Allahabad High Court
Virendra Kumar Pandey @ Guddoo vs State Of U.P. on 5 February, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 Case :- CRIMINAL APPEAL No. - 5811 of 2011 Appellant :- Virendra Kumar Pandey @ Guddoo Respondent :- State Of U.P. Counsel for Appellant :- Akhilesh Chandra Srivasta,A.C. Pathak,Apul Mishra,Ramesh Chandra Pathak Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
The appellant faced two session trials simultaneously, Session Trial No. 144 of 2010 where he was charged for an offence of murder and was punished under Section 302 IPC and Session Trial No. 145 of 2010 charged the appellant under Section 3/25 of the Arms Act on recovery of a weapon said to have been utilized for the commission of the murder where also he was awarded punishment. On the first count, the appellant has been awarded life imprisonment together with Rs. 10,000/- fine and in default thereof to undergo one year of rigorous imprisonment. On the second count under the Arms Act a rigorous imprisonment of one and a half year and a fine of Rs. 1,000/- has been awarded and in default of payment of fine, three months of additional rigorous imprisonment has been awarded.
Aggrieved the appellant is before this Court. We have heard Sri A.C. Srivastava, learned counsel for the appellant and Sri Sagir Ahmad, learned AGA for the State. We are not reproducing every minute detail of the investigation and trial as they have been recorded meticulously and chronologically in the judgment of the trial Court.
The story of the prosecution commences with the lodging of the FIR on 14th January, 2010 at about 7:45 am narrating that about 6:00 am in the morning, the appellant shot his grandfather Surya Narayan Pandey dropping him dead while he had gone to ease himself. The family relationship of the informant, the accused and the deceased deserves to be noted at this stage. The informant Girjesh Kumar Pandey is also the grandson of the deceased. His father is Harinath Pandey. The appellant accused is the sone of Ram Shanker Pandey, the other son of the deceased. The scribe of the FIR is Devki Nandan Mishra, the maternal uncle of the informant Girjesh Kumar Pandey. On the lodging of the FIR the investigation proceeded and a recovery of the weapon being a country made pistol of .315 bore and arrest of the appellant was made on 18th January, 2010. The commission of the offence is said to have been witnessed by the first informant Girjesh Kumar Pandey along with his mother Smt. Vedmati who had also gone to the fields for attending the call of nature at the same time. The scribe of the FIR Sri Devki Nandan Mishra, who is the brother of Smt. Vedmati is said to have arrived at the scene of occurrence also and these three witnesses were examined as PW-1, PW-2 and PW-3 respectively. The inquest report was prepared and the postmortem was carried out that broadly reports a couple of gun shot injuries with blackening present both having one entry and one exit wound. The cause of death has been shown due to shock and haemorrhage on account of the fire arm injuries indicated in the report. The site plan was prepared and the recovery of one cartridge is also stated to have been made and sent for ballistic examination. The ballistic report was submitted and the ballistic expert was also examined. The doctor who conducted the postmortem report was examined as PW-4 and the formal witnesses including the Investigating Officer were examined as PW-5 to PW-8. The defence closed with the solitary statement of the appellant under Section 313 Cr.P.C denying the guilt.
On trial, the occurrence in its entirety including the place of incident, the time of incident, the cause of death, the presence of the accused and the witnesses were all found to have been proved. However the trial court noted the fact that the ballistic report did not support the prosecution story in so far as the utilization of the recovered country made pistol and the cartridge was concerned. The pistol was stated to have not been utilized and on this count, the trial court held that this discrepancy in investigation was on account of an incorrect disclosure of recovery by the appellant which cannot belie the entire prosecution story. Consequently, the appellant was convicted on both counts hence this appeal.
Sri Srivastava, learned counsel for the appellant while advancing his submissions attempted to defend the appellant on the ground of false implication, enmity and abscence of proof of his presence as well as the eye witness account being untrustworthy. For this, he urged that in the statement of PW-1 the distance from the house of the deceased to the agricultural plot where he had gone to ease and which was sown with mustard crops, was about 150-200 yards. The prosecution witnesses PW-1 and PW-2 are both stated to have followed the deceased behind him, but at the same time it is alleged that when he arrived on the spot, the deceased had already died.
Learned counsel urged that as a matter of fact these two witnesses had not seen the occurrence involving the appellant as it was a wintry night in the month of January and in the absence of any visibility from the distance that they have alleged to have seen the occurrence, their statement becomes untrustworthy.
He then submits that there are contradictions in the statement of PW-1 about the direction and movement of the deceased at the time when he is alleged to have been shot. He submits that in his examination-in-chief, PW-1 has stated that the shots were fired at the deceased when he was descending in the mustard sown plot to ease himself but in the cross examination, the witness has stated that the deceased was returning back after having eased himself.
The third doubt sought to be created is that two shots were fired as per the postmortem report and there is no indication of the witnesses having seen the appellant reloading the pistol which was a single barrel country made pistol. It is also urged that it is not understood that if the deceased had already fallen prey to the first shot, where was the occasion for firing another shot about which there is neither any recovery established nor is there any indication of the appellant having reloaded the pistol for a second shot.
He then urges that the statement of the prosecution witness particularly PW-1 indicates that the deceased was of a litigious nature and was also involved in giving false testimony in the case of others. He was also involved in a couple of civil cases relating to property deals with his brother and some other villagers and it is quite possible that in view of his enmity with others someone else had shot him dead and the appellant has been falsely implicated.
He, therefore, submits that the very presence of the witnesses is doubtful and untrustworthy, the injury having been caused by the appellant is unsubstantiated and the eye witness account nowhere corroborates the other evidence on record. The contradictions pointed out by him are sufficient to disbelieve the prosecution story and consequently prays that the appellant deserves acquittal, hence the judgment of the trial court be set aside and the appellant be set at liberty.
The learned AGA on the other hand defended the conviction and sentence awarded to the appellant and urged that a minor discrepancy in the matter of ballistic report not matching with the allegation of the utilization of the weapon recovered cannot be detrimental to the prosecution story inasmuch as, all the prosecution witnesses particularly the eye witness account of PW-1 does not falter on any issue of cross examination and from the testimony of PW-1, it is established that the date, the time, the mode of assault and the cause of death of the deceased are all established clearly pointing out towards the guilt of the appellant. He submits that on the issue of their being no clear vision at the time of the occurrence, that is at 6:00 am in the morning, the counsel for the defence cross examined PW-1 who has categorically stated that the time was of dawn, in the morning, and as such visibility was clear. The testimony of the prosecution witness having sighted the incident, therefore, cannot be doubted merely because he has stated in his cross examination that he was only a few yards away from his grandfather when the shot was fired. He submits that any description of the distance from which the incident was viewed by the witness and a slight variation therein will not be sufficient to dislodge the prosecution version as the entire statement of the witness has to be read as a whole. In the circumstances, if the witness has not faulted by making any extraordinary exaggerations or faltering in description then in that event the statement of PW-1 was rightly treated as credible and trustworthy. Consequently the conviction and the sentence deserve to be upheld.
We have considered the submissions raised and we find that apart from the other testimony brought on record, the eye witness account of PW-1 except for a couple of minor discrepancies clearly unfolds the prosecution version which has been proved to the hilt without any reasonable doubt about the occurrence of the incident and the involvement of the appellant therein.
The doubt intended to be introduced about the presence of PW-1 or PW-2 of not having actually witnessed the incident due to lack of visibility on the strength of the cross-examination of the witness where they are alleged to have witnessed the commission of the offence from a short distance, was confidently contradicted by PW-1 who clearly stated that the incident occurred after dawn when it was not dark. PW-2 also denied the existence of any fog or mist on the day of the incident. The defence did not lead any evidence to establish such foggy or misty weather at the time of the incident on 14th January. The statement of the Investigating Officer of remembering the weather being foggy nowhere leads to establish that there was fog when the incident occurred at the scene of the crime. Even otherwise the Investigating Officer is not the witness of the said occurrence. This wholesome picture that emerges from the oral testimony of PW-1 tightens the coil of the prosecution more firmly dissolving any doubts inaugurated by the defence.
The statement of PW-1 about the directional movement of the deceased of either descending into the field or returning back after easing is neither a major variation, or exaggeration, or embellishment inasmuch as, the postmortem report indicates that the bowels of the deceased were empty. The statement of PW-1 establishes the departure of the deceased from his house, as also the sound of the shots having been fired which corroborates the injuries sustained and placement of the body of the deceased in the site plan. This is further coupled by a prompt FIR, the unimpeached inquest and postmortem report. The firing of two shots as deposed by PW-1 was not made a point of cross examination by the defence and this stands corroborated with the ante-mortem injuries noted in the postmortem report. Learned counsel for the appellant urged that the FIR did not indicate two shots. The same also does not hold water as the FIR only indicates gun shot being fired. The FIR is not an encyclopedia so as to disbelieve the ocular testimony or the documentary postmortem report that corroborate each other.
The second ground taken by the learned counsel for the appellant with the aid of the ballistic report of the weapon recovered, having not been utilized, suffice it to say that this at the most may be a lapse in the investigation which could have been more careful if the appellant was attempting to infuse a false recovery of a weapon. It is true that the weapon so recovered may not have been adequately matched to establish that it had been utilized for the commission of the offence, but according to the provision of Section 27 of the Indian Evidence Act, the relevancy of the weapon comes into existence, if it has been utilized and to that extent, the trial court has recorded a finding that the ballistic report did not support the claim of the prosecution in relation to the weapon alleged to have been recovered. This lapse cannot be treated to be sufficient to discredit the ocular testimony of PW-1 that that occurrence having seen the appellant waving a pistol after the incident which fact could not be dislodged by the defence during cross examination. The chain, therefore, of the evidence of the shots having been heard, the same having been fired causing the injury and the escape of the appellant from the site after having committed the offence does not appear to be suffering from any major or material infirmity so as to make the prosecution story immovable. To the contrary, the chain establishes the sequence of events. A perusal of the recorded testimony of PW-1 and PW-2 nowhere indicates any suggestion or cross-questioning by the defence about the manner of reloading of the pistol by the assailant and firing of the second shot. This failure in cross examination by the defence does not allow the appellant to raise this issue as the recorded testimony of the witness could not be discredited on this score.
Learned counsel for the appellant also urged that no recovery of the cartridge has been shown in the site plan. It is correct that the site plan does not indicate the place of the recovery of the cartridge but at the same time one cartridge is stated to have been recovered and the other is stated to have been found in the barrel of the pistol that was sent for a ballistic report. The non indication in the site plan would be of no material consequence, keeping in view the opinion expressed by us in relation to the recovery of the weapon as noted hereinabove.
The testimony of PW-1 further indicates about a family feud as there was a dispute between the deceased grandfather and the family of the appellant about the construction of an adjacent house and its occupation which the deceased had intended to give to the informant and his father. The evidence which has been narrated by the PW-1 and corroborated by PW-2 also indicates the background of the annoyance of the appellant in order to reflect on the motive of the appellant inasmuch as, this has to be viewed along with the fact that two shots repeatedly were fired to ensure that the deceased met his death finally. This was, therefore, a clear case of direct evidence and even if the motive is remote, the sequence of events leave no room for doubt that there is no evidence of the involvement of any other person except the appellant. The submission, therefore, of the learned counsel for the appellant of their being inimical relations with other persons in the village looses its significance.
There is yet another relevant aspect which should not be lost sight of. While answering question no. 17 in his statement under Section 313 Cr.P.C., the appellant has set up an alibi that at the time of incident he was in Delhi and therefore, he was falsely implicated. This statement was never proved by any evidence whatsoever led by the defence and as such the appellant's claim of alibi has miserably failed. In such circumstances, once the plea of alibi has neither been proved nor established, the prosecution version is all the more probable.
We, therefore do not find any of the grounds raised in this appeal are cogent enough to set aside the impugned judgment nor we find the evidence to be untrustworthy so as to create even a reasonable doubt in our minds to disbelieve the prosecution story and reverse the judgment of the trial court.
The appeal, therefore, fails and is hereby dismissed.
Order Date :- 05.2.2018 M. ARIF