Allahabad High Court
Baba Deen vs State Of U.P. on 11 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 199
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 42 Case :- CRIMINAL APPEAL No. - 125 of 2000 Appellant :- Baba Deen Respondent :- State of U.P. Counsel for Appellant :- V.K. Gupta, K.D.Tewari, Jitendra Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Sri Jitendra Singh, learned counsel for the appellant, Sri L.D. Rajbhar and Mrs. Alpana Singh, learned A.G.A for the State and perused the record.
2. This criminal appeal has been filed against the judgment and order dated 10.12.1999, passed by the Sessions Judge, Mahoba, in Sessions Trial No. 38 of 1996 (State vs. Baba Deen And others), arising out of Case Crime No. 193 of 1995, under Section 302 IPC, Police Station Shrinagar, District Mahoba, whereby the accused-appellant Baba Deen has been convicted and sentenced for life imprisonment. By the same judgment, two other co-accused persons Chhote Lal and Kali Charan have been acquitted.
3. Brief facts of the case is that the incident took place on 02.12.1995 at about 06:00 PM in the village Pawa, PS Shrinagar, Mahoba. At the time of incident, the informant Prem Narain had gone to the shop of Gaya babu for purchasing Bidi and behind him his niece Raj Kumari aged about 13 years and nephew Arjun aged about 12 years had also come to the shop. Accused Baba Deen came from the side of his house along with co-accused Kali Charan and Chhote Lal. Seeing the informant on the shop, Kali Charan and Chhote Lal exhorted Baba Deen, whereupon he fired by his country made gun of 12 bore on the informant, but he escaped. Unfortunately, the pellets of the fire hit his niece and nephew who sustained injuries. After that, all the three accused persons ran away towards their house. The nearby people Lakhan Lal Lodhi and Ashok Kumar Lodhi saw the whole incident. The informant and his family members took the injured persons to the police station by tractor, where he submitted his written report on the basis of which the offence was registered under Section 307 IPC. The informant's niece namely Raj Kumari was dead by the time the doctor examined her, about which the informant also informed to the police. Inquest report of the dead body was prepared along with the relevant papers and the postmortem of Raj Kumari was conducted on 03.12.1995. On the basis thereof, the case was converted into Section 302 IPC. The injured Arjun was serious and he was referred to the Medical College, Gwaliar, where he was provided treatment and when he was discharged on 14.12.1995 from the hospital and was being brought to the village, at about 05:30 PM, he also died near the railway station and the same was also reported to the police. Inquest report was prepared along with the relevant papers and the postmortem of Arjun was conducted on 15.12.1995.
4. The police investigated into the matter, recorded the statements of the witnesses and prepared the site map. The accused-appellant Baba Deen was taken into custody and on his instance a country made gun of 12 bore was recovered from the hedges of sugarcane field, which the accused Baba Deen gave to the police and stated that by that gun, he fired on Prem Narain and by mistake the fire hit the nephew Arjun and niece Raj Kumari. When asked, he could not show the license. Offence under Section 25 Arms Act was registered against him. The police sent the gun which was recovered from the accused Baba Deen for forensic report and finding sufficient evidence against the accused persons submitted charge sheet for the offence under Section 302 read with Section 34 IPC and under Section 25 Arms Act against the accused Babadeen.
5. The learned trial court framed the charges against accused Baba Deen for the offence under Section 302 IPC and Section 25 Arms Act and against Kali Charan and Chhote Lal for the offence under Section 302/34 IPC.
6. Prosecution examined as many as nine witnesses. PW-1 Prem Narain (informant0 has proved the written report Ext. Ka-1 and the information dated 15.12.1995 regarding the death of Arjun Ext. Ka-2 and has stated about the incident. PW-2 Lakhan Lal and PW-3 Ashok Kumar are the eye witnesses. PW-4 Dr. D. K. Tripathi of District Hospital, Mahoba has proved the postmortem report of Arjun as Ext. Ka-3. PW-5 SI Bhagwant Singh Tomer has proved the GD regarding the death of Raj Kumari as Ext. Ka-4, inquest report as Ext. Ka-5, photo Nash Ext. Ka-6, challan Nash Ext. Ka-7 and letter to CMO Ext. Ka-8. PW-6 Dr. M.S. Rajpoot has proved the injury report of Arjun as Ext. Ka-9 and postmortem report of Raj Kumari as Ext. Ka-10. PW-7 SO R.K. Gautam has proved the chik FIR Ext. Ka-11 and GD report Ext. Ka-12. He has also proved the statement of injured Arjun, recorded in the case diary and filed at the time of giving statement as Ext. Ka-13, site map Ext. Ka-14, Memo of pellets, empty cartridges, blood stained and plain earth Ext. Ka-15, GD report of converting the offence under Section 302 IPC as Ext. Ka-16 and GD report Ext. Ka-17 about the information of death of Arjun, Memo of recovery of gun ext. Ka-18, site map of the place of recovery Ext. Ka-19 and charge sheet Ext. Ka-20. He has also proved the recovered gun as material Ext.-1, empty cartridge as material Ext. 2 and pellets as material Ext. 3. He also proved the sealed blood stained clothes of the deceased which were sent for chemical examination and blood stained and plain earth sealed in a packet. PW-8 SI Nasruddin Siddiqui (IO) has proved the charge sheet as Ext. Ka-20. PW-9 SI Umapati Rai has proved the inquest report as Ext. Ka-21, letter to CMO Ext. Ka-22, photo Nash Ext. Ka-23, challan Nash Ext. Ka-24. He has also proved the gun recovered on the instance of accused Baba Deen as material Ext. 9. FSL report, Agra regarding the gun is Ext. Ka-31.
7. The statements of the accused persons were recorded under Section 313 Cr.P.C. They have put forward the case of denial and have stated the case and evidence of witnesses to be false and based on enmity. They have not produced any evidence in their defence.
8. On the basis of evidence on record, the learned trial court has convicted the accused-appellant for the offence under Section 302 IPC. He has, however, been acquitted from the offence under Section 25 Arms Act. The co-accused persons Kali Charan and Chhote Lal have been acquitted from the charge under section 302/34 IPC.
9. Feeling aggrieved by the conviction and sentence, the present criminal appeal has been filed contending that the impugned judgment is against the weight of evidence on record and unsustainable in the eyes of law. The sentence awarded is too severe.
10. During the course of argument, learned counsel for the appellant has submitted that the learned trial court has committed error in convicting the accused-appellant as on the basis of same evidence, the co-accused persons have been acquitted. It has further been submitted that the recovered gun which was characterized to be a weapon used in commission of the offence and for which, the accused was tried for the offence under Section 25 Arms Act, he has been acquitted. There are discrepancies and contradictions in the evidence of the fact witnesses. The death of Arjun did not take place instantly as he died while coming back after being discharged from the hospital because of infection.The prosecution has failed to establish the guilt beyond the shadow of doubt and, therefore, the impugned order is liable to be set aside and the accused-appellant is entitled for acquittal.
11. On the contrary, the learned AGA has submitted that the eye witnesses have supported the prosecution version and the case of prosecution was proved by medical and other evidences also. The learned trial court taking into consideration the evidence on record has rightly convicted and sentenced the accused appeallant. Therefore, the appeal is liable to be dismissed.
12. In view of the rival contentions of both the sides, it is necessary to examine and scrutinize the evidence adduced from the side of prosecution to prove the charge.
13. PW-1 Prem Narain is the informant. He has stated that he knows the accused persons. They are the residents of his village. The accused Kali Charan and Chhote Lal are the real brothers and accused Baba Deen is son of Kali Charan. In the village there is a shop of Gaya Babu and from his shop, the house of accused Baba Deen is situated about 30 meters in the north. The incident took place on 02.12.1995 at about 06:00 PM when the informant had gone to purchase Beedi from the shop of Gaya Babu along with his nephew Arjun aged about 12 years and niece Raj Kumari aged about 13 years. Accused Baba Deen who was already present there, on the exhortation of other co-accused Kali Charan and Chhote Lal, fired on the informant. Fortunately, he escaped, but the pellets of the fire hit his nephew and niece and they sustained injuries. The witnesses Lakhan Lal and Ashok Kumar saw the whole incident. The accused persons thereafter fled away from the place. Some pellets also hit the wall of the house of Thakur Das. The empty cartridges also fell on the ground. He went to the Police Station Shrinagar along with both the injured children and got the report scribed by Laxman and gave the same to the police station. Both the children were taken to the Hospital at Mahoba where Rajkumari was declared dead. Arjun was referred to Gwaliar. Arjun died on 14.12.1995 while coming back from there on the railway station after being discharged from the Gwaliar Hospital. The dead body was taken to the Police Station Shrinagar and the written information for the same was given on 15.12.1995. The witness has further stated that two days before the date of incident, the accused Baba Deen had passed in front of his door using abusive language and when he was prevented, the accused threatened him.
14. PW-2 Lakhan Lal is an eye witness. He has stated that he knows all the three accused persons. The accused persons belong to his village. He has stated that about 15 months before at 06:00 PM in the evening, he was taking groundnut from the shop of Gaya Babu. Prem Narain, Arjun and Raj Kumari were also there. The three accused persons came and on the exhortation of Chhote Lal and Kali Charan, accused Baba Deen fired on Prem Narain who escaped but the fire hit Arjun and Raj Kumari. The accused persons ran away from there. The injured children were taken by Prem Narain to Srinagar. Both the children died because of fire arm injuries. The girl died in the police station, whereas, the boy died in Gwaliar.
15. PW-3 eye witness Ashok Kumar has also stated that he knows all the three accused persons. He has stated that about 13 months ago, at about 06:00 PM in the evening, when he had gone to the shop of Gaya Babu for purchasing Beedi, Lakhan Lal, Prem Narain, Arjun and Raj Kumari were also present there. The three accused persons came. Accused Baba Deen was having a gun and on the exhortation of the co-accused persons namely Chhote Lal and Kali Charan, the accused Baba Deen fired on Prem Narain who escaped but the pellets of the fire hit Arjun and Raj Kumari who died. Prem Narain took the children to Shrinagar. The accused persons ran away from there. Raj Kumari died in the police station, whereas Arjun died in Gwaliar.
16. PW-4 is Dr. D.K. Tripathi who conducted the postmortem of Arjun on 15.12.1995 at District Hospital, Mahoba on 03:30 PM. The dead body was sent in sealed condition and was brought by Constable Pramod Kumar and Constable Jagdish on Police Station, Shrinagar. The witness has stated that he found the following injuries on the body of the deceased :-
(i) Old healed scar mark, three in number on the left side of the forehead, 0.5 cm. in oval shape. All the three injuries were at the distance of 1 cm. from each other and 1cm. above the upper margin of orbit.
(ii) Old healed scar mark, over vertex, five in number, 0.8 cm. above the root of the nose in size of 0.5 X 0.6 cm. in oval shape and at the distance of 0.3 cm. to 4.5 cm. from each other.
17. In the internal examination, injury was found on the skull and front bone, 0.5 cm. X. 0.5 cm. size oval shape at the distance of 1 cm from each other and in the middle of the orbit. Two oval hole was found present with puss. Two pellets were also found on the left posterior on the 1/3 of the western part and puss was present. The deceased was 12 years old. Rigor mortis was not present in the upper limb and it was only present on the lower part of the foot.
18. The cause of death was injuries caused by fire arm because of invocation and coma. The deceased should have died one day before from the time of postmortem. The doctor has stated that the deceased must have died on 14.12.1995 at about 05:30 PM.
19. PW-5 SI Bhagwant Singh Tomar has stated that on 02.12.1995, when he was posted in Kotwali as Sub-Inspector, the ward boy Ram Asraey of District Hospital, Mahoba gave a written report about the death of Raj Kumari, which was entered on the same day in the GD Report No. 49 at 10:00 PM. He has also stated that he prepared the inquest report of Raj Kumari and all the necessary papers for postmortem. The dead body was sealed and was sent for postmortem under the custody of Constable Maan singh and Home Guard Mohan Lal.
20. PW-6 Dr. M.S. Rajpoot has stated that on 02.12.1995, he was posted in the District Hospital, Mohaba and the injured Arjun was brought at 08:15 P.M. in the night who was aged about 12 years and he was examined by him. Arjun was brought by Home Guard Jai Prakash and Home Guard Mahendra Kumar of Police Station Shrinagar. In the examination, the following injuries were found on the body of Arjun -
(i) Multiple fire arm injuries, total three in number in the area of 4 cm. X 2 cm. on the left side of the forehead, just above the left eyebrow. The size of injury was 0.5 cm. X 0.5 cm. in oval shape and the margin were internally bend. X-ray was advised.
(ii) Multiple fire arm entry wound, five in number in the area of 10 cm. X 10 cm. on the head, the size of the injury was 0.5 cm. X 0.5 cm., oval shape and the margin were internally bend. X-ray was advised.
21. According to doctor, the injuries were caused by fire arm and it was possible that the injuries must have been caused by gun on the same day at about 06:00 PM.
22. PW-6 has further stated that on 03.12.1995 at about 01:00 PM, he conducted the postmortem of the dead body of Raj Kumari, who was brought by Constable Maan Singh and Home Guard Mohan Lal of Police Station Shrinagar, in sealed condition. On examination, following ante-mortem injuries were found :-
(i) Multiple fire arm injuries in the area of 33 cm x 8 cm on the left hand on the front side in the outer area. The size of injury was 0.5 cm x 0.5 cm, oval shape and the margin were internally bend.
(ii) Multiple fire arm injuries in the area of 45 cm x 16 cm on the left side of chest and on the front abdomen in 0.5 cm x 0.5 cm in size, oval shape and the margin were internally bend.
23. In internal examination, the entry wound was present on the fourth and fifth ribs and on ninth and tenth ribs also. Pellets were recovered. Heart was vacant and black blood was present in the cavity. In the stomach, 250 grams pasty food was present.
24. From the small intestine, one pellet was also found. One pellet was found from membrane and one was recovered from Tilli which was torn. The deceased was aged about 13 years and was of average height. The doctor has stated that the cause of death was injuries caused by fire arm and the death must have been caused 3/4 day before on 02.12.1995 and after 08:00 PM in the night. The fire arm injury was possible by gun.
25. PW-7 R.K. Gautam, SO (Investigating Officer) has stated that the injured persons were brought on tractor lying on a cot. The condition of Raj Kumari was very poor and she was not able to talk. Arjun was conscious and his statement was taken. Next day in the morning, he recorded the statement of Prem Narain and on his identification, site map of the place of occurrence was prepared. Some pellets were found near the wall of the house of Thakur Das which were taken into possession. Empty cartridges, blood stained and plain earth were also taken into possession from there and sealed and memo was prepared. Statements of the witnesses were recorded. The postmortem and the injury report was obtained. The statement of Lakhan Lal and Ashok Kumar was also recorded. The accused Baba Deen surrendered in the court on 09.12.1995 and the other two accused also surrendered in the court. Their statements were recorded. Accused Baba Deen confessed and stated that after firing, he had concealed the gun and he can get the same recovered. On 15.12.1995, the informant Prem Narain gave a written report regarding the death of Arjun. Baba Deen, accused was taken on police remand. He took the police and witnesses voluntarily and got the gun recovered from the garden of Lalu Baba @ Lala Das from the field of sugarcane. The gun was taken into possession and sealed and memo was prepared. The site map of the place of recovery was also prepared. The witness has further stated that on 18.12.1995, he was transferred, whereupon the investigation was undertaken by SO Nasiruddin and after taking the statement about the recovery of gun and the statement of the witnesses of inquest report, the recovered gun and other items were sent for chemical examination at Agra. Thereafter, charge sheet was submitted. This witness has proved the charge sheet as secondary witness and has also proved the gun, empty cartridges, pellets, blood stained clothes of deceased and blood stained and plain earth.
26. PW-8 SI Nasiruddin Siddiqui has also stated that he examined the witnesses of memo of recovery of gun and the witnesses of inquest report and sent for chemical examination the recovered gun and other items to Agra and submitted charge sheet in the case.
27. PW-9 SI Umapati Rai has stated that he prepared inquest report and sealed the dead body of Arjun and prepared relevant letter and papers for the purpose of postmortem and handed over the dead body to Constable Pramod Kumar and Constable Jagdish Prasad. He has also stated that SI R.K. Gautam lodged the first information report against the accused Baba Deen in Crime No. 201 of 1995 under Section 25 Arms Act. He has further stated that he investigated the offence and after taking the statement of the recovery witness and chik writer and preparing the site map of the place of recovery and obtaining the necessary sanction, submitted charge sheet under section 25 of the Arms Act.
28. The first submission of the learned counsel for the accused-appellant is that on the basis of same evidence, the two co-accused persons Kali Charan and Chhotey Lal were acquitted by the learned trial court and as such, the accused appellant was also entitled for acquittal. We are of the firm view that on this ground alone, the accused-appellant is not entitled for acquittal. It has been consistent view of the Supreme Court that where acquittal of co-accused was recorded, the same cannot become a basis for acquittal and the case of individual accused shall be considered on the basis of evidence available on record against him. In Balraje Vs. State of Maharashtra, 2010 (70) ACC 12 (SC), Kallu Vs. State of M.P., 2007 (57) ACC 959 (SC) and Amzad Ali Vs. State of Assam, (2003) 6 SCC 270, it has been held that where some of the accused persons were acquitted, on the basis of benefit of doubt, as no positive role or any overt acts was attributed to them, it has been held that same treatment could not have been meted out to all the other accused whose complicity and specific role in the commission of the offence was firmly established by evidence. Law is well settled that even if acquittal is recorded in respect of the co-accused on the ground that there were exaggerations and embellishments yet conviction can be recorded in respect of the other accused if the evidence is found cogent and reliable against him. In the case in hand, the accused appellant has been assigned role of causing firearm injuries resulting in death of two deceased children. The co-accused persons were assigned the role of exhortation only. The learned trial court finding discrepancy in evidence with regards to the involvement of the co-accused persons in the commission of the offence, acquitted them. The learned trial court also found established that the accused-appellant was the main accused who fired and caused death of the two children. In view of the above discussion, we find no force in this argument.
29. The learned trial court has on evidence found that within one and half hours of the incident, FIR has been lodged by giving a written report in the Police Station. The informant went there on a tractor carrying the two injured and the distance was 11 km. PW-1 informant has stated that after the incident he got the report scribed by Laxman in the village itself and gave it to the police after signing the same. Therefore, the FIR was lodged promptly in the facts and circumstances of the case. On this basis, the learned trial court has very rightly concluded that the promptness of FIR rules out any possibility of legal assistance and false implication. The report regarding death of Rajkumari has been also promptly given on the basis of which the offence has been converted into that of section 302 IPC. Thereafter, when Arjun died, it was also reported without any delay. The three fact witnesses examined by prosecution have stated that the incident took place on 6 PM in the evening. PW-1 Premnarain has stated that the incident took place on 2.12.1995 and PW-2 has stated that the incident took place 15 months ago and PW-3 has stated that it took place 13 months ago. They both have been examined 14-15 months ago from the date of incident and as such, the date and time of the commission of offence has been proved. It finds further support from the medical report of Arjun who was examined on the date of incident at 8.15 PM and PW-6 Dr. M. S. Rajpoot has stated that the injury to him should have been caused on same day at 6 PM. Similarly, he conducted postmortem of Rajkumari on 3.12.1995 at 1 PM and she must have died after 8 PM, a day before. Therefore, the time and date of commission of the offence has been proved.
30. So far as place of occurrence is concerned, there is consistency in the version of FIR, site map prepared by the IO and the witnesses examined by the prosecution. Ext. Ka 14 is the site map in which the shop of Gaya Babu has been shown on the corner where one pathway coming from north which connects with the path way from east to west and opposite to it, there is house of Thakur Das. The house of Gaya Babu opens in the west towards the way coming from north and the shop opens towards south on the pathway going towards west from east and in the east after two houses, house of informant exists, whereas, house of accused Babadeen is situated in the north opening on the path which comes from north to south. This shows that all the concerned including witnesses live in the same vicinity. It has been stated by PW-1 that the house of PW-2 Lakhan Lal is in the east of his house whereas, house of PW-3 Ashok is 20-30 step ahead in the east from his house. Meaning thereby, the houses and shop are situated around and close to the place of occurrence shown by alphabet A which is in front of the shop of Gaya Babu. As such, their presence on and close to shop is natural and the witnesses including informant were there to purchase beedi or some domestic item. All the three witnesses of fact have stated that the offence was committed by accused in front of the shop of Gaya Babu. The IO has stated that he found certain pellets near the wall of the house of Thakur Das. From the place of occurrence, cartridge and blood stained and plain earth were taken in possession and memo was prepared. PW-1 informant has stated that some of the pellets hit the wall of the house of Thakur Das. Therefore, the place of occurrence has been fully established.
31. All the three eyewitnesses have categorically stated that accused Babadeen shot fire on the informant, but he fortunately escaped and the fire hit both the deceased children. Rajkumari died same day by the time she reached hospital. Deceased Arjun died on 14.12.1995 because of firearm injuries. All the three witnesses have been cross-examined by defence, but, there appears to be no contradiction or discrepancy or improvement on any material aspect. They are witnesses of same locality and their presence on spot cannot be doubted as they all had come to the shop for purchasing something. They have stated that that they saw that accused Babadeen shot fire by his gun and the fire struck the two children instead of Prem Narain. This finds further corroboration from the statement of deceased Arjun whose statement was recorded by the IO under section 161 of the Criminal Procedure Code when he was in the hospital and his statement has been proved by PW-7 IO R.K. Goutam as Ext. Ka-13 in which deceased Arjun has stated that accused Babadeen fired and he and his sister Rajkumari sustained injury and fell down. He has also stated that at the time of incident that he and his sister had gone to take biscuit with their uncle. We find that, even though, the statement of the deceased was recorded by the IO, the same has been rightly used by the learned trial court as dying declaration in support of ocular testimonies of the three eye-witnesses.
32. The postmortem report of deceased Rajkumari shows that multiple firearm wounds (34 in number) were found in the area of 33 cm x 8 cm on the left hand and firearm wounds 25 in number in the area of 45 cm x 16 cm on the left side of chest and abdomen. She died due to shock and hemorrhage resulted by ante-mortem firearm injuries. It is pertinent to mention that she died just two hours after the incident and her injuries, particularly injury no 2 is on vital part, with 25 entry wounds of pellets out of which 3 pellets recovered and several internal organs were torn or damaged. In the cross-examination, Dr. Rajpoot has denied the suggestion of the defence that injuries were not caused by firearm.
33. Similarly, the other injured Arjun, though died after 12 days from the date of incident, his condition was very serious and he was referred to Gwaliar for treatment. Prior to that, he was examined by PW-6 Dr. Rajpoot in the District Hospital, Mahoba and his injuries were on vital part and head in the form of multiple firearm injuries which were eight in numbers. His postmortem report shows that on the middle part of upper orbital margin, two oval hole was found filled with puss and two pellets found in left posterior 1/3 part of parietal cortex and puss present in the frontal part of left cortex. PW-4 has stated that the cause of death was Coma resulted by ante-mortem firearm injuries causing infection in brain. During cross-examination, he has stated that it is not possible to say that, if pellets were removed from brain by operation and proper treatment provided, the deceased could have been saved. He has stated that the brain does not regenerate and the injuries were healed from out side but not from inside. It is pertinent to mention that the pellet injuries were on most sensitive part brain and despite treatment it was not cured. It also deserves mention that the deceased was only 12 years in age. As such we do not find any force in the submission of the learned counsel to the appellant that Arjun died because of infection as the infection was also the result of the firearm injuries by which substantial damage was caused to brain. Therefore, we are of the firm opinion that both the deceased persons died because of the firearm injuries caused by the accused which was on the vital and sensitive part of the body and death was the most probable result.
34. It has been further argued that one fire will not result in multiple pellet injuries nor will hit two persons at a time. We, on a thoughtful consideration of this point, are unable to agree with this argument. It all depends upon the nature of gun used in committing the crime. In this case, a country made gun of 12 bore was used by the accused. It has been held in Om Pal Singh Vs. State of UP, AIR 2011 SC 1562, that a single shot fired from double barreled gun can cause multiple injuries. A gun the fire of which spreads pellets can always result in multiple injuries and it can hit more than one.
35. It has been submitted by the learned counsel for the appellant that the incident took place at 6 PM and in the month of December it becomes dark and it was not possible to identify the assailant and the accused was falsely implicated. In support of this submission, the statement of PW-2 and PW-3 has been referred who have admitted in their cross-examination that it was sun set when the incident took place. He has also pointed out the discrepancy in the statement of these two witnesses as PW-3 has stated that it was sun set but visibility was there, whereas, PW-2 has stated that he gave statement to IO that it was dark but moonlit night. He has however stated during cross-examination that at the time of fire by accused there was enough visibility, but he is not sure whether it was visibility of day or moonlit.
36. The Supreme Court has clarified the law on this point in various judgments and has laid down that a witness, who is accustomed to live in darkness, poor light or no light, and acquainted with the accused, can identify the accused even in darkness. In Kalika Tewari v State of Bihar, JT 1997(4) SC 405, the Supreme Court held, "The visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights."
37. In Ram Gulam Chowdhary v State of Bihar, 2001(2) JIC 986 (SC), it was argued that it was not possible for the eye witnesses to have identified the accused persons in poor light of lantern in the night. The Supreme Court rejected the argument and remarked that "as the incident took place in village and the visibility of villagers are conditioned to such lights and it would be quite possible for the eye witnesses to identify men and matters in such light."
38. In Sheoraj Bapuray Jadhav v State of Karnataka, (2003) 6 SCC 392, in a trial u/s 302/34 IPC, accused persons were known to prosecution witnesses. Occurrence had taken place at about 11.00 PM, two days prior to the new moon day. Parties were used to live in the midst of nature and accustomed to live without light. Further, they were close relatives and living in the neighboring huts. Similarly, in State of UP v Sheo Lal, AIR 2009 SC 1912 , the murder had taken place at night and the source of light was not indicated in the FIR and the accused and the eye witnesses were closely related. It has been held by the Supreme Court in both the cases that the evidence of eye witnesses cannot be discarded on the basis of non-disclosure of source of light or insufficiency of light as well-acquainted persons can be well identified in darkness. In Durbal v State of UP, 2011 CrLJ 1106 (SC) and Hari Singh v State of UP, AIR 2011 SC 360, Where the parties belonged to the same village and were well known to each other, it has been held that merely because torch not taken into possession by the IO would not mean that witnesses were not credible and conviction under Section 302 IPC was held proper.
39. In view of above discussion and also for two reasons, we are not inclined to add any significance to this alleged discrepancy. Firstly, all the three eyewitnesses have clearly stated in their examination-in-chief that they saw accused Babadeen firing by his gun causing injuries to the two children. Secondly, the witnesses lived in same vicinity and accused was well known to them as he resides in the same locality close to their house and close to the shop of Gaya Babu. In such situation, though at 6 PM in December it is not completely dark, but even if it was dark, it was possible for these witnesses to identify the accused as he was well known to them and they lived in village and were in the habit of living in dark or in low light condition. The submission of learned counsel that the prosecution has not alleged the source of light at the time of incident is also of no significance in view of above discussion.
40. It has been further argued by the learned counsel to the appellant that there was no motive with the accused prompting him to cause such offence. In the FIR it has been alleged, and PW-1 has stated during trial that two days before the date of incident, the accused Babadeen passed from his door abusing the informant and on being prevented, he threatened the informant to see him later on. Moreover, the prosecution case is based on direct evidence of eyewitnesses and the law is settled that in such cases presence or absence of motive is not relevant. In a number of decisions, like Abu Thakir v State AIR 2010 SC 2119, State of UP v Nawab Singh AIR 2010 SC 3638, Bipin Kumar Mondal v State of West Bengal 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka (2003) 6 SCC 392, Thaman Kumar v State of Union Territory of Chandigarh (2003) 6 SCC 380, State of HP v Jeet Singh; (1999) 4 SCC 370, it has been repeatedly held by the Supreme Court that 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 so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt 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.
41. We find that the Supreme Court has clearly opined in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72 and in the recent judgment of Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that the prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. 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, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons.
42. We are of the view that when there is sufficient direct evidence regarding the commission of offence, the question of motive should go away from the mind of the Court. Motive is a double edged weapon and the key question for consideration in cases based on direct evidence remains whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by adducing reliable and cogent evidence. As such, the proof of the existence of a motive is not necessary for a conviction for any offence. 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 establishes the guilt of the accused. In the case in hand, evidence shows that motive in terms of threatening two days before has been alleged. As such and in view of the case law discussed above, we find no force in the submission with regards to absence of adequate motive.
43. It has been further submitted by the learned counsel for the appellant that the prosecution failed to connect the allegedly recovered gun at the pointing of the accused with the commission of the offence and the learned trial court acquitted him from the charge under section 25 of the Arms Act. It appears that the learned trial court has acquitted the accused from the said charge as the public witnesses of recovery were not examined to prove recovery, only IO was examined to prove recovery and by Forensic Report, the said gun was not found to have been used in the commission of offence. It is pertinent to mention that the offence under section 25, Arms Act is a separate offence and is required to be proved in view of the technical requirements necessary for the constitution of offence. His acquittal for the offence under section 25 of the Arms Act will not have effect on the charge under section 302 IPC. Therefore, we are of the view that the acquittal of the accused under section 25 of the Arms Act will not render any advantage to the accused-appellant.
44. The further submission from the side of the appellant is that there was no reason to commit the offence and the accused never intended to cause death of two children. Even, there was no hot talk or quarrel between the accused and informant at the time of incident nor there appears to be any planning. In Awdhesh Kumar v State of UP, 2019 (4) CRIMES 219 (SC), the trial court convicted the appellant for the offence of murder under section 302 IPC as he was attributed the role of causing death by firing. The other co-accused persons were, however, acquitted. The sentence was modified by the High Court to that of an offence under section 304 Part I, IPC holding that it was not a planned crime and there was no prior intention. It took place in the heat of passion on the spur of moment. The incident had taken place when the mother of the informant went to accused side in order to complain about the behaviour of the nephew of the accused on which the accused persons started quarreling and the convicted accused shot fire causing death of the mother. The Supreme Court, referring to an earlier judgment in State of MP v Shivshanker, (2014) 10 SCC 366, quashed the judgment of the High Court and maintained the judgment of the trial court. The Court observed:
".... intention is a matter of inference and when death is a result of intentional firing, intention to cause death is patent unless the case falls under any of the exception....... By the accused firing from a close range, the accused was supposed to know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death."
45. In the case in hand also, the accused fired on informant by a SBBL gun of 12 bore and the fire struck the two children and they died because of injury sustained by the fire. No benefit can be given to the accused-appellant of the fact that he never intended to cause death of two children as he fired on informant and accidentally, the children got injured. Accused fired on the informant. His intention to cause death shall be gathered from the act of firing and eventually, if the fire hit children resulting in their death, it will not make any difference and the intention to kill will be attributed to the accused. Moreover, he fired in front of a shop where other persons including deceased children were present. Therefore, the accused-appellant will be supposed to have knowledge that his act of firing shall result in the death of anybody including deceased children, if it did not hit the informant.
46. In view of above discussion, we find that in this case, FIR has been lodged promptly without any delay. Three eye-witnesses including informant have proved the prosecution case who are of the same locality where the accused lives and where the place of the commission of offence is situated. PW-1 is informant with whom the deceased children were present on the shop. PW-2 and PW-3 are independent witnesses of same locality and the presence of all the three fact witness is quite natural at the time and place of occurrence. There is no contradiction, improvement or discrepancy in their statement with regards to time, date, place and manner of commission of offence by accused. All the three witnesses have stated that in their presence, accused Babadeen fired on informant which hit the deceased children and Rajkumari died instantly within 2 hours by the time she was taken to hospital, whereas, Arjun died after 12 days on the railway station while coming from Gwaliar. The ocular version further finds corroboration from the dying declaration of deceased Arjun. The injury report and postmortem report fully corroborate the time, date and manner of incident and it has been found that both died by gunshot injuries. Motive, alleged has been also proved and absence or inadequacy of motive is of no avail as the prosecution case is based on direct evidence. Thus, the prosecution has succeeded in proving the charge under Section 302 IPC beyond shadow of any doubt. There is no perversity or illegality in the impugned judgment and the sentence awarded is the minimum prescribed under law for the offence of murder. Therefore, this criminal appeal has got no force and is liable to be dismissed.
47. The Criminal Appeal is dismissed.
48. Accused-appellant Babadeen is on bail during appeal, his bail bonds are canceled and sureties are discharged. The accused Babadeen is directed to surrender before the court concerned forthwith from where he shall be sent to jail to undergo the sentence.
49. The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance.
Order Date :- 11.02.2020
sailesh
(Justice Pradeep Kumar Srivastava) (Justice Sunita Agarwal)