Allahabad High Court
Surendra vs State on 29 August, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 14
AFR
Case :- JAIL APPEAL No. - 7456 of 2008
Appellant :- Surendra
Respondent :- State
Counsel for Appellant :- From Jail,Sita Ram Sharma A.C.
Counsel for Respondent :- A.G.A.
Hon'ble Arvind Kumar Mishra-I,J.
By way of instant Jail Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 07.6.2008 passed by Additional Sessions Judge, FTC-II, J.P. Nagar, in Sessions Trial Nos.508 of 2006 and 509 of 2006, State Vs. Surendra Singh, arising out of Case Crime Nos. 1186 of 2006 and 1221 of 2006 for offence under Sections 307 IPC and Section 25 Arms Act, respectively, Police Station- Amroha Dehat, District- J.P. Nagar, whereby the accused-appellant has been sentenced to undergo three years' R.I. coupled with fine Rs.1,000/- for offence under Section 307 IPC and one year R.I. coupled with fine Rs.1,000/- for offence under Section 25 Arms Act, respectively, and in default of payment of aforesaid fine, he will have to undergo additional one month imprisonment in each of the aforesaid offences.
At the very outset, it is relevant to take note of the fact that as per report sent vide letter dated 25.05.2017 by the Superintendent, District Jail, Bijnor, it has been intimated to this Court that the accused-appellant Surendra has already suffered the aforesaid entire sentence and after completing additional two months' simple imprisonment in lieu of not depositing the fine Rs.2,000/-, he has been released from District Jail, Bijnor.
But, mere sufferance of sentence of imprisonment and release pursuant thereto, would not ipso-facto, render this appeal infructuous, hence, the parties were heard on the merit of this appeal.
Crux of the event leading to the lodging of the first information report indicates that the informant- Om Prakash S/o Mukh Ram Singh R/o village- Diedera, Police Station- Amroha Dehat, District- J.P. Nagar lodged a written report at the police station- Amroha Dehat, District- J.P. Nagar at 4.00 P.M. on 23.09.2006 regarding some incident of firing, which took place on 21.09.2006 at 11.00 A.M. with the allegations that informant has two sons, namely, Jitendra Kumar (elder son) and Surendra (younger son). Both the sons of informant were inside the home on 21.09.2006. Informant's younger son Surendra, who was possessing countrymade gun in his hand appeared at the scene and fired on his elder son Jitendra Kumar around 11.00 A.M., which shot hit him on his stomach. The informant tried to catch hold of culprit, but he fled away towards forest. The injured Jitendra Kumar was taken to hospital with the help of villagers at District Hospital, Amroha, from where, he was referred to Moradabad and was given treatment at Sai Hospital, Moradabad. Thereafter, the informant went to lodge the report. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1.
Entry of contents of written report was noted in the concerned check F.I.R. at 16.00 hours on 23.09.2006 at Case Crime No.1186 of 2006 u/s 307 I.P.C., Police Station- Amroha Dehat, District- J.P. Nagar, which is Ex.Ka.7. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the concerned G.D. at rapat no.36 at 16.00 hours on 23.09.2006. Copy of G.D. is Ext. Ka.-8.
The investigation ensued and the same was entrusted to S.I. Babu Ram on 24.09.2006 after registration of the case. Thereafter, he proceeded to the spot and recorded the statement of witnesses and arrested the accused and also recorded the statement of the accused. He prepared site plan of the place of occurrence as Ext. Ka-9.
On the pointing out of accused- appellant, recovery of country-made pistol has been effectuated from the house of the accused-appellant, which recovery memo is Exhibit Ka-6 (Sessions Trial No.509 of 2006). Thereafter, a case was also registered at case crime no.1221 of 2006 at Police Station Amroha Dehat against the accused-appellant for offence under Section 25 Arms Act. Relevant entries were made in the General Diary. Thereafter, the Investigating Officer also prepared the site plan Exhibit Ka-13.
After completing the investigation, the Investigating Officer filed charge-sheets against the accused as Exhibit Ka-11 (under Section 307 IPC) and Exhibit Ka-14 (U/s 25 Arms Act).
Pursuant to the filing of the charge-sheets, proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for conduction of trial and disposal to the Court of Additional Sessions Judge, J.P. Nagar after numbering it as S.T. Nos.508 of 2006 and 509 of 2006, State Vs. Surendra Singh. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case u/s 307 IPC and 25 Arms Act against the accused-appellant, therefore, it framed charges against the accused-appellant under Section 307 IPC and 25 Arms Act. Charges were read over and explained to the accused, who abjured charges and opted for trial.
The prosecution, in order to prove guilt of the accused examined as many as ten prosecution witnesses of whom Dr. Mohit Agrawal is P.W.1, Om Prakash is P.W.2, Jitendra is P.W.3, Constable Mange Ram is P.W.4, Dr. Pritam Bala is P.W.5, Madan Kumar is P.W.6, C.P. Jai Singh is P.W.7, S.I. Babu Ram is P.W.8, S.I. Harpal Singh is P.W.9 and S.I. Charan Singh is P.W.10.
Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and stated that he is innocent and has been implicated due to enmity in this case.
The learned Additional Sessions Judge/F.T.C. II, J.P. Nagar after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction, under section 307 IPC and 25 Arms Act and sentenced the accused-appellant to 3 years R.I. coupled with fine of Rs. 1,000/- and one year R.I. coupled with fine of Rs.1,000/-, respectively, and in default of payment of aforesaid fine, he will have to undergo one month simple imprisonment for each of the aforesaid offences.
Resultantly, this appeal.
Heard Sri Sita Ram Sharma, learned amicus curiae for the appellant and Sri Pradeep Kumar, learned AGA as well as Rajiv Rai, learned brief holder on behalf of State and perused the record of this appeal.
It is contended on behalf of the appellant that in this case perusal of the entire testimony on record, is indicative of fact that the injured Jitendra Kumar PW-3 himself was not in a position to identity the role of the appellant, who opened fire on him. His testimony reflects that he was not in a position to state correctly as to which shot of bullet hit him. The trial court overlooked the fact that the appellant was not in sound state of mind. The statement of injured witness itself is vacillating and the version has been changed from every angle. He is a tutored witness and his testimony is full of embellishments. The injured is the elder brother of the appellant and was not inimical towards him. Because of certain reasons, he has falsely been implicated in this case.
Similarly, testimony of informant Om Prakash P.W.2 is highly motivated and he has blind love with his elder son Jitendra Kumar, due to which, he was also misled by the injured and other villagers in falsely implicating the accused. Nothing incriminating material whatsoever has been recovered from the possession of the appellant.
Learned counsel for the appellant has further added that the recovery of country-made gun has been falsely planted by S.I. Babu Ram P.W.8 (Investigating Officer) on the appellant. The recovery so made is not supported by independent witness. The place of recovery is also doubtful.
Learned counsel for the appellant has submitted that injury in shape and form of lacerated wound over abdomen (4 cm x 2cm ) left side from umbilicus around 5 cm sized 4 cm x 2 cm left lumber region, is not dangerous one, therefore, no case under Section 307 IPC is made out against the appellant. No such worthy statement is forthcoming from the testimony of the doctor witness PW-5 that the injury was fatal in nature, as claimed by the prosecution.
Learned counsel for the appellant has next contended that the Investigating Officer has also not conducted the investigation fairly and he has colluded with the informant side in order to falsely implicate the accused in this case. The wholesome testimony on record does not inspire confidence and it lacks consistency. The trial court while considering merit of the case has woefully failed to assess and evaluate the testimony on record, qua facts and circumstances of the case, and it has recorded erroneous and perverse finding of conviction. Prosecution has failed to prove its case beyond reasonable doubt.
While retorting to aforesaid contention, learned AGA has submitted that in this case, as far as eye-account testimony of the occurrence is concerned, it has very much proved the incident in coherent and consistent manner. The incident has been described by the prosecution witnesses of fact with all particulars. Presence of Om Prakash P.W.2 (father of the accused) on the spot is natural one. Om Prakash P.W.2 is neither abhorrent nor inimical towards the accused and there was no occasion for him to falsely implicate the accused in this case, leaving the real culprit at large. FIR under circumstance is prompt.
He vociferously adds that recovery of gun and empty cartridge (Exhibit Ka-6), which is imputed against the accused is relevant one, as it was recovered on his pointing out, which is admissible under the 27 of the Evidence Act.
He further stressed that the argument regarding unsound mental status of the accused is falsified by the report of Mental Hospital, J.P. Nagar (Report No.23-B of Dr. S.N. Tiwari) where this issue was referred for expert opinion.
The testimony of witnesses of fact on the whole is consistent and inspires confidence. The trial court after evaluating evidence and marshalling of facts rightly recorded conviction and passed just sentence against the accused. There was no such false motivation either on the part of the injured or on the part of the injured to have levelled false allegations of causing injury on the injured Jitendra because the accused-appellant happens to be younger son of Om Prakash and younger brother of the injured Jiterndra PW-3, therefore, theory of false motivation for implicating the accused cannot be believed under facts and circumstances of the case.
Testimony of the injured witness Jitendra PW-3 and the informant Om Prakash PW-2 is crystal clear and transparent on all relevant aspects of the incident and it does not create any doubt as to who caused the injury and by what weapon. After the accused-appellant was arrested, he made confessional statement to the Investigating Officer, Babu Ram PW-8 who after recording his statement in the relevant general diary of the police station proceeded to the spot suggested by the accused-appellant and recovered countrymade gun at the instance of the accused-appellant himself. Recovery of counterymade gun and empty cartridge used in the incident has been convincingly proved and is admissible under Section 27 of the Indian Evidence Act and to say that recovery of countrymade gun along with empty cartridge has not been reasonably proved is not acceptable at this juncture.
Overall picture that emanates from testimony of the injured and the informant proves beyond all reasonable doubt fact that it was the appellant and appellant alone who is perpetrator of the crime. The trial court was fully justified in acting on material on record for convicting the appellant and passing the aforesaid sentence.
Also considered the aforesaid rival submissions, moot point that arises for determination of this appeal relates to fact whether the incident in question was caused by the accused-appellant Surendra on 21.09.2006 at 11:00 a.m. as suggested by the prosecution and testimony on record, particularly that of the injured witness Jitendra PW-3 inspires confidence and the prosecution has been able to prove its case beyond reasonable doubt?
On the very inception, perusal of the first information report itself is indicative of fact that the incident took place on 21.09.2006 but the first information report was lodged on 23.09.2006 at 4:00 p.m. Testimony on record when read conjointly with fact suggests that the informant was busy in the treatment of his injured son Jitendra after the incident had taken place because the injured was referred to Moradabad and after giving the treatment, the injured had occasion to lodge the first information report.
It is noticeable that in this case, the accused-appellant is none other than the younger brother of the injured himself. In such scenario, lodging of the first information report cannot be said to be delayed but the delay stands explained under facts and circumstances of the case apart from testimony of Om Prakash PW-2.
It is relevant to take note fact that the injured Jitendra PW-3 has himself testified in all genuineness in his examination-in-chief that the accused-appellant fired on his stomach on 21.09.2006 at 11:00 a.m. while he was lying idle in the verandah of his house in the village. At that point of time, his father was also standing outside the house. The motive behind causing the incident has been ascribed to be personal enmity. The accused-appellant appeared on the scene all of a sudden possessing countrymade gun and he fired with intention to kill the injured.
In the medical examination of the injured on 21.09.2006 at 2:40 p.m., at Sri Sai Hospital, Moradabad, the doctor has noted the nature and the cause of injury in shape and form of lacerated wound over abdomen 4 cm x 2 cm left side from umbilicus around 5 cm size 4 cm x 2 cm (left lumber region). He was referred to Surgeon and was advised for x-ray of abdomen and USG. This injury report is Ext. Ka-5 and has been proved by Dr. Preetam Bala PW-5. In the opinion of the doctor, this injury could have been caused around 11:00 a.m. 21.09.2006. Nothing adverse has emerged out of his cross-examination, which may create any doubt on the nature and style of the injury noted at the time of medical examination of the injured.
Similarly, another Dr. Mohit Agrawal, PW-1 who conducted x-ray of the injured has proved x-ray report as Ext. Ka-1. No free air was noted under either domes of diaphgram. No abnormal air fluid levels seen in abdomen. Air filled bowel loops seen in abdomen. This doctor witness has been cross-examined. No specific suggestion has been made to the degree of injury and its fatality. However, it is obvious that shot hit the injured on his stomach which is vital part of the body, therefore, injury caused with firearm by the accused-appellant, under circumstances and facts of this case, stands proved.
The contention has been raised by the learned counsel for the accused-appellant that the injured Jitendra PW-3 has stated in his testimony in cross-examination that he could not see the accused-appellant while he was firing on him. This testimony appears on page 10-11 of the paper-book. However, learned AGA has confronted the aforesaid contention by submitting that the suggestion just after the aforesaid piece of testimony itself confirms that it is incorrect to say that the injured could not see the accused-appellant Surendra standing on the spot/scene of occurrence possessing countrymade gun. He has also stated on page 11 of the paper-book just before the bottom ending of his testimony that he had stated to the Investigating Officer about fact that he had seen the accused-appellant Surendra possessing countrymade gun in his hand. It is correct that the witness could not see as to from which direction pellet took its course and hit the injured but the question on the face appears to be somewhat ambiguous in terms because no one can see direction of pellet covered by it. But this much is established in the testimony of the injured Jitendra PW-3 that seat of injury is stomach and that does not create any doubt about injury being caused on the stomach which in turn has been proved by PW-1 and PW-5, respectively.
The weapon used in the offence was recovered at the pointing out of the appellant after he made confessional statement to the Investigating Officer, S.I. Babu Ram, who has specifically proved fact of recovery. Fact of recovery has been reasonably proved by witnesses Constable Madan Kumar, PW-6 and Harpal Singh PW-9. They have been cross-examined at sufficient length by the defence wherein nothing of sort has emerged which may create any doubt on the point of recovery.
A report has also been obtained from Forensic Science Laboratory, Lucknow, dated 18.08.2007 wherein forensic expert has confirmed fact that the countrymade gun which was marked 1/2007 is stated to have been used in the commission of the offence. The site plan of the incident is also proved which also shows that the incident was caused while the injured was sitting in Verandah and the place where the accused-appellant was standing and from where he fired on the injured has been marked by word 'B', therefore, site plan of the incident is also in consonance with the testimony on record and the place of incident is even certain.
It cannot be said under facts and circumstances of this case that the Investigation carried out by both the Investigating Officers in this case is faulting or motivated against the accused. No plausible explanation has been given by the accused as to how and why he will be falsely implicated in this case when he was real son of the informant and real brother of the injured. Obviously, the accused-appellant must have been nurturing some grudge against the injured due to which he entertained animosity and purportedly out of animosity committed crime on 21.09.2006 at 11:00 a.m. Injured witness has himself testified about the incident in his examination-in-chief which testimony is in consonance with the statement recorded under Section 161 Cr.P.C.
A holistic view of the entire testimony on record is indicative of fact that offence in question was committed by the accused-appellant on 21.09.2006 at 11:00 a.m. whereby injury was caused on the stomach of the injured PW-3 and after arrest of the accused-appellant, weapon used in commission of the crime i.e. countrymade gun and cartridge used in causing injury were also recovered at the pointing out of the accused-appellant himself which factual aspect of recovery stands proved beyond all reasonable doubt and is confirmed by the forensic examination report. Therefore, it can be summed up that the prosecution was able to prove its case beyond all reasonable doubt under Section 307 IPC and 25 Arms Act.
The trial Judge who appraised the facts and evaluated evidence on record was conscious of the aforesaid facts and has recorded detailed finding on the guilt of the accused and has taken into consideration all the aforesaid aspects both factual as well as legal and has passed just finding of conviction and sentence which needs no interference by this Court.
Consequently, the judgment and order of conviction and sentence passed by the trial court is justified and the same is based on material on record.
Accordingly, the judgment and order of conviction dated 07.6.2008 passed by Additional Sessions Judge, FTC-II, J.P. Nagar, in Sessions Trial Nos.508 of 2006 and 509 of 2006, State Vs. Surendra Singh, arising out of Case Crime Nos. 1186 of 2006 and 1221 of 2006 for offence under Sections 307 IPC and Section 25 Arms Act, respectively, Police Station- Amroha Dehat, District- J.P. Nagar, against the appellant is upheld and is affirmed.
In view of above, the appeal lacks merit and is dismissed.
In this case, since the accused-appellant has suffered the entire sentenced imposed on him and after suffering sentence and depositing fine, he has been released from Jail, on 04.09.2009, as per report appended vide letter submitted by Superintendent, District Jail, Bijnor, dated 25.05.2017, therefore, no further observation need be made in that regard.
Let a copy of this judgment be certified to the trial court for necessary information and follow up action.
Order Date :- 29.08.2017 Iss