Pramod @ Juganu vs State Of U.P.
2018 Latest Caselaw 3789 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 1                                                                                   AFR
 
Case :- CRIMINAL APPEAL No. - 3415 of 2013
 
Appellant :- Pramod @ Juganu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Kumar Srivastava,J.J.Munir,N.K. Yadav
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

Delivered by Hon'ble Ramesh Sinha, J.

1. Heard Sri Deena Nath, learned counsel for the appellant, Sri J.P. Tripathi, learned AGA and perused the record.

2. This appeal has been filed against the judgment and order dated 21.5.2009 passed by Addl. Sessions Judge, Hathras in S.T. No.502 of 2007 convicting and sentencing the appellant u/s 302 IPC for life imprisonment and a fine of Rs.50,000/- and in default of payment of fine, 1 year further R.I and in S.T. No.503 of 2007, convicting and sentencing the appellant u/s 25 Arms Act for 3 years R.I. And a fine of Rs.1000/- and in default of payment of fine, six months further R.I.

3. The learned counsel for the appellant stated that the second bail application on behalf of the appellant has been filed as his first bail application has been dismissed for want of prosecution by this Court on 8.8.2017 and the appellant is languishing in jail for the last about 11 years, hence be may be released on bail.

4. As the appellant is languishing in jail for the last 11 years, a request was made to the appellants' counsel to argue the appeal finally as the appeal has already been admitted and lower court record has been received. He initially showed some reluctance but thereafter he agreed to argue the appeal finally to which learned AGA for the State states that he has no objection to it.

5. The FIR was lodged by Smt. Kamla Devi who is the mother of the deceased with an allegation that on 19.6.2007 at about 2.30 p.m. in the afternoon, the appellant Pramod @ Gugnu who is resident of the same Mohalla, had come to her house and took away her son Kalu. The appellant was having country-made pistol in his hand and shot dead her son Kalu in the vacant house of one Raman Singh. The shot hit the deceased on his right side of abdomen. The said incident was seen by her, her husband Ashok, her son Jitendra and other persons of the Mohalla. Initially the FIR was lodged u/s 307 IPC on 19.6.2007 which was endorsed in the G.D. entry at 15.05 P.M. The injured Kalu died after four days of the incident i.e. on 23.6.2007, hence the case was converted u/s 302 IPC. The Investigating Officer of the case has prepared the site-plan of the occurrence which was marked as Ext. Ka-11 and Ext. Ka-12. Dr. Kamal Ajmal examined the injured Kalu and proved his injury report Ext. Ka-16 and after death of the injured Kalu, the case was converted u/s 302 IPC, a reference to which was also made in G.D. Rapat No.23. The Investigating Officer prepared the Panchayatnama on the dead-body of the deceased Kalu which was marked as Ext.Ka2. The appellant was arrested by the police on 27.6.2007 and country-made pistol was recovered from his possession which was marked as material Ext. Ka-2 and cartridge material Ext. Ka-3 and his arrest memo was prepared which was marked as Ext. Ka-4. The recovery memo was prepared as Ext.Ka-3. On the recovery made from the accused of country-made pistol, FIR was also registered u/s 25 Arms Act which was marked as Ext. Ka-8 and reference of the same was made in the G.D as Ext. Ka-9. The Investigating Officer during the investigation prepared the site-plan of the place from where the weapon was recovered which was marked as Ext. Ka-12 and charge sheet under Section 25 Arms Act which was marked as Ext. Ka-13 and sanction for prosecution under the Arms Act was taken from the competent court which was marked as Ext. Ka-14.

6. The Investigating Officer conducted the investigation u/s 302 IPC and submitted charge sheet against the accused which was marked as Ext. Ka-10 in the competent court. The charges were framed against the accused u/s 302 IPC and 25 Arms Act. After the case was committed to the court of Sessions, the accused denied the charges and claimed to be tried.

7. The prosecution in support of it's case has examined P.W.1 Kamla, P.W.2. Ashok, P.W.3. Raghuveer, P.W.4 I.O Jaswant Singh, P.W.5 Const. Bhanwar Veer Singh, P.W.6 Const. 307 Banwarilal, P.W.7 S.I. Dal Chandra, P.W.8 S.I. Ram Khiladi, P.W.9 Const. Banwari Lal, P.W.10 Dr. V.K. Singh, P.W.11 Dr. Akshay K. Verma, P.W.12 Const Kamal Ajmal.

8. The statement of accused-appellant was recorded u/s 313 Cr.P.C who denied the charges and has stated that he is unaware about the proceedings of investigation and the recovery of country-made pistol and cartridge made from him is false one. The witnesses are falsely deposing against him and a false case has been registered against him.

9. The P.W.1 Kamla Devi has deposed before the trial court that on 19.6.2007 at about 2.30 p.m., the accused-appellant had come to her house and had taken away his son Kalu. The said accused was carrying a country-made pistol in his hand. He took his son Kalu to the vacant house of one Raman Singh where he shot him dead and the shot hit him on his right side in the abdomen. The incident was witnessed by her, her husband Ashok, son Jitendra and other persons of her Mohalla. She has proved written report as Ext.Ka-1.

10. P.W.2 Ashok who is the father of the deceased has also deposed in the trial court against the accused-appellant and reiterated the prosecution case as has been narrated by P.W.1 his wife. He further deposed that his son died after three days of the incident and his wife has lodged the FIR about the incident.

11. P.W.3 Raghuveer has deposed that on 23.6.2007 at between 3-4 P.M., the police has conducted the inquest report on the dead-body of the deceased after taking out from the mortuary of the Medical College in his presence and in the opinion of the panch witnesses, the deceased died on account of fire-arm injury and he has made signatures on the inquest report which was proved as Ext. Ka-2.

12. P.W.4 Jaswant Singh stated before the trial court that on 27.6.2007, he was posted at Police Station Sikandrarao on the post of S.S.I on receiving the information on 19.6.2007 that the accused Pramod @ Gugnu who had shot at the deceased Kalu is coming from Etah and is going to his house having a country-made pistol, he tried to collect some independent witnesses but no one was ready to be a witness, hence he proceeded towards the place and on the pointing out of the informer about the person coming, he intercepted the accused and arrested him at 9.15 p.m. and on a query made by the said person, he disclosed his name as Pramod @ Gugnu and on search a country-made pistol of 12 bore which was in the running condition, was recovered from the right pocket of the pant and two cartridges were also recovered from the left pocket of the pant and when license of the same was asked, he failed to produce the same. The said accused Pramod @ Jugnu confessed before the said witness that on 19.6.2007 while he was in a drunken state, he had some altercation with the deceased Kalu of his Mohalla and shot him and thereafter fled away from the place of occurrence. The accused was arrested and recovery memo was prepared in the presence of the police personnels. He has accompanied the said witness for the arrest of the accused and a carbon copy of the said recovery memo was also supplied to the said accused and signature was obtained. The country-made pistol and live cartridges were sealed and memo was prepared on which the witness has put his signature and proved the same as Ext. Ka-3 and Ext. Ka-4. He took the said accused to the police station where case was registered against him u/s 25 Arms Act.

13. P.W.5 Constable Bhanwarveer Singh stated that on 19.6.2007, he was posted as Constable Clerk at Police Station Sikandrarao and on the said date at about 10.15 hours, the informant Smt. Kamla Devi along with injured Kalu had come to the Police Station and submitted a written report on the basis of which FIR was registered as Case Crime No.484 of 2007 u/s 307 IPC and Chitthi Majroobi was prepared and the injured was sent to the hospital. He has proved the paper no.4A/1 and 4A/2 which was prepared by him under his writing and signed by him, which was marked as Ext. Ka-5 and reference of the same was also made in G.D. Rapat No.49 at 15.05 hours.

14. P.W.6 Constable 307 Banwari Lal who was examined before the trial court has stated that on 24.6.2007, he was posted at police station Sikandrarao as Constable Clerk and on the said date at 10.15 hours, Constable Awadhesh Kumar who had come to the police station and has submitted a sealed envelop in which post-mortem report along with inquest report original and duplicate and one envelope with a sealed condition in which a bullet was kept related to case crime no.484 of 2007 u/s 307 IPC of injured Kalu submitted at the police station. The post-mortem report was submitted before the Station Officer. The injured Kalu @ Sher Singh died during the medical treatment after which the Station Officer ordered for converting the Case Crime No.484 of 2007 from 307 IPC to 302 IPC. Reference about the same was made in G.D. rapat no.23 at 10.55 a.m. The original G.D. was in his handwriting which was marked as Ext. Ka-7. On 27.6.2007 S.S.I Yashwant Singh along with Constable Shivraj, Constable Ashok Kumar had brought the accused-appellant Pramod @ Gugnu along with country-made pistol and live cartridge which was recovered from him and a case was registered against him as Case Crime No.508 of 2007 u/a 25 Arms Act which was marked as Ext. Ka-8 and reference of which was also made in G.D. as Ext. Ka-9.

15. P.W.7 Dal Chandra has stated that on 27.7.2007 he was posted as In-charge Inspector of Police Station Sikandrarao and he was entrusted with the investigation of the said case and he has recorded the statement of the witness Ashok and the witness of inquest Bablu, Sunhari Lal, Raghuvir and others and submitted charge sheet and proved the same as Ext.Ka-10.

16. P.W.8 Ram Khiladi has stated that on 19.6.2007, he was posted at police station Sikandrarau and on the said date Case Crime No.484 of 2007 u/s 307 IPC was registered and at the pointing out of the informant, the spot inspection of the place of occurrence was made and the site-plan was prepared which was marked as Ext.Ka-11.

17. P.W.9 constable Banwari Lal has stated that on 28.6.2007, he was posted as H.C.P at police station Sikandrarao and was entrusted with the investigation of Case Crime No.508 of 2007 u/s 25 Arms Act. He has recorded the statement of the accused-appellant and constable Clerk Banwari Lal and at the instance of the informant, site-plan of the place from where the recovery of the country-made pistol was made, was prepared and he has proved the same as Ext-Ka-12. He has submitted the charge sheet against the accused-appellant u/s 25 Arms Act. The then District Magistrate gave sanction for prosecution of the accused under the Arms Act and has proved the sanction order as Ext.Ka-14.

18. P.W.10 Dr. V.K. Singh has deposed before the trial court that on 23.6.2007, he was posted as Medical Officer at Malkhan Singh Hospital and has conducted the post-mortem report of the deceased Kalu @ Sher Singh. The dead-body of the deceased which was brought in a sealed condition and found following ante-mortem injuries on his person:-

pksV ua0&1 il ;qDr ?kko ftlesa ?kko Hkjus dh izfdz;k py jgh Fkh 2 X 1-75 lseh- X isV dh xqgk rd xgjk isV ij lkeus nkfguk vkSj dwYgs dh gM~Mh ds vxzHkkx ls 3 lseh- Åij fLFkr Fkk isV dks nckus ls ?kko ls il fudy jgk FkkA

pksV ua0&2 ,d flyk gqvk ?kko 18 lseh- yEck isV esa lkeus dh rjQ e/; esa fLFkr Fkk blesa 9 Vkaads yxs gq;s FksA ?kko chp esa [kqyk gqvk Fkk ftlesa il ekStwn FkkA

pksV ua0&3 ,d flyk gqvk ?kko [email protected] 0-5 lseh- X isV dh xqgk rd xgjk isV ij ckabZ vksj ekStwn FkkA

pksV ua0& 4 nkfgus iBBs ij chp ds fgLls esa VVksyus ij /kkrq tSls pht VVksyus esa vk jgh Fkh mlh fLFkku ij ncko ls ,d [kqjUV tek gqvk iszlj dk fu'kku FkkA

19. On the internal examination, Doctor found that in the Abdomen, there was a Puss and from the right Kulha, a bullet was recovered which was sealed and handed over to the constable who had brought the deceased for post-mortem-report. He stated that as per papers of the Medical College, the deceased died on 23.6.2007 at 12.20 a.m. and in the opinion of the doctor, the deceased died on account of excessive bleeding and septicemia which was a result of ante-mortem injuries caused to him. He has prepared the post-mortem report in his writing and signed the same which was marked as Ext.Ka-15.

20. P.W.11 Dr. Akshay Kumar Verma has deposed that on 19.6.2007, he was posted at J.N. Medical College and he has examined the injured Kalu who was brought in an emergency condition and he was the Clinical In-Charge of the doctors' team which given medical treatment to the injured. The injured was also operated by the Dr. Javed and Dr. Asmat. The X-Ray report of Kalu was filed by him which was marked as paper no.24-B/1 and 24-B/29. He has stated that the original injury report is not available on record as the same is under the custody of the CMO.

21. P.W.12 Dr. Kamal Ajmal stated that on 19.6.2007 he was posted in Medical College in emergency department as C.M.O and at 5 p.m., Kalu aged about 45 years was medically examined and he was brought by his real brother and he has submitted the original medical examination report in a sealed cover to the court and found the following injuries:-

Lacerated wound of 2x2 cm. over Rt. Lower Abdomen with Omentum protruding out from the wound. The said injury was grievous in nature and can be caused by gun-shot.

22. The accused in the defence examined D.W.1 Bheemsen who submitted that on 18.6.2007 at 4 p.m., the accused-appellant had gone to his sister's place for taking her. He stated that on 19.6.2006, there was a marriage in his Mohalla of the daughter of Chandra Kishore where marriage party has come and during the marriage ceremony, firing took place and people were dancing and Kalu received injuries in firing. In the injured condition, his family members took him to the hospital and after 4-5 days, he died in the hospital. The family members of Kalu have lodged FIR against the accused-appellant. On 20.6.2007, the accused-appellant had returned along with his sister from village Jalali. The said witness stated that he has no enmity with anyone and he is deposing the true fact before the court.

23. D.W.2 Mohar Singh Premi has stated that he is Corporator of the Mohalla where the incident has taken place. On 19.6.2007, the marriage party of the daughter of Chandra Kishore had come and during the marriage, firing and dance was going on and Kalu received injuries in the said firing and the accused-appellant was not present on the date and time of the incident and when he reached the place of incident, the injured Kalu was taken to the hospital.

24. The Counsel for the appellant argued that the prosecution case set-up against the appellant is a false one as there is no independent witness who has come to support the prosecution case and only on the basis of statement of P.W.1 Smt. Kamla who is the mother of the deceased and P.W.2 Ashok who is the father of the deceased who are highly interested and partisan witness have deposed against him and the trial court has committed error in believing the testimony of the said witness and has convicted the accused-appellant. He further submitted that as per the statement of P.W.1, it is evident that she has not seen the incident nor her husband has seen the incident and only on account of suspicion, they have implicated the appellant. The recovery which was made from the appellant after eight days of the incident of country-made pistol and two live cartridges is false one as the said country-made pistol which was stated to have been used by the appellant as per his confessionsal statement was also not sent to ballistic expert whether the same was used or not. He further argued that the two defence witnesses who were produced from the side of the appellant i.e. D.W.1 Bheem Sen and D.W.2 Mohar Singh Premi have stated that the appellant was not present at the time of the incident and he had gone on 18.6.2007 at 4 p.m to village Jalali to take his sister and returned on 20.6.2007 and the deceased Kalu was injured in a firing at a marriage party of daughter of Chandra Kishore and the accused-appellant was falsely implicated by the family members of the deceased. The appellant has no motive to commit the crime and the trial court misread the evidence of the two witnesses has wrongly convicted the appellant. Hence his conviction is liable to be set-aside.

25. On the other hand learned AGA has submitted that trial Court has rightly convicted the appellant. The evidence of the injured witness was sufficient against the appellant for his conviction. He further submitted that the incident has taken place in broad-day-light on 19.6.2007 at 2.30 p.m. in the afternoon and the accused-appellant had taken away the deceased Kalu in the presence of his mother Smt. Kamla, father Ashok, brother Jitendra and other villagers and thereafter he shot him at the vacant house of Raman Singh with the country-made pistol in his abdomen. From the evidence of P.W.1 and 2, it is evident that the victim has suffered fire-arm injuries on his abdomen and he subsequently died after four days of the incident because of the scepticemia as a result of ante-mortem injuries. The reason for false implication of the appellant has also not been disclosed by the defence, hence the trial court has rightly convicted and sentenced the appellant under Section 302 IPC and the appeal is liable to be dismissed.

26. We have considered the submissions made by learned counsel for the parties and perused the material on record. The prosecution case as has been set-up by P.W.1 Smt. Kamla Devi who is the mother of the deceased as is evident from her evidence that on 19.6.2007 at 2.30 p.m., she was sitting along with her husband at the doors of her house where her son was also present and the accused-appellant took away her son Kalu and at that time, he was carrying country-made pistol in his hand and shot him dead on his abdomen at the vacant house of one Raman Singh. The said incident was witnessed by her husband P.W.2 Ashok also who also reiterated the prosecution case as has been deposed by P.W.1. Immediately after the incident she along with her family members took the injured to police station to lodge the FIR which was registered u/s 307 IPC at 15.05 hours and distance of the police station was one k.m. from the place of occurrence from where the injured was sent for medical examination to the hospital after preparing the Chitthi Majroobi where he was medically treated by the Dr. Javed and Asmat as is evident from the evidence of P.W.11 Dr. Akshay K. Verma and the victim was also operated. The P.W.12 Const. Kamal Ajmal has also examined the injuries of the injured who found injuries on his abdomen and on account of the injuries being serious in nature, the victim was also operated. The injured subsequently after four days of the incident died because of scepticemia as a result of ante-mortem injuries as is evident from the evidence of P.W.10 Dr. V.K. Singh who conducted the post-mortem of the deceased. The FIR of the incident is prompt one. The P.W.1, the mother of the deceased has deposed before the trial court that there was no animosity between the deceased or the accused and hence there appears to be no reason for false implication of the accused-appellant. In a case of direct evidence, the motive looses of it's significance. From the site-plan of the occurrence, it is apparent that the place of occurrence where the incident has taken place was nearby to the house of the accused and the incident can be seen by P.W.1 and P.W.2 though it has been suggested that the place where the deceased was shot, there was boundary-wall but from the perusal of the site-plan, it cannot be said that the incident cannot be witnessed by the eye-witnesses. The P.W.1 has categorically stated right from the inception that the deceased was shot by the accused by fire-arm on his right side of the abdomen and the medical examination report and post-mortem report shows that he suffered injuries of gunshot on his right side of the abdomen. Therefore, the testimony of the P.W.1 and 2 cannot be discarded merely on the ground that they happen to be the parents of the deceased. It is irrelevant that the country-made pistol which was recovered from both the appellants after eight days of the incident was not sent to ballistic expert for examination as it is an omission on the part of the Investigating Officer and the prosecution case cannot be disbelieved on this count. The trial court believing the evidence of P.W.1 and 2 and the medical report and the post-mortem report of the deceased has rightly come to the conclusion that the prosecution has proved it's case beyond reasonable doubt against the appellant. So far as defence witnesses are concerned, the trial court found that the said witnesses were falsely deposing in favour of the accused. So far as D.W.1 is concerned, the parents of the accused-appellant had insisted him to depose in favour of the accused and D.W.2 also because of the insistance of the villagers has come to depose in favour of the accused that he was not present on the date and time of the incident and he suffered injuries during the marriage ceremony in celebrate firing. Thus we find that the appellant is named in the FIR who has been assigned the role of shooting at the deceased, it is a broad-day-light murder and also that the deceased died on account of ante-mortem injuries, the prosecution has proved it's case beyond reasonable doubt against the appellant, hence there appears to be no infirmity in the order passed by the trial court in recording the conviction and sentence of the appellant for life imprisonment.

27. Hence, no interference is called for by this Court in the judgment and order passed by the trial court and the conviction of the appellants is hereby upheld. The appeal lacks merit, it is accordingly dismissed.

28. Let a copy of this order be sent to the trial court concerned along with lower court record for necessary information and follow-up action forthwith.

        (Dinesh Kumar Singh-I, J.)              (Ramesh Sinha, J.)

Order Date :- 17.11.2018

Gaurav