Kumar was handed over to them. Rahul was taken for treatment by his father and other people.

Dr. S.C. Sood (P.W.6) has stated in his statement on oath that he pays visit to the Yashoda Hospital, Ghaziabad and works there as Plastic Surgery Expert. Even now a days he performs plastic surgery as an expert at Yashoda Hospital, Ghaziabad. On 5.3.1996 he was engaged to the aforesaid post at the said hospital. That day, patient Rahul, aged 15 years was admitted at 4:00 p.m. in their hospital. Pellets were present inside neck, head and face and even inside his eyes. He was treated by his fellow Dr. K.K. Sharma (Neurosurgeon) and Dr. Rakesh Bansal (Eye Expert) and the wounds present on his face and neck had been stitched by them followed by their dressing. Except him Dr. Rakesh Bansal had also examined patient Rahul's eyes. Pellets were inserted in his eyes which was treated by Dr. Bansal. The witness seeing paper no 10A/2 identified it to be the injury report of the patient Rahul, which also includes the reports of Dr. K.K. Sharma and Dr. Rakesh Sharma besides his report. His report is in his handwriting and signature which was marked as Ext. Ka-4. The witness opined that there were injuries on the face and neck of patient Rahul which were likely to have caused by some firearm and injuries to injured Rahul were likely to have caused on 5.3.1996 at 10 and 10.30 am.

Constable Clerk 1104 Jai Prakash (P.W.-7) has scribed oral report of the occurrence. He has stated in his statement on oath that on 5.3.1996 he was posted at PS Khurja Nagar as constable clerk. That day he scribed chick of the instant case on dictation of Constable Shish Pal Singh. Original chick no 97 of 1996 (Ext. Ka-1) is written and signed by him. He made entries regarding registration of case and lodging of accused Shiv Kumar alias Shinde into lockup were made in GD on 5.3.1996 vide report no. 19 at 11:05 am.

Investigating Officer S.I. Rambabu Singh (P.W.-8) has stated in his statement on oath that at the time of occurrence, he was posted at Kotwali, Khurja Nagar Police Station, as Sub-Inspector. On 05.03.1996, the case was registered in his presence, and investigation of the case was assigned to him. After returning to the police station, he recorded the statements of constable-moharir Jai Prakash, accused Shiv Kumar and constable-complainant Shishpal Singh, and copied the chik and GD in case diary. On 08.03.1996, he recorded the statement of Khem Singh father of the injured, and on the leads furnished by Khem Singh, he inspected the occurrence spot and prepared a site map. True site map (Ext. Ka-6) is on record; which is in his writing and under his signature; which is corresponding to the spot. The witness further stated that he had inquired from residents of the locality. Thereafter, he had recorded the statement of eye-witness of the occurrence Lalit Mohan @ Bobby on 02.04.1996. Khem Singh, father of the injured, gave, on 11.03.1996, the medical examination report of his son, who was undergoing medical treatment at Yashoda Hospital, the entry of which he had done in CD. On 07.04.1996, he had recorded the statement of injured Rahul in case diary. Referral report (Ext Ka-3) of the government hospital, Bulandshahr, was given by Khem Singh, and certified copy of the medical examination of injured Rahul (Ext. Ka-2) was obtained from the District Hospital, Buldandshahr. After completing investigation on 07.04.1996, he had filed a charge-sheet Ext. Ka-7 under Section-307 of IPC against the accused in his writing and under his signature before the court.

After conclusion of prosecution evidence, the accused-appellant was examined under Section-313 of Cr.P.C., wherein he pleaded not guilty and denied his participation in the alleged crime. He has further stated that he has been falsely implicated in the present case. Rahul's friend is in service at liquor shop. Panna Lal with the help of contractor of liquor shop and police wanted to get his house vacated that is why he has been falsely implicated in the present case.

The learned Trial Judge upon appreciation and appraisal of material evidence on record held that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted and sentenced the accused-appellant to undergo seven years rigorous imprisonment under Section 307 of the IPC and to pay a fine of Rs.2,000/- with default sentence of additional six months simple imprisonment.

I have heard Dr. Abida Syed, learned Amicus Curiae appearing on behalf of accused-appellant and Sri Tarkeshwar Yadav, learned AGA appearing on behalf of the State and perused the entire material available on record.

Learned Amicus Curiae for the accused-appellant has contended that impugned judgment and order passed by the Trial Court is per se illegal and erroneous, whereby the accused-appellant has been convicted and awarded seven years imprisonment merely on the basis of suspicion while there are serious irregularities and lapses on the part of the prosecution. The accused-appellant is innocent and has been falsely implicated in the present case by the complainant at the instance of inimical and partisan persons in order to grab his house.

Learned Amicus Curiae has further contended that place of occurrence is not mentioned in the FIR, it creates serious doubt about the genuineness of the prosecution story. There are material inconsistency in the prosecution version and the statement of prosecution witnesses which itself creates suspicion about the incriminating circumstances framed against the accused-appellant. The prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant, therefore, the appeal against the impugned judgment and order stands on justifiable grounds and may be allowed.

Per contra, Sri Tarkeshwar Yadav, learned AGA appearing on behalf of the State contended that from the prosecution evidence available on record, the case of prosecution is proved beyond reasonable doubt against the accused-appellant. The impugned judgment and order passed by the Trial Court based upon proper appreciation of evidence available on record. The finding recorded by the Trial Court does not suffer from any procedural or factual infirmity or vulnerability.

Since this is regular appeal. I have gone through the evidence of PW's 1 to 9 and the impugned judgment and order passed by the Trial Court.

From the perusal of record, it transpires that FIR of this case is prompt one having been lodged on the date of occurrence i.e. 5.3.1996 at 11:05 A.M. The incident had taken place at about 10:30 A.M. The distance of police station was one kilo meter from the place of occurrence. It is evident from the record that the FIR was prompt with no time gap for concoction or deliberation. The lodging of FIR within shortest time of the incident furnishes valuable corroboration to the prosecution evidence that was adduced at the trial.

Rahul (P.W.2) is the injured witness. He has stated in his statement on oath that it was an occurrence of 5.3.1996, the day of Dulhandi. Lalit Mohan alias Bobby reached his home and told him to come to play Holi. He and Bobby started to move towards Chhoti Holi and reached near the Khanna's house and Shiv Kumar came from the front. He told him to give money for taking liquor, whereupon he refused saying that he had no money. He further threatened him to give money, otherwise he would shoot him. On being refused Shiv Kumar took out a country made pistol and fired gunshot which hit his face. As a result of this, he lost his vision. This occurrence took place at 10-10:30 A.M. His father had got him treated.

Since, Rahul (P.W.2) had received injuries in the occurrence. Undoubtedly, his ocular version of the incident is of great value to the prosecution. The fact that he sustained injuries on his body would show that he was present at the place of occurrence and he has seen the occurrence by himself. There is no convincing evidence on record to discredit him.

It is to be noted as proved by the medical examination report of the injured Rahul P.W.2 that he had suffered gun shot injuries, which were fresh and they could have been sustained at the time of incident as testified by Dr. R.C. Singh (P.W.4), Dr. R.C. Sood (P.W.6) and Dr. Rakesh Bansal (P.W.9). In my opinion the medical evidence is in harmony with the ocular version.

Rahul (P.W.2) was put to lengthy cross-examination by the defence but nothing could be elicited by way of cross-examination so as to create doubt about his presence at the place of occurrence.

Testimony of P.W.2 Rahul has been well supported by the other prosecution eye-witnesses namely P.W.1 Khem Singh, P.W.3 Constable 501 Shish Pal Singh and P.W.5 Lalit Mohan alias Bobby. Accused-appellant is named in the FIR. There is complete consistency and coherence in the examination in chief and cross-examination of the aforesaid prosecution witnesses. The name, date, time, place of occurrence and by whom the offence was committed has been revealed in the FIR lodged by Constable 501 Shish Pal Singh (P.W.3) and the same finds corroboration from the testimony of the aforesaid prosecution witnesses which is also incoherence with the story set up in the FIR. In view of the above facts and circumstances of the case, I find no scope for any deficiency in the evidence of P.W.1, P.W.2, P.W.3 and P.W.5 to warrant rejection. The plea of the accused-appellant that the same is full of blemishes has not been substantiated. On the contrary the same has ring of truth.

It is not in dispute that the accused was known to the injured and other prosecution eye-witnesses from before as all of them resided in the same village. There could be no question of mis-identity. It is established from the testimony of Informant Constable 501 Shish Pal Singh (P.W.3) that after committing the alleged crime accused-appellant was arrested on the spot. There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate falsely in the present case. In view of the above facts and circumstances of the case there appears no justification to disbelieve the testimony of the prosecution witnesses. On appraisal of the evidence on record, I find myself in agreement with finding of the trial court holding the accused appellant to be guilty and convicting him for the offence as stated in the earlier part of the judgment. The trial court had an opportunity to watch the demeanour of the witnesses, a privilege not extended to the appellate court. In absence of any mis-direction on the part of the learned trial court, his appraisal of evidence should be respected. In this case, after a complete and thorough examination of the evidence on the record, I find that the learned trial court has come to a correct conclusion. Therefore, the findings recorded by him are upheld.

In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

It is true that Khem Singh (P.W.1) is the father of the injured Rahul (P.W.2) and Lalit Mohan alias Bobby (P.W.5) is the friend of the injured Rahul (P.W.2). In my opinion, the aforesaid prosecution witnesses are natural witnesses and they have no motive to make false statements against the appellant-accused. I am of the opinion that where near and dear one is assaulted, his relatives and friends would not spare the real culprits and falsely implicate others. In view of the above, relationship is not a factor to affect the credibility of the aforesaid prosecution eye-witnesses. Therefore, testimony of the aforesaid prosecution witnesses cannot be discarded merely on the ground of being closely related to the injured.

In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-

"In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".

It is worth mentioning that although there are some minor contradictions in the depositions of the prosecution witnesses of facts but the contradictions are not of such nature which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be ground to reject the testimony of the prosecutions witnesses of facts.

In view of the prosecution direct and trustworthy evidence on record, I am of the considered view that defence as set up by the accused-appellant is absurd.

On the basis of verbose and prolix discussions made above and after considering the material evidence available on record, I am of the considered opinion that findings of conviction and sentence for the offence punishable under Section 307 of the Indian Panel Code recorded by the trial Court are well substantiated from the evidence available on record. The trial Court has appreciated the evidence in the right perspective. I do not find any justification to interfere with the findings of conviction recorded by the Trial Court. The findings of the conviction recorded against the accused-appellant are being maintained and affirmed and no interference is being made in the sentence awarded to the accused appellant.

The appeal is devoid of merit and is accordingly dismissed.

It is evident from the letter No. 426/Bulandshahar dated 19.7.2013 of C.J.M., Bulandshahar and letter No. 8058/ए0आर0/ सामा0प0/2013 dated 15.7.2013 of Senior Superintendent, District Jail, Meerut that accused-appellant after serving the sentence as awarded by the Trial Court had been released from the jail on 6.1.2001. He need not surrender. His personal bond and bail bonds are cancelled and sureties are discharged.

Let a copy of this judgment and order alongwith original record be transmitted to the learned trial court for information and compliance.

The learned Amicus Curiae Dr. Abida Syed shall be paid Rs.10,000/- from the fund of State Legal Services Authority for providing active assistance to the Court.

(Krishna Singh, J.)

Order Date :-4.7.2018

S Rawat