Shivnath Awasthi vs State Of U.P. on 22 February, 2022

[Cites 9, Cited by 0]

Allahabad High Court

Shivnath Awasthi vs State Of U.P. on 22 February, 2022

1. We have heard Sri Manish Jaiswal, learned counsel, appointed by the High Court Legal Services to represent the appellant who is in jail; Sri J.K. Upadhyay and Sri H.M.B. Sinha, learned AGA for the State and have perused the record.

2. This appeal has been filed against the judgement and order dated 10.1.2007 passed by Additional Session Judge, Court No. 3, Shahjanpur in Sessions Trial No. 971 of 2005, connected with Sessions Trial No. 972 of 2005, thereby convicting the appellant under Sections 302 and 307 IPC (in Sessions Trial No. 971 of 2005 arising out of case crime No. 169 of 2005, Police Station-Ram Chandra Mission, Shahjahanpur) and under Section 27 of Arms Act ( in connected Sessions Trial No. 972 of 2005 arising out of case crime No. 170 of 2005, Police Station-Ram Chandra Mission, Shahjahanpur) and sentencing him to imprisonment for life under Section 302 IPC; 10 years rigorous imprisonment with fine of Rs. 5,000/- and a default sentence of 5 months rigorous imprisonment under section 307 IPC and 5 years rigorous imprisonment with fine of Rs. 5,000/- and a default sentence of 5 months rigorous imprisonment under section 27 Arms Act; with a direction that all the sentences shall run concurrently.

Introductory facts

3. Prosecution case in a nutshell, which was instituted on a written report (Ex. Ka-1) lodged by PW 1 (brother of deceased Nanhe @ Man Singh) of which chik FIR (Ex- Ka.14) was prepared by PW-6, is that informant's brother (the deceased) was a tenant of Shiv Nath Awasthi (accused-appellant). The deceased resided in that tenanted accommodation with his family. On 6.7.2005, informant's nephew, namely, Rajveer @ Raju (PW 2) (the injured) was requested by the accused-appellant to increase the rent for the accommodation by Rs. 100/-. On that request, PW 2 told the accused-appellant that he would have to consult his mother for the demanded raise in the rent. On this, the accused - appellant went inside his house, brought his licensed gun and, at about 6:00 pm, fired a shot at PW 2 which struck him on the side of his chest and hand. On being struck by the shot, PW-2 ran towards the house of Bhagwan Das (not examined) and fell there. On hearing the gun shot, the informant and others arrived. The accused appellant also came there with his licensed gun and fired a shot at Man Singh @ Nanhe (the deceased), which resulted in his death. By alleging that the body of the deceased, who died at the spot, and the injured are lying at the spot, FIR was lodged by PW 1 on 6.7.2005 at 18:25 hours at P.S. Ram Chandra Mission, Shahjahanpur, which is at a distance of 1 km from the spot. The injured Rajveer @ Raju (PW 2) was examined for his injuries at about 7:20 pm by Dr. S.K. Dhruv (PW-7) on 6.7.2005 itself. Injury report (Ext. Ka 16) of Rajveer Singh reveals: (i) multiple gun shot wound on right arm in an area of 17 x 6 cm and right elbow joint on redial (sic) aspect with traumatic swelling in an area 12 x 6 cm on right arm and elbow joint; (ii) multiple gun shot wound in an area of 13 x 4 cm on right side of chest below right nipple; (iii) abrasion 1.8 x 0.6 cm anterior of right side of chest (round in shape) 4 cm below top of right shoulder joint. Injuries (i) and (ii) were kept under observation and x-ray of right arm and chest was advised. Injury (iii) was found simple in nature caused by hard and blunt object. Duration of the injuries was found fresh. X-ray report (Ex. Ka-18) of Rajveer Singh discloses presence of multiple small radio opaque shadow of metallic density on right shoulder including right arm and elbow and three small radio opaque shadow of metallic density on right chest region. The supplementary report of Rajveer Singh (Ext Ka-17) discloses that the injures were simple in nature caused by fire arm.

4. The inquest was conducted at the spot on 06.07.2005 of which report was prepared and exhibited as (Ext. Ka-4). The post mortem of the deceased was conducted on 07.07.2005 at about 3.30 pm. The post mortem report (Ex. Ka11) prepared by PW-4 (Dr. Rajesh Kumar Dwivedi) reveals following ante mortem injuries:-

Multiple firearm wound of entry in an area of 12 cm x 7 cm on right side of chest just lateral to right nipple varying in size 0.5 cm x 0.5 cm x muscle to cavity deep to 0.3 x 0.2 x muscle deep cavity deep; (ii) multiple firearm wound of entry in an area of 7 cm x 6 cm on front aspect of right forearm 10 cm above the right wrist varying in size 0.3 x 0.5 to 0.3 x 0.4 and muscle deep bone deep. Underneath radius bone fractured.

The internal examination revealed that right side 5th and 6th ribs were fractured. Right side pleura and lung lacerated. The stomach had 200 gm of pasty food material, small intestine had chyme plus gases and large intestine had faecal matter plus gases. Estimated time of death was a day before.

5. During the course of investigation, the Investigating Officer lifted blood stained earth and plain earth as also two empty cartridges from the spot where the body of the deceased was found and lifted another empty cartridge from a place nearby and prepared a memorandum thereof, which was exhibited as Ext. Ka-3 at the instance of Investigating Officer (I.O.) (P.W.3). The accused/appellant was arrested and, at the time of his arrest, an SBBL gun (material exhibit No.1) with one live loaded cartridge and nine live cartridges on the belt were recovered (material exhibits 2 to 12), of which, a seizure memo (Ext. ka-9) was prepared and, on 07.07.2005, a first information report (Ka-12) was also lodged at Police Station Ram Chandra Mission, District Saharanpur, which was registered as Case Crime No. 170 of 2005 under the Arms Act. The empty cartridges (material exhibits 13, 14 and 15) recovered from the spot, and the weapon recovered from the appellant, were sent for the opinion of ballistic expert; the opinion was later produced during trial and exhibited as Ext. Ka-21. According to the opinion of the Ballistic Expert, the empty cartridge EC-1 and EC-2 i.e. recovered from the spot were fired from the SBBL gun licensed to and recovered from the accused appellant.

6. After completing the investigation, two charge-sheets, namely, one for offences punishable under Section 302/307 IPC (Ex. Ka10) and the other for offence punishable under Section 27/30 Arms Act (Ext. Ka-20), were submitted by Parmeshwar Deen (PW-3) and Pooja Sharma (PW-8) respectively. After taking cognizance, the cases were committed to the court of session giving rise to Sessions Trial Nos. 971 of 2005 and 972 of 2005, respectively. On 01.12.2005 in Sessions Trial No. 971 of 2005 connected with Sessions Trial No. 972 of 2005, accused/appellant was charged for the offence of murder of Man Singh @ Nanhey punishable under Section 302 IPC as also for attempt on the life of Rajveer (PW-2) punishable under section 307 IPC; and for using firearm for unlawful purpose punishable Section 27 Arms Act. The accused/appellant pleaded not guilty and claimed to be tried.

7. During the course of trial, prosecution examined eight witnesses. PW-1 is the informant, who proved the lodging of the FIR and gave a narrative of the incident. PW-2 Raj Veer Singh, who is the person injured, and an eye witness of the incident, supported the prosecution story. PW-3 Parmeshwar Deen, the Investigating Officer of Case Crime No. 169 of 2005, proved various stages of investigation including the submission of the charge-sheet. PW-4 is Dr. Rajesh Kumar Dwivedi, who conducted autopsy and proved the autopsy report of the deceased Maan Singh @ Nanhey. PW-5 Vikram Babu is the constable clerk, who prepared the chick report/G.D. entry of Case Crime No. 170 of 2005. PW-6 Chandrahas Misra is the concerned constable, who prepared chik report of Case Crime No. 169 of 2005 and made G.D. entry thereof. He proved that the FIR of that case was lodged at about 18.25 hours vide G.D. report No. 32 dated 06.07.2005, which was exhibited as Ext. Ka-11. PW-7 Dr. S.K. Dhruv is the doctor who examined PW-2 on 06.07.2005 and prepared injury report (Ext. Ka-16). He also proved the supplementary report (Ext. Ka-17) and proved the radiologist's report (Ex. Ka-18) by recognizing the signature of the radiologist concerned. PW-8 Pooja Sharma is the Investigating Officer of Case Crime No. 170 of 2005 who proved various stages of investigation of that case and submission of charge-sheet (Ext. Ka-20) in that case.

8. The incriminating circumstances appearing in the prosecution evidence were put to the accused/appellant for recording his statement under Section 313 Cr.P.C. The accused/appellant in his statement recorded under Section 313 Cr.P.C. challenged the correctness of the statement of prosecution witness and claimed that he was arrested from home and charge-sheet has been wrongly submitted against him. In respect of the weapon recovered from him, he stated that the same was taken from his home. In respect of the reason for his implication the accused/appellant, while answering question nos. 15, 19 and 20, stated that he had animosity with the police; that informant and the deceased had an eye on his property; that they kept deferring their decision to vacate the premises, when requested; that, in between, the incident took place and he was implicated when somebody else committed the crime. While answering question no. 19, he stated that he had been a surety of Maan Singh (the deceased) but as the deceased was about to abscond, he got the surety cancelled, as a result whereof, there was animosity. He also stated that the deceased had enticed away somebody else's wife, namely, Savitri Devi, and had developed an evil eye on the property of the appellant therefore, the appellant was falsely implicated. The defence however led no evidence.

9. The trial court upon consideration of the evidence led during the course of trial and upon finding that the FIR was prompt; that there was an injured witness to support the prosecution case, which was also corroborated by medical report as well as ballistic expert report, recorded conviction as above. The trial court did notice that the deceased and Savitri Devi were accused in a murder case in which they were on bail of which the accused-appellant stood as surety but observed that merely because the deceased was an accused, it cannot be presumed that anybody would commit his murder and, therefore, when there is an ocular account to support the prosecution case, that too, flowing from a person who had received injury, and there was a ballistic expert report connecting the empties recovered from the spot with the weapon licensed to the accused-appellant, there was no occasion to doubt the correctness of the prosecution case. Accordingly, the appellant was convicted as above.

Submissions of the learned counsel for the Appellant

10. Assailing the judgment and order of the trial court, learned counsel for the appellant submitted that admittedly the deceased was involved with Savitri Devi in a case of murder and that Savitri Devi was wife of Arjun Singh and the deceased had enticed away Savitri Devi, therefore, it is a clear cut case where the deceased had several enemies. PW-2, the injured, is not son of the deceased but is son of Savitri Devi from her wedlock with Arjun Singh. The deceased and not PW-2 was tenant, therefore, the story that demand for raise in rent was made to PW-2 is not at all logical hence there was no motive to fire at the injured PW-2. Whereas, there was strong motive to falsely implicate the accused-appellant as the victim party had an eye on appellant's property and further the appellant, who was surety of the deceased in another case, had got the sureties cancelled. In that background, in absence of an independent witness to support the prosecution case, particularly, when the incident occurred in the middle of the street, an adverse inference ought to be drawn against the prosecution.

11. In addition to above, it was submitted that insofar as the informant is concerned, his presence at the spot is doubtful inasmuch as he is not a resident of that place where the incident occurred and, in his cross examination, he admitted that on the date of the incident, he had gone to his village. Though he claimed to have returned back on the same day, but he did not disclose the time by which he returned. It has also been pointed out that, according to his statement made during his cross examination, there were only two shots fired whereas the Investigating Officer showed recovery of three empty cartridges, which suggests that true facts have not been laid by the prosecution. In respect of the testimony of PW1, learned counsel for the appellant submitted that, firstly, his presence is doubtful at the place of incident because he is a resident of a different place, secondly, in his cross-examination he speaks of only two shots whereas, there are three empties recovered from the spot, thirdly, the manner in which, according to him, the incident occurred, lodging of the FIR could not have been that prompt. Hence, it is argued that the incident occurred in some other manner than alleged by the prosecution and the prosecution version is not truthful.

12. In respect of the testimony of PW-2, it is submitted by learned counsel for the appellant that he has not disclosed the exact spot from where he was shot at; though, he discloses that he was shot at from a distance of about two lathi, which, by conservative estimate, would be above 10 feet. But, interestingly, in the site plan (Ex. Ka-2) prepared by the I.O., the place B, where PW-2 was shot, falls 7 paces inside the main door (point C), within the house owned and possessed by the accused; whereas the other portion, shown by letter D, was let out to the deceased's family. It has been urged that the site plan does not disclose the point from where the shot was fired at PW-2. This gives rise to three possibilities: (a) that there was no eye witness of the incident or (b) that the incident did not occur in the manner alleged or (c) PW-2 received injury elsewhere because had he been shot inside the house, it was likely that there would have been blackening around the wound. It has also been argued that PW-2's version of the story that he was shot at 6 pm; thereafter, he ran out and while he was being bandaged by the deceased, the accused fired a shot at the deceased, does not inspire confidence because, if that was so, how would the deceased get time to fetch bandage and how could the informant get time to lodge FIR at 6.25 p.m. Therefore, the incident occurred in some other manner and the prosecution story was later contrived by ante-timing the FIR. It has also been argued that the statement of PW-2 that he ran away when the accused was about to load the gun to fire a second shot at the deceased, is in conflict with the statement of PW-1 as, according to him, the deceased as well as the injured were both lying at the spot when he lodged the report. It has been submitted that there appears contradiction in the version narrated in the FIR with that narrated by PW-2, and, therefore, it appears to be a case where the incident occurred in some other manner and at some other time; whereas, by taking advantage of the incident, the appellant has been falsely implicated with a view to grab his property.

13. In addition to above, learned counsel for the appellant pointed out that the ballistic expert report (Ex. Ka-21) discloses that only two empty cartridges were sent for forensic examination, when, as per prosecution case, there were three empty cartridges lifted vide memo dated 06.07.2005 (Ex. Ka-3). It has been submitted that non submission of the third empty cartridge for forensic examination would suggest that had it been submitted for forensic examination, it might have disclosed that it had not been fired from the weapon licensed to, and seized from, the appellant. Therefore, it is a case where the prosecution is hiding the truth hence an adverse inference be drawn against the prosecution and the appellant be extended the benefit of doubt.

Submissions of the learned AGA

14. Per contra, learned AGA submitted that the incident occurred in the month of July, 2005 at about 6.00 PM, by which time there is sufficient light; that there is no challenge to the date and time of occurrence as also to the place of occurrence in the suggestion made to the prosecution witnesses. Except a bald statement under section 313 CrPC that the appellant has been implicated with an eye on his property, no defence evidence has been laid and no suggestion has come to the witnesses in what other manner, and by whom, the crime was committed. In fact, the appellant has not even stated or made suggestion to the witnesses that the appellant was present elsewhere and, further, no suggestion has been given to the informant that the FIR was ante timed. Further, there is no challenge to the injury report of PW-2 and no suggestion has been given that the injury was self inflicted or fabricated to create false evidence, thus, the presence of PW-2 at the spot is certified by his injuries and, therefore, why would he not truthfully disclose his offender. Moreover, the ocular account rendered by PW-1 and PW-2 is consistent with medical report. It has also been urged that the distance of police station with the place of incident is just 1 km therefore, merely because the FIR has been lodged within 30 minutes of the incident it is not sufficient to indicate that it is ante-timed. In respect of not disclosing the place in the site plan from where the shot was fired upon PW-2, it is submitted that PW-2 was hospitalized, therefore, he might not be there at the time when the site plan was prepared by the I.O. Thus, merely on that ground, the substantive evidence that the accused appellant fired a shot at PW-2 cannot be disbelieved, particularly, when gunshot injury on the body of PW-2 is proved. It has been submitted that presence of PW-2 in the house of the appellant, as per the site plan, does not have any material bearing on the prosecution case because it is not the case of defence that the shot was fired as a reaction to an attack on the accused-appellant or an outcome of altercation or fight. Thus, PW-2 being an injured witness and being consistent in his deposition is reliable enough to sustain conviction of the appellant. In respect of not sending the third empty cartridge for forensic examination, learned AGA submitted that in this context no question was put to the Investigating Officer to elicit his explanation and, therefore, no adverse inference could be drawn merely on that count. Insofar as the averment made in the FIR that PW-2 was lying with the deceased at the spot being in conflict with the testimony of PW-2 that he ran away when the second shot was loaded in the gun, learned AGA submitted that the statement of PW-2 would have to be read in the context it was made because the statement of PW-2 is not that he ran away to another place. This statement should be understood that he ran to maintain a safe distance from the assailant. Learned AGA thus submits that this is a case where the prosecution has been successful in proving the guilt of accused appellant beyond reasonable doubt. Hence, the appeal be dismissed.

Prosecution Evidence

15. Having considered the rival submissions, before we examine their respective merit, it would be useful to notice in some detail the prosecution evidence and its key features. Prosecution examined in all 8 witnesses, two are witnesses of the incident and the remaining are in respect of investigation, medical examination, autopsy, etc. We shall briefly examine their testimony herein below:

16. PW-1- Santan Singh. He is the brother of the deceased and uncle of the injured PW-2. He resides in a different Mohalla than where the incident took place. He narrates that the deceased was a tenant in the house of the accused-appellant. In respect of the incident, he narrates what he stated in the FIR. In respect of lodging the FIR, he states that he dictated the FIR to a person sitting outside the police station who scribed it, read it to him, whereafter he put his signature on it.

In cross-examination, he stated that Savitri Devi, mother of PW-2, was married to Arjun Singh but she developed relationship with the deceased and started living with him in the tenanted accommodation and was also present there at the time of the incident. He, however, denied the suggestion that the deceased was hiding from Arjun Singh because of this reason. PW-1 admitted that Savitri Devi and the deceased had a case of murder registered against them in which Savitri's bail was provided by the accused-appellant. In respect of his presence at the spot, PW-1 stated that though he works in a factory but on the date of the incident he was not on duty; and that he used to visit his brother often. In respect of accused-appellant's house, PW-1 stated that accused-appellant's house is of three rooms. Two rooms opening towards north are with the accused whereas one room was with Nanhe (deceased). The house has a courtyard which is small and narrow, having a tap and a toilet. In front of the house there is a Gali (narrow lane). With regard to his presence on the day of the incident, PW-1 stated that on the day of the incident he had gone to the village in the morning but had returned. He, however, could not give the time of his return. In respect of suggestion regarding grabbing the house of the accused-appellant, he denied the suggestion that he has put his lock on the house.

In respect of the incident, he stated that on the date of the incident there were only two shots fired. When the second shot was fired, PW-1 was with his brother (the deceased). At that time, it must have been 6 pm. He described the spot where his brother was shot as being near to the junction of two Galis (narrow lanes), one emanating from the house of the accused-appellant and the other joining it.

PW-1 denied the suggestion that false FIR was lodged to grab the house of the accused. He admitted that many persons had arrived at the spot though he does not remember their names.

On further cross-examination, PW-1 stated that he does not know the name of the person who wrote the report. PW-1 also could not remember the time he reached the police station but stated that when police came, took the body, then he went. He denied the suggestion that he did not witness the incident. PW-1 denied the suggestion that he was annoyed because the accused appellant had withdrawn the surety.

Note: During the course of PW-1's examination there was no suggestion to PW-1 (a) that the deceased was killed elsewhere; (b) that PW-2 (the injured) received injury elsewhere and not at the spot; (c) that the FIR was ante-timed; and (d) that the incident occurred at some other time.

17. PW-2- Rajveer Singh- He stated that at the time of incident he stayed with his family in the tenanted accommodation owned by the accused-appellant. In respect of the genesis of the incident he reiterated what was stated in the FIR. He, however, added that at about 6 pm when the appellant fired a shot from his licensed weapon at PW-2, on receiving injury, PW-2 ran out and fell near Bhagwan's house, where he was attended to by the deceased and while the deceased was bandaging his wound, the appellant came and opened fire from his weapon at the deceased; when appellant started loading another cartridge in the gun, PW-2 ran and a shot was fired at the deceased, as a result, the deceased died at the spot. He stated that a number of persons had arrived and he was medically examined.

In his cross-examination, he stated that his father is Arjun Singh and Savitri is his mother. The deceased and Arjun Singh were like brothers. There was a case of murder against the deceased and Savitri. PW-2, however, denied knowledge of the appellant being a surety of the deceased. PW-2, however, admitted that PW-1 resides in another mohalla.

PW-2 stated that on the day of the incident he, his mother Savitri, his sister Durga and the accused appellant were in the house; the appellant had demanded a raise in rent from PW-2 at about 6 pm; when PW-1 stated that he would have to consult his mother, accused fetched his licensed gun and fired a shot at him. He denied that prior to that, there was an altercation. He stated that shot was fired from a distance of about two lathis. He stated that on hearing gunshots and his cry for help there was panic amongst the residents of the locality and they had shut their doors. He stated that after running few paces, he sat near the house of Bhagwan Singh, where deceased came to attend to PW-2. At that time, the deceased was sitting at Ram Nath's shop. No body of the locality except the deceased arrived. As soon as the deceased started bandaging PW-2's wound, he was shot by the accused. He stated that the shot fired at the deceased was from a distance of one lathi. On being hit, the deceased fell, and when the accused was loading his gun for another shot, PW-2 ran and fell; and turned unconscious. PW-2 stated that all of this must have occurred in a span of 6 to 10 minutes plus or minus 5 minutes.

He also stated that by the time he reached the police station he had regained consciousness and after admission in the hospital he was again unconscious. He stated that he remained in hospital for 8 days. He denied the suggestion that his uncle (the deceased) was killed by some one else. He reiterated that the deceased was shot by the accused in his presence. He denied the suggestion that he has falsely implicated the appellant to grab his house and to that end has put his lock on it.

Note: No suggestion was given to PW-2: (a) that PW-2 was shot at some other place and time; (b) that the deceased was shot at some other place and time; (c) that the accused - appellant was not present in the house at the time of the incident. Though, suggestion was given to PW-2 that the deceased was killed by some one else but as to who could be that other, no suggestion was given.

18. PW-3 - Parmeshwar Deen- I.O. of Case Crime No.169 of 2005 - He proved the various stages of investigation including lifting of plain earth & blood stained earth, 3 empty cartridges, etc from the spot; preparation of site plan; recovery of licensed murder weapon and cartridges, conduct of inquest, preparation of documents for autopsy, recording of statement of witnesses, sending the injured for medical examination, submission of charge sheet etc. He also produced the recovered material objects and got them exhibited as already noticed above.

In his cross-examination, PW-3 stated that when informant arrived at the police station he was present. It must have been 6.25 pm. He did not notice the conveyance of the informant. He stated that the place of occurrence from the police station takes 10-15 minutes to reach. He stated that the informant came with him to the spot. At the time of recovery of gun there were two witnesses. He gave the name of those witnesses. He stated that after recovery, the recovered articles were sealed. At the time of recovery, the accused held a license which was valid till 31.12.2006. He denied the suggestion that the accused was arrested from home and that his gun and cartridges were recovered from home. He denied the suggestion that all papers were prepared while sitting at home.

Note: No suggestion was given to PW-3: (a) that there was no recovery of empty cartridges from the spot; (b) that the recovered empty cartridges were not sealed at the spot; (c) that the FIR was ante-timed; (d) that the seized licensed gun of the appellant was tampered; and (e) that the material exhibits were not properly sealed or were tampered.

19. PW-4- Dr. Rajesh Kumar Dwivedi- He is the doctor who carried out the autopsy on the body of the deceased. He proved the autopsy report as also the injuries noticed by him in the report. He admitted that death could be a result of the injuries received at or about 6 pm on 06.07.2005.

In his cross-examination, he stated that gun shot injuries had no blackening around them. He denied the suggestion that a false report was prepared in collusion with the informant.

20. PW-5- Vikram Babu- He proved the preparation of Chik Report and GD entry of Case Crime No.170 of 2005 at 00.50 hrs on 07.07.2005.

In his cross-examination, he stated that Inspector (Darogaji) had come with the accused to lodge the report and that there was no one else. He denied the suggestion that the paperwork of the case was fabricated.

21. PW-6- Chandrahas Mishra - He proved the preparation of Chik FIR and GD entry of case crime no. 169 of 2005 at 18.25 hrs on 06.07.2005.

In his cross-examination, he stated that at the time of lodging the report, along with the informant, one Arjun and Raju had come. He denied the suggestion that the paper work was fabricated.

Note: No suggestion was given to him that the FIR was ante-timed.

22. PW 7- Dr. S.K. Dhruv- He proved the injury reports Ex. Ka-16, 17 and 18 and accepted that the noticed injuries could have been caused at 6 pm on 06.07.2005.

In his cross-examination, he stated that the injuries could have been caused from a distance; and that the injuries were not dangerous to life. He stated that the injured was brought before him at 7.20 pm. He denied the suggestion that the injury report is fabricated.

Note: No suggestion was given to the doctor that the injuries could be self-inflicted or was not a result of gun-shot.

23. PW 8-Pooja Sharma- She proved the various stages of investigation of case crime no.170 of 2005, including preparation of site plan (Ex. Ka-19) from where the accused-appellant was arrested with the licensed gun; and submission of charge-sheet (Ex. Ka 20).

In her cross-examination, in respect of distance between Mohalla Gadipura and Baksariya, PW-8 stated that the distance is 3 km, which can be covered in about 7 minutes on a motorcycle and on foot it may take 15-16 minutes. She denied the suggestion that from the gun two shots were fired at the police station. She also denied the suggestion that the entire paper work was fabricated.

24. It appears from the order sheet of the trial court that on 06.12.2006, during the course of trial, the ballistic expert report was produced by the State Counsel which was exhibited by order of the trial court and marked Ex. Ka-21. It be mentioned that this report was also put to the accused appellant vide question numbers 16 and 18 while recording his statement under section 313 Cr.P.C.

Analysis & Conclusion

25. Having noticed the rival submissions and the entire evidence, it would be useful to summarise the submissions made on behalf of the appellant. The thrust of the appellant's submission, inter alia, is on three aspects, namely, unlikely presence of PW-1 at the time of the incident; the prosecution witnesses having an eye on the property of the appellant therefore, were highly interested, whereas, there was no strong motive for the appellant to commit the crime, consequently, in absence of examination of independent witnesses of the locality, the prosecution story does not inspire confidence; and that the incident appears to have occurred in some other manner than alleged inasmuch as it does not appear probable that PW-2 who, as per site plan, was shot inside the house would suffer no blackening around the wound.

26. Upon a careful scrutiny of the entire prosecution evidence, we notice that the presence of PW-1 at the spot does not appear natural as he is a resident of another mohalla (locality). Further, his presence has not been confirmed by PW-2, the person injured in the incident. But what is important is that the distance between PW-1's locality and the spot is just 3 km as stated by PW-8. Therefore, even assuming that he was not present at the spot, when the incident occurred, he could very well have arrived there in a short time. Notably, in respect of the time taken to travel from the locality of PW-1 to the locality where the incident occurred, PW-8 states that it takes 7 minutes on a motor cycle and 15-16 minutes on foot. Under the circumstances, the lodging of the FIR that prompt, within 25 minutes of the alleged incident, is not an impossible feat though, it may appear, a bit too prompt. But that, by itself, is not a ground to hold that the version in the FIR is not truthful, particularly, when PW-2, the injured, was promptly examined at 7.20 pm by PW-7 and the injuries found on his body were found fresh and could have been sustained from a gun shot at about 6 pm on 6.7.2005, which is the time of occurrence. What assumes importance is that there is no challenge to the sustenance of injury by PW-2 from a gun shot. There is no suggestion to PW-2 that he sustained injury in some other manner at some other place or time or that the injuries are self inflicted or bogus. Further, there is no dispute that the accused was possessed of a licensed 12 Bore SBBL gun. The pellets injury sustained by PW-2 are referable to a 12 Bore shot and notably three empty cartridges were recovered; two from the spot near the body and one from near the tap, where PW-2 was shot at, as appears from recovery memo (Ex. Ka-3). A conjoint perusal of the site plan (Ex. Ka-2) and recovery memo (Ex. Ka-3) prepared by PW-3 would suggest that the third empty cartridge was recovered from inside the house of the accused-appellant. Except a bare denial, there is no explanation to the recovery of empties from the spot, which has been proved by the I.O. No doubt, public witness to the recovery might not have been examined but recovery can always be proved by the I.O. who effects the recovery and in absence of any material or suggestion as to why he would falsely implicate the accused, there appears no good reason for us to discard or disbelieve the recovery. We are conscious that the appellant in his statement under section 313 Cr.P.C. made a claim that the police is inimical to the appellant but there is no suggestion put to the police witnesses, examined during trial, that they are inimical and, if so, why. Further, it is not shown, either by evidence or by suggestions to the witnesses, as to how the informant could be in a position to influence the police or the police would collude with the informant party. In that background, we have to assess whether the ocular account rendered by PW-2 is truthful, trustworthy and reliable.

27. Before we proceed to test the creditworthiness of PW-2's testimony, we may notice to reject another submission of the learned counsel for the appellant that the site plan does not disclose the spot from where the shots were fired at the injured (PW-2) and the deceased. In Tori Singh v. State of U.P., AIR 1962 SC 399, a three-judge Bench of the Apex Court, while dealing with the value of sketch map/ site plan, held: "the marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation." The above view has been followed in Jagdish Narain and Another v. State of U.P., (1996) 8 SCC 199. Seen in the context of the law noticed above, the site plan (Ex. Ka-2) prepared by I.O. (PW-3) is on the basis of his own knowledge of the spot, derived from the inspection made, and there, he has shown the spot where PW-2 was injured; where the deceased was killed; and the lay out of the houses. As PW-3 had not witnessed the incident, absence of the point in the site plan disclosing the spot from where the accused fired the shots is not fatal to the prosecution case and it does not render the ocular account untrustworthy. More so, because it is not PW-3's deposition that he prepared the site plan on the instructions of PW-2.

28. Now, coming to the testimony of PW-2, we find that he has been consistent throughout. He reiterated that in connection with his request to consult his mother on the issue of raise in rent, the accused-appellant took out his licensed gun and fired at him as a result of which he sustained injury and ran out on the lane (Gali) to sit near Bhagwan's house and when he was being attended to by the deceased, the accused appellant came and fired a shot at the deceased; and when the appellant was about to re-load the gun to fire a second shot, PW-2 ran and fell unconscious. The site plan prepared by the I.O. as well as the oral testimony confirms the spot where the deceased was killed which lies in the lane (Gali) towards north and in front of the house of the deceased. Further, this spot has been confirmed by lifting of blood stained and plain earth from there and also by recovery of two empty cartridges, which have been connected with the licensed weapon of the accused appellant through forensic report (Ex. Ka-21). The recovery memo (Ex. Ka-3) of empties was proved by the I.O. (PW-3) and the empty cartridges recovered were produced in court and made material exhibits as already noticed above. Except a bare denial, there is no explanation to the recovery and there is no suggestion to the I.O. (PW-3) that he planted the cartridges or had not sealed it. Further, the medical evidence fully corroborates the ocular account. Thus, in absence of any suggestion in what other manner the incident could have occurred, and there being no defence evidence or even suggestion that the accused appellant was elsewhere, there arises no reason whatsoever for us to disbelieve the ocular account rendered by PW-2, who is an injured witness. No doubt, the defence has sought to plead that the deceased had enticed away some body else's wife and was also an accused in a murder case therefore, had other enemies too, but, merely because the deceased had other enemies, is not a ground to discard an otherwise credible evidence because as to who had committed the charged offence has to be decided on the basis of the evidence adduced in the trial and not on assumptions or guess-work. In this context, we are fortified with the view expressed by the Apex Court in Jagdish Narain's case (supra), where, in paragraph 12 of the judgment, it was observed: "The last reason given by the trial court to disbelieve the prosecution case in the context of the fact that the deceased had enmity with others is absurd for such a plea would have been available to anyone who might have been arraigned for the murder. The High Court, was therefore fully justified in observing that the deceased might have enmity with others but the question as to who had committed the murder was to be answered by the court on the basis of the evidence adduced."

29. On the issue of lack of strong motive for the crime but strong motive for false implication, we notice that it is admitted position that the deceased was a tenant of the appellant with whom PW 2 resided along with other family members. Landlord-tenant disputes often evoke strong reactions. Whether such a reaction is normal is not for us to speculate upon as a person's reaction to a given situation is dependent on various circumstances including personality traits and it is well settled that different persons react differently to a give situation. Therefore, it would not be appropriate for us to assess the probability of such a reaction on the part of the accused-appellant in the given circumstances. Rather, it would be sufficient to observe that such a strong reaction is not so highly improbable that no prudent man would accept it to be true. More so, when in support whereof there is an ocular account flowing from an injured witness. As an injured witness is ordinarily considered reliable, firstly, because his presence at the scene of crime is certified by the injuries he received in the incident, and, secondly, why would he let off his offender. Therefore, merely, because the injured had an interest in the conviction of the accused, his testimony cannot be discarded in absence of cogent and good reasons to discard it. Here, we do not notice a good reason to disbelieve the ocular account rendered by PW-2, as the injuries sustained by PW-2 have not been challenged as self inflicted or received at some other place or time; moreover, the injured was promptly examined and had to be admitted in the hospital where he was under treatment for 8 days. Further, his injuries are referable to a shot fired from a 12 Bore gun licensed to, and seized from, the appellant.

30. The argument of the learned counsel for the appellant that only two, out of three, empty cartridges recovered from the spot were sent for forensic examination; and only two could be connected with the weapon that was licensed to, and recovered from, the appellant, therefore, the prosecution is guilty of suppressing vital information, calling for adverse inference against them, is not acceptable because, firstly, the seizure of the two empty cartridges has been duly proved and there is no challenge, by way suggestion to PW-3 (I.O.), that those cartridges were not duly sealed and sent for forensic examination; secondly, the forensic report, connecting the licensed weapon of the appellant with the recovered empties, have not been questioned; and, thirdly, no effort has been made to seek an explanation from the I.O. (PW-3) for ascertaining as to why report in respect of the third empty cartridge was not obtained. Under the circumstances, keeping in mind that there was no specific suggestion to the I.O. (PW-3) that the empty cartridges were planted with ill-motives, and maliciously got connected with the weapon recovered from the appellant, there is no basis to draw adverse inference against the prosecution or to discard the forensic report.

31. We also notice that the distance from where the shots were fired matches with the ocular account, inasmuch as, the shot fired at PW-2 is from a distance of two lathis, the pellet injuries found on the body of PW-2 shows that it could be from an SBBL 12 bore gun fired from a distance of over 6 to 8 feet as there was no blackening around the entry wound. Similarly, the injuries sustained by the deceased are referable to 12 bore weapon which, by forensic evidence in respect of empties recovered from the spot, were proved to have been fired from the SBBL 12 bore gun licensed to the appellant; and the medical evidence also indicates that death of the deceased could have occurred on or about the time fixed by the prosecution. Other than that, the deceased was killed in the lane (Gali), towards north, in front of the house of the accused-appellant wherein, in part thereof, the deceased and PW-2 were residing as tenant. Thus, tested from all angles, the ocular account rendered by PW 2 is reliable and trustworthy and suffers from no such inconsistency or improvement or embellishment as to render it unworthy of acceptance. As regards the contention that how could the deceased find time to bandage PW-2 when everything had happened in quick succession, suffice it to say that no question was put to PW-2 as to what kind of bandage was applied by the deceased. It could have been a cloth or whatever. But in absence of a question in that regard it does not render ocular account unnatural or improbable. Further, non-examination of independent witnesses of the locality, is not sufficient to discard testimony of an injured witness as the law is well settled that ordinarily members of society not interested in the case avoid being a witness for obvious reasons such as generation of ill-will, therefore, merely, because they have not been examined is not a ground to disbelieve an otherwise credible ocular account rendered by a person injured in the incident whose presence, otherwise also, is natural at the spot. Further, it was open to the accused to examine a defence witness from his locality but he chose not to.

32. In respect of the charge of the offence of murder, there is no shadow of doubt that by ocular, medical and forensic evidence, as discussed above, it was proved against the appellant; whereas, though, PW-2 had not suffered injuries dangerous to life but, considering that the seat of injury was on vital part (chest region) and was from a firearm, it cannot be said that it was not caused with an intent to take life, particularly in the context of what followed thereafter, consequently, in our view, the charge of an offence of an attempt on the life of PW-2 is also proved. Likewise, using a licensed weapon for an unlawful purpose also proves the charge punishable under section 27 of the Arms Act. Thus, for all the reasons recorded above, we are of the considered view that the trial court was justified in holding that the prosecution has been able to prove the charges against the appellant beyond the pale of doubt. Consequently, we concur with the view of the trial court. The appeal therefore has no merit and is, accordingly, dismissed. The appellant is in jail and shall serve out the sentence.

Order Date :- 22.2.2022 Ankita

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Allahabad High Court