Goli Alias Jata Shanker vs State Of U.P.
2019 Latest Caselaw 4060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on  13.03.2019
 
Delivered on  03.05.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 1405 of 1985
 

 
Appellant :- Goli Alias Jata Shanker
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.P.Singh,Rahul Pandey,Rang Nath Pandey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1. The present criminal appeal has been preferred against the judgment and order dated 23.5.1985 passed by IInd Additional Sessions Judge, Mirzapur in S.T. No.59 of 1984 convicting and sentencing the appellant for life imprisonment under Section 302 I.P.C.

2. The prosecution case in brief is that on 16.8.1983 at about 7 A.M.,the complainant, namely, Kailash Nath Dubey (deceased) was irrigating his field which was situated towards South of his village Chabgehna for sowing paddy seeds. At about 7.45 A.M., on the issue of irrigation of the field, some altercation took place between the complainant Kailash Nath Dubey and one Shree Ram, resident of village Nadhgehna. At about 8 A.M., the accused, namely, Kripa Shankar and Goli alias Jata Shankar, both sons of Shree Ram, came at the field of the complainant Kailash Nath Dubey. The accused Kripa Shankar was armed with lathi and Goli alias Jata Shankar was armed with a licensee gun. On the exhortation of accused Kripa Shankar, accused Goli alias Jata Shankar with an intention to commit murder of the complainant Kailash Nath Dubey fired a shot at him from his gun which hit on the back of the complainant. With the help of his brothers, the complainant Kailash Nath Dubey was immediately taken to the District Hospital. The incident was witnessed by Sheo Shankar Tiwari, Radhey Shyam Yadav, Sheo Shankar Tiwari son of Ram Narain and others. The complainant Kailash Nath Dubey got an FIR (Ext. Ka.3) of the incident written by Shambhoo Nath Dubey and the said FIR was lodged at the police station Padari on 16.8.1983 at 11 a.m.

3. On the basis of written report, Chik report (Ext. Ka.5) was prepared and case was endorsed in G.D. as Crime No.79/83, under Section 307 I.P.C., carbon copy of which is marked as Ext. Ka.6.

4. The Investigation of the case was conducted by S.H.O. Sri R.P. Bharti. The Investigating Officer recorded the statements of witnesses and also made spot inspection. He prepared the site plan (Ext. Ka.17). He took blood stained and plain soil from the place of occurrence, kept it in two separate sealed tins and prepared the recovery memo (Ext. Ka.18).The Investigating Officer also recovered empty cartridge, sealed it and prepared the recovery memo (Ext. Ka.19) in respect thereof. He also made a search of the house of the accused persons but could not recover the licensee gun as well as accused also. He prepared recovery memo (Ext. Ka.20) of the same. Subsequently, on 6.9.1983, Shree Ram, father of the accused persons, handed over his single barrel licensee gun bearing No.32750/1970 along with three cartridges of 12 bore at the police station Padari. The Investigating Officer prepared recovery memo (Ext. Ka.21) in this regard. The medical examination of the injuries of Kailash Nath Dubey was conducted on 16.8.1983 at 9.20 A.M. at District Hospital, Mirzapur. The injury report of the Kailash Nath Dubey is marked as (Ext. Ka.1). The condition of the complainant Kailash Nath Dubey was found serious at the District Hospital, Mirzapur, hence, his dying declaration (Ext. Ka.2) was recorded at the District Hospital, Mirzapur by the Deputy Collector/ Executive Magistrate Sri A.N. Anand. Thereafter, the injured Kailash Nath Dubey was taken to the Swaroop Rani Hospital, Allahabad (here-in-after referred to as 'S.R.N. Hospital') where he died on 18.8.1983. The inquest report (Ext. Ka.11) of the deceased Kailash Nath Dubey was prepared at S.R.N. Hospital, Allahabad on 18.8.1983 at 11.15 A.M. by the police of Police Station Kotwali, Allahabad. Photo-nash (Ext. Ka.12) was prepared and dead body was sealed and sample of seal (Ext. Ka.14) was preserved. The dead body of the deceased Kailash Nath Dubey was sent for post mortem through Constable Mohan Mishra of Police Station Kotwali, Allahabad with the letter (Ext. Ka.15) along with necessary papers. The post mortem of the dead body of the deceased Kailash Nath Dubey was conducted by Dr. K.S. Tiwari of Moti Lal Nehru Hospital, Allahabad, which was marked as Ext. Ka.9. The plain and blood stained soil was sent for chemical examination. The report of Chemical Examiner is marked as Ext. Ka.23.

5. After completion of investigation, the Investigating Officer submitted Charge Sheet (Ext. Ka.22) against both the aforesaid accused persons for the offence under Section 302 I.P.C.

6. The case was committed to the Court of Sessions and the trial Court framed charges against both the accused for the offence under Section 302 I.P.C. The charge was read over and explained to the accused persons who pleaded not guilty and claimed their trial.

7. The prosecution in support of its case has examined PW1-Sheo Shankar, PW2-Radhey Shyam, PW3-Dr. K.D. Sharma, PW4-Shambhoo Nath Dubey, PW5 Head Constable Surya Deo Pandey, PW6-Constable Rama Shankar on affidavit, PW7-Constable Mohan Mishra on affidavit, PW8-Dr. K.B. Tiwari, PW9-S.I. Sri Ram Prakash Bajpai, PW10-Executive Magistrate-Sri Aand Narain Anand, PW11-Investigating Officer R.P. Bharti & PW12 Constable Amresh Chand Pandey.

8. The statements of the accused was recorded under Section 313 Cr.P.C. by the trial Court who denied involvement in the offence in question and denied the prosecution case. The accused declined to produce any oral evidence and relied upon the injury report (Ext. kha-1) and copy of G.D. at report No.16 at 9.45 A.M. of P.S. Parari (Ext. Kha-2).

9. PW1-Sheo Shankar, son of Sukhdev has deposed before the trial Court that he had seen the chak in Mauja Chabgehna of the deceased Kailash Nath Dubey. On the eastern side of his chak there is a nala, whereas on the wastern side there is a lane of water. On the eastern side of nala, he is also having a chak, namely Nala Badhu, which falls in mauja Baudri. This witness has also deposed that at about 7.30 or 8.00 A.M. he was at his agricultural field in mauja Baudri. The place where he was in his agricultural field, was at a distance of 100-150 paces of the chak of Kailash Nath Dubey and Kailash Nath Dubey was watering his field. While he was ploughing his agricultural field, at that time accused Kripa Shankar and Goli alias Jata Shankar had come and started abusing Kailash Nath Dubey. He did not hear Kailash Nath Dubey abusing the accused. The said two accused were carrying something in their hands but what were they carrying, he could not notice the same. Kailash Nath Dubey was empty handed. Father of the accused, namely, Shree Ram was known to him.

10. He further deposed that when quarrel took place between Kailash Nath Dubey and accused persons, then Kailash Nath Dubey ran away from his chak to his house.This witness remained at his chak and when he heard the the gunshot then he started going towards the house of Kailash Nath Dubey. When Kailash Nath Dubey ran towards his house from the chak, the accused had also followed him towards his house and when the accused chased him, he did not know what weapon they were carrying in their hands. Kailash Nath Dubey had fallen in his orchard towards western side. When Kailash Nath Dubey had fallen down, the accused were at a distance of about 10-15 paces behind him. The accused had gone towards north. When Kailash Nath Dubey had fallen down, then other people rushed and arrived there. Radhey had also rushed from his chak and reached there. Radhey was at a distance of about 2-21/2 bighas from the place where Kailash Nath Dubey had fallen down and his chak was adjacent to the orchard of this witness. Where Kailash Nath Dubey had fallen down, the blood was also fallen there. This witness had seen the injury of gunshot at the back of Kailash Nath Dubey. When the accused had fled away, he did not chase them and also did not notice that what weapons they were carrying in their hands. In all, total three shots were fired. When the first shot was fired, this witness was at his field. The first two shots fired, did not hit Kailash Nath Dubey and the third one hit him but he did not know from whose gunshot said fire was made.

11. In his cross examination this witness has stated that the Investigating Officer had recorded his statement in the hospital between 2.00 to 2.30 P.M. He further stated that he had given statement to the Investigating Officer that accused Kripa Shankar and Goli alias Jata Shankar were armed gun, the statement given by him to the Investigating Officer was correct one. He did not remember whether he had given the statement to the Investigating Officer that accused Kripa Shankar had exhorted his brother Jata Shankar to kill the deceased and if the Investigating Officer has written the said statement then it is a correct one. He further stated that he also did not remember whether he had given the statement to the Investigating Officer that the third shot fired by Jata Shankar hit Kailash Nath Dubey at his back and if the Investigating Officer has written the statement, then it is correct. He stated that since a year has elapsed, he has forgotten, hence, he had earlier deposed that he did not know that from whose gun Kailash Nath Dubey was killed.

12. This witness has denied the suggestion that because of being relative, he has deposed that he had seen the accused at the place of occurrence. He further denied the suggestion that he had not seen Jata Shankar receiving any injury nor he is aware of the same. He denied the suggestion that he is concealing the same. He also did not know whether Jata Shankar had made any report about the incident or not. He had visited the hospital on the day of incident but he did not see whether Jata Shankar was medically examined of his injuries or not. He further denied the suggestion that on the day, he had gone to his relative at Basui. He stated that he has no relative at Basui.

13. PW2-Radhey Shyam who is neighbour of the deceased has deposed before the trial Court that he knew the accused Kripa Shankar and Goli alias Jata Shankar who were present in the Court. He further stated that at about 7.00-8.00 A.M. while he was at his field, accused Kripa Shankar and Goli alias Jata Shankar came to the deceased. Goli alias Jata Shankar was armed with gun whereas Kria Shankar was armed with lathi and there was some hot altercation took place between the accused and Kailash Nath Dubey, on which Kailash Nath Dubey ran away from there, accused also followed him and the accused Goli alias Jata Shankar fired and he saw him making the first fire which did not hit any one and because of fear he had ran away. Thereafter, two fires were made but who had made the said fires he could not see as he had ran away and after five minutes when he came back to his field he saw that Kailash Nath Dubey had suffered injuries and had fallen down. Sheo Shankar Tiwari also arrived there and blood was also fallen there. When he reached to his field, he did not see the accused running away from the place of occurrence.

14. In his cross-examination, this witness has stated that he cannot tell that whose shot hit the deceased Kailash Nath Dubey.There was a dispute of water on the said date. Water was going in the field of Shree Ram but this witness could not see that at the time of incident whether water in the field of Shree Ram was less or not. He had seen Shree Ram at that time but there was no conversation between him and Kailash Nath Dubey. He did not see Shree Ram carrying gun at any point of time but knew that there was a licensee gun in his name. He further stated that he did not see that on the said date Goli alias Jata Shankar had received any lathi injury. This witness had gone to the hospital but he did not find Jata Shankar in the hospital. He did not know whether Jata Shankar had lodged any report against Kailash Nath Dubey and others or not. He further deposed that the house of Kailash Nath Dubey is nearby to him. Accused Kripa Shankar and Goli alias Jata Shankar live in another Purba and their Purba is towards north of the field of Sheo Shankar.

15. He denied the suggestion that he was not present at his field on the day of incident and because of being a neighbour he is falsely deposing. He stated that he had gone to see Kailash Nath Dubey at Allahabad.

16. PW3- Dr. K.D. Sharma in his deposition before the trial Court has stated that on 16.8.1983 he was posted as Medical Officer In-charge of District Hospital Mirzapur and on the said date at about 9.30 a.m. he had medically examined Kailash Nath Dubey and found the following injuries on his person:

"1. Lacerated wound 12 cm. x 6 cm. x 2 cm. deep on left side of back 23 cm. below from shoulder blade, wound bleeding profusely, blackening singing and tatooing present.

2. Swelling diffuse 28 cm. x 15 cm. on the back crossing each vertibral column, 23 cm. below root of neck. Swelling communicates with injury no.1.

17. In the opinion of the doctor, injury nos.1 & 2 were kept under observation. X-ray was advised. Injury no.1 was caused by firearm. Duration was fresh. The injured was brought by his uncle Chhavinath Dubey. This witness has proved the medical examination report under his handwriting and signature which is marked as Ext. Ka.1

18. He has further stated that the injuries caused to the injured could have been caused at 8.00 A.M. in the morning. The injured was admitted in the hospital and at that time he was speaking.On the said date, dying declaration of the deceased Kailash Nath Dubey was recorded by the Deputy Collector in his presence, which was signed by the injured as well as by the Deputy Collector after writing the same in his presence and he too had signed the same. When the said dying declaration of the deceased was being recorded he was mentally fit and was speaking. This witness has proved his signature as well as of Kailash Nath Dubey and Deputy Collector P.A.M. Anand, which is marked as Ext. Ka.2 and has proved the same.

19. In his cross-examination, this witness has stated that on 16.8.1983 at about 1.30 p.m. in the afternoon he had medically examined Goli alias Jata Shankar and found the following injuries on his person:

"1. Contusion 4 cm. x 2 cm. on medial aspect of left leg 6 cm. above from medial malleous. Colour reddish. Diffuse swelling present around wound.

2. Contusion 1 cm. x 1 cm. on medial aspect of right leg 4 cm. above medial malleous. Colour reddish.

3. Contusion 4 cm. x 2 cm. on back of right thigh 8 cm. above knee crese. Colour reddish.

4. Complain of pain on back of elbow.

5. Complain of pain on left side of wrist.

6. Complain of pain on left shoulder joint.

7. Complain of pain in right testes.

Injuries no.1 to 3 are caused by blunt hard object. Injuries no.7 kept under observation. Rest of the injuries are simple in nature. Duration within one day."

20. This witness has further stated that the injured Goli alias Jata Shankar had complaint pain on his testicles which was kept under observation and rest of the injuries were simple in nature and the said injuries could have been caused by lathi and could have been caused within one day as he stated that the said injuries could also be caused on 16.8.1983 at 8 a.m. He has proved the injury report of Goli alias Jata Shankar under his handwriting and signatures as Ex. Kha.1

21. This witness has further deposed that when the dying declaration of the deceased was being recorded, no one was present there and prior to it the family members of the deceased and others who were present there, were asked to go out from there. When they had gone to record the dying declaration of the deceased, then the person, namely, Chhavinath who had brought the deceased, was not present there. He could not remember that how much time it took to record the dying declaration of the deceased. He further stated that when he came to know that the injured received fire injuries, whether he sent the information about the same to the police station or not he did not remember and ordinarily in such cases information is sent to the police station. The injuries of the injured was written by him in medico-legal register.

22. In the cross-examination by the prosecution, this witness has stated that Goli alias Jata Shankar himself had come to him and on his person besides the injury nos. 1 and 3 no other injuries were found and the said injuries could be caused due to impact of some blunt object and further all the injuries were superficial in nature and they can be self inflicted.The said injuries could be caused 2 hours prior to his medical examination.

23. PW4-Shambhoo Nath who is scribe of the FIR and real brother of the deceased has deposed before the trial Court that he knows that accused Goli alias Jata Shankar and Kripa Shankar who are present in the Court. He further stated that deceased Kailash Nath Dubey was his real elder brother. On 16.8.1983, he received firearm injury. It was about 8.00-8.15 A.M. in the morning, he was in his agricultural field. The place where Kailash Nath Dubey received gun shot injuries, it is towards western side orchard of Sheo Shankar Tiwari and his field is also towards the western side of the said orchard. He further stated that when he was at his field at about 8.00-8.15 A.M. he heard the gunshot and he after hearing the same started running towards the direction from where he heard the shot being fired. When he was at a distance of 40 yard from the said orchard, he saw the two accused who are present in Court along with his brother and they were running and he saw that accused Goli alias Jata Shankar was armed with gun whereas accused Kripa Shankar was armed with lathi. He saw that accused Goli alias Jata Shankar had fired shot at the back of his brother and was running towards his house, along him accused Kripa Shankar also fled away. The place where his brother received gunshot he reached there and found his brother fallen on the ground. Sheo Shankar, Radhey Shyam, Chhavinath, father of this witness Faujdar and some labourers had also arrived there. From there he got his brother taken to the hospital at Mirzapur on a cot and on the way a tractor was arranged and the deceased was taken to Sadar Hospital from village Basuhi by a tractor. In the hospital besides the said witness, Chhavi Nath (uncle) Faujdar (father) and Sheo Shankar and Radhey etc. had also arrived. They reached the hospital at 9 A.M. in the morning where his brother was medically examined and copy of the medical examination report of his brother was being provided to him and the doctor had asked him to lodge an FIR and in the hospital he got a report written on the dictation of his brother Kailash Nath Dubey which was read over to him and after hearing the same he signed the report. The said written report is in his hand writing and signature along with the signature of his brother which is marked as Ex. Ka.3. He states that he had submitted the said report along with medical examination report at police station Padari at 11 A.M. where the FIR was registered and Sub inspector recorded his statement under Section 161 Cr.P.C. at police station and from there he reached the hospital at about 1.00 P.M. When he returned to the hospital, he saw that a vehicle was being called for taking his brother to Allahabad and while his brother was about to be taken to Allahabad, within 10 minutes the Sub Inspector of Police Station Padari had reached to the hospital and recorded the statement of his brother Kailash Nath Dubey under Section 161 Cr.P.C. and thereafter he took his brother Kailash Nath Dubey to Allahabad where he was admitted in S.R.N. Hospital and on 18.8.1983 his brother died at S.R.N. Hospital, Allahabad and on the said date panchayatnama of the dead body of the deceased was conducted, he also signed the panchayatnama as one of the panch witness. The last rites of the deceased Kailash Nath Dubey was performed in Allahabad and thereafter on return, on 26.8.1983 a written report regarding the death of the deceased Kailash Nath Dubey was given by him in his handwriting and signature, which is marked as Ext.Ka.4.

24. In his cross examination, this witness has stated that he is posted as Amin in the Tehsil Sadar Mirzapur. His agricultural field is being taken care of by his uncle Chhavinath along with his father and also sometimes by him as well as by his brother too. He further stated that elder brother of his father, namely, Ram Nath lives in his in-laws' house and did not perform agricultural work and the said Ram Nath has given his agricultural field in favour of his brothers. On 16.8.1983 Kailash Nath Dubey had gone to the field from his house for watering his field at about 7 a.m. while the Faujdar and Chhavinath remained at the house and had not gone to the field. He further stated PW1 Sheo Shankar 's house is at a distance of about one bigha from his house and the house of Radhey Shyam is also near to his house. There was no enmity between him and the accused prior to the incident. For taking water from the canal jointly, there is always litigation took place between the land-owners (Kashtkar). In the field of deceased Kailash Nath Dubey and accused, water used to come from one canal for which there were two lanes. Father of the accused Shree Ram is having a licensee gun. He did not know whether on the day of incident there was some dispute between the Shree Ram and Kailash Nath Dubey as this witness was at a distance. He further stated that the deceased Kailash Nath Dubey himself had told him that there was dispute between him and Shree Ram in morning at about 7.45 A.M. The time by which the dispute had taken place, has been told by the deceased and at that time Faujdar and Chhavinath were not with him at the field on which the Kailash Nath Dubey was present. The house of the said witness is towards north from the field where the deceased Kailash Nath Dubey was present and his field is also straightway towards north which falls near the orchard of Sheo Shankar.

25. This witness further deposed that in the FIR he had written the fact which the deceased had dictated to him. He did not remember whether the fact regarding firing of three shots had been written by him in the FIR or not and after seeing the FIR (Ext. Ka.3), he stated that the fact regarding three fire being shot is not written. In the FIR (Ex. Ka.3), it is also not written that the accused had shot dead Kailash Nath Dubey in the orchard of Sheo Shankar, as Kailash Nath Dubey had not dictated the same, the information which he himself was having, had not been written in the FIR. In the FIR, he had not written his name as an eye witness. This witness had not shown the filed to the Investigating Officer where he was present at the time of incident. He is also not aware of the fact that accused Goli alias Jata Shankar had lodged an FIR against Chhavinath, Ram Nath and Faujdar and deceased on 16.8.1983 at 9.45 A.M. at the concerned police station and when he reached at police station Padari, he did not find accused Goli alias Jata Shankar at there. The police had also not informed him whether Goli alias Jata Shankar had lodged a report or not. The Investigating Officer did not asked this witness as to how Goli alias Jata Shankar received injuries.

26. This witness denied the suggestion that he had not seen the incident and further denied the suggestion that he was not present at the time of incident in the village. He also denied the suggestion that Kailash Nath Dubey was beating Goli alias Jata Shankar with lathi, then the father of Jata Shankar in order to save Jata Shankar had fired shot with his gun. The father of Goli alias Jata Shankar is aged about 50 to 55 years and he denied that father of Goli alias Jata Shankar is aged about 70 years.

27. PW5-Head Constable Surya Dev Pandey has deposed before the trial Court that on 16.8.1983 he was posted as H.M. at police station Padri, District Mirzapur. At about 11 a.m. in the morning on the written report of Kailash Nath Dubey, he prepared the chik report in his hand writing and signature and proved the same as Ex. Ka.5. He endorsed the chik FIR in G.D. No.19 dated 16.8.1983 at 11 A.M. The original G.D. was before him, which was under his handwriting and signature, carbon copy of which is Ex. Ka.6.

28. The case property of the present case was submitted by the Station Officer at the police station on 17.8.1983 which was endorsed in G.D.No.19 at 19.30 hrs. in sealed condition. The original G.D. is before him and the same was in the hand writing of Ram Prasad Bhartiya, the then S.O. and proved the same, carbon copy of which is Ex. Ka.7.

29. This witness further stated that on 26.8.1983 on the written report of Shambhoo Nath Dubey, the aforesaid case was converted under Section 302 I.P.C., reference of which was made in G.D.No.25 at 18.30 hrs. on 26.8.1983. The original G.D. was before him, which was in his hand writing and carbon copy of which is Ext. Ka.8. On 6.9.1983 Shree Ram had deposited his licensee gun along with three cartridges at the police station and the gun along with one cartridge was sent to the expert.

30. On cross-examination, this witness has stated that on 16.8.1983 at 9.45 A.M., Goli alias Jata Shankar had lodged an FIR under Section 323 I.P.C. against Faujdar, Chhavinath, Ram Nath and Kailash Nath and on the basis of which a N.C.R. was registered under Sections 323, 504, 506 I.P.C. as Case No.188. He stated that he has not brought the original NCR register. On the said date the the case is registered at G.D.No.16. The said G.D. is before him which in his handwriting and signature and he proved the same, carbon copy of which is Ext. Ka.2. The injuries of Goli alias Jata Shankar was also endorsed in the G.D.

31. PW6-Constable Ram Shankar Mishra has filed an affidavit which was treated to be his statement, stating therein that the in the month of October, 1983 he was pasted as Constable at police station Padari. The case property sealed in two boxes, were taken by him for chemical analysis to Vidhi Vigyan Prayogshala, Agra and he submitted the same in sealed condition.

32. PW7- Constable Mohan Mishra also filed an affidavit and the same was treated to be his statement, in which he stated that on 18.8.1983 at 11.15 A.M. he took dead body of the deceased Kailash Nath Dubey in sealed condition, which was handed over to him by Ram Prakash Bajpai and doctor had conducted the post mortem of the dead body.

33. PW8-Dr. S.K.Tiwari, Senior Radiologist has stated that on 18.8.1983 he as posted as Senior Radiologist at Moti Lal Nehru Hospital and had conducted the post mortem of the dead body of the deceased Kailash Nath Dubey which was handed over to him in a sealed condition by Constable No.808 Mohan Mishra of Police Station Kotwali, District Allahabad and identified the same and he found the following injuries on the dead body of the the deceased:

"1. Gun shot wound of entry 9 cm. x 3 cm. back of chest collar medially, irregular margins present, blackening present around the margins, 7 cm. below inferior angle of scapula directed medially forwards.

2 Stitched wound 12 cm. long right paramidian with 7 stitches, 2 cm. from midline, 3 cm. above umbilicus.

3. Diffused swelling around right arm and forearm with number of wounds mark of injury of injection pricks marks present. On.......fossa.

34. In the opinion of the doctor, the deceased died on 18.8.1983 at 6.20 A.M. at S.R.N. Hospital, Allahabad and he has proved the post mortem report as Ex. Ka.5.This witness denied the suggestion that because of negligence of the doctor, the deceased died.

35. PW9-Ram Prakash Bajpai has deposed before the trial Court that on 18.8.1983 he was posted as Chauki In-charge, Suraj Kund which fell under the police station Kotwali, District Allahabad and area of S.R.N. Hospital comes under the police station Suraj Kund. He further stated that on 18.8.1983 he conducted the inquest on the dead body of the deceased Kailash Nath Dubey in S.R.N. Hospital, which was conducted by him on the information of the hospital and proved the same as Ext. Ka.10. The panchayatnama was endorsed in G.D. No.15 dated 18.8.1983 at 8.45 A.M. which was written in the handwriting of Suresh Chand. Constable Moharrir and he has proved the panchayatnama in his handwriting and signature and proved the same as Ext. Ka.11. He also prepared the photo-nash ( Ex. Ka.12), chalan-nash (Ex. Ka.13), sample of seal mohar (Ex. Ka.14), report regarding post mortem (Ex. Ka.15) in his handwriting and signature.

36. In cross-examination, this witness has stated that he received information regarding death of the deceased at 8.45 a.m. but as per the memo prepared by doctor, the deceased died at 6.20 a.m. He did not have any conversation with the said doctor.

37. PW10-Anand Narayan Anand, Deputy Collector, Mirzapur has stated before the trial Court that on 16.8.1983 he was posted as Deputy Collector/Executive Magistrate, Mirzapur and on the said date he had recorded the dying declaration of the deceased in District Hospital, Mirzapur at 12.45 p.m. in the afternoon and he recorded the statement whatever the deceased had stated to him. He further stated that at the time of recording the statement of the deceased, the doctor of District Hospital was also present, who had signed the same after he had taken the statement of the deceased. After recording the statement of Kailash Nath Dubey (deceased), the same was read over to him, who after listening and understanding the same, signed it and he also signed on the same. The said dying-declaration of the deceased Kailash Nath Dubey was before him and he proved the same to be under his signature as well as signatures of the deceased Kailash Nath Dubey and doctor which was marked as Ex. Ka.2. At the time of recording the said dying-declaration besides him and doctor, none was present there and Kailash Nath Dubey was in conscious state of mind when he was recording his statement.

38. In cross-examination, this witness has stated that when he reached the hospital for recording the statement of the deceased Kailash Nath Dubey, some persons were present there and he asked them to go out. He stated that at the time of recording the statement of Kailash Nath Dubey, he had not written that the injured was in a conscious state of mind. In the dying-declaration, he has also not written that prior to recording the statement of Kailash Nath Dubey he had asked the persons sitting near the injured to go out.

39. PW11-A.P.Bhartiya has stated before the trial Court that on 16.8.1983 he was posted as Station Officer at Police Station Padari, District Mirzapur. He further stated that on 16.8.1983, the FIR was registered under Section 307 I.P.C. against two accused persons in his presence which was registered as case crime No.89 of 1983. He recorded the statement of Shambhoo Nath Dubey at police station and thereafter he proceeded towards the place of occurrence. The injured had gone to the hospital. He had recorded the statement of the the informant Kailash Nath Dubey at District Hospital Mirzapur and at that time the informant was speaking and was conscious. He further stated he had written whatever was told to him by Kailash Nath Dubey, which is marked as Ext. Ka.16. The said statement was taken by him at 1.10 P.M. in the afternoon.Thereafter, he had taken the statement of Radhey Shyam Yadav and Sheo Shankar at 1.30 P.M. in the hospital. Thereafter he reached at 2.3.0 P.M. at the place of occurrence.He inspected the place of occurrence at the instance of Sheo Shankar. He prepared the site plan of the place of occurrence and proved the same as Ext. Ka.17. The place where he had recovered the empty cartridge, he marked the same by alphabet 'F'. He prepared the recovery memo of blood stained soil and plain soil and proved the same as Ext. Ka.18. The blood stained soil and plain soil were kept in two boxes, he prepared the recovery memo and got the same signed by the witnesses. He further stated that he made search of the house of the accused but he did not find gun at there. The accused were also searched but they could not be traced out. On 19.8.1983 the accused surrendered in the Court and then he recorded their statements. On 26.8.1983 on the written report of Shambhoo Nath Dubey, the case was converted under Section 302 I.P.C. On 6.9.1983 Shree Ram Mishra brought his gun at police station and had deposited the same, for which he prepared recovery memo under his handwriting and signature and proved the same as Ext. Ka.21.

40. On 22.9.1983 he had sent the gun to the Ballistic Expert. The blood stained soil and plain soil was sent for examination to Vidhi Vigyan Prayogshala for chemical analysis. He recorded the statement of Sub Inspector Bajpai who conducted the panchayatnama of the dead body of the deceased at Allahabad and also of the Constables.After completing the investigation, he submitted the charge sheet against the accused on 23.10.1983 and proved the same as Ext. Ka.22.

41. In his cross-examination, this witness has stated that he did not call any witness while he was recording the statement of the injured Kailash Nath Dubey. He did not find the accused in the field.

42. PW12-Constable 824 Amresh Chandra Pandey has filed an affidavit which was treated to be his statement in which he stated that on 16.8.1983 he was posted as Constable at police station Padari, District Mirzapur and he had gone with the Station Officer R.P. Bhartiya who was Investigating Officer along with the Constable Janardan Rai of village Nadighana, police station Padari. He proved the material Ex.1 & material Ex. 2 of the blood stained and plain soil which was collected in two separate boxes from the field of Sheo Shankar Tiwari. This witness further stated that from the place of occurrence, an empty cartridge was also recovered by the Investigating Officer, for which recovery memo was prepared and he deposited the case property in sealed condition at police station Padari, District Mirzapur.

43. Heard Sri Rang Nath Pandey, learned counsel for the appellant, Mrs. Archana Singh, learned AGA for the State and perused the lower court record.

44. It is contended by learned counsel for the appellant that the appellant is innocent and has been falsely implicated in the present case. He further submitted that as per the allegations made in the FIR, the appellant is said to have fired shot at the deceased which hit him on his back and he died after two days of the incident on 18.8.1983 at S.R.N. Hospital at 6.20 A.M. and on 26.8.1983 the case was converted under Section 302 I.P.C. as the same was initially lodged under Section 307 I.P.C. while the deceased was alive and he received injuries in the incident. He has drawn the attention of this Court towards the evidence of PW1-Sheo Shankar who is relative of the deceased and PW2-Radhey Shyam who happens to be a neighbour of the deceased and on the basis of their evidence he argued that none of the said witnesses have deposed that the appellant was seen by them shooting at the deceased. He further submitted that so far as PW4-Shambhoo Nath Dubey who is scribe of the FIR and real brother of the deceased, he during the course of his evidence before the trial Court, has deposed that he had seen the appellant shooting at the deceased, but from the FIR it is evident that he was not present at the place of occurrence and the incident was only witnessed by Sheo Shankar and Radhey Shyam PW1 and PW2 respectively and one of the witness, namely Sheo Shankar Tiwari son of Ram Narain was neither produced by the prosecution nor examined by the trial Court.

45. It was further argued by learned counsel for the appellant that the appellant Goli alias Jata Shankar also received injuries in the incident as there was sudden fight between the parties and the injuries of the appellant were examined by PW3-Dr. K.D. Sharma who had also examined the deceased while he was injured. He submitted that the accused appellant has also received serious injuries at the hands of the complainant party and the injuries which have been received by him though have been opined by the doctor to be simple in nature but the said injuries could not be self inflicted one. Moreover, the injuries sustained by the appellant has not been explained by the prosecution.

46. He further argued that the licensee weapon belonging to the father of the appellant was stated to be used in the incident, was recovered and sent to Ballistic Expert report, but no report was received as the same is not on record.

47. Thus, on the basis of the aforesaid arguments, learned counsel for the appellant has vehemently argued that conviction and sentence of the appellant by the trial Court is not sustainable, liable to be set aside by this Court and the appellant be acquitted.

48. Learned AGA on the other hand has submitted that the incident had taken place on 16.8.1983 at 8.40 A.M. and FIR of the same was lodged on the same day at 11 A.M. at the concerned police station which was registered under Section 307 I.P.C. She further pointed out that the FIR was written by PW4-Shambhoo Nath who happens to be real brother of the deceased on the dictation given to him about the incident by the injured Kailash Nath Dubey, who has categorically stated that it was the appellant who had fired shot on his back and he received grievous injuries and thereafter was taken to the hospital with the assistance of his brothers and subsequently during the course of treatment on 18.8.1983 at 6.20 A.M. injured Kailash Nath Dubey died in the hospital and the case was converted under Section 302 I.P.C. accordingly. She further pointed out that there appears to be dying declaration of the deceased also which was recorded by PW10- Anand Narain Anand who was Deputy Collector on 16.8.1983 at 12.45 P.M. in the hospital and in the said dying declaration the deceased while being injured has stated that it was the appellant who had shot him at his back, whereas co-accused Kripa Shankar who was his brother, had been assigned the role of exhortation. He further submitted that as the accused has also received injuries, as has been argued by learned counsel for the appellant and his injuries were also examined by PW3, hence, his presence at the place of occurrence is also well established. Thus, the participation of the appellant in the present case cannot be ruled out and the trial Court has rightly convicted the sentenced the appellant.

49. Having considered the submissions advanced by learned counsel for the parties and perused the lower court record as well as impugned judgment and order passed by the trial Court.

50. It is admitted to the parties that the FIR of the incident was lodged by the deceased Kailash Nath Dubey while he was injured in the incident on 16.8.1983 at 8.40 A.M. and he has categorically stated that on the exhortation of co-accused Kripa Shankar who happens to be real brother of the present appellant, the appellant shot the deceased with licensee gun on his back and he received serious injuries on his person and was rushed to the hospital by his brothers where he was admitted and on the dictation of the deceased to his real brother PW4-Sambhoo Nath the FIR of the present incident was lodged on the same day at 11 A.M. naming the appellant and his brother Kripa Shankar. Moreover, there appears to be dying-declaration of the deceased which was recorded by PW10- Anand Narain Anand who was Deputy Collector on 16.8.1983 at 12.45 P.M. in which he has also narrated the prosecution case and also stated that it was the appellant shot hit at his back at the exhortation of his brother Kripa Shankar with the licensee gun, on account of which he received injuries.

51. The argument of learned counsel for the appellant that PW1 Sheo Shankar and PW2 Radhey Shyam who were examined by the trial Court, as they claimed themselves to be eye witnesses of the occurrence, stated that they did not see the appellant shooting at the deceased does not have any substance in view of the fact that the FIR of the incident was lodged by the deceased while he being injured on his dictation given to his real brother PW4 Shambhu Nath .

52. There is also a dying declaration of the deceased which also shows that it was the appellant who had shot dead the deceased with his licensee weapon as there was some dispute between them on the date of the incident while the deceased was irrigating his field, hence, the version given by the deceased Kailash Nath Dubey while he being injured and also in his dying declaration, is fully corroborated by the medical examination report of Kailash Nath Dubey as well as his post mortem report, in which it was found that he received firearm injuries on his back and during the course of medical treatment he died after two days of the incident.

53. The appellant had also received injuries in the incident as he was also examined by PW3-Dr. K.D. Sharma who examined the injured Kailash Nath Dubey, which further goes to show that he was present at the place of occurrence and the argument of learned counsel for the appellant that the injuries sustained by the appellant has not been examined by prosecution is hardly of significance as the incident had taken place while a quarrel took place between the parties at the agricultural field and the appellant with an intention to kill the deceased had filed at him which hit him on his back, which goes to show that the appellant had an intention to kill the deceased with deadly weapon, like gun. Even if it is presumed that during the quarrel which took place between the parties, the appellant was assaulted by the accused persons with lathis and he received only simple injuries and the force which was used by him was not proportionate to the injuries received by him and he shot dead the deceased with deadly weapon, i.e., licensee gun.

54. The finding recorded by the trial Court in convicting and sentencing the appellant appears to be correct and justified which cannot be interfered with by this Court, hence, conviction and sentence of the appellant by the trial Court is hereby upheld accordingly.

55. The appeal lacks merit. It is, accordingly, dismissed.

56. The accused appellant is on bail, his bail bonds are cancelled and sureties are discharged. He shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court.

57. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.

   (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha,J.)
 
Order Date :03.05.2019  
 
NS