Court No. - 53
Reserved on: 26.04.2019 Delivered on: 30.05.2019 CRIMINAL APPEAL No. - 5723 of 2004 Appellant :- Raj Bahadur Srivastava Respondent :- State Of U.P.
Counsel for Appellant :- Shashank Shekhar,Anubhav Trivedi,Roshan Khan,Satish Trivedi Counsel for Respondent :- Govt. Advocate And
CRIMINAL APPEAL No. - 5724 of 2004
Appellant :- Rajeev Respondent :- State Of U.P.
Counsel for Appellant :- Shashank Shekhar,Sheshadri Trivedi Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
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(Delivered by Umesh Kumar, J)
1. Criminal Appeal No. 5723 of 2004 has been filed by appellant-Raj Bahadur Srivastava and Criminal Appeal No. 5724 of 2004 by appellant-Rajeev against the judgment and order dated 29.10.2004 passed by Additional Sessions Judge,(FTC), Chitrakoot in S.T. No. 125 of 2003 ( State Vs. Raj Bahadur and others) convicting and sentencing the appellant under Section 302/34 IPC to undergo life imprisonment with a fine of Rs. 5,000/- and in default thereof to further undergo one year additional imprisonment, under Section 323/34 IPC, to undergo one year rigorous imprisonment; in S.T. No. 126 of 2003 (State Vs. Raj Bahadur), the appellant-Raj Bahadur Srivastava has also been convicted under Section 25 Arms Act to undergo one year rigorous imprisonment with a fine of Rs. 1,000/- and in default thereof, to undergo six months additional imprisonment. All the sentences are ordered to run concurrently.
2. The accused-Awadhesh was acquitted by learned Trial Court and no Government Appeal has been filed against his acquittal in this Court.
3. In brief, prosecution case is that P.W.1-informant Vidyanand gave a written report at Police Station, Pahari, Chitrakoot alleging that on 10.5.2003, his brother Vidya Sagar was on way, from the other side, accused Raj Bahadur was coming who got his lathi touched with that of his brother; upon which, his brother asked the reason. Thereafter, Raj Bahadur started abusing, an altercation took place, his brother went to 'Khalihan' to bring his bullock cart, he returned with the bullock cart along with Reoti Raman @ Kothari at about 9.30 a.m., when the bullock cart reached the eastern side of village on way, accused-Raj Bahadur and Rajeev sons of Awadhesh Srivastava came out, Raj Bahadur armed with country made pistol, Rajeev and Awadhesh armed with lathi stopped the bullock cart, accused Rajeev started giving lathi blows at Vidya Sagar, when Reoti Raman @ Kothari tried to rescue him, accused Raj Bahadur fired at Reoti Raman @ Kothari from country made pistol ( 12 bore), who received fire arm injury, Reoti Raman@ Kothari died on the spot. Incident was witnessed by Suraj Pal son of Bhagwat Badhai and his real brother Ashwani who arrived at the spot, but the accused ran fled away.
4. The written report( Ex.Ka.18) was registered at police station at 11.25 a.m. and its disclosure was made in G.D. Entry No. 12 (Ex.Ka-19) dated 10.5.2003. The Investigating Officer conducted inquest of deceased-Reoti Raman (Ex.Ka.2), prepared other relevant police papers ( Ex.Ka. 12 to Ex. Ka-15). He collected plain and blood stained earth (Ex.Ka. 5 and Ex.Ka.6), recovery memo of chappal (Ex.Ka.7), recovery memo of used cartridge (Ex.Ka.8). After completion of inquest , the dead body was sent for post mortem (Ex.Ka.4) which was conducted by (P.W.5)Dr. S.P. Tripathi and following injuries were found on the dead body of deceased;
1. Fire arm wound of entry situated on the anterior aspect of the right side of the chest 5 cm away to the nipple at 5 O' clock position. Size 1.25 cm x 0.75 cm x chest cavity deep. On section 6th rib anteriorly fractured. Right lung with pleura lacerated. Diaphragm and liver lacerated. Chest cavity contains about 1.5 liter of free and clotted blood. The margins of the wound inverted. Blackening and tattooing present around the wound.
2. Fire arm wound of exit situated on the back of the chest on the left side 4 cm below to the vertebrae column and 15 cm above to the iliac chest. Size 1.5 cm x l cm x communicating to the injury no.1 through the abdominal cavity. On section 11th rib fractured posterily on the left side, left kidney lacerated, abdominal cavity contains about 2 liters of free and clotted blood. Direction of fire arm injuries right to left, upwards to downwards.
3. Lacerated wound 3.5 cm x 2.5. cm x bone deep situated on the left palm over the hypother eminence.
Cause of death is due to shock and hemorrhage as a result of ante mortem fire injuries.
5. Injured-Vidya Sagar was examined by Dr. Mahendra Singh(P.W.4), Following injuries were found;
1- ck;sa gkFk esa dykbZ dh tksM+ ls 6 ls0eh0 mij ckgj dh rjQ uhyxw fu'kku FkkA ftldh uki 6 ls0eh0 x 2 ls0eh0 Fkh jax yky FkkA ml pksV dh ,Dljs dh lykg nh xbZ FkhA
2- ck;sa vaxwBs ds fVi esa dVk gqvk ?kko FkkA ftldh uki 1 ls0eh0 x 0.5 ls0eh0 [kky rd xgjk@&?kko ls [kwu fudy jgk FkkA esjh jk; esa ;s pksVs fdlh dqUn vkys ls vkbZ FkhA pksV ua0 2 lk/kkj.k Fkh pksV ua0 1 ,Dljs ds fy;s jsQj fd;k x;k FkkA nksuks pksVs rkth FkhA esjh jk; esa mDr pksVsa 10 ebZ 2003 dks ykBh MUMs ls vkuk laHko gS lqcg 9-30 ctsA
6. During investigation, from the possession of accused Raj Bahadur a country made pistol of 12 bore was recovered which is (Ex.Ka.16), and FIR under Section 25 Arms Act( Ex.Ka.21) was registered, G.D. entry to that effect is (Ex.Ka-20).
7. During investigation, Investigating Officer has prepared site plan( Ex-Ka.11) in the case under Section 302 IPC, and site of plan in the case under Section 25 Arms Act is (Ex.Ka.22). The I.O. obtained sanction for the prosecution under Section 25 Arms Act from the District Magistrate is (Ex.Ka.23). After completion of investigation, charge sheets ( Ex.Ka.17) under Section 302 IPC and that of under Section 25 Arms Act (EX.Ka.24) were submitted.
8. Charges against accused Raj Bahadur under Sections 302,323/34 IPC and 25 Arms Act, against the accused- Rajeev and Awadesh under Sections 323/34, 302/34 were framed. They denied the charges and claimed to be tried.
9. The statement of accused under Section 313 Cr.P.C. was recorded. They denied prosecution version and stated that witnesses have given evidence due to enmity and injuries of Vidya Sagar were fabricated. Accused Raj Bahadur also denied recovery under Section 25 of the Arms Act.
10. In support of prosecution version, prosecution examined as many as 9 witnesses. P.W.1 Vidyanand-informant, P.W.2 Vidya Sagar-injured witness, P.W.3 Surajpal, P. W.4 Dr. Mahendra Singh who examined injured Vidya Sagar, P.W.5 Dr. S.P. Tripathi who conducted post mortem, P.W.6 Anant Ram, I.O., P.W.7 Raj Kumar, SHO, P.W.8 Harikishan-Constable Moharrir and P.W.9 Ravindra Kumar Sharma, Head Constable.
11. We have heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Sheshadari, learned Counsel for the appellants and Sri A.N. Mulla, the learned AGA for State.
12. The contentions of learned Counsel for appellants areas follows;
• i) Injuries of P.W.2 (Vidya Sagar) are manufactured;
• ii) There no clear motive to murder deceased- Reoti Raman .
• iii) The investigation of the case is tainted.
• iv) Independent witnesses though described in the FIR, have not been examined.
• v) FSL report is doubtful.
• vi) Recovery of fire arm is unreliable.
• vii) Learned Trial Court has not appreciated the evidence on record in its correct perspective.
13. Learned AGA opposed the arguments of learned counsel for appellants stating that the material available on record is sufficient to convict the accused and the prosecution has established its case beyond doubt.
14. P.W.1 has given a descriptive account as to how how accused Raj Bahadur fired at Reoti Raman @ Kothari. He stated that Raj Bahadur fired the shot from a distance of only one feet. This fire arm injury is fully corroborated by the post mortem, wherein blackening and tattooing were present around the wounds. He stated that Rajeev assaulted Vidya Sagar with lathi from a distance of 2-3 steps. The witness stated that he went to the police and lodged FIR(Ex.Ka.1) in his own hand writing and signature. He further stated that injured Vidya Sagar was sent by the police for medical treatment to the hospital along with police personnel. A lengthy cross examination has been made but reliability and credibility of this witness could not be shaken at any stage. He is reliable and trust worthy.
15. P.W.2 is an eye witness of the occurrence. Moreover, he is an injured witness and a witness of earlier altercation with Raj Bahadur prior to the present occurrence. He stated that at about 9.30 a.m. when they reached near the field of Kalu Yadav, accused Raj Bahadur came in front of bullock cart, P.W.2 got down from the bullock cart and soon thereafter, Rajeev gave lathi blows to P.W.2 also who received injuries on his left thumb and left elbow. When Reoti Raman @ Kothari tried to rescue, Raj Bahadur armed with country made pistol of 12 bore fired at Reoti Raman who fell down by bleeding profusely, Vidya Sagar, Suraj Pal and few others reached on the spot but the accused fled away. P.W.2 along with Vidya Sagar and Ashwani went to the police station to lodge the FIR. He was proceeded for medical examination, but due to non availability of doctor, could not be medically examined, he returned near the dead body where inquest was conducted and the dead body sealed before him. He signed on the inquest (Ex.Ka-2). P.W.2 stated about the mode and manner, place of occurrence and about the fight which is supported by the injury report (Ex.Ka.3). His statement is well supported by site plan ( Ex.Ka.11). This witness has also given vivid account as to the mode and manner of assault. From close scrutiny of the statement of this witness, nothing material has come out so as to discredit his testimony. There are no material discrepancies or contradictions in the testimony of this witness, his evidence cannot be disbelieved merely on the basis of some minor distinctions Minor discrepancies do not corrode the credibility of prosecution case. (see Mukesh Vs. State for NCT of Delhi & others AIR 2017 SC 2161 and Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537.
16. Another eye witness is P.W.3 Suraj Pal. He stated that he was guarding his mango grove situated near the house of Chhanju Kumhar, when he reached near the house of Chunbad after guarding the grove, he saw Awadesh, Raj Bahadur and Rajeev continuously beating Vidya Sagar with lathi, he reached near the fields of Kallu, he tried to rescue but by that time, Raj Bahadur fired from his country made pistol at Reoti Ramn @ Kothari which hit him on his chest, who fell down, but the accused fled away towards the east, inquest was prepared in his presence and Vidya Sagar also received injuries in the occurrence. He is reliable and trust worthy. This witness is an illiterate rustic villager. It is impossible for an illiterate villager or rustic lady to state with precision the chain of events as such witnesses do not have any sense of accuracy of time etc. Expecting hyper illiterate/rustic/villager witnesses is an insult to justice oriented judicial system and be detached from the realities of life. (see State of U.P. Vs. Chhotey Lal AIR 2011 SC 697). When a rustic witness was subjected to grueling cross examination for days, inconsistencies are bound to occur in his evidence and they should not be blown out of proportion ( See State of U.P. Vs. Krishna Master, AIR 2010 SC 3071).
17. P.W.4 the doctor who examined Vidya Sagar, brought by police Constable Shiv Kumar Shukla on 10.05.2003 at 4.30 p.m . The assertion of this witness was that injured was brought before him at 4.30 p.m. and it might be possible that the injured would have come earlier. He opined that injuries might have been caused by lathi or danda . The duration of injury has been opined to be around 9.30 a.m.
18. Learned Counsel for the appellants challenged the presence of P.W. 2/injured on the ground that as P.W.4/ the doctor who examined the injuries at 4.30 PM, was reporting that “wound is bleeding” (injury no.2) in respect of an occurrence at 9.30 AM, strongly suggest that the injuries of P.W.2 were self implicated. Both P.W.2 and 4 stated that P.W.4, the doctor was not available at the centre when P.W.2 is first reported to have visited the centre as P.W.4 was busy in other official duty. P.W.4 was fixing the time of injuries around the time alleged by the prosecution, i.e. at 9.30 AM. Moreover, he was also opining that injuries within 6 to 7 hours, are considered as fresh. As the injuries were fresh and the injured was not given any first aid till he was examined by the doctor, the possibility of blood oozing out from injury no.2 on touch, cannot be ruled out. Thus, the contention of the appellants is liable to be rejected as otherwise P.W.2 has established his presence, he also received injury no.1, he is a wholly reliable witness.
19. P.W.5, the doctor who performed post mortem on the body of deceased-Reoti Raman @ Kothari. He proved post mortem report (Ex.Ka.4).
20. P.W.6, S.I. Anant Ram conducted inquest and prepared other relevant police papers, made recovery of blood stained and plain earth, cartridge, recovery memo of arms under Section 25 Arms Act and he has proved relevant exhibits on record.
21. P.W.7, SHO, proved sending of materials for FSL examination and filing of charge sheet (Ex. Ka.17). He recorded statements of witnesses Ashwani Kumar and Suraj Pal and witness of post mortem Chaukidar Chunku.
22. P.W.8 Har Kishan-Constable Moharrir proved FIR of Case Crime No. 29 of 2003 under Section 302 IPC (Ex.Ka.18) and its disclosure in GD Entry No.12 (Ex.Ka.19). He also proved FIR (Ex.Ka.20) dated 17.5.2003 under Section 25 Arms Act.
23. P.W.9 HCP Ravindra Kumar Sharma, is a formal witness of site plan (Ex.Ka.22) in respect to offence under Section 25 Arms Act, sanction letter of District Magistrate (Ex.Ka.23) and charge sheet (Ex.Ka.24).
24. In the present case, there is an independent witness apart from injured and other eye witness of the occurrence. The testimonies of ocular witnesses are corroborated by medical evidence. The witnesses are reliable and trustworthy. We find no material contradiction or discrepancies in their evidence. The learned Trial Judge, after analyzing the evidence available on record has rightly convicted the appellants, which in our considered view need no interference by this Court. The prosecution has established its case beyond reasonable doubt against the appellants.
25. The appeals have no substance and the same are accordingly dismissed.
26. Appellants- Raj Bahadur and Rajeev are on bail. Their bail bonds stand cancelled. They be taken into custody forthwith to serve remaining sentence.
27. The Registry is directed to transmit the Trial Court's record to the Court concerned for compliance. Compliance report be submitted to this Court within a month.
(Umesh Kumar, J) (Pankaj Naqvi, J) Order Date :- 30.5.2019 Shahid