Reserved on 11.12.2018
Court No. - 17
Case :- CRIMINAL APPEAL No. - 2275 of 2004 Appellant :- Radhey Shyam Respondent :- State Of U.P.
Counsel for Appellant :- A.R. Dwivedi Counsel for Respondent :- Govt. Advocate
Hon'ble Virendra Kumar Srivastava,J.
This criminal appeal has been preferred against the judgment and order dated 21.4.2004 passed by Session's Judge, Banda in Sessions Trial No. 90 of 2003 (State vs. Radhey Shyam and others) arising out of Case Crime No. 67 of 2002, P.S.- Chilla, whereby, the accused-appellant Radhey Shyam has been convicted under Section 307 and 504 I.P.C. and has been sentenced for five years of rigorous imprisonment for the offence under Section 307 I.P.C. and six months rigorous imprisonment for the offence under Section 504 I.P.C. Both the sentences were directed to run concurrently.
2. Brief facts of the prosecution case are that PW-1 Keshna (informant as well as son of Sumesh Chamar) and appellant Radhey Shyam along with other co-accused Surijpal and Ram Babu sons of Chunuwa Chamar are resident of Village Paperanda, Police Station Chilla, District Banda. On 3.7.2002 at 3.00 PM, PW-1 Keshna was sitting at the house of PW-2 Siyaram for feast on his invitation. Appellant Radhey Shyam along with other co-accused Surjipal and Ram Babu, armed with lathi and tamancha, came and due to previous enmity started to beat PW-1 Keshna. Upon alarm for help raised by PW-1 Keshna appellant Radhey Shyam shot two bullet on him. One shot on his left palm, whereas, another on his back side. PW-1 Keshna run towards the house of one Babu Amin raising alarm and entered in his house to save his life. All the accused, including appellant by hurling abuses and threatening to the life of PW-1 Keshna, had gone away. Occurrence was witnessed by PW-2 Siyaram, Kishori, Chandrapal and many others.
3. After the occurrence, PW-1 Keshna rushed to police chowki situated in his village and from there he went along with the constable to Police-Station Chilla and lodged First Information Report Ex.Ka.1. on 3.7.2002 at 16:45 PM whereupon case crime no. 67 of 2002, under Section 323, 504 and 506 I.P.C. was registered against the appellant Radhey Shyam and other co-accused Surijpal and Ram Babu.
4. The case was handed over for investigation to PW-5 S.I. Harbans Lal Chaudhry and thereafter PW-1 Keshna was sent by police to District hospital, Banda for medical examination. He was medically examined by PW-3 Dr. H.N. Chandsauriya who found the following injuries on the body of PW-1 Keshna:-
1. Gun shot wound of entry 0.5 cm x 0.5 cm x depth not proved with multiple abraded area having unconsumed powder in area of 19 cm x 18 cm on the left side back of chest and trunk 11 cm below and inside left scapulae at lower dorsal spine level blackening present margin inverted and ecchymosed. Advised x-ray chest and dorsal spine.
2. Gutter shaped gun shot wound of entry measuring 5 cm x 4 cm x muscle and bone deep on the dorsal side of left thumb (base) extending upto palmer side of base of left thumb, wound is swallows at ends and deeper at centre, splandle shaped margin inverted, blackening present underneath muscle lacerated and vessels lacerated. Advised x-ray left hand with left thumb bleeding present.
3. Abrasion 3 cm x 1 1/2 cm on the front of middle of left leg, oozing of blood present.
4. Abrasion 5 cm x 5 cm on left side of nose near its root, oozing of blood present with multiple abraded area on left side cheek having unconsumed powder, advised x-ray of left faced maxillary region.
5. PW-1 Keshna was referred for x-ray of injuries no 1, 2 and 4 to PW-4 Dr. S.K. Rathor. On 5.7.2002, x-ray of chest abdomen, left wrist and hand of PW-1 Keshna was performed. X-ray examination report (EX.Ka.3) on the basis of x-ray plates (Mat.Ex.1 and Mat.Ex.2) was prepared and according to PW-4 Dr. S.K. Rathor report of stomach and chest was normal, whereas, a fracture on left thumb was found.
6. PW-5 S.I. Harbans Lal Chaudhry investigated the case, and collected the blood stained soil, recorded the statement of witnesses as well as the accused including appellant and after the completion of investigation submitted the charge-sheet against appellant along with other co-accused Surijpal and Ram Babu under Section 307, 323, 504, 506 I.P.C.
7. Charges were framed against appellant Radhey Shyam under Section 307, 325/34, 504, 506(2) I.P.C. and against Ram Babu and Surijpal under Sections 307/34, 325, 504, 506(2) I.P.C.
8. During trial, the prosecution produced PW-1 Keshna, PW- 2 Siyaram, PW-3 Dr. H.N. Chandsauriya, PW-4 Dr. S.K. Rathor, PW-5 S.I. Harbans Lal Chaudhry and PW-6 Cons.241 Jairam Prajapati.
9. The learned Trial Court, upon conclusion of trial, acquitted co-accused Ram Babu and Surjipal from all the charges levelled against him, whereas, appellant was convicted by impugned order and judgment under Sections 307 and 504 I.P.C. and acquitted for the offence under Section 325/34 I.P.C. and Section 506 I.P.C. This judgment is under challenge before this Court.
10. Heard Sri A.R. Dwivedi, learned counsel for appellant, learned Additional Government Advocate for the State- respondent and perused the record.
Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case due to previous enmity. Informant PW-1 Keshna was accused for causing the murder of appellant's father and later on convicted by learned Trial Court. Injuries shown on the body of PW-1 Keshna is false, either self-inflicted or concocted. These injuries are very superficial in nature. Statement of PW-1 Keshna is not corroborated by the medical evidence. PW-2 Siyaram has not supported the prosecution version and has been declared hostile. Learned trial Court has not considered the evidence available on record properly. The impugned judgment order is illegal and liable to be set aside.
Per contra, learned A.G.A. while opposing the contention of learned counsel for the appellant submitted that the prosecution case is wholly reliable and PW-1 Keshna is injured witness having fatal fire arm injury. His evidence is supported by medical evidence. Evidence produced by PW-1 Keshna cannot be disbelieved on account of previous enmity, hence, this appeal is liable to be dismissed.
11. PW-1 Keshna is the informant and injured witness, whereas, PW-2 Siyaram has been produced by the prosecution as an eye-witness. According to prosecution case, the occurrence was happened at the door of PW-2 Siyaram. PW-1 Keshna has deposed that at the time of occurrence, he was present at the door of PW-2 Siyaram to participate the feast organized by PW-2 Siyaram on occasion of his son's marriage. Meanwhile, appellant Radhey Shyam appeared at the place of occurrence along with co-accused Surjipal and Ram Babu. Appellant Radhey Shyam was carrying tamancha and other co- accused were having lathi. They hearled abuses, attacked with lathi and fired with tamancha. He has further deposed that the said occurrence was witnessed by PW-2 Siyaram, Kishori, Chandrapal and others. Only PW-2 Siyaram has been produced by the prosecution as eye-witness in support of the prosecution case but he did not support the prosecution case. He has deposed that he had not organized any feast on the occasion of his son's marriage at the time of occurrence. He has further deposed that on 3.7.2002 at about 2:00 PM he was not at his house, he had gone somewhere in his village and returned at 5:00 PM and when he came back, people had told him that appellant had caused injury to PW-1 Keshna. Since, this witness had not supported the prosecution version, he was declared hostile and prosecution was permitted to cross- examine him but nothing had come out from his examination in support of prosecution case.
12. Thus, the prosecution version is based only on the statement of sole eye-witness of PW-1 Keshna who is an injured witness as well as informant of this case. Now a question arises whether prosecution can succeed only on the statement of this witness.
13. Section 134 of Evidence Act 1972 provides that:-
No particular number of witnesses shall be required to prove the facts of any case.
It is settled principle of criminal Juris-prudence that a prosecution case can succeed only on the evidence of single witness, if his evidence is trustworthy and reliable. Hon'ble Supreme court in Ramji Surjia and Another vs. State of Maharashtra 1983 AIR S.C. 810 held as under:-
“There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested.”
14. Therefore, it has to be seen whether the statement of PW-1 Keshna is reliable or not and if it is reliable, whether corroborated by medical evidence or not and also whether there is any previous enmity between PW-1 Keshna and appellant which may be a motive for his false implication.
15. PW-1 Keshna has deposed that appellant Radhey Shyam had fired at him, whereby, injuries was caused on his back. In order to save his life, he rushed into the house of Babu Amin and tried to close the door, again appellant Radhey Shyam fired which caused injury on his left hand. Thereafter, co-accused Surjipal and Ram Babu had beaten him with lathi. In Ex.ka.1. First Information Report lodged, by PW-1 Keshna, it has been clearly mentioned that co-accused firstly started to beat him with lathi and hearled abuses, thereafter appellant Radhey Shyam shot two bullet on him one hits him on the left palm and another on his back and after that, he raised alarm and run towards the house of Babu Amin and entered into his house in order to save his life. In cross-examination he has stated as follows:
^^ckcw vehu ds ?kj esa tks xksyh jk/ks us pykbZ Fkh og esjs gkFk esa yxh Fkh u fd ihB ij njksxk us esjs c;ku esa ckcw vehu ds ?kj esa ihB esa xksyh yxus okyh ckr xyr fy[kh gSA fjiksVZ izn'kZ d 1 esa eSaus fy[kk fn;k Fkk fd ckcw vehu ds ?kj esa jk/ks }kjk pykbZ xbZ xksyh esjs gkFk esa yxhA ;g ckr esjh fjiksVZ esa D;ksa ugha fy[kh] eSa bldk dksbZ dkj.k ugha crk ldrkA^^
16. The place and time of occurrence has been shown by the prosecution is 3.7.2002 at about 3:00 PM at the door of PW-2 Siyaram. PW-1 Keshna in first information report EX.ka.1, has clearly mentioned that at the time of occurrence, he was present at the door of PW-2 Siyaram for a meal on the invitation of PW-2 Siyaram. PW-2 Siyaram in his statement has denied regarding any invitation or feast organized by him.
17. PW-1 Keshna in his cross-examination has also stated as follows:-
^^ njksxk dks eSaus crk fn;k Fkk fd ?kVuk ds le; eSa fl;kjke ds njokts ij O;ksgkj dk iSlk nsus x;k FkkA Hkkstu dk Hkh fuea=.k FkkA ?kVuk ds le; rd eSaus ogkW Hkkstu ugha fd;k Fkk D;ksafd Hkkstu 'kke dks djuk FkkA ,slk ugha gS fd tc eSa Hkkstu djds ykSV jgk Fkk rc ?kVuk ?kVh gksA^^
18. PW-5 S.I. Harbans Lal Chaudhry Investigating Officer has deposed that PW-1 Keshna had told him in his statement alleging that the said occurrence took place when he was returning after taking feast from the house of PW-2 Siyaram. He has further deposed that PW-1 Keshna had stated in his statement that firstly accused person had beaten him with lathi and thereafter when he was running to save his life appellant Radhey Shyam fired at him. His statement is as follows:-
“चोटहिहिल ने यहि बयान िदिया था की पहिले मुल्जिमाल्जिमान सुल्जिरिजिपाल व रिामबाबू ने उसे लािठियों से मारिा औरि जिब वहि उठिकरि भागने लगा तो रिाधे श्याम ने कट्टे से फायरि िकया जिो उसके बाए हिाथ के अंगूठिे मे लगा. पीठि मे फायरि लगने वाला बयान उसने नहिीं िदिया था.”
19. Thus the statement deposed by PW-1 Keshna is not supported with his statement given under Section 161 Cr.P.C. to the Investigating Officer PW-5 Harbans Lal Chaudhry and there is material contradiction between statements of both witnesses.
There is further apparent contradiction between the statement of PW-1 Keshna and the First Information Report Ex.ka.1 lodged by him as well as statement under Section 161 Cr.P.C. given by him to Investigating Officer regarding manner of assault and place of occurrence as to whether PW-1 Keshna was firstly beaten by lathi or was shot with tamancha and also whether any fire arm injury was caused to him in the house of one Baburam or not or when he was returning from the house of PW-2 Siyaram which makes the prosecution case doubtful.
20. According to PW-1 Keshna, two fire arm injuries were caused to him by the appellant Radhey Shyam one was on the left palm and another on his back side. Neither PW-1 Keshna nor PW-5 S.I. Harbans Lal Chaudhry, (I.O) has deposed that any fire arm substance like pellets and bullets were found at the place of occurrence. From perusal of the statement of PW-3 Dr.
H.N. Chandsauriya, it transpires that one gun shot wound of entry 0.05 cm x 0.05 cm was present on the left side back of chest and trunk 11 cm below and inside left scapulae at lower dorsal spine whereas second gun shot wound of entry measuring 5 cm x 4 cm x muscle and bone deep was on the dorsal side of left thumb of PW-1 Keshna. According to him both injuries were entry wound and blackening were present and x-ray was advised. PW-4 Dr. S.K. Rathor who did the x-ray of chest, abdomen and left wrist of PW-1 Keshna has not found any shadow in x-ray report which may show any pellets or bullets were present inside the body of PW-1 Keshna. PW-3 Dr.
H.N. Chandsauriya has also not deposed anything regarding presence of any pellet or bullet inside the injury of PW-1 Keshna. According to him injuries No. 1 and 2 were entry wounds and margin of injuries were inverted and blackening were present. If it is clear case of prosecution that no exit wound was present on the body of PW-1 Keshna and only entry wounds were found and it is not the version of prosecution that any fire arm bullet or pellets were found on the place of occurrence then certainly the fire arm bullets or pellets ought to be present in the area of injuries of PW-1 Keshna which also must be visible in x-ray as well as be mentioned in x-ray report. Hence, absence of any bullet or pellet in the area of fire arm injuries of PW-1 Keshna makes the prosecution case doubtful because the ocular evidence deposed by PW-1 Keshna is not supported with medical evidence.
21. PW-1 Keshna has also deposed that he had been imprisoned in Central Jail Naini and was serving the sentence for murder of Chunnu. He has specifically deposed that there was previous enmity with the appellant and other co-accused with him on that account. Thus, motive for false implication is also present in this case.
22. Thus, the prosecution case, based especially on sole testimony of PW-1 Keshna, is not supported either with medical evidence or with the statement of Investigating Officer. It is admitted case of prosecution that there is previous enmity between the both parties. Statement of PW-1 Keshna is also self contradictory regarding the manner of assault as to how fire arm injury was caused to him. Material contradiction has also been found between his statement under Section 161 Cr.P.C. and statement given by him before trial court. Prosecution case, in such facts and circumstances becomes doubtful.
Thus in the light of above mentioned discussion, I am of the view that appeal is liable to be allowed.
Thus, the appeal is allowed. Judgment and order dated 21.4.2004 passed by Session Judge, Banda in S.T. No. 90 of 2003 (State vs. Radhey Shyam and Others), whereby, the appellant Radhey Shyam has been convicted under Section 307, 504 I.P.C. is hereby set aside.
However, appellant is directed to comply with the provision of Section 437-A Cr.P.C.
Let a copy of this judgment be sent to the court concerned.
Order Date :- 20.12.2018 / Saurabh