Allahabad High Court
Ghanshyam Chaudhary And Another vs State Of U.P. on 28 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1658
Author: Bachchoo Lal
Bench: Bachchoo Lal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 23.06.2020 Judgment delivered on 28.07.2020 Case :- CRIMINAL APPEAL No. - 8204 of 2007 Appellant :- Ghanshyam Chaudhary And Another Respondent :- State of U.P. Counsel for Appellant :- Lav Srivastava,Ganesh Shanker Srivastava,Govind Saran Hajela,Jag Narain Sharma,N.K. Chaubey,Nikhilesh Kumar Chaudhary,R.K. Singh,R.R. Singh,V.P. Srivastava Counsel for Respondent :- Smt. Manju Thakur, Addl. Govt. Advocate Hon'ble Bachchoo Lal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam, J.)
1. This criminal appeal, under Section 374(2) of Code of Criminal Procedure, (hereinafter referred to as 'Cr.P.C.') has been filed by Ghanshyam Chaudhary and Vishwanath, against judgment of conviction and sentence dated 23.11.2007 made by Court of Additional District and Session Judge, Fast Track Court No. 1, Basti, in Sessions Trial No. 16 of 2005 (State Vs. Ghanshyam Chaudhary and another) connected with Session Trial No. 151 of 2005 (State Vs. Ghanshyam Chaudhary), arising out of Case Crime No. 678 of 2004 of P.S. Walterganj, District Basti, for offence punishable under Section 302 IPC and Case Crime No. 495 of 2004, under Section 25 of Arms Act, of Police Station Sonha, District Basti, wherein, both of convict appellants Ghanshyam Chaudhary and Vishwanath have been convicted and sentenced with rigorous life imprisonment and fine of Rs. 10,000/-, each and in case of default in payment of fine, they are to suffer further rigorous imprisonment for each, and in connected Sessions Trial No. 151 of 2005 (State Vs. Ghanshyam Chaudhary), appellant Ghanshyam Chaudhary, has been acquitted for offence punishable under Sections 3/25/27 of Arms Act.
2. Sri Ganesh Shanker Srivastava and Nikhilesh Kumar Chaudhary, learned counsel for the convict-appellants, argued by pressing grounds of appeal, given in memo of appeal that impugned judgment and sentence is against the evidence on record. Prosecution failed to prove its case beyond reasonable doubt. Presence of witnesses appears to be doubtful and they have not seen the occurrence. They were fabricated witnesses. None of the witnesses were present at the time of incident. Appellants have been named in the FIR because of some ulterior motive and suspicion. They are of no concern with occurrence. There was no motive for them to commit this offence. Hence, this appeal with a prayer for allowing this appeal and thereby quashing impugned judgment and conviction made therein.
3. Smt. Manju Thakur, learned AGA, argued that it was a murder, committed by convict- appellants, by giving assault over deceased, having eye witness account of same, for which instant report was got lodged. After investigation, charge-sheet for offence punishable under Section 302 of IPC, against both of appellants Ghanshyam Chaudhary and Vishwanath and in connected session trial against Ghanshyam Chaudhary for offence punishable under Section 25 of Arms Act was submitted. Cognizance over it was taken. Magistrate had committed file to Court of Sessions, where, trial was held and all material evidences along with material exhibits were proved and exhibited. Then after statements under Section 313 of Cr.P.C. were got recorded and after hearing of arguments of learned counsel for both sides, impugned judgment of conviction, in Session Trial No. 16 of 2005, was passed against both of convict-appellants Ghanshyam Chaudhary and Vishwanath, whereas, judgment of acquittal in Session Trial No. 151 of 2005 was there. After hearing over quantum of punishment, impugned sentence of rigorous life imprisonment with fine of Rs. 10000/-, each and in default additional rigorous imprisonment of six months was imposed. This judgment of conviction and sentence made therein, was in accordance with evidence on record. No where trial Court failed to appreciate facts and law or apply appropriate proposition of law. Hence, this appeal merits its dismissal.
4. Having heard learned counsels for both sides and gone through record of trial court including impugned judgment, prosecution version surfaced was that First Information Report Ex. Ka-2, was presented before Station Officer of Police Station Walterganj, District Basti, by informant Tilak Ram, son of Katai, r/o Kakarhiya, P.S. Sonaha, District Basti, with this contention that his sister, Indramati, was married 15 years back with Ram Pratap, r/o village Pachasi, P.S. Sonaha, District Basti. Ram Pratap was Gram Sevak and a Government servant, who died issueless on 4.9.2004. Indramati was asked by Village Secretary and Village Pradhan Ghanshyam Chaudhary (devar of Indramati, who is convict-appellant No. 1), at Block Development Office, Ram Nagar, for getting copy of family register and death certificate of Ram Pratap. Informant took his sister Indramati to Block Office, Ram Nagar, where Village Secretary and Ghanshyam Chaudhary were present. Secretary asked for coming on Saturday for getting those documents. This was in presence of Ghanshyam Chaudhary. While coming back to home, Indramati was being followed by informant. Dhruvchandra and Lalman, r/o Siyarapar and Walterganj, respectively, were in company of informant Tilak Ram. When they all reached at Belhasa, Vishwanath, s/o Ram Kumar, r/o village Sihara Khurd, P.S. Rudhauli, riding on a Boxer Motorcycle of red color, having pillion rider Ghanshyam Chaudhary, who is brother-in-law of Vishwanath, came near Indramati. Vishwanath gave exhortation for killing Indramati and Ghanshyam Chaudhary did firearm shot by a tamancha, thereby, killed Indramati on spot. It was about 4:00 P.M. Both of them fled from spot. This was a murder with a view to grab entire property of Indramati. Her dead body was lying on road and report was instantly presented. On the basis of this report, FIR of Case Crime No. 678 of 2004 was got registered at P.S. Walterganj, through a chick FIR Ex.Ka-3. This registration of case crime number was got entered in general diary entry Ex. Ka-4. Inquest proceeding was got conducted and its report Ex. Ka-5, was got prepared. Death, owing to firearm shot injury was opined in inquest proceeding. But autopsy examination was referred. For which, relevant papers i.e. letter to Regional Inspector, Basti Ex. Ka-7, Specimen seal by which dead body was sealed Ex. Ka-8, Photo dead body Ex. Ka-9, Police Form No. 13 Ex. Ka-10, Site map Ex. Ka-11, recovery memo of recovery of broken bangles of deceased lying on spot Ex. Ka-12, recovery memo of taking of blood stained and plain soil from spot Ex. Ka-14, recovery memo of taking of slipper of deceased lying on spot Ex. Ka-13, recovery memo of taking empty cartridges lying on spot Ex. Ka-15, were got prepared. Matter was investigated, wherein, there was a recovery of country made tamancha, having a cartridge in its barrel and on the basis of this recovery memo, Case Crime No. 495 of 2004, under Section 3/25/27 of Arms Act, at P.S. Sonha, Basti, was got registered. As this country made tamancha was confessed to be weapon of offence of murder of case crime No. 678 of 2004 of Police Station Walterganj, District Basti, hence, it was connected with above offence of murder. After investigation, a sanction from District Magistrate, Basti, was obtained and it is Ex. Ka-17, spot map of recovery of firearm Ex.Ka-16 was got prepared. Autopsy examination report Ex. Ka-20, revealed death by antemortem injury over person of deceased caused by firearm weapon. Hence, charge-sheet Ex. Ka-19 for offence of murder was filed. Chick FIR of Case Crime No. 495 of 2004 Ex. Ka-21, General Diary Entry of this registration of case crime number of Police Station Sonaha Ex. Ka-22 along with charge-sheet for this offence was submitted.
5. As offence, punishable under Section 302 of IPC, was exclusively triable by Court of Sessions, hence, both of these files were committed to Court of Sessions, where, Court of Additional Sessions Judge, Court No. 6, Basti, vide order dated 5.8.2005, levelled charge of offence of murder punishable under Section 302 of IPC against Ghanshyam Chaudhary and offence of murder committed under joint mensrea with Ghanshyam Chaudhary punishable under Section 302/34 IPC against Vishwanath was levelled. Another charge for offence punishable under Section 3/25/27 of Arms Act against Ghanshyam Chaudhary was levelled. All these charges were read over and explained to accused persons, who pleaded not guilty and claimed for trial.
6. Prosecution examined informant as PW-1 Tilak Ram, PW-2- Dhruv Chand, PW-3 Lal Man, PW-4 Sri Prem Singh Dubey, PW-5 Sri Shiv Pujan Chauhan, PW-6 Sri Ram Saran Prasad, PW-7 Sri Anjani Kumar Upadhayay, PW-8 Sri Ganesh Singh, PW-9 Sri B.D. Srivastava, PW-10 Sri Durga Prasad Singh, PW-11 Sri Ashok Kumar Tiwari.
7. For having explanation of accused persons over incriminating evidences, given by prosecution, both of convict-appellants were asked questions under Section 313 of Cr.P.C. on 30.8.2007, wherein, a general reply of testimony of prosecution witnesses were made that testimony was incorrect and accused persons have been falsely implicated. But this fact was admitted to be true that deceased Indramati, sister of informant Tilak Ram, was married with Ram Pratap, resident of Village Pachhasi, Police Station Sohna, District Basti, and she was issueless. Recovery of country made tamancha of 0.315 bore and cartridges were said to be planted one.
8. Defence witness No. 1 Smt. Geeta and Defence Witness No. 2 Sri Mahendra Kumar were examined.
9. After hearing arguments of learned public prosecutor as well as learned counsel for the defence, judgment of conviction for offence punishable under 302/34 of IPC for both of accused persons Vishwanath and Ghanshyam Chaudhary and judgment of acquittal for offence punishable under Section 3/35/37 of Arms Act was delivered. After hearing over quantum of sentence, learned trial Court awarded rigorous life imprisonment with fine of Rs. 10,000/-, against each of convict and in default of fine additional rigorous imprisonment as above.
10. This appeal by both of convict-appellants Ghanshyam Chaudhary and Vishwanath is against this judgement of conviction and sentence awarded for offence of murder. No appeal either by State or by informant-complainant is against judgment of acquittal, passed in Session Trial No. 151 of 2005.
11. Learned counsel for the appellants has vehemently argued that place of occurrence is not in consonance with case of prosecution. The spot, where deceased sustained firearm injury was a place having shrubs of Behya (a wide growing shrubs) and dead body was lying there at, whereas prosecution case proves spot other than it. Indramati- deceased was wife of Ram Pratap, who is real brother of Ghanshyam Chaudhary, who was a Gram Sevak- a Government Servant, having no issue and informant Tilak Ram was being very often fed by them. Deceased persuaded Tilak Ram for return of her money. Tilak Ram managed for murder of Indramati. Ghanshyam Chaudhary and his brother-in-law Vishwanath were got falsely implicated for this murder. The landed property was mutated in the name of Indramati, after death of her husband Ram Pratap and after her death, it was not to be diverted to accused persons. Hence, there had been no motive for this murder. This dead body was recovered from a place, having distance of about 5 kms. from the house of informant Tilak Ram. Whereas, accused persons were of remote places. Documentary evidence of extract of khatauni paper list marked as 81 (kha), having entry of Gata No. 39, 40, 41 of Village Chuthana and 85 (kha) with a copy of complaint No. 1185 of 2005 (Mahendra Pratap Vs. Tilak Ram Chaudhary) and order have been filed. Certified copies of statements of witnesses Jairam and Akriti, recorded therein, have been filed. Meaning thereby, murder of deceased Indramati by firearm shot and her inquest proceeding as well as autopsy examination has not been disputed by defence. Rather it has been argued before trial Court as well as before this appellate Court that it was a murder of Indramati by and under conspiracy of Tilak Ram and these appellants have been falsely implicated.
12. In Kali Ram Vs. State of Himachal Pradesh, AIR (1) 1972 SCC 2773, Court has propounded that in criminal case onus is upon prosecution to prove different ingredients of offence and unless it discharges that onus it cannot succeed to prove its case. Prosecution has to prove its case beyond all reasonable doubt; whereas accused is required to prove only till establishing preponderance of probabilities as has been propounded by Apex Court in Vijayee Singh and others Vs State of U. P., AIR 1976 SC 966.
13. In appeal, the burden is on appellant to prove how judgment under appeal is wrong? Appellant must show where assessment has gone wrong, as has been propounded in Narbada Prasad Vs. Chhaganlal, AIR 1969 SC 393.
14. Judgment of Hon'ble Apex Court by Hon'ble Mr. Justice V. R. Krishna Iyer in H.P. Thakore Vs. State of Gujrat, (1976) 4 SCC 640 (para 6) has propounded that while the murder is the tragedy, the discovery of the murderer beyond doubt is the judicial function. Hence, in this trial, this judicial function has been performed by learned Trial Court and it is being re-assessed by this Appellate court. Because as per verdict of Hon'ble Apex Court in Caetano Piedade Fernandes vs Union Territory of Goa, Daman And Dieu, (1977) 1 SCC 707 Para 4 this has been propounded that "Appellate Court has the same power as the trial court of appreciating evidence and coming to its own conclusion on question of fact."
15. Informant- PW1 Tilak Ram, in his examination in chief, has categorically stated that he is an eyewitness account of this occurrence of murder of his sister Indramati, committed by Ghanshyam Chaudhary and Vishwanath. He, along with Dhruv and Lalman, was on his way to his village from Saltauva and his sister Indramati was also on the same way at about eight Kattha (about 40 Ft.) distance from him, when this occurrence, near Belhasa minor canal bridge, took place. Indramati was given firearm shot by Ghanshyam Chaudhary, who is younger brother of her pre-deceased husband and she died on spot. Dead body was lying on spot and it was about 4.00 P.M. of 06.10.2004. He immediately rushed to Police Station, where he gave information by written report, paper no. 3A/3 and the same is under his signature on record. This has been exhibited as Exhibit Ka 1. Regarding this registration of case crime number, at above time and place at police station concerned, is the same, being not under signature of this witness, no question in cross-examination has been asked by learned counsel for defence. This portion of his evidence is fully intact having no embellishment or contradiction. This has further been corroborated by statement of Scribe of Chick F.I.R., PW5 Constable 308 Shiv Poojan Chauhn, who, in his examination in chief, has categorically stated that he on 06.10.2004 while being posted as constable clerk at Police Station Walterganj, District Basti, has got registered FIR No. 71 of 2004 of Case Crime No. 678 of 2004, u/s 302 I.P.C. at P.S. Walgerganj, against Village Pradhan Ghanshyam, resident of Village Pachasi, P.S. Saunaha, District Basti, and Vishwanath, son of Rajkumar, resident of Village Sihari, P.S. Rudhauli, District Basti, on the basis of written report submitted by informant Tilak Ram, son of Kataee, resident of Village Kakraiya, P.S. Sonaha, District Basti. Chick FIR is on record as paper no. 3A/2 and the same is before this witness, having been under his handwriting and signature, which has been verified by him and on the basis of this testimony, it has been exhibited as Exhibit Ka3. This registration of case crime number, as above, for offence, as above, against accused, as above, was entered in General Diary entry of Police Station concerned at Report No. 34 at 17.30 hours on 06.10.2004. This G.D. entry was made by way of putting carbon beneath it and the same, original G.D., was with this witness at the time of recording of his statement before Court. This is true copy of original G.D. entry, prepared under one and common process, having his handwriting and signature, and this has been proved and exhibited as Exhibit Ka4.
16. In cross-examination, not a single question has been asked about this Exhibit Ka 3 and Ka4, for not being under handwriting and signature of this witness or not prepared at above given time and date or informant Tilak Ram was not present with above written report Exhibit Ka1 i.e. no cross-examination over those facts is there and this is unrebutted evidence. Hence, on the basis of Exhibit Ka1- written report, Exhibit Ka2- Chick FIR and Exhibit Ka3- G.D. entry as well as oral testimonies of PW1 and PW5, it is proved that F.I.R. for occurrence of 4.00 P.M. of 06.10.2004 of offence of murder of deceased Indramati by firearm shot given at above place near Minor Canal of village Belhasa was got registered at P.S. Walterganj at 17.30 hours of the same day i.e. the report was within one and half hour i.e. a very prompt report having sequence of occurrence, mode of occurrence, weapon of occurrence, name of accused, who committed this offence, and witnesses, who witnessed this occurrence, is there and thus lodging of prompt F.I.R. has been proved beyond any doubt.
17. Hon'ble Apex Court by Hon'ble Mr. Justice H. R. Khanna in Thulia Kali Vs. State of T.N., (1972) 3 SCC 393 at para 12 has propounded:
"The first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced in the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as, the names of eye witnesses present at there scene of occurrence. Delay in lodging the first information report quite often results in embellishment, which is a Creature of after thought."
18. In the present case, it is a prompt F.I.R. having all those essential ingredients given in above precedent.
19. Though Hon'ble Apex Court regarding appreciation of evidence of F.I.R. in a criminal administration of justice has propounded in Chandra Bhal Vs. State of U.P., (1971)3 SCC 983 para 4:-
"No doubt the first information report being an early record and the first version of the alleged criminal activity conveyed to the police officer with the object of putting the police in motion in order to investigate, is an important and valuable document. But it has also to be remembered that it is not a substantive piece of evidence and it can only be used for the purpose of corroborating or contradicting its maker. The statute does not provide that it must be made by an eyewitness to the commission of the alleged offence or that it must give full and precise details. It is, therefore, not intended to be treated as the last word of the prosecution in the matter. It merely marks the beginning of the investigation into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of the crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence."
20. First informant, PW1- Tilak Ram, is admittedly real brother of deceased. It is further admitted fact of defence, in reply to question no. 1 of statement recorded u/s 313 Cr.P.C., that Ram Pratap, who was a Gram Sewak, a Government servant, was real elder brother of accused- Ghanshyam Chaudhary, died on 04.09.2004. He was issueless and this accused Ghanshyam Chaudhary was Village Pradhan. As per defence case, Indramati was dependent upon her brother and she had gone to her parental village Kakarahiya. There was previous close relation in between informant and his brother-in-law Ram Pratap, wherein money share was also there. Hence the circumstance, admitted, as above, reveals that Indramati was taking assistance of her brother. As per informant- PW1, he along with his sister Indramati had gone to Block Development Office Saltaua for having copy of Kutumb Register as well as death certificate of Ram Pratap and this was asked to be given by Village Secretary Dashshala. When this informant along with his sister (deceased Indramati) went Block Office, accused Ghanshyam Chaudhary, who was Village Pradhan, was present at Block Office near Village Secretary and it was asked by Village Secretary in presence of Ghanshyam Chaudhary for coming on next Saturday for taking those documents. Then on this information, the informant and his sister proceeded for their village Kakarahiya. But in town Saltauva at the eastern end Dhruv and Lalman met to the informant. As they were of village where informant's sister was married, hence, they all became in the company, because they were going towards one and same side. When they were accompanying each other, this Indramati was moving ahead 4-5 Kattha (about 40 to 45 Ft.) and this occurrence took place. Accused- Ghanshyam, who was at Block Development Office, Saltauva, being pillion rider on red colour Boxer motorcycle being driven by Vishwanath, his brother-in-law, came near Indramati and upon exhortation of Vishwanath, Ghanshyam Chaudhary gave firearm shot over Indramati, resulting her instant death. It was about 4.00 P.M. After this, informant proceeded for Police Station and got this report lodged. He came back at spot before police rushed. Then after inquest proceeding was conducted. Dead body was sealed intact and it was sent for autopsy examination. Statement of informant was got recorded by Investigating Officer. This testimony of informant- PW1 is with no exaggeration or embellishment or in contradiction with his previous statement made in the F.I.R. Rather it was in full corroboration in examination-in-chief as well as in cross-examination of the same. This witness is with no contradiction or exaggeration. His testimony is further corroborated by testimony of PW6- S.I. Ram Saran Prasad, who in his examination-in-chief has categorically stated that while being posted as S.I. Police at P.S. Walgerganj on 6.10.2004, Case Crime No. 678 of 2004, u/s 302 I.P.C. against Ghanshyam and Vishwanath was got registered in his presence and he was deputed with investigation of the same. He made entry in his paper number of case diary, wherein copy of chick FIR and G.D. entry was entered then after he proceeded for spot, where he got inquest report prepared. The same, in his handwriting and signature, is on record as Paper no. 3A/18. It has been proved and exhibited as Exhibit Ka5. Dead body was sealed on spot by preparing specimen seal of the same. Requisite papers, for autopsy examination of dead body, including letter to Regional Inspector of Police, letter to C.M.O., photo of dead body and challan of dead body were prepared under his own handwriting and signature and the same are on record as Paper No. 3A/9 to 3A/11, 3A/16 and 3A/17. They have been exhibited as Exhibit Ka6, Ka7, Ka8, Ka9, Ka10, respectively. Spot was visited, upon pointing out of the informant, at the same time. Statement of informant was recorded u/s 161 Cr.P.C. Spot map, under his handwriting and signature, is on record as paper no. 3A/20, which has been proved and exhibited as Exhibit Ka11. There were broken bangles of deceased lying on spot. Her slipper was lying there at. These articles were taken in possession and recovery memos for those were got prepared under handwriting and signature of this witness. Blood stained soil as well as plain soil were taken from spot. This recovery memo was prepared under his dictation by S.I. Keshav Prasad Dubey in his handwriting, having signature of this witness too. These recovery memos have been proved and exhibited as Exhibit Ka12, Ka13 and Ka14. An empty cartridge as well as a bullet of cartridge were lying there at. These too were taken into possession, of which recovery memo was prepared by S.I. Keshav Prasad Dubey, under his dictation, and the same is Exhibit Ka15 on record. In cross-examination, he has specifically stated that the dead body was lying on road in area of Village Belhasa. A suggestive leading question has been put to this witness by learned counsel for defence that this witness visited spot but did not perform inquest proceeding. Rather dead body was taken to Police Station Walterganj, where inquest was conducted. This has been vehemently answered in negative by specific assertion that inquest proceeding was performed at spot and dead body was sealed, papers were prepared then after it was handed over to Police Constable for carrying it to mortuary for autopsy examination. Learned counsel for defence has argued that dead body was taken to Regional Police Line on the next day at about 10.00 A.M. and dead body was kept at Police Station Walterganj for whole night. This question has been answered in negative by this witness as well as Constable Clerk and it has specifically been said that the dead body was handed over to Constable concerned then after this witness is not aware of the same. Though, informant, in his cross-examination, has stated that it became night and it was told that the dead body will be taken in morning, hence, it was taken to mortuary in the morning. It is a plausible circumstance. Once dead body was sealed and it was handed over for carrying to mortuary then nothing matters as to when it was taken, particularly when murder on above date, time and place is not disputed or the witness, who had conducted autopsy examination has proved that the dead body was fully intact and sealed. Hence no question of any tampering ever arisen. Hair splitting cross-examination regarding site map, Exhibit Ka11, and taking of dead body, covering dead body by a bed-sheet etc. etc. has been vehemently argued by learned counsel for appellant, but the same is of no avail. Because time and again it has been propounded by Hon'ble Apex Court as well as this court that hair splitting examination is not to be said for throwing case of prosecution. Minor embellishment and trivial discrepancies are usual in witness statement. Inspite of hair splitting on any point, totality of situation ought to have been recognized. Leela Ram Vs. State of Haryana, 2000 SCC (Cri) 222.
21. Testimonies of PW1 and PW6 have been further corroborated by testimony of Medical Officer, who had conducted autopsy examination. PW9- Dr. Vishnu Deepak Srivastava, Senior Skin Specialist, District Hospital, Basti, has categorically stated in his examination-in-chief, that while being posted as Senior Dermatologist at District Hospital, Basti, on 7.10.2004, he was deputed on post-mortem duty and dead body of deceased Indramati, aged about 35 years, wife of Ram Pratap, resident of Village Kakarahiya, P.S. Sonaha, District Basti, brought under sealed intact position, having been sealed by S.O. Waltergang, Basti, through CP 281 Rajendra Kumar Singh and CP 70 Jai Prakash Singh, was examined upon identification by those constables at 3.10 P.M. of 7.10.2004. Deceased was of average body built. Eyes were closed, mouth was semi closed, rigor mortis was present in all limbs. There were antemortem injuries:- Injury No. 1- wound of entry of firearm shot 3x 2.5 cm x right side chest cavity deep over back- right side at the place of 6th rib joint with spinal chord at 2 cm distance having blackening and palming mark in 3x 5 cm area, all around injury, having inverted margin. Injury No. 2:- corresponding wound of exit firearm shape 4.5x 3 cm x chest cavity deep with everted margin, present in mid line sternum area. In internal examination 6th vertebra was fractured and portion of 6th rib, which adjoins 6th vertebra was fractured and missing. Right pleura and right lung were congested and lacerated. Clot of 500 Ml blood was there in right chest cavity. Cardiac membrane was lacerated. Right Atrium was having through and through laceration. Blood clot was present in pericardium. Semi digested meal to the tune of about 200 Mg was in stomach. This was a death owing to those ante-mortem firearm injuries. Documents, which were accompanying the sealed dead body, were got signed by this Medical Officer and they were returned back in an envelope. Autopsy examination report, under his handwriting and signature, was prepared at the time of examination. The same is on record as paper no. 3A/12, which has been proved and exhibited as Exhibit Ka19. In cross-examination no question with any inconsistency or exaggeration is there. Rather it is in full tune with examination-in-chief. More so, death by firearm shot is not disputed by learned counsel for defence either in its case taken as defence before trial court or in statement recorded u/s 313 Cr.P.C. or before this Appellate Court. Hence, it is a culpable homicide by giving firearm shot having one wound of entry and one wound of exit, resulting laceration over vital part, fracture of rib and vertebra, resulting death, amounting to murder of deceased, which has been fully proved by prosecution.
22. Motive has been vehemently argued by learned counsel for appellant. Whereas Hon'ble Apex Court as well as this court has at many times, propounded that motive plays no role in appreciation of evidence in a criminal trial based upon ocular testimony. It plays vital role in a case based on circumstantial evidence. State of U.P. Vs. Akhlaq and another, 2010 (71) ACC 764 (Allahabad High Court, Lucknow Bench). This trial is not based on circumstantial evidence. Rather it is based on ocular testimony of informant and two of witnesses, who were present on spot and were witness of occurrence, whose names were there in prompt F.I.R. (Exhibit Ka1).
23. PW2 is Dhruv Chandra, who in his examination-in-chief, has given the case of prosecution, fully intact and in corroboration of testimony of PW1, written as above. Lengthy cross-examination of this witness is there. But there is neither any contradiction nor embellishment. A suggestive question has been given that assailants went towards the same side from which side they have come on spot and this has been answered in negative by this witness. This suggestive question itself reveals presence of this witness at the time of assailants' assault and this is not being disputed. Time of occurrence, sequence of occurrence, names of assailants, circumstances under which this witness was capable to identify assailants, perceived sequence of occurrence have been fully narrated by this witness in his examination-in-chief and there is no variance in cross-examination.
24. PW3 is Lalmani Chaudhary, who has repeated the same prosecution story, in his examination-in-chief, that Ghanshyam and Vishwanath came on a Boxer motorcycle from Saltaua side when Indramati was on her way to Kakrahiya near minor canal of Belhasa when exhortation was made by Vishwanath and firearm shot was given by Ghanshyam, Village Pradhan, resulting her death on spot. Though, in cross-examination, some contradictions and omissions have been tried to be established by learned counsel for defence, but the same are of no material in nature. The material fact is fully intact in his cross-examination, resulting him a fully reliable and trustworthy witness.
25. PW11 is a formal witness, who has concluded investigation. This witness PW11- Ashok Kumar Tiwari, S.S.I., in his statement-in-chief, has said that while being posted as Station Officer, P.S. Walterganj, on 6.10.2004, he took investigation of Case Crime No. 678 of 204, u/s 302 I.P.C. and after recording statements of Anjani Kumar Upadhyay, the then S.O., Sonaha, S.I. Vinod Kumar Baranwal, S.I. Raj Kumar, S.I. Anand Kumar Gupta, statement of Prem Shanker Dubey, Constable Yugul Kishore Mishra and Rajendra Yadav, got copied report of Forensic Science Laboratory of 24.12.2004, submitted charge-sheet for offence of murder against Vishwanath and Ghanshyam Chaudhary, under his own handwriting and signature, which is paper No. 3A/1, proved and exhibited as Exhibit Ka22.
26. Certain embellishment and exaggeration of prosecution witnesses regarding motive has been put to this witness and he has admitted the same to be an addition. On over all appreciation of those testimonies, it is apparently clear that those alleged addition of embellishment are not going to impeach testimonies of those witnesses. Rather they makes witnesses more natural and probable.
27. PW4- Prem Shanker Dubey, PW7- Anajani Kumar Upadhyay, PW8- S.I. Ganesh Singh, are witnesses of recovery of firearm, registration of above case crime of Arms Act, informant, who recovered above firearm and investigation of above Case Crime number of Arms Act. But trial court has delivered judgment of acquittal for above connected Sessions Trial of Arms Act and there is no appeal either by State or by victim against this judgment of acquittal. Hence appreciation of those evidence of those witnesses, for whom there is judgment of acquittal, is not needed by this court. Though, alleged Tamancha and its specification of its fire pin, over empty cartridge found on spot and test cartridges, in Forensic Science Laboratory were having same characters and similarities, which were there over empty cartridge recovered from spot and bullet found on spot, which was projectile of above empty fired cartridges. Hence it was fully proved by prosecution that Tamancha, proved as Material Exhibit, was the same Tamancha of which empty cartridge recovered from spot, was fired and it was given in Forensic Science Laboratory reports dated 27.4.2005, 24.2.2005 and 8.4.2005. But as there is no appeal against this judgment of acquittal, hence need not to be discussed in it.
28. Learned counsel for appellant has vehemently opposed spot map, whereas spot map, Exhibit Ka11, was fully proved by its maker, first investigating officer- PW6- Ram Saran Prasad, and articles recovered from spot with recovery memos Exhibit Ka12, Ka13, Ka14 and Ka15 were with full report of Forensic Science Laboratory dated 27.4.2005, 24.2.2005 and 8.4.2005, which were tendered by learned Public Prosecutor and admissible in evidence because of being report of Forensic Science Laboratory. Which reveals that they were blood stained soil, recovered from spot, was with human blood like the other articles of deceased, recovered from spot. Physical structure of plain soil and blood stained soil were one and common. Hence place of occurrence was the same, where dead body was recovered and from where these articles were taken. Hence spot map was with no material variance. No cogent and specific reply or explanation explained. A general denial over prosecution evidence and exhibited proof has been given by accused persons before trial court while examined u/s 313 Cr.P.C.
29. Two witnesses, examined in defence, were of those facts that Ghanshyam Chaudhary was apprehended from his home and on the basis of this testimony of defence witness, the judgment of acquittal for offence of Arms Act is there. Hence these two defence witnesses DW1- Geeta Dev and DW2- Mahendra Kumar were concerned with facts relating to arrest and alleged recovery of Tamancha from Ghanshyam Chaudhary, wherein there is a judgment of acquittal.
30. So far as, offence of murder is concerned, these witnesses are of no detrimental to prosecution.
31. Learned counsel for appellant has vehemently argued as pleaded in memo of appeal that prosecution failed to prove its case beyond reasonable doubt.
32. Hon'ble Apex Court in Takhaji Hiraji vs Thakore Kubersing Chamansing, (2001) 6 Scc 145, para 20, has propounded that "benefit of doubt must always be reasonable nor fanciful".
33. Hon'ble Apex Court in State Of Punjab vs Karnail Singh, (2003) 11 SCC 271, para 12, has propounded that "exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law."
34. "Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same" as has been propounded by Hon'ble Apex Court in Krishna Mochi Vs. State of Bihar, (2002)6 SCC 81, para 32.
35. It is true that prosecution is required to establish its case beyond reasonable doubt, but that does not mean that decree of proof must be beyond shadow of doubt. Doubts would be called reasonable, if they are free from zest for abstract speculation. In the present case, argument of learned counsel for appellant is not of that much degree to create any doubt for giving benefit, what to say a reasonable doubt.
36. Upon over all appreciation of evidence led by prosecution and arguments advanced by learned counsel for both sides, it is very well established that learned trial court has rightly appreciated facts and law placed before it. Hence rightly concluded with judgment of conviction for offence of murder against both of appellants Vishwanath and Ghanshyam Chaudhary.
37. Regarding quantum of punishment, section 302 I.P.C. provides lowest punishment of imprisonment of life with fine and highest punishment is capital punishment and it is mandate of law that while administering to criminal law justice system making judicial decision regarding imposition of sentence, court must impose befitting sentence proportionate to degree and gravity of offence, mode of its commission, impact on society and public abhorrence. Upon these points, judgment of sentence is of minimum side sentence awarded. Hence, on this score too, there is no merit in argument of learned counsel for appellants.
38. Accordingly, this appeal merits its dismissal. Dismissed as such.
39 Certified copy of this judgment along with record be sent back to Court concerned for follow up action.
Dated: 28.07.2020 Pcl.