Reserved on: 05.01.2019 Delivered on: 28.01.2019 Case :- CRIMINAL APPEAL No. - 3153 of 2009 Appellant :- Ramjas @ Chunkawan Respondent :- State Of U.P.
Counsel for Appellant :- V.B. Rao,Jitendra Singh,L.C. Mishra,Usha Srivastava Counsel for Respondent :- Govt. Advocate,Kameshwar Singh
Hon'ble D.K. Singh-I, J Hon'ble Umesh Kumar,J.
(Per Umesh Kumar, J)
1- This appeal is preferred against the judgment and order dated 16.04.2009 passed by the Additional Sessions Judge, Court No.5, Banda in S.T. No. 295 of 2007 under Section 302 of IPC and S.T. No. 296 of 2007 under Section 25 Arms Act convicting and sentencing the appellant-Ramjas @ Chunkawan under Section 302 of IPC for life imprisonment and a fine of Rs. 20,000/- and further under Section 25 Arms Act convicting and sentencing the appellant to undergo one year R.I. and a fine of Rs. 5000/-. Both the sentences are ordered to run concurrently.
2- Briefly stating the facts giving rise to this appeal are that on 17.10.2007, the complainan's father, as usual, after taking dinner in the evening was sleeping on the cot in front of his house covering himself by quilt and by his side, the informant and his son Santosh were also sleeping on other cots, where a dibri( small lamp) was burning and the informant and Santosh were having torches with them. In the night, at about 10.30 P.M., they heard sound of firing. The informant and his son Santosh woke up and in the light of torch, they saw that accused-Ramjas @ Chunkawan son of Dharam Das after firing on his father- Gangwa, is running away from the spot and blood was oozing out from the body of Gangwa who was lying dead on the cot. The written report was given by informant which was written by Budhraj Yadav alleging therein that accused-Ramjas @ Chunkawan was having illicit relation with the wife of his son, to which, his father-Gangwa was objecting and due to this reason, the accused-Ramjas @ Chunkawan has committed the murder of Gangwa. This report was registered at police Station in the same night at 23.30 P.M. which is Ex.Ka-3. The inquest report–Ex. Ka-6 was prepared by the Station House Officer Sri Pradeep Kumar Chaudhary on 18.10.2007 in the morning at about 7.00 A.M. in presence of witnesses of the same village. After completing inquest, relevant documents were prepared and the body was sent for post mortem examination. The post mortem was conducted by Dr. T.R. Sarsaiya which is Ex.Ka-5, in which, following injuries were found on the body of deceased-Gangwa;
1. “Fire arm entry wound on right side chest 2x2 cm. margin collar & charing around wound. Margin inverted. Charring 3x3 cm with wound Clot in shape 5 cm below nipple and 6' o clock.
2. Fire arm exit wound over left side below chest
2.5. x2.5 cm Margins inverted and tissue present. 6 cm below left spine (lateral) 1.5 cm medial to scapula. Death caused due to fire arm injuries.”
3- During investigation, accused-appellant was arrested on 21.10.2007 at 12.30 P.M.from Bhabhua Pindaran turning and from his possession, a country made pistol, used in the commission of crime and one live cartridge of 12 bore was recovered. Recovery memo is Ex.Ka-16 and a case under Section 25 of Arms Act was registered against the accused- appellant. Requisite sanction for prosecution was obtained from the District Magistrate, Banda which is Ex.Ka-20.
4- During investigation, recovery of Dibri (small lamp) and two torches were prepared by the Investigating Officer which are Ex.Ka-2 and used Cartridge of 12 bore is Ex.Ka-13. Blood stained and plain earth were collected and marked as Ex.Ka-14. Piece of kathari having hole of fire arm is Ex.Ka-15. These recovered articles were sent for ballistic and chemical examination to the Joint Director, Forensic Labortory, Lucknow and the reports are Ex.Ka-23 and Ex.Ka-24.
5- After completion of investigation, the Investigating Officer has submitted charge sheet under Section 302 IPC and Section 25 of Arms Act which are Ex.Ka-17 and Ex-Ka-19. The accused- Ram Jas @ Chunkawan was charged under Sections 302 of IPC and Section 25 of Arms Act, who denied the offence and claimed trial.
6- The prosecution in support of its case has examined as many as 7 witnesses. P.W.1 Ram Asrey and P.W.2 Santosh are the eye witnesses of the occurrence. P.W.3 Raja Ram Maurya is the Constable Moharrir. P.W.4 is Dr. T.R. Sarsaiya who has conducted post mortem examination. P.W.5 Pradeep Kumar and P.W.6 Abhimanyu Yadav, are the Investigating Officers of the case. P.W.7 Ram Sagar Yadav is the Constable who has proved GD entry and chick FIR of the offence under Section 25 of Arms Act. The prosecution witnesses have exhibited and proved relevant documents in their statements.
7- Statement of accused-appellant under Section 313 Cr.P.C. has been recorded in which, the accused has stated that due to enmity and village politics, he has been falsely implicated in the case, wereas, in respect of recovery of weapon and cartridge, he has stated the same to be false..
8- We have heard Sri Sushil Kumar Dwivedi, learned Counsel for appellant and learned AGA for the State and have perused the record.
9- Learned Counsel for the appellant has argued that motive of the occurrence, as set up by the prosecution has not been established, no source of light was introduced, the witnesses are interested witnesses, and no independent witness has been examined by the prosecution to support the prosecution version. Lastly, it was argued that it was a blind murder and the appellant has been falsely implicated in the present case.
10- Learned AGA opposing the arguments of learned Counsel for the appellant, has argued that the prosecution version is supported by the testimony of eye witnesses, strongly supported by post mortem report and other medical evidence adduced by the prosecution. There is no contradiction in the statements of prosecution witnesses and the prosecution case is supported by so-called eye witnesses. Though, they are relatives, but their statements are reliable and trust worthy.
11- Ram Asrey, P.W.1 has stated in his statement that after taking food in the night, they were sleeping in front of his house. His father was sleeping on middle cot and he and his son were sleeping by side of the cot on which, deceased-Gangwa was sleeping. A dibri( small lamp) was burning on the spot. They were having torches with them and at about 10.30 P.M. in the night, they heard sound of firing. He and his son woke up and in the light of torch, they saw that appellant- Ramjas @ Chunkawan of his village after firing on his father by country made pistol was running away. Budhraj wrote the first information report on his dictation. He has proved narration of the FIR (Ex. Ka-1). He has narrated about the motive that his father-deceased had refused to be the surety of accused-appellant. The appellant- Ramjas @ Chunkawan was a man of loose character and due to aforesaid, he killed deceased-Gangwa, the father of P.W.1. He has also stated that during investigtion, the Investigating Officer had taken away dibri (small lamp) and their torches in his possession, but subsequently, after exhibiting recovery memo, these articles were returned to them. In his cross examination, he has stated that in the morning at about 6.00-7.00 A.M., he has delivered dibri (small lamp) and torches to the Investigating Officer which were returned to them after preparation of recovery memo. He has further stated that at the time of preparation of recovery memo, Budhraj, Ram Baran, Jugul, besides other persons of the village were present. He has also stated in his cross examination that first time, he saw the appellant-accused running in the north near water tap at a distance of 5-6 hands. He told his son indicating that see appellant-Ramjas @ Chunkawan is running away and thereafter, he saw his father lying dead on the cot on which he was sleeping. In the same night, the police visited the place of occurrence. On close scrutinty of his testimoney, nothing adverse has come out. His statement is reliable and inspires confidence of the Court.
12- P.W.2- Santosh, an eye witness of the occurrence has also supported the prosoecution version. He has specifically stated that he saw accused- Ramjas @ Chunkawan having country made pistol in his hand was running away from the place of occurrence. He has also disclosed about the accused having loose character and that is why, his grand father was objecting his regular visit to his house and also the motive of the occurrence i.e. refusal of deceased of becoming surety of the accused- appellant.
13- P.W.3 Rajaram Maurya-Constable Moharrir has proved chick FIR Ex.Ka-3 and G.D. entry Ex.Ka-4.
14- P.W.4 Dr.T.R. Sarsaiya has proved the Post mortem report Ex.Ka-5. While conducting the post mortem examination, he has found following fire arm injuries on the body of the deceased- Gangwa;
1. “Fire arm entry wound on right side chest 2x2 cm. margin collar & charing around wound. Margin inverted. Charring 3x3 cm with wound Clot in shape 5 cm below nipple and 6' o clock”.
2. “Fire arm exit wound over left side below chest
2.5. x2.5 cm Margins inverted and tissue present. 6 cm below left spine (lateral) 1.5 cm medial to scapula. Death caused due to fire arm injuries.”
15- P.W.5 S.I. Pradeep Kumar Chaudhary has proved the inquest report and other relevant papers Ex.Ka-7 to Ex.Ka-11. Ex.Ka-12 is the site plan, Ex.Ka-13 is the cartridge, Ex.Ka- 14 is the blood stained and plain earth, Ex.Ka-15 is the recovery memo of kathri. This witness has proved material exhibits, 1,2,3,4,5,6,7 and 8. T.C-1 and TC-2 of the forensic examination report Material exhibits 1 and 12. In this respect, Ex.Ka-23 and Ex.Ka-24, are the ballistic examination report which corroborates user of said country made pistol in the commission of offence. This witness has proved arrest and recovery memo of weapon under Section 25 of Arms Act. This witness has also proved arrest of the appellant-accused on 21.10.2007 when the accused-appellant was standing on Bhabhua Pindaran turning and from the possession of accused-appellant, a country made pistol and one live cartridge was recovered. This witness has stated that during arrest and recovery of weapon, no public witness became ready, in spite of efforts made by him. From perusal of the statement of the witness, nothing adverse has come out.
16- The statement of both eye witnesses categorically strengthen the motive. It is established principle of law that the motive of the occurrence has no meaning when there are direct and ocular witnesses of the incident.
17- In the cross examination of P.W.1-Ram Asrey, nothing has been pointed out which falsify the prosecution version, specially when his statement is supported by the statement of eye witness P.W.2, Santosh also. It has been held in the case of Subedar Tiwari Vs. State of U.P. AIR 1989 SC 733 that the evidence regarding existence of motive operates in the mind of the assassin, is very often not within the reach of others. A crime may take place even without premeditation or preplanning in the context of a particular situation on the spur of moment. The Apex Court in the case of Shivji Genu Mohite Vs. State of Maharashtra AIR 1973 SC 55 has held that even if motive is not established, the evidence of eye witnesses is not rendered untrustworthy.
18- Much emphasis has been tried to be given by the learned Counsel for the appellant in respect to source of light at the time of occurrence. In this respect, it is enough to take into account the testimonies of two eye witnesses viz P.W.1 and P.W.2 who in their statements have specifically deposed about burning of a Dibri(small lamp)used in rural areas and the torches. The Apex Court in Shakti Patra Vs. State of West Bengal 1981 Cr.L.J. Page 645, has held that whether witnesses have stated the source of light in their statements before the Court, in such a cirumstance, non mentioning the source of light in the first information report or in the statements under section 161 Cr.P.C, is not fatal to the prosecution case and the testimony of such witnesses cannot be discarded.
19- After a careful scrutiny of the entire evidence, facts and circumstances of the case in its entirety, we are of the view that the Trial Court was justified in convicting the appellant, considering the statements of two eye witnesses, medical evidence, and the complicity of the accused-appellant in the incident in hand has been duly proved by the prosecution and thus, we have no reason whatsoever to disbelieve the statement of two eye witnesses, who remain intact in the Court.
20- In the present case, the appellant-accused has failed to offer any probable acceptable explanation and thus, it can safely be held that it is the appellant-accused, who has committed the murder of deceased-Gangwa.
21- The appeal has no substance and the same is accordingly dismissed. The appellant- Ramjas @ Chunkawan is on bail. His bail bonds stand cancelled and he be taken into custody forthwith to serve the remaining sentence.
22- The Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellant serves out the remaining sentence, in accordance with law.
(D.K. Singh-I, J) (Umesh Kumar, J) Order Date :- 28.01.2019 Shahid