Allahabad High Court
Ram Singh vs State Of U.P. on 22 July, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Court No. - 8 Case :- CRIMINAL APPEAL No. - 940 of 2013 Appellant :- Ram Singh Respondent :- State Of U.P. Counsel for Appellant :- Ram Naresh Yadav Counsel for Respondent :- Govt. Advocate Hon'ble Zaki Ullah Khan,J.
1. Heard learned counsel for the appellant as well as learned A.G.A. for the State and perused the record.
2. The instant appeal has been preferred against the judgment and order dated 29.06.2013, passed by learned Additional Sessions Judge/T.E.C.P-5, Lucknow whereby convicting and sentencing the appellant to undergo four years rigorous imprisonment under Section 307 I.P.C. together with a fine of Rs.5000/- and in default of payment of fine, the appellant will have to undergo additional imprisonment for three months.
3. The factual matrix of the case is that complainant P.W.-1 Ram Gopal Yadav lodged an F.I.R. on 27.11.2009 at 3:05 a.m., at Police Station-Chowk, District Lucknow with the allegation that on 24.11.2009 his younger brother Shiv Nandan was subjected to firearm injuries with intention to kill by one Ram Singh; that on 24.11.2009 wife of injured-Shiv Nandan registered the F.I.R. to that effect and they admitted Shiv Nandan to Surgical Ward Lucknow Medical College for further treatment; that the injured was admitted in Surgical Ward No.3 at Bed no.19; that due to that enmity on 27.11.2007 at about 12:45 a.m. Ram Singh and Mithai Lal in furtherance of common intention reached at Ward No.19 armed with country made pistol; that Mithai Lal incited appellant to kill him as he was rescued on 24.11.2009 but will not be spared today; that appellant-Ram Singh on incitation of co-accused fired on Shiv Nandan; that the bullet hit him at his neck; that both the assailants were armed with the country made pistol and escaped by exhibiting the pistol in their hands and also threatening the security guard Ram Naresh Mishra, Parmeshwardin Mishra of village Younchakhera and they also pushed them aside to make way for escape; that the incident was witnessed by the complainant Prema Devi, wife of injured-Shiv Nandan; that the wife of Shiv Nandan and one Amresh were engaged in taking care of Shiv Nandan; that the complainant informed that injured-Shiv Nandan was shifted to the trauma centre for treatment of firearm and then they rushed to the police station for lodging the report.
4. On the written report, FIR Ext. Ka-4 was registered as Crime No.499 of 2009, under Section 307 I.P.C. against the appellant-Ram Singh and co-accused Mithai Lal; that the injured-Shiv Nandan was medically examined by P.W-6-Dr. Avnish Kumar and Dr. Abhishek; that during statement, the statement of injured-Shiv Nandan was recorded by Dr. Avnish Kumar which is Ext.Ka-5, whereas statement of Prema Devi wife of injured-Shiv Nandan has been recorded (Ext.Ka-6) by Dr. Avnish Kumar (P.W.6); that the Investigating Officer after collecting all the evidence prepared site-plan and submitted charge-sheet against appellant Ram Singh and one Mithai Lal and submitted Ext.Ka-3 Charge-sheet before the court concerned; that the case was committed before the Court of T.E.C.P-5, Lucknow where the charges under Section 307/34 I.P.C. have been framed; that the accused denied the charges and claimed to be tried; that the prosecution examined as many as six witnesses. P.W.1-Ram Singh is scribe of the F.I.R. who has proved written report(Ext.Ka-1); that injured-Shiv Nandan- P.W.-2 and his wife P.W.-3 were also examined; that the prosecution has also examined scribe of the F.I.R. who recorded the chik in the police station; that the prosecution has also examined P.W.5-Dipak Kumar, P.W.6 Dr. Avnish Kumar and P.W.-4 Investigating Officer who recorded the statement of the injured as well as the witnesses and after thoroughly examining the evidence on record, the trial court found appellant guilty under Section 307 I.P.C. and acquitted the other accused Mithai Lal of the charges under Section 307/34 I.P.C. Aggrieved by the aforesaid order, the instant appeal has been preferred.
5. Learned counsel for the appellant during the hearing of appeal argued that P.W.1 is the witness who lodged the F.I.R. As per his own statement he was also looking after care of the injured in the surgical ward; that means he is also eye witness. P.W.2 is the injured-Shiv Nandan and P.W. 3 is the wife of Shiv Nandan whose statement has been recorded by P.W.6-Dr. Avnish Kumar and that he has proved before the trial court as Ext.5 and Ext.6. Ext. 5 is very clear in which the doctor recorded the statement of injured assuring himself i.e. the appellant was fully conscious and was in a position to state correct facts. P.W.-6 Doctor stated in his statement on oath that the injured during his statement stated that two unknown persons have entered into surgical ward and he was shot by firearm by one of them. The same statement has been given by P.W.-3, wife of the injured and she has specifically narrated that she has no knowledge as to who has fired shot on her husband.
6. Learned counsel for the appellant argued that these two persons during their statement before the trial court on oath denied this statement. Learned counsel for the appellant argued that this statement is very relevant under the provisions of the Evidence Act. The fact that some unknown person came and shot fire on him is very relevant because three days before he was shot by Ram Singh and the report had already been lodged against him; that the injured and his wife are on inimical terms with the appellant.
7. Learned counsel for the appellant argued that injured killed the nephew of the appellant and he has been held guilt for that and has been sentenced to undergo life imprisonment. Therefore, enmity is very clear. It was the subsequent thought that they have impleaded the appellant on the basis of enmity which is apparent on the face of record and nobody has denied that they were not on inimical terms.
8. Learned counsel for the appellant further argued that PW-1 though mentioned in the FIR that the scribe of the F.I.R. was engaged in the care of Shiv Nandan in the surgical ward but denied on oath before the court that he had ever seen the occurrence.
9. Learned A.G.A. refuted the arguments made by learned counsel for the appellant and argued that the learned trial court on page no.7 of the judgment and order mentioned that the statement of Prema Devi was recorded by Dr. Yadvendra Singh but he has not been examined and his signature has been proved by Dr. Avnish Kumar. Regarding the statement of P.W.1. he has clearly stated that though P.W.-1 had not seen the actual occurrence but it was subsequent act of the appellant and Mithai Lal that they were seen by them when they were fleeing from the place of occurrence by freely exhibited the country made pistol in their hands. P.W.1 also stated on oath that immediately thereafter Shiv Nandan's wife Smt. Prema Devi(P.W.3) has informed him that appellants-Ram Singh and Mithai Lal had caused injuries by fire arm to her husband, therefore, it is very clear that he has been shot by Ram Singh and Mithai Lal.
10. The statements of the injured and his wife Prema Devi have been recorded by P.W.6, Dr. Avnish Kumar at 1:45 a.m. and 2:00 a.m. respectively and he in his statement as P.W.-6 has specifically proved the statement, specially the statement of P.W.2, the injured that he was in fully conscious while his statement was recorded by P.W.-6. Had the death been caused by the firearm shot, the statement would have been relevant under Section 32(1) of the Evidence Act and it would have been treated as dying-declaration. However, he happens to survive the injuries, therefore, his statement is only previous statement by the injured and relevant under Section 161 Cr.P.C. Therefore, this statement is only relevant under Section 145 of the Evidence Act for the purpose of the contradictions only. Section 145 of the Evidence Act is reproduced herein below:-
"Cross- examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
11. Section 145 of the Evidence Act applies only to contradictions. In this case, the matter is regarding contradiction of previous statement. The injured as well as P.W.-3 stated on oath and made contradictory contrary to what had been recorded by the doctor. In this regard the conduct of the trial court/judge is very relevant. The documents which have been exhibited before the trial judge as Ext.Ka-5 and Ext.Ka-6 are very relevant. At the end of Ext.Ka-5, Dr. Avnish Kumar verified the statement that he has recorded the statement. The bed head ticket, Ext. Ka-5 mentions that it was the resident team in which Chief Resident, Dr. Avinash Kumar was with it. As many as four doctors were there. However, the learned trial court on page 7 has mentioned that the statement of Prema Devi was recorded by Yadvendra but he has not been examined. The things are very clear that the Chief Resident along with other resident doctors were there and the statement has been recorded in presence of doctors. The chief resident, Dr. Ashawni Kumar has been examined and he proved this statement from bed head ticket, therefore, as far as statement is concerned, the statement stands proved and since it has been denied, the statements are very relevant under Section 145 of Evidence Act if there are some omissions in previous statement. The statement amounts to contradictions and the names of the assailants have been omitted during the subsequent statement. If addition has been made that addition regarding omission is very important and it amounts to contradictions of the previous statement and this omission is very relevant and admissible under Section 145 of the Evidence Act. It has been omitted by both injured as well as Prema Devi that who were the persons who fired shot, therefore, these omissions are very relevant and these omissions are also considered in contradictions and Hon'ble Apex Court has also given the same ratio in the case of Bishna vs. State of West Bengal, reported in [(2005) 12 SCC 657].
12. Learned trial court's conclusion was not in accordance with the Evidence Act. Though he mentioned that the person who recorded the statement has not been produced, in this case the person who was over all in-charge and in whose presence the statement was recorded has proved the statements and statements have been exhibited as Exts.5 and 6, these statements are very relevant.
13. The other point is very relevant that the appellant in his statement under Section 313 Cr.P.C. clearly mentioned that the injured has killed his nephew and he had lodged the FIR and this was the reason for enmity. What was the occasion that when the parties were known to each other and the appellant three days before shot him, then why the injured and his wife did not name him. It has been subsequent thought that FIR was lodged by a person who had not seen the occurrence. Prema Devi had seen the occurrence but two hours after the incident she disclosed before the doctor that some unknown person fired shot on him. The F.I.R. was registered at 3:05 hours i.e. one hour after the statement of P.W.-3, therefore, it was the subsequent thought by which the appellant has been implicated. The other thing is also important that the trial court has acquitted the co-accused Mithai Lal as there was no evidence found against him. The other important link is that the country made pistol which was recovered subsequently from which shot has been alleged to have been fired and the court was not convinced and acquitted the appellant under Section 25 of the Arms Act also. The version of the prosecution is not very convincing when the appellant has been acquitted under Section 25 of Arms Act and the entire story has not been believed. Only inculpatry part has been believed. The other part that in furtherance of common intention that Mithai Lal fired shots on the appellant have not been proved. Therefore, when the part of it has been disbelieved and other part that fire was shot from country made pistol was made basis of conviction. The important factor is that the appellant was acquitted under Section 25 of the Arms Act. The findings are self contradictory and becomes relevant and all omissions and contradictions are itself becomes relevant regarding adjudging the guilt of the appellant. Admittedly, there was an enmity between the two and immediately before the incident the allegations are that the appellant caused fire arm injuries and with the result of that he was admitted to surgical ward. The injuries were caused three days before and immediately after three days the other incident alleged to have took place but strange thing is that immediately after the incident P.W.2 & 3 in their statements have not impleaded appellants. This fact is very relevant and attract the fact and issue. The prosecution witnesses were not certain as to who fired shot and the trial court was also not convince that the entire story is true and, therefore, the trial court acquitted one of the accused and convicted only the appellant that too under Section 307 I.P.C. but acquitted the appellant under Section 25 of the Arms Act. Therefore, I am not convinced with the findings of the learned trial court and there is strong doubt in the prosecution story. The appellant is entitled for this benefit.
14. Accordingly, the appeal stands allowed. The judgment and order dated 29.06.2013, passed by Additional Sessions Judge/T.E.C.P.-5, Lucknow in Sessions Trial No.1020 of 2010 is set aside. The appellant is acquitted of the charge under section 307 I.P.C. He is in jail. He shall be released from jail forthwith if not wanted in any other case.
15. Registry of this Court is directed to communicate this judgment and order to the court concerned and jail concerned forthwith for immediate compliance.
Order Date :- 22.7.2013 akhilesh/-