HIGH COURT OF JUDICATURE AT ALLAHABAD This criminal appeal is directed against the order of Sessions Court dated 21.5.2003 passed in S.T. No.1285 of 2000. The appellants who are two in number have been found guilty of the offence under Section 452, 302 IPC read with Section 34 IPC and 504 IPC.
Both the appellants have been sentenced for life imprisonment under Section 302 IPC and fine of Rs.10,000/-, each in default, of payment of fine, further R.I of two years and for the offence under Section 452 IPC, they have been sentenced for 6 years R.I. and fine of Rs.5,000/-, in default, of payment of fine, one year further R.I and for the offence under Section 504 IPC, they have been sentenced for two years R.I.
The case of the prosecution as reflected from the judgment is as follows:-
On 11.8.2000, Nand Lal, the deceased is stated to have lodged the FIR with the Police Station at Sindhauli district Shahjahanpur which was registered as case crime no.223 of 2000 under Section 452, 307, 504 IPC. It was disclosed in the FIR that Nand Lal was having dinner at his residence on the said date, at around 8 p.m. the appellants Krishna Pal @ Kresh Pal, armed with Ballam and Vijay Pal armed with country-made pistol (315 bore) entered the house of the deceased unauthorizedly and started assaulting Nand Lal, the first informant. Appellant Vijay Pal fired with his country-made pistol which seriously injured the informant while the appellant Krishna Pal @ Kresh Pal assaulted the informant with Ballam. On hearing the noise, the other family members rushed to the place of occurrence. On the arrival of the family members, the appellants ran away from the place of occurrence. On the basis of the said FIR, investigation was started. The injured/informant was examined by the doctor at District Hospital Shahjahanpur, he was admitted for treatment. During treatment, the first informant expired on 16.8.2000 at around 9.10 p.m. On information of the death of the informant being received, his inquest report of the dead-body was prepared and the same was forwarded for post-mortem. Because of the death, the offence was converted into Section 302 IPC on 19.8.2000. The appellants were apprehended during investigation on 29.8.2000 and were taken into police custody under the orders of the Magistrate dated 29.8.2000. On the pointing out of the appellants, the fire arm used for assault along with one live cartridge was recovered. Similarly Ballam was recovered on the pointing out of the appellant Krishna Pal @ Kresh Pal. Fard recovery was prepared. Charge under Section 25 of Arms Act was also framed against the appellant Vijay Pal. After investigation, charge sheet was filed against both the appellants. Against Krishna Pal @ Kresh Pal and Vijay Pal charge sheet was filed under Section 452, 304/34 and 504 IPC, while against appellant Vijay Pal, charge sheet under Section 25 of Arms Act was also submitted.
On behalf of the prosecution, the wife of the deceased Smt. Shanti Devi was examined as P.W.1, Smt. Ram Guni, the adopted daughter of the deceased was examined as P.W.2, Dr. Yogesh and Dr. V.K. Gupta who performed the post-mortem, were examined as P.W.3, and P.W.4., S.I. Gajram Singh was examined as P.W.5, Ram Nath Sharma, the scribe of the FIR was examined as P.W.6, Constable Raksha Pal Singh was examined as P.W.7, S.I. Nasiruddin was examined as P.W.8, S.I. Harjeet Singh Cheema was examined as P.W.9, S.I. Bhan Singh was examined as P.W.10, Naresh Singh was examined as P.W.11 and Dr. Ramesh Chandra Agarwal was examined as P.W.12.
In addition thereto, the postmortem report, inquest report, challan list, photo lash, chick FIR, Charge Sheet etc. were produced as documentary evidence. Statement of the informant Nand Lal was recorded under Section 161 Cr.P.C at the district Hospital where he was under treatment. However, neither the FIR nor the statement recorded under Section 161 Cr.P.C of Nand Lal was treated to be dying declaration by the trial court.
P.W.1, the wife of the deceased, reiterated the case of the prosecution as was disclosed in the FIR. It was stated by her that on that day, at about 8:00 p.m. while Nand Lal was having dinner in his house under the light of the Lamp, the assailants who are known to her since before, forcefully entered the house. Vijay Pal was armed with country-made pistol and Krishna Pal @ Kresh Pal was armed with Ballam. They used abusive language. Kresh Pal inflicted injury by Ballam while Vijay Pal fired a shot by the country-made pistol. The FIR was lodged at the Police Station on 11.8.2000 by Nand Lal himself. Nand Lal expired during treatment at the District Hospital on 16.8.2000. It was further disclosed that at the time of Holi festival, Vijay Pal was arrested by the police with an unlicensed fire-arm. Vijay Pal suspected that he was got arrested at the instance of Nand Lal. Because of the ill-will/motive, he assaulted Nand Lal along with Krishna Pal @ Kresh Pal, his real brother. The injuries caused resulted in death of Nand Lal. It was specifically stated that she was present at the place of incident and was serving food to her husband. She could identify the assailants in the light which was available because of the burning Lamp.
Ram Guni, the adopted daughter of the deceased was examined as P.W.2. She corroborated what was stated by the wife of the deceased. The doctor who had examined the injuries of the deceased on 11.8.2000 namely Dr. Ramesh Chandra Agarwal, P.W.12, in his statement specifically stated that on 11.8.2000, while he was working as Medical Officer at the District Hospital, Nand Lal aged about 45 years was brought to the Hospital at around 11.45 p.m by a police constable. On medical examination of Nand Lal, it was found that injury no.1 had been caused by a sharp weapon while injury no.2 had been caused by a gunshot. This injury was on a vital part of his body and was sufficient to cause death. It was further informed that during treatment Nand Lal expired at the District Hospital on 16.8.2000.
Doctor Yogesh Kumar, P.W.3 who had performed the postmortem along with doctor V.K. Gupta, P.W.4 in his testimony specifically proved the postmortem report and the injuries found on the body of the deceased were as follows:-
1& isV esa nkfguh vksj uhps ds fgLls esa cSxuh jax dk 13 ls0eh0x 9 ls0eh0 ds {ks= esa [kky ij cnjaxh fn;s gq;s ,d fulkuA 2& mijksDr izdkj ds nks cnjaxh fu'kku 7 ls0eh0x 4 ls0eh0 rFkk 9 ls0eh0x 6 ls0eh0 isV ds cka;h vksj uhps ds fgLls esa ftlesa Qyds Hkh iMs gq;s FksA 3& flyk gqvk rFkk MzSflax gkyr esa ,d vkijs'ku dk fulku isV ds chpks chp 16 ls0eh0 dk yEckbZ fy;s gq;s isV ds chp dh ykbu ls ckabZ vksj mij ls uhps dh vksjA 4& isV esa ckabZ vksj ukfHk ls 7 ls0eh0 dh nwjh ij 4 ls0eh0x 4 ls0eh0 dksyksLVkseh dk ?kkoA 5& mijksDr ?kko ds uhps isV esa Mkyh tkus ckyh yky V;wc lfgr ?kko 1-5 ls0eh0x 1-5 ls0eh0 6& oka;h tkax dh Hkhrj dh vksj 1 ls0eh0x 5 ls0eh0 [kjkl dk ?kko ftl ij iiMh iMh gq;h Fkh vkSj tks Hkwjs jax dh Fkh ;g ?kko ok;s ?kqVus dh dVksjh ls 23 ls0eh0 mij tka?k ij FkkA 7& mijksDr izdkj dh ,d [kjkl 10 ls0eh0x 5 ls0eh0 csMh fn'kk esa nkfgus ls pqupqd ls 11 ls0eh0 uhps ilfy;ksa ds fupys lhek ijA 8& izos'k dk >qdk gqvk xksykdkj fy;s gq;s ,d ?kko 1 ls0eh0x 1 ls0eh0 cka;s dwYgs ij gMzMh ds vxys mHkkj ls FkksM vUnj rd dsfoVh Mhi ftlds fdukjs vUnj dh vksj eqMs gq, Fks vkSj ftl ij ,czs'ku dkyj ekStwn FkkA It was specifically stated that Nand Lal had expired because of the gun-shot injury suffered by him which resulted in scepticimia and haemorrhage Metallic bullet was recovered from the hip bone of the deceased, and had been sealed.
Dr. V.K. Gupta, P.W.4 supported what was stated by Dr. Yogesh Kumar P.W.3 and he also disclosed the cause of death as the injuries sustained by Nand Lal.
On the pointing out of appellant Vijay Pal the fire-arm was recovered by S.I. Nasiruddin who deposed as P.W.8. The recovery was made from the house of Vijay Pal. Site-plan was prepared in respect of the recovery of weapon. He stated that on the pointing out of Krishna Pal @ Kresh Pal, ballam was recovered from the chappar of his house. The other formal witnesses proved the FIR, the inquest report, charge sheet and other documents.
The appellants were examined under Section 313 Cr.P.C. They denied the charges and claimed trial.
The appellants/accused denied the charges and sought trial and stated that they have falsely been implicated because of the pendency of dispute pertaining to landed property. It was also stated that the deceased Nand Lal had murdered his real brother Sunder for which a case was registered against him. He was facing prosecution. The sons of Sunder bore enmity with him. The name of the father of the accused Paras is also Sunder who is a different person. It was further stated that the real brother of the informant, (deceased) namely Nathu had earlier lodged a report u/s 307 IPC against accused Vijay Pal and due enmity, they have been falsely implicated in the present case by the informant.
The trial court after considering the case of the prosecution and the evidence brought on record as well as the defence of the accused came into the conclusion that the appellants had committed the crime with a common intention. The appellants have therefore held guilty for an offence under Section 302 IPC read with Section 34 IPC as well as for an offence under Section 452 and 504 IPC.
In addition, Vijay Pal was also found guilty of an offence under Section 25 Arms Act. Both have been sentenced as above for the offence so proved.
Challenging the judgment and order of the Sessions Court on behalf of the appellant, it is contended before us that in the FIR, there was no mention of any source of light at the place of incident, therefore, the entire story of the prosecution is bad. The said submission of learned counsel is misconceived inasmuch as in the FIR lodged by Nand Lal, he had specifically stated that he was having dinner at the time of incident when the appellants had assaulted him. Moreover, the natural eye-witness the wife of the deceased namely Smt. Shanti Devi as P.W.1, as well as the adopted daughter of the deceased Smt. Ram Guni, P.W.2 had both specifically stated that there was sufficient light because of the burning of the Lamp at the time of the incident in the room.
On behalf of the appellants, certain minor discrepancies as noticed in the statement of various prosecution witnesses were sought to be highlighted for contending before us that the prosecution had not been able to establish the offence beyond reasonable doubt.
In our opinion, minor discrepancies as pointed out by the learned counsel for the appellants are too trivial and are not much significance so as to lead us to disbelieve the testimony of the natural eye witness i.e. the wife and adopted daughter of the deceased who were present at the time of incident. It was further established that the assailants were known to them prior to the incident as they were members of the same family and were residing in the same village.
The Hon'ble Supreme Court has specifically held that the minor discrepancies in the testimony of eye-witnesses cannot be the basis of disbelieving this specifically when on material facts of the eye-witnesses accounts supported by medical evidence. Moreover, we find that in the facts and circumstances of the case, the FIR lodged by the injured Nand Lal himself on 11.8.2000 and further that the medical examination of the deceased was conducted on 11.8.2000. The deceased was found to have suffered the injury by a sharp weapon as well as a gun-shot injury. The death of the deceased as per the postmortem is an outcome of the injuries so received by him.
Sri Mahendra Singh Yadav, Additional Government Advocate has supported the judgment of the trial court and his case is that the prosecution has established the guilt of the appellants beyond reasonable doubt. There is no reason for this court to take any other view.
We find that the FIR was prompt and had been lodged by the injured himself within 1.20 hours of the incident. He succumbed to the injuries later. The occular evidence was fully supported in medical evidence. We are satisfied that the prosecution has been able to establish the guilt of the appellants beyond reasonable doubt.
At this stage, counsel for the appellant Krishna Pal @ Kresh Pal submitted that the Krishna Pal @ Kresh Pal was armed with Ballam and only a minor injury is reported to have been caused because of the assault with the Ballam, therefore, offence under Section 324 I.P.C. alone is made out against him. Counsel has placed reliance upon the judgment of the Apex Court in the case of State of U.P. Vs. Farid Khan reported in 2005, U.P. Criminal Reporter page 358. Attention of the Court was drawn to para 7 and 8 of the said judgment.
We have examined the judgment of the Apex Court and we find that the same is distinguishable in the facts of the present case inasmuch as the appellant Krishna Pal @ Kresh Pal along with Vijay Pal both armed unauthorizedly entered the house of the deceased at night with a common intention to assault him. They caused injuries which resulted in death of Nand Lal.
We see no reason to take any different view in the facts on record than that which has been taken by the Sessions Court.
Counsel for the appellants then contended that the appellant Vijay Pal has undergone more than 11 years of imprisonment as on date. Both the appellants have rightly been sentenced with life imprisonment for the offence under Section 302 IPC read with Section 34 IPC. There is no merit in this appeal. The present criminal appeal is accordingly dismissed.
The appellant Vijay Pal is in jail and he shall serve out the sentence as awarded by the trial court.
So far as the appellant Krishna Pal @ Kresh Pal is concerned, he is stated to be on bail, his bail bonds are cancelled and sureties are discharged. Let the appellant Krishna Pal @ Kresh Pal be taken into custody to serve out the sentence as awarded by the trial court.