Reserved
Court No. - 48
Case :- CRIMINAL APPEAL No. - 1351 of 2010 Appellant :- Sunil Respondent :- State of U.P.
Counsel for Appellant :- Deepak Kumar Srivastava,Alok Sharma,Rajesh Kumar Mishra Counsel for Respondent :- Govt. Advocate
Hon'ble Anjani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
Heard Shri Alok Sharma, learned counsel for the appellant and Shri Ajit Ray, learned AGA for the State.
This criminal appeal is directed against the judgement and conviction in Sessions Trial No.1421 of 2000 under Section 302 IPC and Sessions Trial No.1242 of 2001 under Section 25 of the Arms Act, Police Station Ram Chandra Mission, District Shahajahanpur, whereby the appellant has been sentenced for life imprisonment under Section 302 IPC along with a fine of Rs.15,000/- and to one year rigorous imprisonment under Section 25 of the Arms Act and a fine of Rs.1000/-
In default of payment of fine, appellant is required to undergo one year further rigorous imprisonment for the offence under Section 302 IPC and four months further rigorous imprisonment for the offence under Section 25 of the Arms Act.
A first information report was lodged by Rampal on 08.06.2000 at 12.10 p.m. at Police Station Ram Chandra Mission, District Saharanpur and was registered as Crime No.56 of 2000 under Sections 352/ 307 IPC alleging that his nephew Ajay was in litigation with one Sunil. On 06.06.2000 at about 8.30 p.m. Ajay and Sanjeev his cousin had gone to purchase Pan Masala from the shop of Ram Narain. On their way back, when they reached near the Gularo Wali Maszid, Sunil and Karma s/o of Babu appeared from a lane. Karma put a tamancha on Sanjeev's head. Sunil also picked out a tamancha whereupon Ajay ran. Sunil shot Ajay on the rear portion of the left thigh. As a result Ajay fell down. Ajay was taken to the District Hospital, where the doctors referred to the Bareilly. After first aid, the injured was admitted to Sheel Hospital, Bareilly and is undergoing treatment there in the presence of the family members. The first informant had returned from the Bareilly that day and hence, the first information report.
Ajay died in Sheel Hospital, Bareilly on 08.06.2000 at about 9.30 a.m. The case was thereafter converted to one under Section 302 IPC. After investigation a charge sheet was filed and the case was committed to the Court of Sessions.
The trial Court framed charges against the appellant under Section 302 IPC as also under Section 25 of the Arms Act. Co- accused Karma was charged under Section 302 IPC read with Section 34 IPC and under Section 352 IPC.
During trial, nine witnesses were examined by the prosecution.
PW-1, Rampal, the first informant and uncle of the deceased stated that there was enmity between his nephew, Ajay (deceased) and Sunil (appellant). Earlier Ajay had shot Sunil in the jaw, damaging it. In his examination-in-chief, he reiterated the allegations contained in the first information report. He has also stated that Sanjeev, informant, the family members and the women and Ramdas, the brother of the first informant took the injured to the Hospital and thereafter to Bareilly and got admitted them. He has stated that Ajay was operated to remove the bullet.
During cross-examination, he has stated that he reached Sheel Hospital, Bareilly next morning to find the condition of Ajay to be serious but he has not been operated. He was informed by the doctor that blood would have been arranged before he could be operated upon. His blood group did not match when tested in. He has also stated that Ajay regained consciousness that night and the entire incident was narrated to him next morning, when he met Ajay. He thereafter wrote the report and presented it at the police station. He started from Bareilly and came Shahjahanpur by bus at 7.00 a.m. reached within two hours. He first arranged for blood and thereafter reached the police station. He has expressed ignorance of the parentage of Dharma. He also admitted that Ajay had fired at the appellant Sunil and had remained in Jail on account of the said incident. The said case was registered under Section 307 IPC. He also admitted that Ajay, the deceased has eloped with one Malti Devi, daughter of Lalman, on 02.07.1999. The girl was returned to her parents and that no report in this regard was filed against Ajay. He subsequently stated that he had no knowledge that any case was registered against Hariram and Ajay in this regard on 04.07.1999. He has reiterated that the Ajay was taken to Hospital by the ladies of the house and Ram Das, brother of the witness and that Ajay was not suffering from any illness. He has also denied the suggestion that Ajay was a gunda and that the accused have been named in the first information report, on mere suspicion.
PW-2, Sanjeev s/o Bhagwan Das is alleged eye witness of the incident and the person accompanying the deceased when the incident took place. He has stated that there was previous enmity between Sunil and Ajay. Karma placed tamancha on his temple, Sunil took out a tamancha and fired hitting Ajay on the back of his left thigh. The witness stated that he brushed away the tamancha on his temple and run away to his house and towards his shop to inform his father and uncle. When the three reached back to the place of occurrence, they were informed that ladies of the house had taken the accused to hospital in a rickshaw, where he was provided first aid. He was thereafter, taken to Bareilly. The injured underwent treatment for a day and thereafter died. He also stated that Sunil used to threaten Ajay on account of the case under Section 307 IPC pending against Ajay.
During cross-examination, he denied having seen Karma on the spot. Ajay was not suffering from T.B. He was employed in a medical store, which remained open from 10 a.m. in the morning to 10 p.m. at night. The weekly off was on Friday. On the date of incident, there was no strike and that the medical stores in the area stayed closed only when there was a strike. He has admitted that a case under Section 307 IPC had been lodged against Ajay by Sunil and that Ajay was imprisoned in the police station Ram Chandra Mission and was in jail for about 2 and half months. 5 packets of the pan masala was purchased by them from the shop of Prem Narain, which fell down when Ajay was shot and that he had packed them up. After the incident, he fled to inform his father and uncle and reached there within five minutes. Ajay fell down on the road in front of the house of Rajaram. He never made any attempt to lift Ajay, whose wound was bleeding. When his uncle, Rampal and father, Ramdas reached to the spot, they found that his aunts has already taken Ajay to the Hospital by rikshaw. His shop is situated at the distance of 200-250 steps from the site of the incident. This witness is one of three brothers, one of whom is elder and other is younger brother to him. His house is situated in a densely populated area. He has also stated that he remained at home till 08.06.2000. Most importantly he has stated that his uncle Rampal was at home on the night of the incident and that Rampal and Ramdas had gone to the Hospital after the incident. The blood on the site of the incident had washed away on account of rain. When he, his uncle and father reached on the spot, no crowd was present there and that no residents or shop keepers were called. After Ajay was shot, he never went near him and went straight to Dalilganj. There is a densely population area with shops, near the site of the incident. He has also denied the suggestion, he is deposing on both or he has seen the incident.
PW-3, Sub Inspector, Kamal Kishore Vajpayee was the head muharrir, police station Ram Chandra Mission on 08.06.2000. He has proved the first information report as also the GD entries. He has stated that the original pleading has been weeded out.
PW-4, Dr. B.K. Khetan has stated that Ajay was admitted in the Sheel Hospital, Bareilly on 07.06.2000. His condition was serious and on X-ray, his thigh bone was found fractured. He has also proved the X-ray report. He has also stated that Ajay died on 08.06.2000 at 09.30 a.m.. During cross-examination, he has stated that Ajay died while he was unconscious and that he was never operated.
PW-5, Dr. S.K. Garg, Superintendent, Community Health Centre, Tilhar has proved the postmortem report prepared by him. He has stated that the entire left thigh of the deceased was swollen and was blue in colour. It was bandaged. The following injures were found on the person of the deceased.
1. Gunshot wound of entry 4 cm x 4 cm x bone deep on medial side of left thigh, 8 cm below base of scrotum.
2. Incised wound 6 cm x 3 cm x muscle deep on medial side of left thigh, 4 cm above medial side of left knee joint underneath femur shaft. Margins of bone irregular. On cutting left thigh clotted blood was present in the whole thigh. (Femur was fractured Gauze drain was present in both wounds. The cause of death according to him was excessive blood loss and septicemia.
During cross-examination, he has stated that the pus present in the lungs of the deceased could be on account of a long standing infection. He has also opined that the injury no.1 could have been caused from the front and that injury no.2 was an incised wound but was not stitched.
PW-6, Sub Inspector, Ashok Kumar Sharma was the Station Officer, Police Station, Ram Chandra Mission on 08.06.2000. He has stated that the appellant along with Karma shot Ajay due to previous enmity and that the injured died on 08.06.2000 while undergoing treatment in Sheel Hospital, Bareilly. Thereafter the case was converted to one under Section 302 IPC on 09.06.2000 after receipt of the postmortem report. Sunil surrendered before the Chief Judicial Magistrate, Shahjahanpur on 15.06.2000. He recorded the statement of the accused on 20.06.2000 in District jail. On 18.01.2000, Ajay had shot the accused Sunil due to which his jaw bone was fractured and in this regard Crime No.7 of 2000 under Sections 307 504 IPC was lodged by the father of Sunil against Ajay. He has also recovered a tamancha of 315 bore on the pointing out of Sunil after obtaining his remand. A memo in this regard was prepared. The country made pistol with spent cartridge lodged in its barrel were sealed and case Crime No.66 of 2000 under Section 25/27 of the Arms Act was registered against Sunil. Karma surrendered before the Court on 29.06.2000.
During cross-examination, he has stated that he recorded the statement of Sunil and Karma in District Jail after obtaining permission from the Court. He has denied the suggestion that the accused had not admitted their guilt before him. He has denied that the alleged recovery shown by him is false. He took over investigation on 09.06.2000. He had recorded the statement of Sanjeev who told him that the blood on the spot was washed away due to rain.
PW-7, Sub-Inspector, Jagat Pal Singh Parihar had prepared inquest report and has proved it. The inquest was started 11.30 and ended at 12.30 p.m. The inquest report is Exb. Ka-9. He has also proved the photo lash, sample seals and the letter to the Chief Medical Officer.
During cross-examination, he has stated that the family members of the deceased were present at the time of the inquest.
PW-8, Dr. S.K.Yadav was posted as Medical Officer in District Hospital, Shahjahanpur on 06.06.2000 and had examined injured Ajay at 11.05 p.m. that night. He has stated that there was an injury on the left thigh of Ajay on the back towards inside. It was 5cm x 5 cm x muscle deep and was bleeding. The condition of the injured was very bad. Blood pressure and pulse rate could not be recorded. The injured was pale and was sweating profusely. The skin was cold and moist. The heart beat was very faint, the pupil were not responsive to light. The injured was in a state of shock. The injury report prepared by him was marked as Exb. Ka-15.
During cross-examination, he has stated due to excessive bleeding, the injured was not fully conscious and was not in a position to think and understand. He has also accepted the suggestion that in case, the injured had a country made pistol in his waist band with the barrel pointing downwards, and the same tucked and went off unintentionally, the injury on his person could have been caused by such a shot.
PW-9, Sub-Inspector, Raghubansh Dayal has proved the site plan prepared by Sub Inspector, Dev Nandan Singh, who is dead. The site plan of the Crime No.66 of 2000 under Section 25/27 of the Arms Act and the site plan as also the charge sheet in the said case was prepared by Sub Inspector, Dev Nandan Singh. The permission of the District Magistrate for prosecution under the Arms Act were also proved by him as also the chik FIR. During cross-examination, he has stated that the statement of the first informant Rampal has recorded in the case diary, wherein he has stated that the injured, Ajay was undergoing treatment in Sheel Hospital, Bareilly and was unconscious. He has not regain consciousness. This statement was recorded on 08.06.2000. This statement also does not record that the information was given by Rampal, it has not been recorded that Rampal informed the incident by Ajay, the injured.
He has also stated that the statement of Sanjeev recorded in the case diary prepared by Sub Inspector, Dev Nandan Singh (deceased) does not record that Sanjeev had stated that the blood on the spot was washed away on account of rains, which occurred after the incident.
The statement of the appellant, Sunil was recorded under Section 313 Cr.P.C., he has denied the charges against him and has stated that he had been shot by Ajay and the case had been lodged against him on account of suspicion, alone.
On the basis of the evidence adduced, the trial court convicted the appellant as noticed above. However, co-accused, Karma was acquitted by the trial Court.
The contention of learned counsel for the appellant is that the first information report is highly belated and it was lodged after Ajay died. Yet the factum of his death is not recorded in the report. From the material available on record and the statement of PW-4, it is clear that Ajay died on 08.06.2000 at 9.30 a.m.The first information report of the incident, which admittedly took place on 06.06.2000 at 09.00 p.m. had been lodged on 08.06.2000 at 12.10 p.m.He has also stated that as per eye witness account, the deceased was shot by the appellant from the back while the fire arm injury according to the Doctor was caused from the front. This discrepancy in the medical and ocular testimony is enough to show that the Sanjeev is not an eye witness and therefore, the conviction of the appellant cannot be sustained.
He has also submitted that from the statement of PW-8 that the fire arm injury on the person of the deceased could have been caused, if he was carrying a country made pistol in his waist band, which is inadvertently went on.
He has next submitted that the appellant has been named in the first information report only on the basis of the suspicion. The deceased was a man of bad antecedents and was shot under unknown circumstances, by unknown person at some other place and that the appellant has been roped in merely on account of suspicion and previous enmity between them.The incident is alleged to have been occurred in a densely populated area with shops and houses but no independent witness has been produced by the prosecution. The entire case is built up on the sole testimony of the cousin of the deceased, an alleged eye witness, whose ocular testimony, in any case is contrary to the medical evidence, which shows that the injury on the left thigh could have been caused from a shot being fired from the front while eye witness stated that the shot was fired from behind.
The first information report is highly belated and till the time, inquest was held, there is no mention of the accused therein. This further, strengthens the argument that the first information report is not genuine and has been filed only on suspicion after the deceased had died without disclosing the factum of his death.
Leaned AGA on the other hand submitted that the first information report has been lodged by Rampal on the basis of the facts narrated by the injured to him at Sheel Hospital, Bareilly. The same therefore, would amount to a deemed dying declaration.
The first information report in the instant case has been lodged after one and half days. The incident took place on 06.06.2000 at 9:30 pm while the first information report has been lodged on 08.06.2000 at 12:10 pm. The first informant, PW-1, Ram Pal, has stated that he came to Saharanpur from Bareilly to arrange for blood which was required before the injured could not be operated upon. He started from Bareilly at 7:00 am by bus and reached Shahjahanpur in two hours namely, by 9:00 am. In his cross examination he has also stated that Ajay did not die in his presence and that he got information of his death from his family members who reached home at about 12:00 noon. The first information report has been lodged at 12:10 pm after his family members has returned home and yet the factam of death is not mentioned in the first information report nor is it mentioned in his statement recorded by the Investigating Officer in the case diary.
The alleged eye witness, Sanjeev has stated that the injured was taken to hospital by the ladies of the family, his aunts and that the injured has already been taken to the hospital when he reached the site of occurrence after informing his father and uncle, who were present in their shop, situated at distance about 200 steps from the site of occurrence. The uncle of this witness is the father of the injured-deceased. He is stated by PW-8 Dr.
S.K. Yadav, to have brought the injured to the hospital on 06.06.2000 at about 11:45 pm. It appears that in case the identity of the assailant was known, as is the prosecution case, the first information report would not be lodged with such delay. There is no explanation as to why the uncle of the eye witness and the deceased namely, Bhagwaan Das who was present and came to the spot with the father of the injured and the eye witness himself, could not lodge the FIR, especially when the injured had already been taken to hospital by the women folk by rickshaw. The first information report could very well has been lodged by Bhagwaan Das, even if it is accepted that Ram Das, father of the deceased took him to hospital. The prosecution has tried to downplay the fact that the father took the deceased to hospital after the incident probably with a view to explain the delay in lodging the FIR. More interestingly, the alleged eye witness, Sanjeev PW-2 in his testimony stated that Ram Pal, the first informant, was present at home on the night of the incident. The informant Ram Pal PW-1 in his testimony stated that on the night of the incident, he was out of station and that next day he met the injured at Sheel hospital, Bareilly and was informed by him about the incident. On the basis such information provided by the injured the first information report was lodged by him the next day.
The contention of learned AGA in this regard is that this information given by the injured to the first informant is liable to be treated as a dying declaration in view of Section 32 (1) of the Indian Evidence Act.
We are unable to accept this contention of learned AGA because it is clear from the statement of Dr. S.K. Yadav PW-8 that the injured even at 11:30 pm on 06.06.2000 was not in his complete senses and was not in a position to think or understand.
Thereafter he was admitted to Sheel Hospital, Bareilly at 3:45 am on 07.06.2000 in an unconscious state. The testimony of Dr. V.K. Khetan, PW-4, is that he was unconscious even at the time of his death. Although it is the testimony of PW-1, Ram Pal, that the injured subsequently regained consciousness and narrated the incident to him, the same appears to extremely doubtful because the doctor who examined him on the night of the incident in District Hospital Bareilly, PW-8 Dr. S.K. Yadav has stated that the injured was not fully conscious or in a position to understand or think, due to excessive blood loss. Admittedly no blood transfusion was provided to injured during his treatment because as per the testimony PW-1, Ram Pal, he came to Shahjahanpur on 08.06.2000in the morning to arrange for blood.
The condition of the injured may at best have remained the same as it was at the time of his examination at the District Hospital. His condition is not likely to have improved drastically in the absence of any transfusion, to make good the blood lost.
Under the circumstances, it cannot be said with any degree of certainty that the injured was in any position to have narrated the incident to the first informant or to any other person and there is an extremely high degree of doubt as regards this prosecution version.
Moreover in view of the circumstances discussed above there appears no plausible explanation as to why the first information report was not lodged on the night of the incident itself when according to the PW-2 the father as also, the uncle of the deceased were present at home on the night of the incident. From the facts of the case as also from the record it is clear from the first information report was lodged after the deceased died and that the deceased was not in any sort of position to have narrated the incident to the first informant.
The submission of the counsel for the appellant is that in the first information report the name of the appellant has been mentioned as the person who shot the deceased in highly likely to be only on the basis of suspicion in view of the admitted enmity between the deceased and the appellant-accused. This submission is further fortified by the fact that the inquest report is also silent as to who shot the deceased.
All the circumstances narrated above cast a serious doubt over the prosecution version and the chances of false implication based merely on suspicion cannot be ruled out. This doubt is further strengthened by the fact that no independent witness of the locality has been produced by the prosecution although the area is thickly populated and has a number of shops. Moreover, no blood stains were found even by the Investigating Officer at the alleged site of occurrence. This also casts a doubt as to the place of occurrence, itself.
There is only the testimony of the alleged eye witness Sanjeev as regards the manner, place and time of occurrence. However his presence on the spot also cannot be accepted as the appellant is alleged by him to have shot the deceased from behind while in the opinion of the doctor who conducted the postmortem, PW-5, Dr. S.K. Garg, the fire arm injury on the person of the deceased was in all likelihood sustained in case he was shot from the front and not from the back. The above, coupled that the opinion of PW-4, Dr. S.K. Yadav, who in his cross examination opined that in case a fire arm was tucked in the waist band with the barrel pointing downwards and the same went off inadvertently, the injury on the person of the deceased could be sustained, also creates further doubt as regards the prosecution case.
In view of the foregoing discussion, we are of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the appellant for the same reason is entitled to the benefit of doubt.
Accordingly we allow the appeal and set aside the conviction and sentence awarded to the appellant. The appellant is not on bail and is liable to be released forthwith.
Let a copy of this judgment along with lower court record be transmitted to the trial court forthwith, for necessary compliance.
Order Date :- 29.10.2021 RKM / Priyanka