Allahabad High Court
Girish & 7 Others vs State Of U.P. on 13 May, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 35
CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3835 of 2007
1. Girish s/o Suresh
2. Karua @ Pramod s/o Suresh
3. Lakhan s/o Vedri
4. Vishambar s/o Vedri All residents of Village Gopalpura,
5. Vinod s/o Vedri Police Station Pidhaura, District
6. Yashpal s/o Rameshwar Agra.
7. Premanand s/o Mahaveer
8. Suresh s/o Narayan Das
..... ..... ....Appellants
Versus
State Of U.P.
.... ..... .....Respondent
Connected with
CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3841 of 2007
1. Ramesh s/o Narain Das
2. Pankaj s/o Ramesh All residents of Village Gopalpura,
3. Rameshwar s/o Bihari Lal Police Station Pidhaura, District
4. Kailashi s/o Bihari Lal Agra.
5. Ram Niwas s/o Mool Chandra
..... ..... ....Appellants
Versus
State Of U.P..
.... ..... .....Respondent
and
Criminal Revision (Defective) No. 427 of 2009
Pankaj @ Pushpendra Tyagi
..... .... .....Revisionist
versus
State of U.P.
..... .... ...Respondent
Counsel for the appellants/
Revisionist:- Sri Dileep Kumar, Sri Rajiv Gupta
Respondent Counsel :- Sri Ram Yash Pandey, AGA
Hon'ble Rakesh Tiwari,J.
Hon'ble Anil Kumar Sharma,J.
(Delivered by Hon. Anil Kumar Sharma, J.) Both the aforesaid appeals emanate from common judgement and order dated 21.04.2007 passed by Additional Sessions Judge, Court No. 18, Agra in S.T. No. 282/2006, therefore, they have been heard together and are being disposed of by this judgement. The appellants have been convicted and sentenced as under:
Sl. No. Name of accused Under Section Imprisonment Fine Default Imprisonment 1 Girish, Karua, Lakhan, Vishambar, Vinod, Yashpal, Premanand, Suresh, Ramesh, Pankaj, Rameshwar, Kailashi & Ram Niwas 302/149 IPC Life Imprisonment Rs. 8,000/- each Two years R.I. 307/149 IPC 10 years R.I. Rs. 5,000/- each One year R.I. 148 IPC One year R.I.
-
-
147 IPC One year R.I.
-
-
429/149 IPC 5- years' R.I.
-
-
7 Criminal Law Amendment Act 3-months' R.I.
-
-
2Girish, Lakhan & Vishambar 27 Arms Act 7-years' R.I. Rs. 3,000/- each One year R.I. All the sentences were directed to run concurrently.
2. Revisionist Pankaj @ Pushpendra Tyagi has also challenged the orders dated 1.6.2006 and 30.3.2006 passed by Sessions Judge, Agra and Juvenile Justice Board, Agra respectively whereby his criminal appeal no. 87 of 2006 preferred against the order of J. J. Board was dismissed and his prayer for declaring him juvenile was rejected.
3. The facts germane to the appeals as well as in revision are that on 18.01.2006 at 9.05 A.M. complainant Baijnath Singh s/o Vidya Ram, resident of Village Gopalpura, P.S. Pidhaura, District Agra submitted a written report in police station Pidhaura stating that there is old enmity between him and family of Kailashi. After killing his brother Lekh Raj, Kailashi has falsely implicated him, Ram Nath, Narayan Swaroop sons of Vidya Nath. Yesterday at about 7.00 P.M. scuffle took place between Virey Tyagi and Vishamber, Girish, Yashpal on the issue of electrocution of buffalo of former by fall of electric wire belong to the later. Virey was beaten by Girish, Vishamber and Yashpal at about 7.30 P.M. in front of house of Arun. He took shelter in the house of Arun who mediated and disbursed them. This act of Arun was not liked by accused persons, so on 18.01.2006 at about 8.40 A.M. Pramod, Arun and Baby d/o Pramod were giving fodder to cow and buffalo at their plot and in the meantime Lakhan and Vishamber sons of Vedri armed with rifle and gun, Girish s/o Suresh having rifle, Yashpal s/o Rameshwar, Karua @ Pramod s/o Suresh armed with unlicensed rifles, Vinod and Mahavir sons of Vedri having unlicensed gun, Premanand s/o Mahavir, Suresh & Ramesh sons of Narayan Das, Pankaj s/o Ramesh, Rameshwar & Kailashi sons of Bihari Lal, Ram Niwas s/o Mool Chand, r/o village Gopalpura and few others armed with country-made pistols in order to kill opened indiscriminate firing on Pramod and Arun sons of Ram Nath and Baby d/o Pramod, whereby all the three along with cows and buffaloes were injured. On hearing the sound of fires complainant, Jagannath adopted son of Bhagwan Swaroop, Som Dutt son of Pramod reached at the spot and witnessed the incident and recognised the accused persons who making fires made their escape good towards the fields. The report further stated that the condition of nephews, namely, Pramod and Arun is critical and they had been taken by Jagannath to C.H.C. Bah. The incident created terror in the village and people out of fear rushed to their houses and closed doors. The complainant took his injured niece baby to the police station and submitted his written report.
4. On the basis of the above report of the complainant case at crime no. 6/2006 under sections 147, 148, 149, 307 and 429 IPC was registered at police station Pidhaura, investigation whereof was entrusted to S.I. Kundan Lal. Injured Baby was medically examined by Dr. Mahendra Kumar at C.H.C. Bah at 9.45 A.M. and he found the following injury on her person:
Gun shot wound of entry just above super sternal size 1.0 cm x 1.0 cm x muscle deep with abrasion 7 cm x 1 cm on right side of wound (grazing). Abrasions are inverted, no blackening and tattooing. A small piece of metallic expanded bullet visible, which is removed on examination table and sealed and handed over to the police constable concerned.
In the opinion of the doctor the injury was fresh i.e. about one hour old in duration caused by fire arm and was kept under observation.
5. Injured Pramod and Arun were brought dead in C.H.C. Bah at about 9.28 A.M. the same day. Inquest on the cadaver of both the deceased was held on 18.01.2006 at 12.30 P.M. onwards. The autopsy of corpse of the deceased was conducted by Dr. Mahendra Kumar in C.H.C. Bah, Agra on 18.01.2006 from 4.00 P.M. He has noted the following observations in his autopsy notes:
1. Arun s/o Ram Nath, on 18.01.2006, 4 P.M. Ante-mortem injuries:
(i) A gun shot wound of entry at right chest 6 cm super omedial to nipple size 1 cm x 1 cm x cavity deep. Margins are inverted. No blackening and tattooing present.
(ii) A gun shot wound of exit at back of right chest at upper and outer part size 2 cm x 2 cm. Margins everted. No blackening & tattooing present.
(iii) A gutter wound at lateral aspect of left leg at middle third size 7 x 7.5 cm x muscle deep. Margins are inverted at upper part and averted at lower part and placed vertically down word.
In internal examination doctor found that 3rd and 4th rib of the deceased was fractured, right pleura and right lung was lacerated. 1.5 litre fluid blood was present in right thoracic cavity. The heart was empty. In the stomach 2 Oz liquid, in small intestine digested food and gases, and in large intestine faecal matter and gases were found. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem injuries about half day before.
2. Pramod Kumar Tyagi s/o Sri Ram Nath Tyagi, on 18.01.2006, 4.30 P.M. Ante-mortem injuries:
(i) A gun shot wound of entry at posterio-lateral aspect of upper part of right arm size 1 cm x 1 cm x muscle deep. Margins are inverted. No blackening and tattooing present.
(ii) Gun shot wound of entry at a top of left shoulder with abrasion at interio lateral aspect size 1 cm x 1 cm. Margins are inverted. No blackening and tattooing present.
(iii) A gun shot wound of entry at lower and lateral aspect of left side of neck with abrasion 1 cm long size 1.5 cm x 1.5 cm. Margins are inverted. No blackening and tattooing present.
(iv) A gun shot wound of exit at back of route of left side shoulder size of 3.5 cm x 3.2 cm.
(v) A gun shot wound of exit at posterio lateral aspect of middle part of left chest size 1.5 cm x 1.2 cm margins averted. No blackening and tattooing present.
(vi) A gun shot wound of entry 2 cm below wound no.5 size 1.0 cm x 0.6 cm x muscle deep. Margins are inverted and no blackening and tattooing present.
In the internal examination doctor found that right 5th rib of the deceased was fractured and right humorous bone at the side of injury no.1 was also fractured. Left pleura and right lung was lacerated. 500 ml blood was present in thoracic cavity. Both the chambers of heart were empty. Peritoneum was ruptured. There was one litre blood in the cavity. 2 Oz liquid was found in the stomach. The small intestines contained digested food and gases while faecal and gas was found in large intestines. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem injuries about half day before.
6. Dr. A. K. Dauneriya medically examined the injured buffalo and cow of the deceased and found gun shot injuries on their body. A bullet was found in the left side neck of the buffalo. The doctor opined that it was difficult to cure the animals. Buffalo succumbed to the injuries and autopsy was conducted by Dr. A. K. Dauneriya on 19.01.2006. He opined that she had died due to acute shock caused by excess bleeding. The autopsy on the dead body of the cow was conducted by Dr. Dauneriya on 23.02.2006 and he found that the animal has died due to septicaemia caused by putrefaction of compound fracture.
7. The Investigating Officer interrogated the complainant and after visiting the spot prepared inquest and took samples of plain and blood stained earth from the chabutra and wall of Mata temple through memo. He also found 30 empties of 315 bore from the potato field of Ram Niwas which were sealed and memo was prepared. He found bullet marks on the walls nearby the spot. The investigation was transferred to S.O. Anil Kumar on 21.01.2006. He interrogated injured Baby and Jagannath and arrested accused Suresh and Kailashi on 24.01.2006. Mahavir Singh and Rameshwar were arrested on 25.01.2006 and accused Yashpal, Pramod @ Kalua and Ramesh were apprehended on 26.01.2006. These accused were interrogated by the Investigating Officer. On 28.01.2006 accused Girish and Lakhan were arrested and confessing their guilt they got two rifles 315 bore recovered from the mustard filed of Ram Sanehi. The recovery memo was prepared and its copy was furnished to both accused. These weapons were sent for examination to Forensic Science Laboratory, Agra. After transfer of S.I. Anil Kumar the investigation was taken over by SI Balbir Singh Gaur S.O. who made attempt to apprehend the other accused but could not succeed. On 01.02.2006 accused Vishambher along with DBBL gun, accused Pankaj and Pramod were arrested. The recovery memo was prepared. He again interrogated the complainant on 02.02.2006 and also recorded the statements of Som Dutt, Jagannath and other police personnel. He added section 120B/34 IPC and 7 Criminal Law Amendment Act in the crime. In the meantime, the police custody remand of accused Yashpal, Pramod @ Karua and Rameshwar was obtained from the court and effort was made to recover the weapons of offence. The investigation culminated in charge sheet against 14 persons for the offence punishable under sections 147, 148, 302/149, 307/149, 429/149 IPC 7 Criminal Law Amendment Act. Charge sheet against Lakhan and Girish was submitted in the court. The 12-bore gun, two rifles and 30-empties of 315 bore were sent for examination to Forensic Science Laboratory.
8. After committal of the case to the Court of Session charges under the aforesaid sections were framed against the accused persons who abjured their guilt and claimed trial.
9. In order to prove its case the prosecution examined complainant Baijnath Singh as PW-1, Jagannath PW-2, Km. Baby PW-3, Dr. A. K. Dauneriya PW-4, S.I. Kundan Lal PW-5, Constable Ramesh Chandra PW-6, Dr. Mahendra Kumar PW-7, S.I. Anil Kumar PW-8 and S.I. S. Balbir Singh Gaur PW-9.
10. All the accused persons in their separate statements under section 313 Cr.P.C. have again denied the entire prosecution story. They had stated that deceased Arun was a member of Punjabi Gang and history-sheeter. The dacoits used to visit him. Due to gang-war of the dacoits on 18.01.2006 at about 3.30 A.M. dacoits attacked and killed Arun and Pramod. In the incident Km. Baby, cow and buffalo might have sustained injuries. The complainant came from Agra and Munna Lal was called from Mihawa and on account of old enmity the entire family of Kailashi had been falsely implicated in the case.
11. In defence the accused persons have examined Constable Ramesh Chandra Yadav of P.S. Pidhaura as DW-1 to prove the history-sheet of deceased Rajvir Singh @ Arun @ Karua s/o Ram Nath Tyagi, r/o village Gopalpura, P.S. Pidaura, District Agra. Constable Chheda Nand of P.S. Khera Rathor had been examined as DW-2 to prove the Gang registered wherein the name of deceased Kalua @ Rajvir s/o Ram Nath had been entered.
12. The learned trial court after hearing the parties' counsel convicted and sentenced the aforesaid accused-appellants through impugned judgment as indicated in paragraph-1 of the judgement. However, Accused Mahavir was acquitted by the trial court as his plea of alibi was accepted.
13. Learned counsel for the appellants has argued the following points before us:
i) that the FIR is too prompt, which creates doubt about its authenticity and has come in existence much later due to deliberations and concoction because scribe Munna Lal is resident of village Mihawa, which is situated at a distance of 70 Kilometres from village Gopalpura;
ii) that there was no motive for the accused to join hands in eliminating the deceased and in fact it was result of gang- war between the groups of dacoits as deceased Arun @ Karua was renowned dacoit and member of infamous 'Punjabi Gang' ;
iii) that the prosecution has not examined any independent witness in the case and the witnesses produced in the Court are related, interested and highly partisan witnesses;
iv) that the incident had not taken place in the manner as alleged by the prosecution;
v) that the presence of PW-1 and PW-2 is highly doubtful as PW-1 is an advocate practising in Agra and was called by phone after the incident;
vi) that there are material contradictions in the testimony of PW-1 to PW-3, so they are not reliable at all;
vii)that no empty cartridge of 12 bore was recovered from the spot and no injury of this weapon was found on the person of any of the deceased, so the participation of accused who allegedly had gun or country made pistol 12 bore is not at all proved;
viii)that the place of occurrence is doubtful as no blood was found at the spot;
ix) that the medical evidence do not corroborate the alleged ocular evidence.
x) That accused Girish, Vishambher and Lakhan have been illegally found guilty for the offence punishable u/s 27 Arms Act.
Oppugnating the above arguments learned AGA had contended that it is a broad-day light double murder case based on direct evidence of ocular witnesses including one injured witness; that the FIR is prompt which had been lodged by the complainant who was also an advocate and knew the importance of prompt FIR so there are no chances of concoction and deliberations; that it is a case of indiscriminate firing by about 1½ dozen miscreants in which about 100 shots were fired from distance on the deceased and injured, so no one from the village could muster courage to come forward and challenge the accused persons; that the witnesses examined in the case are no doubt closely related with the deceased but they would be the last person to leave the real culprit and falsely rope in the accused persons in the case; that the defence has set up false story of gang-war between group of dacoits and except giving suggestions to PWs, they could not produce any person of the village in support of their version regarding incident; that motive finds place in the promptly lodged report of the complainant; that the place of incident is ravines full of dust and sand, so the investigating officer could not collect blood from the ground, but he has taken sample of blood found on the temple situated at the scene of occurrence; that there is no variance in the eye witness account of the incident and medical evidence available on record; and that accused Vishambher, Girish and Lakhan had been rightly found u/s 27 Arms Act as well.
14. Learned counsel for the appellants has vehemently argued that the FIR is too prompt, which creates doubt about its authenticity and has come in existence much later due to deliberations and concoction because scribe Munna Lal is resident of village Mihawa, which is situated at a distance of 70 Kilometres from village Gopalpura. He further submits that the complainant is a practising advocate at Agra and after the incident he was called and thereafter he lodged the report. On perusal of the record we find that PW-1 is an Advocate but has stated that he practised only during consolidation and denied that he is continuously practising at Agra. Except suggestions to PWs there is no other evidence to suggest that the complainant resides in Agra. The complainant has further stated in his cross-examination that after the incident he immediately called Munna Lal, who was at the baithak of Jagannath situated at a distance of 30 metres from the place of incident and dictated report to him. Munna Lal is relative of the complainant being the brother-in-law (sala) of elder brother of the complainant. Learned counsel for the appellants has raised question mark on the conduct of the complainant on the premise that as per his own statement after the incident he did not see the injured and allegedly straight away sat down to dictate report of the incident to Munna Lal. We do not find any substance in this argument, as being an advocate the complainant knew the importance of prompt FIR, so without causing any delay in reporting the crime, he dictated the report to Munna Lal. Further the place where he dictated the report is quite near to the place of incident. In this regard we may usefully quote the statement of the complainant given in his cross-examination, which is as under:
" Qk;j gksus ds ckn eSaus ckgj fudy eqUuk yky dks vkokt fn;k fd eqUuk yky xksyh yx x;h gS fjiksVZ fy[kksA tSls gh eqUuk yky vk;s eSaus vius cjkens ls mudks dkxt fn;k vkSj cksy dj fjiksVZ fy[kkbZA fjiksVZ cksyus vkSj fy[kus esa ikWp&N% feuV yxsA fy[kus ds ckn mUgksaus i xkao ls Fkkuk N%&lkr fdyksehVj vkSj nwljs jkLrs ls 10&12 fdyksehVj iDdh lM+d ls gSaA"
The incident had taken place at about 8.45 a.m. on 18.1.2006 and its written report had been submitted by the complainant at 9.05 a.m. the same day. The distance between village Gopalpura and P.S. Pidhaura as per check report Ex. Ka-20 is 12 Kilometres, which is inconsonance with the above statement of the complainant. Dr. Mahendra Kumar PW-7 has examined injured Baby at CHC, Bah on 18.1.2006 at 9.45 a.m. and in his cross-examination the time of her medical examination has not been challenged. The distance between P.S. Pidhaura and Bah Hospital, as per statement of the complainant is 26-27 kilometres. Constable Ramesh Chand PW-6 has also testified about the time of registration of the case at P.S. Pidhaura on the basis of written report of the complainant. This witness has proved the check report as also the copy of GD regarding registration of the case as Ex. Ka-20 and Ka-21 respectively. He has denied the suggestion of the defence that the report was subsequently written by him later in the day.
15. The inquest on the cadaver of both the deceased were prepared by 1st I.O. Kundan Lal PW-5 at CHC, Bah from 12.30 p.m. onwards on 18.1.2006. He has noted the crime number and sections of IPC in the inquest reports and other related papers. Copies of check report and G.D. had been sent along with inquest reports and corpse of both the deceased for post-mortem examination. S.I. Kundan Lal PW-5 had been extensively cross-examined by the defence about preparation of inquest reports and other related papers, but nothing could be elicited there from which may create doubt about the time of preparation of inquest reports and time of registration of the case. No doubt SI Kundal Lal has committed some silly mistakes and over-writing in the inquest memo and other papers, but they are not very material. Any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent. Thus, the external checks available on record do indicate that the report of the crime had been given to the police at 9.05 a.m. on the day of incident by complainant.
16. Learned counsel for the appellants has next contended that the prosecution has not examined the scribe of written report namely Munna Lal, so adverse inference should be drawn. We are not inclined to accept this argument. As stated earlier, the consistent statement of PW-1 is that being their relative Munna Lal was at the baithak of Jagannath at the time of incident. He is not an eye witness of the incident. If the complainant, who was law knowing person wanted to manipulate the number of eye witnesses, he could have mentioned the name of Munna Lal as well. In our considered opinion the prosecution story does not suffer from any sort of infirmity for non-examination of scribe of FIR as he was not an eye-witness to the incident and the complainant/informant had proved the execution of the FIR by examining himself as PW-1. We are fortified in our view from the law laid down by the Apex Court in the case of Anil Kumar vs. State of U.P., (2003) 3 SCC 569.
17. Thus prima facie, the report of the crime has been promptly given to the police. The importance of prompt FIR in criminal trial, particularly murder case is well known as it rules out the possibilities of concoction and embellishment on account of consultations and deliberations and gives first-hand uncoloured version of the incident. Such FIR can safely be considered and relied upon during trial in the case.
18. The next contention of the learned counsel for the appellants is that there was no motive for the accused to join hands in eliminating both the deceased and in fact it was result of gang-war between the groups of dacoits as deceased Arun @ Karua was renowned dacoit and member of infamous 'Punjabi Gang'. Refuting this argument learned AGA has contended that remote and immediate motive for the crime has been noted by the complainant in his promptly lodged written report. He has stated that Kailashi after killing his brother Lekhraj falsely indicted him and his brothers Ram Nath and Narain Swarup. In the report he has further mentioned that a day before the incident at about 7.00 P.M. scuffle took place between Virey Tyagi and Vishamber, Girish, Yashpal on the issue of electrocution of buffalo by fall of electric wire. Virey was beaten by Girish, Vishamber and Yashpal at about 7.30 P.M. in front of house of Arun. Virey took shelter in the house of Arun who mediated and disbursed them. The accused persons enraged with this act of Arun on 18.01.2006 at about 8.40 A.M. while Pramod, Arun and Baby d/o Pramod were giving fodder to their animals at their plot armed with fire-arms came and opened firing from the southern mendh of accused Ram Niwas's potato field resulting in injuries to Arun, Pramod and Baby. In the incident the pet animals of the deceased were also injured and subsequently died. In cross-examination PW-1 has stated that in 1972-Lekhraj murder case, he along with his two brothers were accused, Mool Chand and Kailashi were injured; Mool Chand has died and Kailashi along with his other family members are accused in this case. The accused persons have also stated in their statements u/s 313 Cr.P.C. that their entire family had been falsely implicated in the case. It is trite that enmity is a double edged weapon. On one hand it prompts a person to commit crime on the other it acts as a catalyst to falsely rope him in the criminal case.
19. The defence has tried to contend that deceased Arun was a history-sheeter and active member of the infamous 'Punjabi Gang' by examining DW-1 and DW-2. The police officers examined by the prosecution in this case have although admitted that deceased Arun was a history sheeter but have denied that he was member of 'Punjabi Gang'. The defence has further valiantly tried to show that the incident in question is the result of gang-war between the group of dacoits and in this process at about 3.30-4.00 a.m. on 18.1.2006 the dacoits have attacked at the house of deceased Arun and in the incident Pramod was also killed and Baby suffered injuries. However, to prove this fact the defence has not examined any person of their village, who could have been best witness to prove this allegation. The complainant and the police witnesses have denied such incident of gang-war, though they have admitted that entire area around village Gopalpura is dacoity affected area, but they have denied that any enounter between the dacoits or with the police ever took place in the vicinity of P.S. Pidhaura. Thus, the theory set up by the defence about the incident is not at all proved.
20. Jagannath PW-2 and Baby PW-3 had spoken about the incident of 17.1.2006 evening when Veerey's she-buffalo suffered injuries due to fall of electric wire belonging to accused Yashpal, Girish and Vishambhar in his plot and scuffle between them. In order to save himself Veerey entered into the house of Arun and he pacified the mattter and accused bore ill-will on this count. The accused persons have simply denied this incident in their statements u/s 313 Cr.P.C., but have not stated any thing further.
21. Further motive is not a 'sine qua non' for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Nowadays murders are being committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature such as the instant case, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:
"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is .....need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered"
In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar v. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant:
"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence a find of guilt can safely be recorded even if the motive for the commission of the crime has not been proved."
Thus, in view of the above legal position, the prosecution would not fail on account of weak motive. The motive is also not an ingredient of an offence, which is required to be positively proved by the prosecution to hold the accused guilty. In the instance case, the motive alleged by the prosecution stands proved through the testimony of PW 1 to PW 3.
22. The next contention of the learned counsel for the appellants is that the prosecution has not examined any independent witness in the case and the witnesses produced in the Court are related, interested and highly partisan witnesses and further presence of PW-1 and PW-2 is highly doubtful because PW-1 was called by phone call after the incident as he is an advocate practising in Agra and PW-2 did not sustain any injury. We have already seen that Baij Nath Singh PW-1 was residing in the village and had practised only during consolidation. He has lodged the report of the incident promptly and there is nothing on record to prove that the report is ante-timed, so there cannot be any doubt about the presence of PW-1 at the spot. As regards Jagannath PW-2, the site plan confirms that his house is situated quite near the place of incident in the southern side, well within visible reach of any person. He had reached at CHC, Bah along with the dead bodies of both the deceased at 9.28 a.m. as would appear from the GD report no. 14 at 11.30 hrs dated 18.1.2006 through which the case had been converted into section 302 IPC. PW-2 has also witnessed the memos regarding recovery of plain and blood stained concrete from the wall and chabutra of the temple as also 30-empties of 315 bore recovered by PW-5 from nearby the mendh of potato field of accused Ram Niwas. Thus, there cannot be any doubt about the presence of PW-2 at the spot.
23. Learned counsel for the appellants have vehemently argued that no reliance should be placed on the testimony of PW-1 and PW-2, firstly their presence at the time of incident could not be proved and secondly they are related and interested witnesses. Contra learned AGA has contended that it has not come in evidences of PW-1 and PW-2 that any other independent witness was present at the spot and had witnessed the incident. The other witness is son of deceased Pramod, and belongs to the family of the deceased. He further submitted that relative witness would be the last person to leave the real culprit and falsely rope in an innocent person. Neither it has been mentioned in the written report nor it could be elicited from the testimony of witnesses of fact that any other person had also witnessed the incident. In this connection a latest case decided by the Apex Court would be useful. In the case of Mahesh Vs. State of M.P. 2012 Cri LJ 2710. In para-17 of the report, following observations have been made:
"17. The prosecution has examined at least three eye-witnesses to the occurrence of the incident who have stated as to how the incident had happened. They have also stated the different and various roles played by the accused persons. Since eye-witnesses were available and examined, there was no necessity of examining any other witness, inasmuch as, there is no necessity for the prosecution to multiply witnesses to prove and establish the prosecution case. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted. The witnesses who were examined were relatives of the deceased and, therefore, there is no ground and reason why they should be disbelieved. There is also no reason why they would not speak the truth so as to see that the actual guilty persons are convicted."
As already noted earlier the incident had taken place in the outskirts of the of village and there is nothing on record to suggest that any other independent person other than the PW 1 to PW 3 had also reached the spot during incident. If for the sake of arguments it is assumed that some other person had also reached at the scene of crime, even then it cannot be assumed that they would take courage to depose for the complainant against the accused persons who have killed two persons in the morning hours. Nobody would like to depose against the other without any connection and make enemy for himself.
24. It is noteworthy that another eye witness Baby PW-3 also sustained fire arm injury in the incident. The defence has not disputed her injuries, as would appear from the suggestions given to PW-1 and PW-2 in their cross-examination. She had vividly given minute details of the incident and has withstood the test of cross-examination successfully. The defence could not elicit any thing, which may create doubt about the truthfulness of the prosecution story. She was medically examined by Dr. Mahendra Kumar Pw-7 in CHC, Bah at 9.45 a.m. on 18.1.2006 i.e. just after an hour of the incident. A metallic piece was taken out by the doctor during her medical examination and in the Court also a scar was noted by the trial Judge on her neck. Thus, the presence of PW-1 to PW-3 had been fully proved by the prosecution. However, being related witnesses their testimony would be scrutinized with care and caution.
25. Learned counsel for the appellants next argued that the incident had not taken place in the manner as alleged by the prosecution and there are material contradictions in the testimony of PW-1 to PW-3, so no reliance should be placed on the prosecution story and the trial Court fell in error in returning guilty verdict in the case. Per contra learned AGA has contended that the prosecution has examined three eye witnesses in support of its case, one of them is an injured witness; their presence is quite natural and probable and they have given each and every detail about the incident in their deposition and the defence could not shake their testimony during cross-examination.
26.From the suggestions given to PW-1 to PW-3 and the statements given by the accused persons in their statements u/s 313 Cr.P.C., the incident as per the defence story emerges is that on 18.1.2006 at about 3.30-4.00 a.m. unknown assailants fired shot on Arun at this residence. On hearing report of fire Pramod came out and in order to save himself he firstly hid behind cows and buffaloes and then took shelter in Mata temple where he sustained fire arm injuries. In the same manner Km. Baby also sustained fire arm injury. This story had been emphatically denied by all the prosecution witnesses. However, two facts that corroborate the prosecution story are proved firstly that Pramod sustained fire arm injuries in the temple also and secondly in the incident Km. Baby PW-3 also sustained fire arm injury. Pramod sustained fire arm injury at the temple, although not mentioned by the complainant in his prompt report, but he has stated it in his examination-in-chief.
27.There is no discrepancy about the place of incident, which stands proved through the testimony of witnesses of fact and 1st investigating officer Kundan Lal PW-5, who has proved the site plan Ex.Ka-17. A perusal of the site plan shows that all the accused fired shots from the southern mendh of accused Ram Niwas's potato field. Vacant plot of deceased Pramod Kumar is in south-east and in its western side is vacant land on which 'Mata-ka-mandir' is situated. There is a neem tree in the plot of Pramod and towards south is vacant land and on it eastern and western side is the house of Jagannath PW-2. The investigating officer has collected thirty empties of 315 bore from nearby the mendh of potato field of accused Ram Niwas and simple and blood stained concrete from the chabutra and wall of the temple. Thus, there is no doubt about the place of incident. There is also no material variation in distances shown by the investigating officer and spoken by witnesses of fact about different places shown in the site-plan.
28. The consistent case of the prosecution right from inception of the FIR is that on 18.1.2006 at about 8.45 a.m. deceased Pramod, Arun and Baby were giving fodder to cows and she-buffaloes then all the accused persons armed with rifles, guns and country made pistols opened fire on Arun and others whereby they and the animals sustained fire arm injuries. Pramod in order to save himself entered in the temple and there also he sustained fire arm injury. The accused persons after the incident made their escape good towards northern side. This incident was witnessed by Baij Nath, Jagannath and Som Dutt s/o deceased Pramod and no other person of the village came there. PW-1 has stated that he has an old house inside village Gopalpura. In the southern side on east and west of kachcha land there is house of Jagannath. He has share in the house and baithak of Jagannath and he resides there. About the real incident of firing PW-1 has stated in cross-examination as under:
" eSa Qk;j gksus ls igys vius ?kj ls ckgj vk pqdk FkkA eSa Qk;j gksus ls igys ?kVukLFky ls nl&iUnzg ehVj dh nwjh ij FkkA eSa ?kVuk LFky ls nf{k.k dh rjQ [kkyh LFkku ij FkkA eqfYteku esjs lkeus ugha vk;s FksA tc Qk;j fd;k rHkh eqfYtekuksa dks ogkW ij ns[kkA Qk;j gksrs gh eSaus eqfYtekuksa dks jkLrs ds fdukjs jkefuokl ds [ksr esa ns[kkA eSa ;g ugha crk ldrk fd xkao ds fdl fn'kk dh vksj ls vkyw ds [ksr esa igWqps FksA vkyw ds [ksr dh es<+ nf{k.kh dh rjQ djhc ikWp&N% QqV mWpha FkhA vkyw ds [ksr ds nf{k.k iwjc ds dksus ij cktjk dh djc FkhA djc rhu pkj QqV mWpha Fkh vkSj pkj&ikWp ehVj ds ?ksj esa j[kh Fkh vkSj [ksr ds nf{k.k iwjc dksus esa j[kh FkhA ;g dguk xyr gS fd eqfYtekuksa us es<+ vkSj djc dh vkM+ ls Qk;fjax fd;k gksA lHkh eqfYteku ,d iafDr esa [kM+s gksdj Qk;fjax dj jgs Fks vkSj ;g iafDr iwjc if'pe FkhA txUukFk Hkh igys ls ckgj cSBk Fkk vkSj nhoky ds lgkjs fNi x;kA eSaus eqfYteku ds vkrad ds ekjs ;g ugha dgk viuh jkbQy ykdj cpko djksA Qk;j ds le; lksenRr txUukFk dh if'peh cSBd dh Nr ij ekStwn Fkk vkSj mlus ogkW ls ?kVuk ns[khA lkS&nks lkSa xksfy;kW pyh gksaxhA VksVy Qk;fjax esa pkj&ikWp feuV yxsA pkj&ikWp feuV ckn eqfYteku mRrj dh rjQ Hkkx x;sA bl pkj&ikWp feuV dh Qk;fjax ds nkSjku eSa vkSj xokg yksx Mj ds ekjs fNis jgsA tc eqfYteku pys x;s rc ge yksx vius&vius LFkkuksa ls ckgj fudy dj vk;sA tc eSa fudy dj vk;k rks eSa vius Hkrhts dh rjQ ugha x;k cfYd [kkyh txg ij fjiksVZ ij fy[kkus yxkA"
PW-1 has been subjected to searching and gruelling cross-examination at the hands of the defence, but nothing adverse could be obtained. His testimony is clear, cogent, consistent and reliable.
29. Jagannath PW-2 is the real brother of the complainant but he was adopted by his uncle Bhagwan Dass. He has given eye witness account about the incidents of 17.1.2006 and 18.1.2006. As stated earlier his houses are situated just in south of the place of incident. He had taken injured Arun and Pramod to Bah hospital in a tractor where they were declared dead. In cross-examination he has stated that at about 10.30-10.45 a.m. he returned back to village on motor cycle and had stayed at the hospital for 2-4 minutes. According to him the sub-inspector collected blood from stairs of temple; the firing took place for about 4-5 minutes and about 100-200 rounds of fire were made. The sub-inspector collected empties from the mendh of potato field of Ram Niwas. He has admitted that he possessed a rifle but he could not get time to bring it from home as he could have also sustained injuries. This explanation of the witness is quite plausible. He has further stated that there were bullet marks on the walls of his house, he did not count but they were shown by him to the sub-inspector. This witness narrating the incident in cross-examination has stated that when Pramod sustained fire-arm injury he did not see him, nor he ran towards his house. The accused persons also could not see him. After the incident the accused persons ran towards north and then they reached at the spot. While Baijnath was dictating report in his room, he reached near his injured nephews and after calling tractor he took them to hospital. Baijnath reached hospital on motor cycle later on. He has also corroborated that Baby was lying there having sustained fire arm injury, but he did not take her to hospital as she was not seriously injured. He has categorically denied the defence suggestion about any attack by unknown dacoits at the house of Arun in the early hours of 18.1.2006. At the end of his cross-examination, suggestions had been given by the counsel for the accused-appellants on the lines of their defence theory, which are reproduced here-in-below:
" ;g dguk xyr gksxk fd fnukad 18-1-2006 dks lqcg djhc lk All the otherwise suggestions about the incident given to PW-2 by the defence counsel have been emphatically denied by him. The testimony of Jagannath PW-2 on close scrutiny is found truthful and reliable.
30. Km. Baby PW-3 is the daughter of deceased Pramod and being injured witness her deposition is very important. She has given her age at 14-years on 10.7.2006 when her statement was recorded in the court below. It means that she has deposed before the Court about six months after the incident. She has stated that at on 18.1.2006 at about 8.45 a.m. she along with her father Pramod and uncle Arun were giving fodder to cow and buffalo at their plot, then co-villagers Mahavir, Lakhan, Vishambher, Vinod, Premanand, Suresh, Ramesh, Girish Karua @ Pramod, Pankaj, Kailashi, Rameshwar, Yashpal, Ram Niwas and three other people came at the mendh of potato field of Ram Niwas. Lakhan, Yashpal, Girish, Karua @ Pramod were having rifles, Mahavir, Vishambher and Vinod had guns and others were armed with country made pistols and in furtherance of their common intention to kill they opened fires simultaneously injuring her, father, uncle, cow and she-buffalo. Her father in order to save himself ran towards the temple and he was also shot there. She further stated that the incident was seen by her grand father Baijnath, Jagannath and brother Som Dutt. After firing shots, the accused persons ran towards north. Jagannath took her father and uncle along with Harendra, Ravindra, Manvendra and Som Dutt in a tractor to hospital. Her grand father Baijnath dictated report to Munna Lal, which was written in 4-5 minutes and thereafter Baij Nath and Munna Lal took her on motor cycle to P.S. Pidhaura where Diwanji wrote the report. Her injuries were examined in Bah hospital and later she came to know that her father and uncle have died. The she buffalo died the next day and about a month thereafter the cow died. She had also given eye witness account of the incident dated 17.1.2006. In cross-examination she had stated that she had studied up to Vth class and now she is not studying. About incident dated 17.1.2006 she has stated that she had seen the burnt she buffalo of Virey at his plot. He was beaten by three persons and at that time her father and uncle were in the house. She told them about the incident and seeing them Virey entered inside the house and pleaded to save him. The accused persons did not enter the house but said from outside not to interfere in their matter and send Virey out. She had been cross-examined about the incident and she had replied to the questions put to her in the following manner:
"ftl le; ;g ?kVuk gqbZ ml le; eSa] esjs firk vkSj pkpk xk; HkSalksa dks pkjk Mky jgs FksA ge ogkW ,d xk; vkSj ,d HkSal dks pkjk Mky jgs FksA eqfYteku xkWo dh mRrj fn'kk ls vk;s FksA eSaus njksxk th dks crk fn;k Fkk fd eqfYteku xkWo dh mRrj fn'kk ls vk;sa FksA ml fnu u vf/kd BaM Fkh vkSj u gh dqgjk iM+ jgk FkkA xkWo esa tkM+ksa esa ikyk iM+rk gS ysfdu ml fnu ikyk ugha iM+ jgk FkkA tc eSa tkuojksa dks pkjk Mkyus igWqph rks mlds nks&,d feuV ckn gh ?kVuk gqbZA eSSa IykV ij iwjc fn'kk ls vkbZ Fkh vius ikik vkSj pkpk ds lkFA IykV ij pkjk igys ls gh j[kk gqvk FkkA esjs ckck cStukFk o txUukFk ml le; IykV ij ugha Fks cfYd vius edku o cSBd ij FksA eSa bu rhuksa dks cSBs gq;s NksM+ x;h FkhA ;g dguk xyrk gksxk fd eSa ftl oDr IykV ij vkbZ gwW ml le; ;k mlls iwoZ esa esjh esjs ckck txUukFk ls HksaV u gqbZ gksA 100&200 Qk;j fd;s FksA "
In cross-examination she has stated that it took 6-7 minutes in reaching the police station and report was submitted there and they stayed there for one-two minutes. Bah hospital is about 27 kilometres from the police station and they reached there in 30-35 minutes. Her father and uncle had already reached hospital. She had been extensively cross-examined about the spot position, the place where blood had fallen and various distances, but no material contradiction could be obtained by the defence counsel. She had emphatically denied the defence suggestions about any attack by unknown persons at her house in the early morning. She had admitted that her grand-father Baij Nath is an advocate, but had denied that he resides in Agra. On perusal of the entire testimony of injured Baby we find that she had corroborated the prosecution story in all material particulars. There is no exaggeration or embellishment therein. She appears to be truthful witness and being injured witness her presence at the spot is well proved.
31. It is true that no empty cartridge of 12 bore was recovered from the spot and no injury of this weapon was found on the person of any of the deceased or injured Baby, but it cannot be said that Vishambher and Vinod or those armed with country made pistols have not participated in the incident. All the accused are residents of village Gopalpura. The incident had taken at about 8.45 a.m. on 18.1.2006. The weather was quite clear and there was no fog, so there was no difficulty for the prosecution witnesses to identify the accused persons who are family members of Kailashi. It is true that the investigating officer could not find blood at the place of occurrence except the temple, but it does not belie the prosecution story as it has come in the testimony of the 1st investigating officer that there was sand and dust. The blood was found at the temple, which is not disputed to the defence also. Injured Baby had sustained one fire arm injury while two and four arm wound of entry had been found on the person of deceased Arun and Pramod respectively. Deceased Arun had one fire arm wound of exit and Pramod two such injuries, as noted by Dr. Mahendra Kumar. All the fire arm wounds of entry found on the person of injured and deceased had no blackening or tattooing, so these persons have sustained injuries from distance, which corroborates the prosecution story. Thus, there is no contradiction between the eye witness account of the incident and the medical evidence available on record, rather they corroborate each other.
32. Learned counsel for the defence has next argued that accused accused Girish, Vishambher and Lakhan have been illegally found guilty for the offence punishable u/s 27 Arms Act. It is not disputed that rifle no. AB04-9098 belongs to accused Lakhan while rifle no. AB 04-11249 is owned by accused Girish. On 1.2.2006 accused Vishambher was arrested along with his DBBL gun. These weapons along with 30-empties of 315 bore were sent for forensic examination to Forensic Science Laboratory, Agra. The Laboratory vide its report dated 29.9.2006 had found that five empties from rifle no.AB04-9098 and 12 empties from rifle no. AB04-11249 were fired. The trial Court has repelled the case of the defence that these rifles were taken by the police from the residence of the accused along with empty cartridges. Similarly in fouling matter of both the barrels of DBBL gun of Vishambher lead and nitrate was found by the Laboratory. On these grounds, the trial Court has convicted accused Girish, Lakhan and Vishambher for the offences u/s 27 Arms Act. In the facts and circumstances of the case as also the evidence led by the prosecution in support of the charges, we do not find any illegality in the findings of the trial Court.
Criminal Revision (Defective) No. 429 of 2009
33. This revision challenges the validity and correctness of the order dated 1.6.2006 passed by Sessions Judge, Agra in Cr. Appeal no. 87/2006 which was preferred against the order dated 30.3.2006 passed by the Juvenile Justice Board, Agra rejecting the plea of juvenility of accused Pankaj @ Pushpendra. The revision had been filed with delay of 1100 days. In affidavit filed in support of application u/s 5 Limitation Act it has been averred that the counsel for the revisionist was instructed to file revision on behalf of present accused as well, but inadvertently Criminal Revision no. 4712 of 2006 challenging the aforesaid orders was filed on behalf of co-accused Premanand only. The relevant paragraph 7 to 12 of the affidavit filed by Mahveer Singh are relevant for our purpose, which are reproduced below:
"7. That being aggrieved by the said order dated 1.6.2006, the deponent instructed one Sri Ramesh Upadhyay to file a Revision before this Hon'ble Court against the said orders, as the order of appeal ws also a common order.
8. That it appears that inadvertently, under some confusion, the revision against the order dated 30.3.2006 and 1.6.2006 was filed before this Hon'ble Court, being Criminal Revision No. 4712 of 2006 - Parmanand Tyagi Vs. State of Uttar Pradesh & another, however, the name of the present revisionist/appellant was not arrayed in the memo of revision.
9. That in the revision filed by Parmanand Tyagi, 10 days time was granted by this Hon'ble Court on 4.8.2006 for filing the counter affidavit.
10. That during the pendency of the said revision, since there was no stay order, the trial continued before the Trial Court and the revisionist/applicant along with Parmanand Tyagi were convicted and sentence for life imprisonment.
11. That ultimately, the aforesaid revision filed by Paramandand Tyagi, came up for hearing before this Hon'ble Court, then during the course of arguments, it was transpired that inadvertently, against the impugned orderes dated 30.3.2006 and 12.6.2006, the revision has been preferred by Paramanand Tyagi and not by Pankaj @ Pushpendra Tyagi.
12. That the order against which the said revision has been preferred, is a common order and effects the revisionist/applicant as well as Paramanand Tyagi, as they have illegally not held to be a juvenile, by the Trial Court as well as the Juvenile Board."
The State has filed counter affidavit on delay condonation application on 7.12.2009, but no rejoinder affidavit had been filed on behalf of the revisionist. The revision on behalf of Parmanand Tyagi was filed in year 2006 and from the affidavit it is not clear as to when the alleged inadvertent mistake for not joining revisionist Pankaj @ Pushpendra was detected. The delay of 1100 days in filing the revision is not only inordinate but is not sufficient at all. It is pertinent to note here that Criminal appeal no. 47 of 2006 challenging the order of Juvenile Justice Board dated 30.3.2006 was filed by both the accused jointly and through the same judgment dated 1.6.2006 it was dismissed by the learned Sessions Judge. In these circumstances, it cannot be accepted that through inadvertent mistake the name of Pankaj @ Pushpendra Tyagi was not mentioned in the memo of appeal. A counsel works on the instructions of the counsel. If no instructions were given to him to file revision on behalf of Pankaj @ Pushpendra Tyagi, then how could he file revision without any authority given to him in this behalf. Condonation of such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by the Court in place of the period prescribed by the legislature for filing the revision. Therefore, we do not see any cogent reason to condone the inordinate delay of 1100 days in filing the instant revision.
34. We may also note here that Criminal revision no. 4712 of 2006 Parmanand Tyagi Vs. State of U. P. and another had also been dismissed by this Court vide order dated 20.3.2012 on merits after hearing parties' counsel.
35. In this view of the matter the application filed on behalf of accused Pankaj @ Pushpendra u/s 5 Limitation Act for condonation of delay in filing the instant revision is rejected. As a consequence, the revision is also dismissed as time barred.
36. In view of what has been said and done above, we find that the prosecution has successfully proved all the charges levelled against the accused-appellants in the case and the trial Court has not at all erred in convicting and sentencing them on each count. Thus, both the appeals are merit less and are accordingly dismissed. The conviction of each accused-appellant and sentences imposed upon each of them by the trial Court are affirmed. The accused-appellants are in jail and would serve out the remaining part of their sentence.
37. Let certified copy of the judgment be transmitted to the Court concerned within 4-weeks for compliance.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J) May 13, 2013 KCS/-