Allahabad High Court
Vidya Kant Pandey vs State Of U.P. on 1 March, 2019
Bench: Naheed Ara Moonis, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED.
CRIMINAL APPEAL NO. 2978 of 1999.
Appellant: Vidya Kant Pandey.
Respondent: State of U.P.
Counsel for Appellant:- Manish Tiwary, A.K. Awasthi,
Counsel for Respondent:- Govt. Advocate, Amit Kumar Srivastava.
Hon'ble Naheed Ara Moonis,J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble N.A. Moonis,J.) The instant appeal is arising out of the judgment and order dated 13.10.1999 passed by the Ist Additional Sessions Judge, Allahabad in S.T. No. 271 of 1990 arising out of case Crime No. 298 of 1988, police station Karchchana, district Allahabad whereby the appellant has been convicted for the offence punishable under Section 302 read with Section 34 I.P.C. to undergo imprisonment for life. The co-accused Raj Narain Pandey who had preferred separate Criminal Appeal No. 2979 of 1999 against his conviction for life imprisonment in the aforesaid session trial had expired during the penency of the appeal hence by order dated 3.8.2017 passed by the another Bench of this Court the appeal stood abated and the same was consigned to record.
The instant appeal was being adjourned successively either on the ground of illness or at the request of the learned counsel for the appellant who has filed the appeal hence Sri Dhruv Narain Mishra has been appointed as Amicus Curiae on behalf of appellant Vidya Kant Pandey by order dated 26.11.2018.
The prosecution case in short conspectus is that Kaushlendra Prasad Pandey (P.W.1) son of Raghav Prasad, resident village Dando, police station Karchchana, district Allahabad lodged the first information report at 10.30 P.M. against the appellant Vidya Kant Pandey and Raj Narain Pandey (since deceased) in respect of the incident dated 19.10.1988 occurred at 8.30 P.M. on the same day that with intent to kill the appellant had fired upon Shiv Shanker Prasad, the brother of the complainant, at the instigation of accused Raj Narain Pandey (since deceased) and the same was registered as case Crime No. 298 of 1988, under Sections 307 and 504 I.P.C., police station Karchchana, district Allahabad. It is narrated in the first information report by the complainant Kaushlesh Prasad Pandey that on 19.10.1988 in his threshing floor harvested sesame crop was lying wherein the cattle of accused Raj Narain Pandey (since deceased) of his village entered and started destroying the sesame crops. His brother Shiv Shanker Prasad Pandey saw that the crops of sesame has been destroyed by the cattle, hence he driven out the cattle at this accused Raj Narain Pandey (since deceased) and his son Vidya Kant Pandey (the appellant) became annoyed and started hurling vituperative words by contending that he boasted himself of being the owner of threshing floor (Khalihan) and what damage has been done that he had driven out the cattle after beating them for which they will take revenge. Soon thereafter when the complainant's brother was returning from the threshing floor at about 8.30 P.M. in the night and as he reached near the door of Alakh Narain the accused Raj Narain Pandey (since deceased) exhorted that it is a good opportunity that his brother has met and asked his son Vidya Kant Pandey (present appellant) to bring his gun and kill him. At the exhortation of accused Raj Narain Pandey (since deceased) the appellant Vidya Kant Pandey came out with his father's gun and fired at the complainant's brother with intent to kill him. The fire hit to his brother on the right side back. This incident was witnessed by Shri Nand Pandey (P.W.2) who was present there as he came in his relation. Thereafter the complainant and Shri Nand Pandey (P.W.2) chased and tried to catch appellant Vidya Kant Pandey but on account of fear as he was having gun they could not nab him. On hearing the noise of firing various persons of the village reached there, thereafter both Vidya Kant Pandey and Raj Narain Pandey escaped from the spot. His brother on receiving firearm injury fell at the door of Alakh Narain near the water tap. He took his brother to the police station in serious condition, hence prayed for appropriate action be taken.
Constable Sita Ram Shukla (P.W. 5) who was posted as Head Moharrir at police station Karchchana, district Allahabad on 19.10.1988 registered the first information report on the basis of the written report submitted by the complainant at 10.30 P.M. Under Sections 307 and 504 I.P.C., the same was entered in the general diary and thereafter he had sent the injured Shiv Shanker Pandey for medical treatment.
After lodging of the first information report criminal law was set in motion. The investigation was handed over to Uma Shanker Upadhyay (P.W. 7), the Station House Officer of police station Karchchana, district Allahabad. He had recorded the statement of the injured at the police station who was brought in an injured condition. The statement of the injured was recorded in the case diary by the Investigating Officer who had narrated the occurrence and disclosed the name of assailants. The statement given by the injured was proved by him during the course of trial, which was marked as Exhibit Ka. 9. On the same day he had conducted inquiry from Kaushlendra Prasad Pandey (P.W.1) the complainant and sent the injured Shiv Shanker Padey to the hospital while the injured was on way to Medical College, Allahabad he succumbed to the injuries. The Investigating Officer went along with force in the jeep at the place of occurrence. He remained there during night but due to odd hours he could not visit the place of incident. In the next morning he visited the place of incident with the assistance of the complainant. He prepared the site plan, which was proved by him as Exhibit Ka. 10. He had collected blood stained and plain earth from the spot and prepared its memo, which was proved by him as Exhibit Ka. 11. From the place of incident he had recovered one empty cartridge of 12 bore, which was taken in custody and also sealed in the presence of the witnesses, which were signed by them. Torch of the complainant was inspected and handed over to him by Investigating Officer, memo was prepared, which was marked as Exhibit Ka. 12. He had also inquired from Shri Nand Pandey (P.W. 2). He received information from informer that the appellant Vidya Kant Pandey is present near Kodhar bank who is waiting for boat, on this information he along with two witnesses reached there. He had two Sub Inspectors and police personnel. They caught the accused/appellant Vidya Kant Pandey from the bank of Kodhar river. On being inquired he disclosed his name as Vidya Kant Pandey and was taken into custody. On inquiry he had disclosed about the gun with which he had fired. While in custody reached at his house at Dando and by the side of his house he entered in his shop from where he had taken out the gun and disclosed that this is the licensed gun of his father with which he had fired. The gun was taken in custody and its memo was prepared in the presence of the witnesses who signed the same, which was marked as Exhibit Ka. 13. The accused had also signed the recovery memo. The site plan prepared from where the appellant had taken out the gun, which was marked as Exhibit Ka. 14. On 20.10.1988 Hridaya Narain Pandey informed about the death of the injured, the case was converted under Section 302 I.P.C. of which the entry was made in the general diary at serial on.17 by Sita Ram Shukla P.W. 5. Statement of Smt. Hula Devi was recorded. The Investigating Officer conducted the investigation till 9.11.1988 as he was transferred from the district. Thereafter the investigation was handed over to Sub Inspector R.P. Yadav, P.W. 6 who was posted as S.O. of police station Karchchana on 3.12.1988. He had recorded the statement of the witness of recovery of gun on 10.12.1988. He had also recorded the statement of Constable Hridaya Narain Pandey who had taken the injured from police station to the hospital for treatment. After conducting the inquest the dead body sent to the mortuary for post mortem of the deceased Shiv Shanker Pandey, which was exhibited as Exhibit Ka. 15. Along with the sealed dead body information to the concerned police station and papers relating to challan nash, photo nash etc were sent, which was received in sealed condition by Dr. Ved Prakash Pandey (P.W.3) on 21.10.1988 handed over to him by Constable Mohan Lal.
The post mortem was conducted at 2.35 P.M. on 21.10.1988 by Dr, Ved Prakash Pandey (P.W.3). The time since death was recorded by the Dr. Ved Prakash Pandey (P.W.3) as one and half day old. The dead body was found average built rigorous mortis was present in lower limbs, both eyes were closed, mouth partially open;
Anti mortem injuries (1) Five gun shot wounds of entrance present over the back of the body at the area of 4" x 3", particulars of wounds as follow;
(i) Four wound entered ¼ cm. x ¼ cm.
(ii) One wound of entrance 1 ½ cm x 1 ½ x margin inverted blackening present. All wounds were present in mid line at the level of dorsal 8 to 10 spine.
(2) Two gun shot wound exit of size ½ cm x ½ cm are present over the anterior surface of chest on right side at the area of 2 cm, 3 cm below right nipple margin everted. All wounds are cavity deep, Right 6th and 7th ribs fractured at mid clavicle line anti mortem injuries vertebra D 8 - 9 fractured. On internal examination 6th, 7th right rib fractured. About 200 ml blood present in thoracic cavity. Right pleura lacerated. Right lung lacerated. Heart empty. Cavity filled with blood. 100 ml. digested food present in stomach, small intestine partially filled gases present. Feacal matter present in large intestine with gas, liver lacerated and urinary bladder empty. Cause of death opined by the Doctor shock due to hemorrhage due to firearm injuries.
Dr. Ved Prakash Pandey (P.W.3) made a bundle of five apparels of the deceased separately and seven pellets recovered from the dead body, which sealed in small envelope and sent to Senior Superintendent of Police, Allahabad through the Chief Medical Officer, Allahabad. After conducting the post mortem the dead body was handed over to with the copy of the papers to Constable Mohan Lal. The post mortem report was exhibited as Exhibit Ka. 2.
The Forensic Science Laboratory, Lucknow had submitted its report dated 15.1.1990 with respect to the examination of the sealed bundle containing apparels of the deceased blood stained earth and plain earth, which were shown to have human blood but the blood was disintegrated hence could not be classified. The said report dated 15.1.1990 was exhibited as Paper No. 37.
Constable Chandra Bhushan Sharma examined as P.W. 8 who had received one SBBL gun and one empty cartridge in sealed condition from the Malkhana of police station Karchchana through Head Moharrir, which was sent to Forensic Science Laboratory, Lucknow for chemical examination in sealed condition and the same remained intact in his custody till it was handed over to the Ballistic Expert for examination.
The examination of the seized gun and the empty cartridge, which was recovered at the instance of the appellant was done by the Ballistic Expert, U.P., Lucknow who had submitted its report confirming about that the cartridges were fired from the seized gun. The report dated 16.3.1991 39 Ka. was exhibited as Exhibit Ka. 3 proved by Om Prakash Mani Tripathi, P.W. 4.
The Investigating Officer P.W. 6 had recorded the statement of witnesses of recovery memo and after concluding investigation on the basis of clinching material collected in respect of the incident submitted the charge sheet under Section 302 I.P.C. against Vidya Kant Pandey (the appellant) and Raj Narain Pandey (since deceased), which was proved by him and marked as Exhibit Ka. 8. The carbon copy of the general diary was brought on record as Exhibit Ka. 7, as the original general diary was weeded out.
After taking cognizance in pursuance to the charge sheet submitted against both the appellant the case was committed to the court of Sessions. The charge was framed by the learned 3rd Additional Sessions Judge, Allahabad on 16.7.1990 against Raj Narain Pandey (now deceased) and the appellant Vidya Kant Pandey under Section 302 read with Section 34 I.P.C. The charges were read over and explained to them who pleaded not guilty and claimed to be tried.
To substantiate the charges against the appellant and his father Raj Narain Pandey (since deceased) the prosecution has examined the brother of the deceased Kaushlesh Prasad Pandey (P.W.1) and Shri Nand Pandey (P.W.2) as eye witnesses. Formal witnesses examined by the prosecution are P.W. 3 Dr. Ved Prakash who had conducted the post mortem of the deceased Shiv Shanker Pandey, P.W. 4 O.P.M. Tripathi, Forensic Lab Expert, P.W. 5 Sita Ram Constable who had proved chick FIR, P.W. 6 S.O. R. P. Yadav the second Investigating Officer, P. W. 7 Uma Shanker, Station House Officer of police station Karchchana, Allahabad who is the first Investigating Officer Chandra Bhushan Sharma as P.W. 8 who had deposited SBBL gun and empty cartridge in sealed condition in the Malkhana and the same was sent by him to the ballistic expert for examination.
After examining the prosecution witnesses the statement of the appellant Vidya Kant Pandey and his father the co-accused Raj Narain Pandey (since deceased) was recorded under Section 313 Cr. P. C. who had stated that they had been falsely implicated in the present case due to enmity and thereafter the statement of the defence witness was examined as D.W. 1 Shri Krishna Mishra the Pradhan of the village.
On appreciation of the entire evidence on record the learned trial court convicted the appellant and his father Raj Narain Pandey (since deceased) under Section 302 read with Section 34 I.P.C. for life imprisonment by the order impugned as narrated in the opening paragraph of the judgment.
In order to appreciate the prosecution evidence it is necessary to consider the statement of the prosecution witnesses.
P. W. 1 Kaushlesh Prasad Pandey deposed that he is the brother of the deceased Shiv Shanker Pandey, prior to three years and two months in the threshing floor (Khalihan) of his field sesame crops were stack in bundles the cattle of accused Raj Narain Pandey strayed into the field and started destroying the same. Shiv Shanker Pandey his brother drove out the cattle from the threshing floor. This led to an altercation with the appellant and his father Raj Narain Pandey (since deceased). They exhorted that they will take revenge of driving out their cattle after assaulting. When his brother was returning from the threshing floor towards his house as he reached near the door of Alakh Narain the accused Raj Narain Pandey, the father of the appellant, whooped and asked the appellant to bring his gun and kill him. The appellant went back to his house and returned immediately armed with father's licensed gun and fired upon his brother, which hit him on the right side back. Shri Nand Pandey and the complainant who were standing nearby tried to nab Vidya Kant Pandey but on account of fear as the appellant was armed with gun they could not nab him. On their hue and cry various persons of the village arrived there. Thereafter the appellant along with his father Raj Narain Pandey scampered away from the place of occurrence.
The complainant further stated that his brother on receiving gun shot injury fell towards hand pump situated near the house of Alakh Narain, where he fell down the blood was oozing out and at that time his brother was alive. The written report in respect of the aforesaid incident was registered at the police station, which was duly signed by him. He had gone on horse cart along with injured Shiv Shanker Pandey and his brother Rajendra Prasad. The first information report was lodged at about 10.30 P.M. in the night. When his brother received injury it was about 8.30 P.M. it was moon lit night and he was having torch. He further submitted that Raj Narain Pandey and Vidya Kant Pandey are father and son who are their neighbour. Their house lies on the southern side of the house of Alakh Narain. From police station his brother was sent to hospital from where he was taken to medical college. His brother died on the same day. He went to his house from the police station itself. He never went to the medical college or hospital. On the next day he came to know that his brother had expired. When his brother was going to police station he was in conscious state and at the police station also he was conscious. The police had conversed with him. On arrival of the police at his village he has seen his torch. The torch was brought by the P.W. 1 while deposing before the trial court and stated that it was in working condition and the same torch was returned to him by the police, which was having two torch cell White Tiger Head Brand.
The witness was put to lengthy cross examination by the defence and has answered all the questions in a natural and articulate manner. He had deposed that the cattle of the appellant had entered into the threshing floor, who was tossing and scattering the harvested crops of sesame, his brother who was present there had driven out the cattle and thereafter they had gathered the crops and kept the same in his field. He had also deposed that he has five brothers, namely, Ayodhya Prasad, Rajendra Prasad, Janki Prasad, Shitla Prasad and Shiv Shanker. He has three sisters, namely, Gulab Kali, Phool Devi and Vitola @ Shiv Kumari Devi. All sisters are married. The husband of Gulab Kali is Nachkau Pandey. He had denied that Shri Nand Pandey P.W. 2 is not his real brother-in-law. Nachkau Pandey is his brother-in-law. Shri Nand Pandey is the brother of Nachkau Pandey. Shri Nand Pandey resides two kilometers away from his village. Phoola Devi is the wife of Vidyadhar who is his real sister and married in village Vidauli, now she has started residing at Dando. Dinesh Kumar Mishra is his real nephew. Ragho Prasad Pandey was his (complainant's) father and Raj Narain Pandey's father was Beni Madhav. Raj Narain Pandey the co-accused who is the father of the appellant is the son of Beni Madhav. He had showed his ignorance that in a case under Section 302 I.P.C. his father Ragho Prasad was convicted. He also denied that the father of Raj Narain Pandey by doing pairvi had got conviction of his father Ragho Prasad under Section 302 I.P.C. He has also denied that his brother Rajendra Prasad had fired upon Raj Narain Pandey, the father of the appellant, prior to the incident pursuant to which a case was registered. He had also denied that his brothers Rajendra Prasad, Shitla Prasad and Shiv Shanker had assaulted Bhola Nath Tiwari prior to the incident and a case was registered under Section 325 I.P.C. and Raj Narain Pandey was a witness in the said case. He had stated that Shri Nand Pandey P.W.2 had visited Sita Ram Pandey on the day of occurrence who had witnessed the incident. After the incident on hearing the sound of firing about 25-30 villagers arrived there. When he lifted his brother blood was oozing from his wounds. His brother Rajendra Prasad Pandey and his cousin Gorakh Nath Pandey had lifted him. He had tied the handkerchief on the wound so that it may not bleed. He was wearing a jacket, which was smeared with blood. He went with the same jacket at the police station but the same was not taken into custody by the police. He had further deposed that near the place of occurrence the houses of Prem Narain, Jagdish Prasad and Alakh Narain are situated. At the time of incident they were present in their house. His threshing floor is adjacent to the north east of Laxmi Kant's field. In his field the crops of sesame were kept. Other crops were sown there in the remaining portion of the field. His brother had gone at the field at about 8 - 8.15 P.M. He along with his brother both had driven out the cattle and they were not having any danda or lathi. There were about ten bundles of sesame crop lying there. Each bundle was about of 20-25 kg. The scattered sesame were lying in the middle of the field. The cattle were throwing sesame by lifting with their horn on account of which all the bundles were opened and lying scattered in the field. He had stated that with the help of his brother had gathered the scattered sesame and stacked the same at one place and thereafter his brother had sent him to his sister to inform her to look after the cattle so that they may not destroy the crops again. He remained with his brother at the field one or two minutes and at his sister's place about two to three minutes. He had admitted that he had not disclosed this fact in the first information report nor it was disclosed to the police at the police station. He had stated that when he was inside the house of his sister the father of the appellant Raj Narain Pandey had exhorted his son Vidya Kant to bring his gun and to kill Shiv Shanker Prasad Pandey. He had heard about this while he was inside the house of his sister. The accused persons were standing towards west 2-3 paces from the wall of the house of his sister, both the accused persons were standing, the appellant was having gun as soon as he reached there he fired from 3-4 steps. He had disclosed the place of firing to the police while site plan was prepared. He had witnessed the incident in the light of torch and moon lit night. At the time when he was lodging the first information report his brother was lying in an injured condition outside the police station who was brought on a horse cart. As the police had taken him to the place of incident he could not go to the hospital. He denied the suggestion that his brother was not done to death in the manner as stated and was not murdered at the same place. He had also denied that he was not present at the time of the incident and has falsely made himself an eye witness and falsely implicated the accused persons due to enmity.
P.W. 2 Shri Nand Pandey who had witnessed the occurrence had deposed that both the accused persons are known to him. He also know the deceased Shiv Shanker Pandey, Advocate who was murdered five and half years prior to the incident. On the day of occurrence he had gone to the maternal uncle' s house. When some altercation was going between Shiv Shanker Pandey and Raj Narain Padey and his son at that time he was sitting at the door of Sita Ram. The accused Raj Narain Pandey exhorted his son Vidya Kant Pandey to bring gun and to kill Shiv Shanker Pandey. This altercation was going on in front of the house of Alakh Narain. The accused Vidya Kant Pandey immediately returned with licensed gun of his father and fired at Shiv Shanker Pandey, Advocate. The firearm injury hit on the back side of Shiv Shanker Pandey who was fired from 2-3 paces and after going 2-3 paces he fell down near the hand pump. The blood was also found. This incident was witnessed by Kaushlesh Prasad who was having torch in his hand. On the day of occurrence it was moon lit night and on hue and cry various persons of the village arrived there. Both the accused persons took to their heels from the door of Awadh Narain Mishra. Shiv Shanker Pandey after receiving gun shot injury was taken away by his brother Rajendra Prasad, Gorkh Nath and Kaushlesh Prasad later on he succumbed to the injury.
This witness was also put to lengthy cross examination by the defence. He had specifically stated that the name of his wife is Shanti Devi and not Gulab Kali. He has three sons and two daughters. He has stated that his brother Nachkau was married with the sister of Rajendra Prasad. Rajendra Prasad is the brother of Shiv Shanker. He has also deposed that he had gone to the place of Sita Ram to invite him for Ram Naumi. He heard about the altercation took place between the accused persons with Shiv Shanker Pandey. While he was standing at the door of Sita Ram he had also heard that Raj Narain Pandey asked his son Vidya Kant Pandey to bring his gun. He had also heard that Raj Narain Pandey had exhorted his son to kill him. He had found that the blood was oozing out from the body of Shiv Shanker Pandey. He had not seen any person at the place i.e. from the house of Alakh Narain. On account of fear and panic the local residents did not come from their houses. After the incident the accused persons seampered away from the place. They had escaped from the site soon after firing. He had specifically stated that in the morning he left the place of Sita Ram and went to his village. He had denied that his wife is the real sister of Shiv Shanker Pandey. He had also denied that the name of his wife is Gulab Kali. He had also denied the suggestion that he had not gone to the house of Sita Ram on the day of incident. He had also denied the suggestion that he had not gone to invite Sita Ram or that he had not seen the incident and deposing on account of relation with the complainant.
Dr. Ved Prakash Pandey was examined as P.W. 3 who has deposed that he had conducted the post mortem of the deceased on 21.10.1988 at 2.35 P.M. and had found anti mortem firearm injury over the back of the deceased, which was in an area of 4cm x 3cm around the wound blackening was present. The exit wound was found on the front of the chest, which were 1/2cm x 1/2 cm size 6th and 7th ribs of the chest were broken. 8th and 9th vertebra was also fractured. On account of the injury right lung and liver were lacerated. Seven pellets were found in the thoracic cavity, which were sealed and handed over to the police along with the apparels of the deceased. He had proved the post mortem report as Exhibit Ka. 2. The ante mortem injuries of the deceased has already mentioned in the preceding paragraph. The Doctor had opined that considering the condition of body the death had occurred 1 and ½ day ago at about 8.30 P.M. in the night on 19.10.1988 due to injury caused by gun. He had also stated that it depends upon the power of tolerance of the person to remain alive with such nature of injury and an injured person can remain alive for 2/3 hours or he could become unconscious. He could not answer as to whether any blackening could be possible due to the firing of the gun from a distance from 5 to 6 feet. He was also not certain as to what will be the dispersal of the firing. He had also stated that a person can also succumb to the injuries instantaneously and has also opined that it is possible that a person can go in coma.
Om Prakash Mani Tripathi the Ballistic Expert of the Forensic Science Laboratory was examined as P.W. 4. He had deposed that two sealed bundles containing empty cartridges and the gun which was used in the incident were brought by Constable Chandra Bhushan on 24.11.1988. From one bundle he found one used cartridge K.F. marked as EC 1. In another bundle SBBL gun 12 bore No. 5574-1971 was received marked as 1/89. For examination, he fired two cartridges which were marked as TC 1 and TC 2. The marks which were found through microscopic comparison the cap of TC1 and TC2 cartridge was the same, which was identical to the empty cartridge EC 1. He had developed the mark of firing pin both negative and positive, which were kept after examination under sealed cover were filed in the court, which was prepared by him at the time of examination and proved by him as Exhibit Ka. 3. According to him disputed cartridge EC-1 was fired by gun 1/89.
He was put to lengthy cross examination. In cross examination he had stated that similarity in the mark from another mark is not necessary to be exactly the same. If both marks appear to be identical it is sufficient to give such opinion. The sample of another cartridge was damaged hence there was no occasion to compare the same. He had denied that his report was procured. He had stated that even a fire from gun from a distance of 25 feet there will be dispersal of 7 to 8 inches, blackening would come from the distance of 3 to 4 feet. He has also stated that it appears some variation in photograph TC-2 and EC-1 on account of light fluctuation.
Head Constable Sita Ram Shukla was examined as P.W. 5. He was posted as Head Moharrir on 19.8.1988. He had deposed that at about 10.30 P.M. the complainant Kaushlesh Prasad had submitted written report on the basis whereof the chick first information report was prepared, which was proved by him and marked as Exhibit Ka. 3. It was entered in the general diary. The case was registered against the accused persons under Section 307 I.P.C. He proved the chick first information report as Exhibit Ka. 4. The original G.D. was weeded out as per the report of the Police Record Keeper. The said report was filed by him as Exhibit Ka. 5. The carbon copy of the original G.D. was prepared and was made part of the record, which was proved by him as Exhibit Ka. 6. The injured was sent for the medical examination on 20.10.1988. Constable Hridaya Narain informed that the injured had passed away, the case was converted under Section 302 I.P.C. The entry of which was made in the G.D. at serial no. 17. He proved his writing and signature. He deposed that the original G. D. has been weeded out. The carbon copy while preparing the G.D. is a part of the record, which was brought by him and proved as Exhibit Ka. 7. In his cross examination he had denied the suggestion that the first information report or the entries made in the G.D. were not written as disclosed by him and the time and date were written subsequently. In Exhibit Ka. 7 he had mentioned about sending the injured for treatment and thereafter about his death. He had denied that any overwriting was made by him. He had also stated that P.H.C. Karchchana was about one and half kilometer away from police station Karchchana.
Shri R. P. Yadav, Sub Inspector was examined as P.W. 6 who was posted on the date of incident at police station Karchchana, district Allahabad as Station House Officer. He had deposed that initially the investigation of the case was done by Inspector Uma Shanker Upadhyay (P.W. 7) as the latter was transferred; he had taken over the investigation on 3.12.1988. On 10.12.1988 he had inquired from the witnesses of recovery of gun. He had inquired from Hirday Narain Pandey who had taken the injured from police station to the hospital for treatment and after collecting material evidence he had submitted the charge sheet, which was proved by him and exhibited as Exhibit Ka. 8. He was cross examined by the defense but nothing could be elicited to doubt his testimony.
Uma Shanker Upadhyay, In-charge Chowki was examined as P.W. 7 who was posted as Station House Officer on 19.10.1988. He had stated that the case was registered in his presence at the police station. He was entrusted with the investigation on the same day he had recorded the statement of the injured at the police station. Shiv Shanker Pandey was brought in an injured condition at the police station. The statement recorded was entered in the case diary who had disclosed about the name of the assailants. The statement, which was given by the injured was written by him and its true copy had been filed by him in the court, which was proved by him as Exhibit Ka. 9. He had proved the statement of the victim recorded under Section 161 Cr.P.C. as a dying declaration. He had inquired from the complainant Kaushlesh Prasad Pandey. He sent the injured to the hospital. Thereafter he went to the place of incident in the police jeep along with force. On account of odd hours in the night he remained there at the place of incident. On the next day in the morning with the help of the complainant he inspected the place of incident, prepared the site plan, which was in his hand writing and proved by him as Exhibit Ka. 10. He collected the blood stained earth from the place of incident and put the same in two containers, which was marked as Exhibit Ka. 11. One empty cartridge was found from the place of incident, which was taken in custody. The torch was returned to the complainant after inspecting the same. He prepared Exhibit Ka. 12 and proved the same before the court. He had inquired Sri Nand Pandey. He received information from informer about the whereabout of the appellant Vidya Kant Pandey that he is waiting at the river bank (Ghat) for a boat. On this information he reached along with two witnesses at the said place. They caught the accused/appellant who disclosed his name as Vidya Kant Pandey. He was taken into custody, on being inquired he disclosed that he had fired with the gun and where it was concealed, he is ready to get over. Vidya Kant Pandey while in custody they reached at his house at village Dando besides his house he entered in the shop from where he had taken out the gun and stated that the licensed gun belongs to his father, which was used in firing at the deceased Shiv Shanker. The gun was taken into custody, memo of which was prepared and obtained signatures of the witnesses. Recovery was made part of the case diary, which was proved by him as Exhibit Ka. 13. The recovery memo was also signed by the accused. The place from where the gun was taken out was inspected by the Investigating Officer. The site plan, which was prepared exhibited as Exhibit Ka.14. The gun so recovered was produced before the court in sealed condition. He had converted the case under Section 302 I.P.C. On 9.11.1988 he had recorded the statement of Hula Devi. He had investigated the case only up till 9.11.1988 as he was transferred from that place.
In his cross examination by the defense it was stated by him that he had recorded the statement of the injured Shiv Shanker Pandey under Section 161 Cr.P.C. and he had taken precaution prior to recording his statement whether he is conscious to depose or not. Within 2/3 minutes the statement of the injured was recorded and was immediately sent to the hospital for treatment. Thereafter the statement of the complainant was recorded. He had disclosed about the distance from Karchachana hospital to the police station Karchchana about half kilometer. He had stated that he is not aware with respect to Rule 15 of U.P Police Regulation that prior to recording statement necessary formalities with regard to the mental condition of the victim has to be mentioned. He could not depose about as to what time he reached at the place of incident. When he had recorded the statement of the complainant he had received information with regard to the death of Shiv Shanker Pandey. He had not given detailed description with regard to the crops of sesame lying in the field in the case diary. He had also stated that he had not recorded the statement of the local people who were residing to the nearby houses to the incident. He had proved the site plan prepared by him. He had denied that the entire formalities was made at the police station and had never went to the place of incident. He had recorded the statement of Shri Nand Pandey on 20.10.1992.
Shri Chandra Bhushan Sharma posted as Constable at police station Karchchana in November 1988 was examined as P.W. 8 who had deposed that he had received SBBL gun and one cartridge in sealed condition, which was received from the Head Moharfrir of Maalkhana and was taken by him to the Forensic Laboratory at Lucknow in sealed condition. It was in sealed condition so long it remained in his custody.
In his cross examination he has deposed that the police had inquired about carrying the case property but he is not aware about the date and time and when his statement was recorded by the police in respect of taking away the case property.
The appellant and his father Raj Narain (since deceased) were examined under Section 313 Cr.P.C. on 15.10.1996 after recording evidence of the prosecution witnesses. Raj Narain Pandey the father of the appellant while denying all the incriminating circumstances put against him under Section 313 Cr.P.C. has stated that he has been falsely implicated. He deposed that Shri Nand Pandey is the real brother-in-law of Shiv Shanker Pandey. His wife's name is Gulab Kali. Shiv Shanker Pandey has three sisters, Gulab Kali, Phool Kali and Vitola Devi. Witness Vidya Dhar is the husband of Phool Kali, Witness Masuriyadeen is the son of Anar Kali who is resident of Nachna. The son of Phool Kali is also a witness in the present case. He has old enmity with the family of Shiv Shanker since 1990 due to criminal case. Ragho Prasad father of Shiv Shanker Pandey was convicted for six years since then family of Shiv Shanker Pandey bearing enmity. There was several occasions that altercation took place between them. Shiv Shanker Pandey had enmity with the Patel community of Dando village. The case of dacoity is still going on in which they have been falsely implicated. Shri Nand Pandey brother of Sita Ram has no relation. His cattle was tied in the south-west from the place of incident; as such there was no occasion that his cattle entered in the threshing floor of Shiv Shaker Pandey. The police had taken away his gun from his house.
The appellant Vidya Kant Pandey in his statement under Section 313 Cr.P.C. had denied the prosecution case and stated that he has been implicated in the present case on account of enmity. The witnesses are highly partisan as one is the real brother of the deceased and another is the real brother-in-law. Gulab Kali is the real sister of complainant Kaushlesh Pandey who is married with Shri Nand Pandey witness. He knew them personally. There is no relation of Shri Nand Pandey with Sita Ram. There was enmity of Shiv Shanker Pandey with the villagers. He has been killed somewhere else and a false case has been registered and he has been falsely implicated.
In support of their case the defence had produced Shri Krishna Mishra as D.W. 1 who had proved the Kutumb register. His statement was recorded on 4.9.1999 showing that in the year 1995-96 at serial no.147 house No. 46 the name of Shri Nand Pandey son of Raghunath and Gulab Kali wife of Shri Nand Pandey is mentioned, which was produced by him and was exhibited as Exhibit Kha. 1. In his cross examination he has stated that he is the Pradhan of village Nidauri since last four years. The entry in the Kutumb register signature was made by the Panchayat Secretary. Shyam Narain was the Secretary two years ago and after his transfer Mewa Lal Yadav assumed charge as the Panchayat Secretary. He showed his ignorance about the murder of Shiv Shanker Pandey in 1988. He has also showed his ignorance as to whether the maternal house of Ragunath father of Shri Nand Pandey was at village Dando. He had also showed his ignorance as to in whose hand writing the entry has been made in the register of 1990-1991. He had denied that accused Raj Narain Padey had helped him in the election of Gram Pradhan. He had denied the suggestion that he knew Raj Narain Pandey and alias name of Shri Nand Pandey is Nankau. He had never visited one day prior to Dushehra in 1988 to village Dando. He has also denied that at the instance of the accused persons he has come to depose before the court.
On the basis of the perusal of the entire evidence on record, the learned trial court recorded the conviction and imposed the sentence convicting the appellant and his father Raj Narain Pandey under Section 302 I.P.C. for life imprisonment. The father of the appellant who was also convicted in the same Session Trial had preferred separate appeal but he has expired during the pendency of the appeal, hence the appeal preferred by him stood abated vide order dated 3.8.2017. We are considering the present appeal filed on behalf of the accused Vidya Kant Pandey.
We have heard the learned counsel Sri Dhruv Narain Mishra, learned Amicus Curiae on behalf of the appellant and Sri Amit Kumar Srivastava on behalf of the complainant as well as Sri Vikas Sahai, learned A.G.A. for the State and have gone through the record.
The submission of the learned Amicus Curiae appearing on behalf of the appellant is that the prosecution has failed to prove the motive for committing the murder of Shiv Shanker Pandey. The motive as set up by the prosecution is that the appellant's cattle had entered in the threshing floor (Khalihan) of the complainant and had scattered and destroyed the sesame crops and on account of which some altercation had taken place prior to the actual incident, is absolutely false and concocted. If the cattle had destroyed the crops by scattering then the scattered crops were neither found there in the field when the Investigating Officer went to the place of incident nor the sesame crops have been shown in the site plan, when there was specific case of the prosecution that the crops of sesame were destroyed by the cattle on account of which an altercation had taken place with the complainant's brother Shiv Shanker Pandey.
It is further submitted that the presence of P.W. 1 Kaushlesh Prasad Pandey at the time of incident is highly improbable he had gone to his sister's house to ask her to keep an eye at the threshing floor so that no animal may enter again to destroy the crops. Thus according to the prosecution case Kaushlesh Prasad Pandey was at the house of his sister at that time and his brother was coming alone then there was no occasion for P. W. 1 to see that Raj Narain Pandey had provoked his son Vidya Kant Pandey to bring gun and to kill him and immediately thereafter Vidya Kant Pandey brought the gun of his father and fired upon his brother and thereafter they escaped. According to his own statement when he returned from the house of his sister he had heard noise of firing thus there was no occasion for him to see the actual assailants. The presence of P. W. 2 Shri Nand Pandey is also doubtful. He happens to be in relation with the deceased as he is the brother-in-law. The sister of deceased Gulab Kali was married to him and he is resident of village Nidauri, which is two kilometers away from the place of incident and as such it was not possible for him to be present at the time of incident. The defence has also proved the relation by producing D.W. 1 as defence witness who brought the Kutumb register showing that Shri Nand wife's name is entered as Gulab Kali and Gulab Kali is the sister of the deceased and the complainant. It is also doubtful that according to the statement of P. W. 2 that he was sitting at the door of Sita Ram from where he heard about the challenge of the appellant's father to bring gun to kill Vidya Kant Pandey. No other independent witnesses were examined to corroborate the testimony. The investigation has been done in a very casual manner by the two Investigating Officers P.W. 6 and P. W. 7. The court below has found that the investigation has been done in a very casual manner yet proceeded to accept their testimony. There was no source of light at the time of incident and it is alleged that in the moon light and in the light of torch, which the P. W. 1 was carrying, he witnessed the entire incident, is highly improbable. The post mortem report also does not corroborate the prosecution case with respect to the manner of firing upon the victim, such injury could not have been possible by firing with the gun as it is alleged that while the victim ran 2-3 paces on the exhortation of the appellant's father the appellant had fired upon him from behind, if it was so, then there was no occasion for receiving blackening around the wound with dispersal. The Ballistic Expert report with regard to the firing with the gun belonging to the father of the appellant is not worthy of any credence. It was night incident and no one had seen the actual assailants. The appellant on account of old enmity has been implicated falsely. It was highly improbable that the injured after receiving such injury was in a condition to speak. It is alleged that after he was taken to the police station his statement was recorded who had uttered the names of the assailants. The statement of the victim is an after thought to somehow strengthen the prosecution case. The learned trial court has committed manifest error in treating the same as dying declaration while appreciating the evidence of the Investigating Officer. It cannot be said to be a dying declaration as the mandatory requirement of the provision under Rule 115 of the U.P. Police Regulation has not been complied with while recording the statement of the injured.
Lastly, it has also been argued by the learned Amicus Curiae in respect of the conduct of P.W. 1 Kaushlesh Prasad the brother of the deceased by contending that it was highly unnatural that after lodging of the first information report by him and leaving his brother at the police station he went back to home instead of accompanying the victim to the hospital for getting his treatment, he went back directly to his house. It shows that the entire prosecution case has been cooked up to falsely implicate the appellant, hence the conviction and sentence awarded by the trial court is not sustainable in the eye of law.
Learned A.G.A. as well as learned counsel for the complainant have refuted the submissions advanced by the learned Amicus Curiae appearing for the appellant.
It is submitted that the presence of the complainant P. W. 1 and the P. W. 2 Shri Nand Pandey has fully established the manner in which the incident has occurred. There is no discrepancy in the oral testimony of the prosecution witnesses with the medical evidence. The first information report has been lodged by the brother of the deceased in a very natural and articulate manner in respect of the entire incident specifically naming the appellant and his father attributing their roles. The police station was seven miles away from the place of incident. The first information report was lodged at 10.30 P.M. in respect of the incident, which had taken place at 8.30 P. M. in the night, at police station Karchchana, under Sections 307 and 504 I.P.C. as the brother of the complainant Shiv Shanker was fired by the appellant at the exhortation of his father Raj Narain Pandey. The motive has been divulged in the first information report itself, which is consistent with the statement of the complainant recorded before the trial court as P.W. 1. The genesis of the assault lies in an occurrence as the cattle of the appellant had strayed into the compound of the deceased where his sesame crops were lying in bundles in Khalihan, which were being destroyed by the cattle scattering the crops, hence it was driven out by Shiv Shanker, which lead to the altercation between the appellant and his father with Shiv Shanker the deceased. On the exhortation of the father the appellant, the appellant came with SBBL gun of his father and while going 2-3 paces the deceased was fired from back on account of which he sustained fatal injuries, he was immediately taken to the police station from where he was sent to P.H.C. and thereafter to the hospital and in the intervening period as he was in some conscious state his statement was recorded under Section 161 Cr.P.C. On account of his death his statement was treated as dying declaration, which is fully compatible with the provision of Section 32 of the Evidence Act. His another brother who had accompanied with the complainant to the police station taken Shiv Shanker to PHC. As such it is absolutely incorrect to say that the complainant left his brother at police station went back to his village. The P.W. 1 has specifically deposed that his brother Rajendra Prasad accompanied with the injured to hospital.
The learned counsel for the complainant has further submitted that it cannot be fixed that while in walking or running if the fire has been made it will not display blackening around the wound. The Doctor has been crossed examined at length who has specifically stated that blackening was found around the wound and the metallic pellets were recovered from the wounds while conducting his post mortem. The gun along with the empty cartridges were sent to the Ballistic Expert who had found that the gun was used in the commission of the offense. It is next contended that the sister of the deceased was not married with P.W. 2. The P.W. 2 has himself stated that his wife's name is Shanti Devi and not Gulab Kali. In this view of the matter the Kutumb register cannot be taken in evidence, which has been produced by D.W. 1. Kutumb register is not an authentic document and has no evidenciary value. It is entirely wrong to say that the P.W. 2 is a partisan witness being related to the deceased as he is brother-in-law. There was sufficient light when the incident had occurred. It was moon lit night and in the light of the torch the P.W. 1 and other witnesses had seen the incident. It cannot be said to be a case of mistaken identity. The weapon of assault i.e. the gun which was recovered at the instance of the appellant from his shop further corroborates that it was used as the cartridge, which was recovered was opined by the expert that the same gun was used in the commission of crime. It cannot be said that while running at what distance the fire was made to doubt that the injuries received by the victim were not fired with the gun and on this count the testimony of the eye witnesses should be disbelieved. The chemical examiner report with respect to the apparel of the deceased and the blood stained earth collected by the Investigating Officer clearly shows that human blood was found on them. If any lapses is found on the part of the Investigating Officer it would not effect the veracity and probity of the prosecution case to doubt about the manner of incident. Merely because the Investigating Officer has not mentioned in the site plan the scattered crops of sesame. It cannot be said that the cattle had not strayed to destroy the crops, which were laying in bundles, as it is very natural on the part of the deceased and his brother to keep all the crops again in stack by collecting the same, which were scattered by the cattle, hence it was not found in a scattered condition by the Investigating Officer. Moreover when the deceased asked his brother to go to his sister's place who is residing near the field to keep an eye that the cattle may not enter again into the field was a natural conduct and therefore the complainant had gone to his sister's house which was adjacent to the field to inform her and in the meantime the deceased brother while walking reached at the door of Awadh Narain Mishra where the appellant's father looking him had exhorted his son the present appellant to bring his gun and to kill him, thus it cannot be said that there was any inconsistency in the statement of the prosecution witnesses with respect to the manner of incident or that the complainant had not seen the incident when the appellant had fired upon him. According to the prosecution case various persons of the locality had arrived there and it is not necessary to examine all the witness who have been examined under Section 161 Cr.P.C. while conducting investigation.
We have considered the rival submission made at the Bar and have gone through the lower court record.
With regard to the submission of the learned amicus curiae for the appellant that the motive has not been proved for the alleged commission of offense, which apparently belies the entire prosecution case. In this regard it is not at all disputed that the sesame crop was not harvested and harvested crop was not lying there in the field of the complainant. The cattle of the appellant had destroyed the heap of crops lying in the threshing floor and when the complainant's brother Shiv Shanker had chased them out, the cattle scampered away from that place. The appellant and his father vent their ire as cattle chased by the complainant's brother, he was rebuked with vituperative word by the appellant's father.
It was quite natural that the complainant P.W. 1 as well as his brother who were living together had gone to collect the scattered crops and from there the complainant went to his sister's house as suggested by Shiv Shanker to ask her to keep an eye that the animals may not stray again into threshing floor to destroy the crops. Thereafter the complainant's brother was coming and while he reached at the house of Alakh Narain at the instigation of Raj Narain, the appellant brought the licensed gun and fired at the complainant's brother Shiv Shanker. As the deceased went ahead 2-3 paces he fell down on receiving firearm injury and at the same time the complainant Kaushlesh Prasad came from his sister's house, which was situated nearby and had seen that his brother was fired by the appellant. The complainant had heard that the appellant's father had asked him to bring his gun and to kill him and after accomplishing their object to kill they escaped from the spot, thus the genesis of the occurrence has been fully proved by the complainant the P.W. 1.
The appellant does not deserve any sympathy as was he involved in a fiendish and relentless murder of the brother of the complainant. The trial court has taken into consideration the totality of the circumstances of the case forming the basis of conviction of the appellant and his father. The father of the appellant has already expired during the pendency of the appeal, hence the conviction against the surviving appellant recorded by the trial court deserves to be maintained. In this connection it is useful to refer to the observations of the Apex Court in State of Himachal Pradesh Vs. Jeet Singh (1999) 4 SCC 370;
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
It has been held by the Hon'ble Apex Court in the case of Anganoo Vs. State of U.P., A.I.R. 1971 SC 296 that if the witness is the brother of the deceased, the fact of his relationship would add to the value of his evidence because he would be interested in getting the real culprit, rather than innocent persons punished.
It has also been argued that P.W. 2 Shri Nand Pandey is related to the complainant and the deceased being his brother-in-law as their sister Gulab Kali was married to him, therefore, he is a partisan witness. The P.W. 1 has stated that Shri Nand Pandey is not his brother-in-law. Nachkau Pandey son of Raghunath Pandey is his brother-in-law. Nachkau is the brother of Shri Nand Pandey. Thus the sister of complainant Gulab Kali was married to Nachkau Pandey and not with P. W. 2 Shri Nand Pandey. The P.W. 2 was present at the time of incident at the door of Siya Ram to invite him. He heard the quarrel and reached at the place of incident. The house of maternal father of P.W. 2 situated at Dando as such he also knew about houses of Jagdish Prasad, Alakh Narain, Umakant. He had also narrated the fields situated near the place of incident, which is fully corroborated by the site plan prepared by the Investigating Officer. The Kutumb register, which has been adduced in defense by D.W. 1 Shri Krishna Mishra indicating that Gulab Kali was married to Shri Nand Pandey, such a documentary proof cannot be taken in evidence as a reliable proof to the entries made by the Pradhan or the Secretary of the Gram Pradhan. The ocular testimony of the P.W. 1 and the P.W. 2 is consistent who have completely denied that Gulab Kali married to Shri Nand Pandey rather Shri Nand Pandey was married to Phool Kali in the family of one Ram Chandra at Benipur, hence no reliance can be placed on the Kutumb register to discard the testimony of P.W. 1 and P.W. 2. Both were put to lengthy cross examination but nothing could be elicited to doubt about their testimony. The learned trial court has rightly arrived at conclusion that Kutumb register has no evidenciary value under the circumstance of the case.
It has also been argued that the incident is said to have taken place at 8.30 P.M. in the night and there was no source of light to identify the actual assailants. It has been later on developed by the complainant that he had seen the incident in the light of torch and in the moon lit night, which does not find place in the first information report. The first information report is not an encyclopedia to give minutest detail when in a ghastly incident victim had suffered firearm injury. The statement of the complainant was recorded at the police station where he had made description of torch light and moon light. The torch was produced by the complainant the P. W. 1 to the Investigating Officer of which Superdginama was prepared Exhibit Ka. 12 and it was returned back to him. It cannot be said that in the night the witnesses have not identified the actual assailants. The witnesses in their statements under Section 161 Cr.P.C. have categorically stated about the torch light and the moon lit night, as such it could be sufficient to identify the accused who happened to be the neighbour of the complainant and of the witnesses. In the torch light or in the light of moon it can also not be said that light was too meager to identify the participant of the crime. The visible capacity of urban people who are accustomed to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to moon light or country made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. There is no reason to falsely implicate them. If in the same light accused can identify his target then the witnesses can also identify the assailants.
From the perusal of record it transpires that a person already known to someone can be identified by his voice, gait and physique. The Supreme Court in Kedar Singh and others Vs. State of Bihar, 1999 SCC (Criminal) 907 held as under:-
".......That apart, the act of Shivjee Singh in immobilizing the deceased while lying down and let Kedar Singh chop off his head should have been an act comparatively slower and by that time, P.W. 2 could have gathered his wits and identify the assailants. It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. Identification possible by voice too....."
The appellant and his father were well known to the complainant and his brother. On account of altercation, which took place some time ahead prior to the incident, the appellant's father hurled abusive language and stated that he (the deceased) boasted to be man of having Khalihan and as to what such loss had occurred that their cattle was assaulted. Thus there is no reason that the complainant would falsely implicate the appellant and his father leaving behind the actual perpetrator of the crime.
It has also been argued that the P.W. 2 Shri Nand Pandey who resides two kilometers away from the place of incident would be doubtful to be present at the time of the incident. Prima facie from the evidence it does not appear that the P. W. 2 was a chance witness. Rather on a closer look we find that his presence had been adequately explained who had come to invite Sita Ram on Ram Navami, thus the testimony of the P.W. 2 is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present by chance. The P.W. 1 complainant and the P.W. 2 both have specifically revealed the identity of the assailants and the manner of attack and have explained their presence. We find that despite the extensive cross examination no reasons are forth coming on record as to why they would become false witnesses.
We have carefully scrutinized the testimonies of both the witnesses and in our opinion both the witnesses are credible and trustworthy. It is a case of direct evidence and motive does not play any important role. The appellant who was armed with gun and in such a situation it was absurd to expect any intervention. Every person who witness a serious crime reacts in his own way. To discard the evidence of the witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
It has also been argued by the learned Amicus Curiae for the appellant that the prosecution witnesses were not examined on the same day. It is settled law that the latches in prosecution will not discard the prosecution case and the eye witnesses cannot be disbelieved on the sole ground that their statements were recorded by the Investigating Officer after the lapse of some time. The delay in examining the witnesses ipso facto cannot be a ground to discard their testimony, more so, that in the cross examination of the witnesses nothing tangible has been brought out to impeach their testimony. Whatever said or done by the eye witnesses so shortly before or after the incident will form part of the same transaction which is relevant fact. The evidence regarding the participation of the appellant in the crime was clinching and wholesome hence legitimization trivialities would make a mockery of administration of criminal justice.
The Investigating Officer had collected the blood stained earth from the place of incident besides the empty cartridges, which were sent for receiving ballistic expert report and forensic report. The Ballistic Expert report clearly shows that the gun was used in the commission of the crime. The gun was produced by the appellant when he was taken into custody by the Investigating Officer, which further corroborates the ballistic report that the same cartridge was used. The medical report also corroborate the nature of injury fired with the gun, the dimension of the entry wound undoubtedly shows that the shot had entered enmassed as is apparent from the size of the wound of entry on the back of the deceased. The bullet would have had a blasting effect on the body, which was fired from a very close range. Blackening is caused by smoke deposit. The nature of injuries on the dead body of Shiv Shanker are significant whereby 6th and 7th ribs were fractured, 8th and 9th vertebra were fractured and pleura and right lung were lacerated, liver was also lacerated leading to haemorrhage, shock and death. Smoke particles are light. They do not travel far, therefore, smoke deposit i.e. blackening is limited to a small range. Forensic Science in Criminal (Investigation and Trials (3rd Edition) (P.280) by B.R. Sharma. The evidence of eye witnesses runs contrary to the defence account.
From perusal of legal proposition propounded by Supreme Court in Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614, it is clear that it is established principle of criminal law that Court can and may act on the testimony of a single witness provided he/she is wholly reliable.
P. W. 3 Dr. Ved Prakash has also opined that such injury, which was received by the victim he could have survived for 2/3 hours. The statement of the P.W. 1 in this regard is that while the victim was taken on horse cart to the police station Karchchana after the report was lodged he was sent to the Primary Health Center in the company of the constable and his another brother Rajendra Prasad. The victim was conscious enough to speak. While he was being taken to Medical College Allahabad he succumbed to the injuries.
The statement of the victim was recorded during his conscious state of mind at the police station and the same was made a part of the case diary by the Investigating Officer. It is true that there is negligence on the part of the Investigating Officer to state that it was not mentioned that he was conscious and in a fit condition to make the statement but the consistent statement of the prosecution witnesses clearly establishes that the deceased was conscious when he had deposed before the police about the incident. Their statement does not suffer from any infirmity, which may render the statement of the deceased as doubtful or unworthy of credence. The lapse on the part of the Investigating Officer should not be taken in favour of the accused. The oral statement of the victim as deposed and recorded in Fard Bayan on his death would be read as dying declaration and has been proved by the Investigation Officer the P. W. 7 as Exhibit Ka. 9, which is part of the case diary. The statement of Shiv Shanker in an injured condition to the police is being reproduced below;
"Jh f'ko 'akdj izlkn ik.Ms; iq= jk/ko izlkn ik.Ms;] fuoklh MkaMks] Fkkuk djNuk] bykgkckn tks et:ch gkyr es rkaxk ij ysVk gqvk gS tks pksV ds nnZ ls djkg jgk gS 1 cnfj;kQr djkgrs gq, c;ku fd;k fd vkt esjs [kfygku es esjs xkao ds jkt ukjk;u ik.Ms; iq= csuh ek/ko dk cSy vk;k Fkk eSus mus [ksn fn;k frYyh uqdlku dj jgk Fkk 1 blh ij okn fookn jkt ukjk;u ls gks x;k rks jkt ukjk;u us yydkj dj dgk fd fo/kk dkUr cUnwd ykdj ekj nks cpus u ik;s bl oj fo/kkdkUr jkt ukjk;u dk yMdk us cUnwd ls eq{ks tku ekjus dh fu;r ls Qk;j fd;k eS pksV [kkdj fxj x;k 1 ;g ?kVuk djhc 8-30 cts jkr dh gS 1 bruh ckr crk dj djkgrs gq;s pqi gks x;k gS dqN ugh cksy jgk gS pqfd T;knk xEHhkj pksV gS rqjUr vLirky jokuk fd;k x;k 1"
The above statement recorded within two hours of the incident he was conscious to speak and had clearly mentioned about the reason and the names of the assailants. At the time of recording his statement there was no question of recording as dying declaration. It is worthy to quote the following observations of Apex Court in Ram Bihari Yadav Vs. State of Bihar and others, 1998 (37) ACC 116 (SC);
"In such cases, the story of the prosecution will have to be examined de hors such ommissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
It has also been argued that as per the prosecution various persons from the neighbourhood arrived there on the hue and cry of the complainant but no independent witnesses were examined by the prosecution to corroborate the incident. It is the quality of evidence not quantity which has to be considered. It is well settled that no particular number of witness is required and conviction can be based on testimony of single witness, if it is wholly reliable and evidence is unblemished. The bare reference to Section 134 of the Evidence Act would be sufficient. The provision clearly states that no particular number of witness is required to establish the case. Corroboration may be necessary when a witness is only partially reliable whereas in the instant case the testimony of the P.W. 1 and P. W. 2 is unblemished and beyond all possible criticism and satisfy that the witnesses were speaking the truth hence the learned trial court has found their testimony as truthful whereby the conviction has been awarded.
The appellant had brought the gun of his father with intent to kill and had fired the deceased from behind causing extensive internal injuries as found by the doctor who conducted the post mortem. Thus the act done by the appellant was so imminently dangerous that he knew that the probable act could cause death or such injuries to the victim likely to cause death. The appellant had committed this without any excuse, hence the case would therefore fall under Section 300 I.P.C. punishable under Section 302 I.P.C. and it does not fall into any of the exception given therein.
In view of the above verbose and prolix discussion we therefore conclude that the finding recorded by the trial court holding the appellant guilty under Section 302 I.P.C. is correct and reasonable, therefore, there is no good ground to interfere with the finding recorded by the learned trial court, the same is hereby affirmed. The appeal has no force and is accordingly dismissed. The appellant who is on bail is directed to surrender forthwith to serve out the sentence as awarded by the trial court and affirmed by us.
Let a copy of this judgment be certified to the court below for necessary action.
The learned Amicus Curiae Sri Dhruv Narain Mishra be paid Rs.
10,000/- who has provided assistance to the court on behalf of the appellant.
Dt. 1.3.2019.
Shahnawaz.