Allahabad High Court
Awadhesh Kumar Mishra & 2 Others vs State Of U.P. on 12 September, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 29.08.2018 Delivered on : 12.09.2018 Court No. - 1 Case :- CRIMINAL APPEAL No. - 5714 of 2015 Appellant :- Awadhesh Kumar Mishra & 2 Others Respondent :- State Of U.P. Counsel for Appellant :- Anil Kumar Singh,Ranjeet Singh Counsel for Respondent :- G.A.,Lalta Prasad,P K Singh Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J (Delivered by Hon'ble Dinesh Kumar Singh-I, J)
1. Heard Sri Anil Kumar Singh, learned counsel for the appellants, Sri G.P. Singh, learned brief holder for the State and perused the record. Sri Lalta Prasad & Sri P. K. Singh, learned counsel for the informant are not present though the appeal has been called in the revised list.
2. This Criminal Appeal No. 5714 of 2015 has been directed against the judgment and order dated 20.11.2015 delivered by the Additional Session Judge, Court No.2, Kaushambi, in Session Trial No. 442 of 2009 (State Vs. Ashish Kumar and 2 others), under Sections 302 and 504 IPC and Section 3 (2) (v) SC/ST Act, pertaining to Case Crime No. 116 of 2009, Police Station Charwa, District Kaushambi whereby accused-appellant Ashish Kumar, Awadhesh Kumar and Suresh Kumar have been held guilty and awarded punishment under Section 302 read with Section 34 IPC and read with Section 3(2)(v) of SC/ST Act with life imprisonment and fine of Rs. 10,000/- each and in default of payment of fine six months additional imprisonment each; under Section 504 IPC with one year rigorous imprisonment and fine of Rs. 2000/- each and in default of payment of fine, two months additional imprisonment each and in S.T. No. 439 of 2009 (State vs. Awadhesh Kumar Mishra) under Section 25 Arms Act, pertaining to Case Crime No. 118 of 2009 Police Station Charwa, District Kaushambi whereby accused-appellant Awadhesh Kumar Mishra has been held guilty and awarded punishment under Section 25 of Arms Act with three years rigorous imprisonment and fine of Rs. 3000/-, in default of payment of fine, two months additional imprisonment. Both the Session Trial have been decided by a common judgment as the facts of both the Session Trial were related to the same occurrence.
3. The facts in brief of the case are as follows:-
The First informant (PW1) lodged an FIR (Exhibit Ka-1) stating therein that he had gone to the brick-kiln of one Maqshood Ahmed where he was engaged for driving his tractor. On 23.5.2009, he was returning at about 9:30 p.m., as soon as he reached in front of his house where hand-pump was installed, he found that Awadhesh Kumar Mishra S/o Jai Ram Mishra (A-1), Ashish Kumar Mishra S/o Suresh Kumar Mishra (A-2) and Suresh Kumar Mishra S/o Jai Ram Mishra (A-3) of his village were abusing the family members of the first informant on account of plucking jackfruit and lemon and when the first informant pleaded with them that no one from his family had plucked any such jackfruit and lemon, all the three accused started abusing him and uttered (Maro Salon Pasi Ko Bachkar Na Ja Paye) let the Pasi be killed, he should not be allowed to escape. After this the first informant started fleeing from the spot and the accused Awadhesh Kumar chased him with country-made pistol and made a fire at him with an intention to kill him, the said fire hit Manoj Kumar, his son in his abdomen, who fell down instantaneously, who was thereafter immediately taken to S.R.N. Hospital, Allahabad where he was got admitted and treatment was started. His abdomen was operated in emergency ward (ICU) and his condition was extremely serious.
4. On the basis of this written report (Exhibit Ka-1) a Case Crime No. 116/2009, under Sections 307, 504 IPC and Section 3 (2) (v) SC/ST Act was registered at P.S. Charwa, District Kaushambi by constable Kunj Bihari (PW-6) against all the three above mentioned accused. Subsequently, on 31.5.2009, the informant Shiv Bhawan appeared at the P.S. Charwa and gave an application in respect of death of his son, on the basis of which vide report no. 15 at 11:45 hours Section 302 IPC was added, the chick FIR of which is Exhibit Ka-4. The entry of the said case was made in GD no. 36 dated 23.5.2009 at 20:20 hours (Exhibit Ka-5) and investigation was assigned to Circle Officer Deep Narain (PW-8), who made inspection of the place of occurrence on 24.5.2009 and prepared site plan (Exhibit Ka-8) and thereafter he went to S.R.N. Hospital to see the condition of the injured Manoj Kumar where doctor told about him that he was out of danger and hence he recorded the statement of the complainant and thereafter statement of the injured Manoj Kumar in Parcha no.3. After having found sufficient evidence and having arrested the accused, he submitted charge-sheet (Exhibit Ka-9) against accused Awadhesh Kumar Mishra and the second charge-sheet (Exhibit Ka-10) against accused Ashish Kumar and Suresh Kumar on 28.7.2009.
5. S.I. Shiv Asrey (PW-10) received copy of G.D. no. 15 at 11:45 hours of Case Crime No. 116 of 2009, Sections 302/504 IPC and Section 3 (2) (v) SC/ST Act with which he also received an application of Shiv Bhawan (informant) regarding the panchnama. Whereafter taking along with him, constable Arvind Kumar and constable Rajendra Kumar he approached the ambulance parked in the premises of the P.S., in which the dead body of a boy of 12 years was kept whose name was disclosed to be Manoj Kumar and relatives of the deceased had identified him by that name and on 31.5.2009 at about 12:15 hours, the proceedings of Panchnama were started and during these proceedings letters were sent to Pratisar Nirikshak, Kaushambi and C.M.O., Kaushambi for conducting the post mortem of the deceased. Punchnama (Exhibit Ka-12), Challan lash (Exhibit Ka-13), sample seal (Exhibit Ka-14), letter sent to C.M.O. (Exhibit Ka-15), letter sent to Pratisar Nirikshak (Exhibit Ka-16), photo lash (Exhibit Ka-17) were prepared by this witness in his handwriting.
6. Post mortem (Exhibit Ka-2) was conducted by Dr. Rajesh Kumar (PW-7) at 5:00 p.m. on 31.5.2009 of the deceased and he found following anti-mortem injuries on the deceased:-
(I) Stitched wound present in the middle of abdomen size 16 c.m. long with 14 stitches present.
(II) Stitched wound present in upper part of abdomen on right side size 6 c.m. long with 5 stitches.
(III) Three drains were found present in body;
i. On the right side at abdomen in lower part.
ii. On the left side at abdomen in lower part.
iii. On the right side of chest in lower part.
(IV) Penis was swollen.
(V) Abraded contusion 3.5 c.m. X 2.5 c.m. lower part at back on left side.
7. Record revealed that on 27.5.2009 Sub Inspector Shiv Asrey along with other team-mates, on getting information from an informant about the accused Awadhesh @ Bachhu, arrested him from his house at about 3:50 a.m. and found in his possession one country-made pistol of 315 bore and two live cartridges of 315 bore and the license to keep these articles, he could not show. The recovery memo of the weapon and the cartridges were prepared by PW-10, which is Exhibit Ka-18 and thereafter a Case Crime no. 118 of 2009 under Section 25 of Arms Act was registered at P.S. Charwa, District Kaushambi, against accused Awadhesh @ Bachhoo. The chick FIR is Exhibit Ka-6 and the entry of the said case was made in G.D. No.4 at 5:30 a.m. on 27.5.2009 (Exhibit Ka-7).
8. On the basis of evidence, the trial court framed charges against all the three accused on 20.10.2009 under Section 302 read with Section 34, 504 IPC and section 3 (2) (v) of SC/ST Act, to which the accused pleaded not guilty and claimed to be trial and the other charge under Section 25 of Arms Act was made against accused Awadhesh Kumar @ Bachhoo on 15.2.2011, to which he pleaded not guilty and claimed to be trial.
9. Thereafter, from the side of prosecution, the first informant Shiv Bhawan was examined as PW-1, who is witness of fact; Smt Vimla Devi wife of first informant also an eye witness has been examined as PW-2; Smt Sunita wife of Siyaram also an eye witness has been examined as PW-3; Smt Nirmala wife of Shivram also witness of fact has been examined as PW-4; Shivram son of Chhediram also witness of fact has been examined as PW-5; constable Kunj Bihari, who registered the case at police station and is a formal witness has been examined as PW-6; Dr. Rajesh Kumar who conducted the post mortem of the deceased and is a formal witness has been examined as PW-7; Deep Narain the then Circle Officer who has investigated the case and is a formal witness has been examined as PW-8; SI Mahesh Chandra Singh who was assigned the investigation of case under Section 25 of Arms Act has been examined as PW-9; SI Shiv Asrey, in whose presence Panchnama and other proceedings regarding sending the dead body for post mortem, has been examined as PW-10; Atar Singh, Pharmacist, SRN Hospital, Allahabad, who is a formal witness has been examined as PW-11; Umesh Kumar Srivastava, who had admitted the deceased in SRN Hospital, Allahabad for treatment has been examined as PW-12.
10. After the above prosecution witnesses, the evidence of prosecution was closed and the statement of accused were recorded under Section 313 Cr.P.C. in which all the three accused denied the veracity of the prosecution evidence against them and stated that they have been falsely implicated.
11. Thereafter in defence, from the side of the accused Chhavi Nath son of Shivram was examined as DW1 and Shiv Narain son of Ram Awtar was examined as DW-2.
12. After having considered the entire evidence and having heard arguments of both the sides, the learned trial court convicted the accused and awarded the punishment as mentioned above.
13. The learned counsel for the appellant has argued that the trial court has not made proper appreciation of the evidence on record and despite there being various discrepancies in the statement of witnesses of fact, believing them the accused have been held guilty erroneously. The deceased died of septicaemia and not on account of firearm injury as is alleged in the F.I.R.. The country made pistol along with the bullet which are alleged to have been used in commission of the offence were also not sent to the ballistic expert for being examined to establish that in fact the deceased had received a firearm wound caused by the said weapon. The statement of the deceased recorded under sections 161 Cr.P.C. by the investigating officer prior to his death was not got proved although the same has been relied upon by the learned trial court. The PW 1, who is stating himself to be an eye witness has turned hostile, even then his statement has been found credible mistakenly. Moreover the said statement would not be possible to be contradicted under section 145 of the Indian Evidence Act because of the death of the said witness/deceased, hence the said statement alleged to have been recorded by the investigating officer cannot be relied upon and the learned trial court has wrongly placed reliance upon it by treating it as his dying declaration.
14. On the other hand, the learned AGA has argued that there is no infirmity in the impugned judgment, as the same has been passed on the basis of sound pieces of evidence and that the appeal deserves to be dismissed.
Findings of the lower court:
15. Before the learned trial court it was argued by the defence counsel that in the site plan of the place of occurrence, Exhibit Ka-8 and the site plan of recovery of the country made pistol, Exhibit Ka-11, the investigating officer did not show the place where the injured/deceased was standing at the time of occurrence nor has it been shown by him as to which witness was standing where, in this regard he has returned the finding that though it was correct to say that IO did not show where the deceased and the witnesses were standing at the time of occurrence nor has he stated anything in respect of taking blood drenched soil from the place of occurrence nor has he shown the place of recovery of country made pistol and the cartridges from the roof of the house of accused in the site plan, Exhibit Ka-11, nor did he show as to which police personnel was standing where, of the police party nor the place from where the police ascended the roof of the accused's house nor the place where he was found sleeping, but on the basis of these lacunae the accused could not have been exonerated. Further he has mentioned that all the witnesses have stated about the occurrence to have taken place near the hand pump which has been shown at place "X" where the injured/deceased had received firearm injury and accordingly has held the place of occurrence proved.
16. Next, it has been mentioned in the impugned judgment that the injured Manoj had given statement to the IO under section 161 Cr.P.C. in S.R.N. Hospital as is evident from the perusal of CD dated 29.05.2009, in which he made a statement that when his father returned after having driven tractor and reached near the hand pump, he was inside the house. After hearing the noise he came out of house and saw that the accused were having an altercation in respect of plucking lemon, his father denied about the said act, at this accused Awadhesh opened fired upon him which hit in his abdomen instead of hitting his father and he fell down near the hand pump. This statement has been found credible one by the learned trial court treating the same to fall in the category of dying declaration in view of law laid down in Tellu & others vs State, 1988 Cr LJ, 1062, Delhi.
17. As regards no blood-stained soil having been found of the place of occurrence, the trial court has expressed opinion that soon after the injury was caused to the deceased, a cloth was wrapped around the wound and he was carried in Vikram to SRN hospital, which would show that not much blood might have fallen on the spot and moreover as lot of people had assembled there, whatever blood might have been there, would have got removed due to stepping upon the same by large crowd. Further, it is mentioned that witness Sunita, PW-3 and witness Vimla Devi, PW-2 had clearly stated that blood was found on the place of occurrence.
18. As regards discrepancy in the statements of witnesses of fact, it was argued before the trial court that Vimla Devi, PW-2 was also examined as PW-4 only with a view to dupe the court, who was restrained by court from proceeding with her statement any further, hence her restatement being suspicious one, deserved to be inadmissible in evidence and also Shiv Ram, PW-5 does not appear to be an eye-witness, because PW-2 and PW-3 have stated that at the time of occurrence Shiv Ram was not in the house. It was also argued that the statement of witnesses and the IO and the site plan were contradictory to one another, because the place of occurrence which is said to be near the hand pump, in which direction the same was located, in that regard there was discrepancy in the statement of witnesses, which makes their statements unbelievable. In this regard the trial court has mentioned that in examination-in-chief informant, Shiv Bhawan, PW-1 has stated that hand pump was located to the north of his house, which was already there since prior to the occurrence, which was in consonance with site plan. Simultaneously, he also stated that the door of his house would open to the North since prior to the occurrence, while in the site plan, the door of his house has not been shown towards North, rather the same is shown towards East. Similarly PW-2, Vimla Devi wife of Shri Ram has made clear that the door of the house of Shiv Bhawan was towards North and the door of the house of Mahavir was towards East. Her Jeth Shiv Bhawan's house's door was towards North. Mahavir's door was towards East. In front of the door of her Jeth Shiv Bhawan, is hand pump. Similarly PW-3, Sunita wife of Siyaram has stated that the house of Shiv Bhawan and her own were separate, but they are adjoining to each other. The door of the house of Shiv Bhawan is towards North; towards West of Shiv Bhawan is Grove and simultaneously made clear that the occurrence did not happen in front of the house of Shiv Bhawan, rather the same happened near 'Nal' (hand pump), however he could not tell the direction of the place of occurrence from the hand pump. Similarly Sivaram, PW-5 had stated Manoj was standing near hand pump at the time of occurrence and had received firearm injury. Door of the house of Shiv Bhawan is towards North; towards West of the house of Shiv Bhawan goes road leading to brick-kiln; towards the said road is hand pump, where firearm injury was received. On the basis of these statements the trial court concluded that there was clear statement on the part of all the above witnesses that the hand pump was situated towards North of the house of the complainant/informant and that the door of the house of the complainant was towards North, while in the site plan the door of the house of the informant has been shown towards East instead of North, hence all these witnesses have not stated in consonance with the site plan. But the trial court has concluded that it was mistake on the part of the Investigating Officer to show the door of the house of Shiv Bhawan towards East in the site plan erroneously, therefore, its benefit cannot be given to the accused.
19. With respect to PW-5, Sivaram not being an eye witness it is held by the trial court that Shiv Ram being Jeth of PW-3, Sunita could not have been expected to be in her house at 9:30 p.m., further it is held that not being at home of Sivaram would not mean that he was not in the village or at the place of occurrence, particularly when he himself has stated that he was present on the place of occurrence on the date of occurrence and was sitting near the hand pump and had seen the occurrence wholly, which has been found to be believable.
20. Before the trial court it was also pointed out that as per prosecution version occurrence took place on 23.05.2009, while deceased Manoj died on 31.05.2009, i.e. 8 days after the occurrence, while PW-5 has narrated that he expired while being taken to Varanasi 12 days after the occurrence, in this regard the trial court held that the said discrepancy has occurred due to the witness being of village background and that villagers are normally week in memorising the dates and days.
21. With respect to statement of PW-2, Vimla Devi wife of Sivaram, which was initially recorded on 20.07.2011 and again on 05.08.2011 as Nirmala, not being taken into consideration, the trial court held that Vimla Devi was also known as Nirmala which is evident from this statement of PW-5, Sivaram, her husband that she had given statement on two dates i.e. on 20.07.2011 and 05.08.2011 when he had accompanied her and that the Investigating Officer had recorded her statement not as Vimla rather as Nirmala wife of Sivaram. It is also mentioned in the judgment that in statement by PW-3, Sunita, it is mentioned that Vimla was also known as Nirmala and that her husband's name was Sivaram and that the Investigating Officer had committed mistake in writing her name. It is also recorded in the judgment that when the statement of Nirmala wife of Sivaram was recorded on 05.08.2011 and thereafter on 15.09.2011 she appeared again before court for cross-examination, it came into the knowledge of court that her statement had already been recorded as Vimla (PW-2), therefore it was recorded in the order-sheet that the statement of Nirmala recorded on 05.08.2011 would remain on record as admissible in evidence. Further it is mentioned that no objection in this regard was raised for about 2 years until on 29.07.2013 an application was presented by the defence side stating that there was necessity of proceeding against Vimla, PW-2 for misleading the court, whereon she was issued a notice on 14.08.2013, on which she appeared on 17.08.2013 and presented an explanation to the effect that Vimla alias Nirmala had appeared before court with the husband as PW-2 and that she had received summons again by police official, hence she appeared second time before court and that PW-2 and PW-4 were one and the same person and that the statement of PW-4 was unnecessarily recorded due to clerical error. The objection of the defence was rejected accordingly, against the said order no objection was raised by the defence side. In this backdrop her statement was held to be admissible in evidence.
22. The learned trial court has noted in the impugned judgment several contradictions in the statement of PW-2, Vimla Devi and PW-3, Sunita Devi given by them before court and the statement given by them to the investigating officer under section 161 Cr.P.C. and has held that such contradictions which he has reproduced in the judgment, would not fall in the category of material contradictions or omissions. Moreover the Court relied upon the law laid down in Alamgir vs NCT, Delhi, 2003 (1) SCC 21, in which it is held that if I.O. has not recorded any relevant fact in statement of a witness and such a witness gives statement about that relevant fact before Court then it would not be treated to be omission/contradiction. In the statement made by PW-2 before court she has reiterated the prosecution case as narrated in the F.I.R. stating that when her Jeth returned from work, she enquired from accused as to why they were abusing, at this all the accused chased her Jeth (chahet liya) and opened fire upon him which hit Manoj and thereafter all the three accused fled from there. In cross-examination this witness stated that the investigating officer had visited on the next day of occurrence and had recorded her restatement. At the time of occurrence she was out of house. She had stated before Investigation Officer that at the time when the fire was made upon the deceased she was on the spot and had seen the said occurrence with her own eyes, if the IO had not recorded so in her restatement, she could not tell its reason. Awdhesh had made fire and she had seen him making fire, if this was not recorded by I.O. in her statement, she could not tell its reason. If the I.O. had recorded in her restatement that when she heard noise only then she came out of house, she could not tell its reason as she had not given any such statement to him. Further she stated that her house is adjoining to the house of Shiv Bhawan, but is separate from him and the door of his house is towards North. At the time when the fire was made, she was sitting at the door of Shiv Bhawan and Sunita was also sitting over there and wife of Shiv Bhawan was also sitting over there; the deceased Manoj was also sitting there; there was no talk being held among them. She had shown the said place where they were sitting to the Investigating Officer. As soon as Manoj received firearm injury all of them thronged upon the injured (chap liya) which resulted in blood sticking to their clothes. Citing these statements it was concluded by the trial court that this witness had fully supported the prosecution case. Similarly, PW-3, Sunita Devi also stated in examination-in-chief that all the three accused were abusing her Jeth Shiv Bhawan in connection with plucking of lemon and jackfruit and when he enquired from them the reason of abusing, all the three uttered that he should be killed and should not be allowed to escape. Awdhesh chased and fired upon Shiv Bhawan which hit Manoj in his abdomen. In cross-examination this witness stated that the name of her husband was Siyaram and not Sivaram and that if the IO had written Sunita wife of Sivaram, she could not tell its reason. At the time of occurrence he was standing at the door of Shiv Bhawan where she had gone hearing abusing. She had told IO that there was abusing going on, on the spot and if the same was not recorded by IO she could not tell its reason. She had not stated before Investigating Officer that she was inside the house and reached the place of occurrence when she heard cry of Manoj, if IO has recorded so, she could not tell its reason. He had also told IO that all the three accused were abusing her Jeth Shiv Bhawan due to dispute of plucking lemon and jackfruit, if the same had not been recorded by him, she could not tell its reason. The accused had chased her Jeth, was also stated to investigating officer, but if the same was not recorded, she could not tell its reason. The door of the house of Shiv Bhawan was towards North. She could not tell as to where Shiv Bhawan was and where the person who made fire was, when fire was made. Towards West of the house of Shiv Bhawan is grove, dimensions of which she could not tell. The occurrence did not take place at the door of Shiv Bhawan. She could not tell as to on which side of tube well (Nal) the occurrence happened.
23. To the argument of the defence that complainant, Shiv Bhajan had not supported the prosecution case in cross-examination as he stated that on the date of occurrence it was dark night and his son was not at home; he could not see the occurrence; when he reached the place of occurrence, the deceased had received injuries; he was illiterate; the police had got the complaint written by Rajendra and had got it signed by him; no dispute had occurred with regard to plucking of lemon and jackfruit nor any fire was made with an intention to kill; the earlier statement made by him in this regard was given under pressure from the police, the learned trial court responded by recording in the judgment that in examination in chief recorded on 14.02.2011 of this witness and thereafter in his partial cross examination recorded on 15.03.2011, he has fully supported the prosecution case, but when he appeared before court thereafter on 05.07.2011, he turned hostile denying the occurrence to have happened in the manner as stated in the F.I.R.; in six pages long statement of this witness prior to his turning hostile, he never stated that he had signed the complaint written by Rajendra under pressure from police; by appearing before court with complaint, Exhibit Ka-1, he himself proved the same word by word stating clearly that the accused persons had chased him after abusing him due to dispute of plucking of lemon and jackfruit and on the exhortation of co-accused, Awadhesh had made fire from country made pistol which hit Manoj in his abdomen, who had to be taken the same day to Allahabad where he was operated; he also proved panchayatnama and further he stated that the statement of his deceased son was recorded by the investigating officer in Swaroop Rani hospital after about 5-6 days of the occurrence and had also given statement with respect to the place of occurrence, therefore his turning hostile indicates that he has made that statement under some kind of pressure. It was also mentioned that if there was any kind of pressure upon him, he ought to have brought the same to the notice of court, but he did not do so and hence his statement dated 05.07.2011 proving the prosecution case has been held to be credible.
24. The contention made by the defence counsel before trial court was that in the injury memo dated 23.05.2009, Exhibit Ka-20, of the deceased Manoj Kumar, the time is mentioned as 01.25 a.m. while the occurrence is reported to be at 9:30 p.m. on 23.05.2009, which would suggest that the deceased had already received injury prior to the alleged occurrence and simultaneously it was also argued that the Doctor who had prepared the medical examination report of the deceased was not examined and that according to the prosecution only one firearm injury was received in abdomen by the deceased while in the post-mortem report Exhibit Ka-2 two stitched wounds have been shown which indicates that the post-mortem report and the medical report were contrary to each other. In this regard it is held that PW-11 Atar Singh, pharmacist had been examined in place of the doctor who conducted the medical examination and proved the said report, Exhibit Ka-20 stating that in the medico-legal register brought by him, at page 130 there was mention made of Manoj Kumar son of Shiv Bhawan aged 12 years having been medically examined on 23.05.2009 at 01:25 a.m. by Doctor Vikram Anand, which indicated the intervening night of 23.05.2009 and 24.05.2009. PW-12, Umesh Kumar Srivastava, LDC, record keeper S.R.N. Hospital also appeared in court and stated that the deceased was admitted on 24.05.2009 at 1:25 a.m. in the night and was operated the same day and was discharged on 31.05.2009, his bed head ticket was Exhibit Ka-21. In Exhibit Ka-20 only one fire-arm wound has been found but after operation, two stitched wounds have been mentioned which are post-operational, hence there is no discrepancy in the statement of eye-witnesses with respect to the deceased having received one fire-arm wound and the post-mortem report showing two stitched wounds.
25. With respect to the statement of DW-1 denying any such occurrence to have happened, and the trial court has held that even this witness admitted that he had heard the sound of fire and that by the said fire-arm shot, the deceased Manoj Kumar got killed, it was unbelievable as to how this witness could state that the deceased's death occurred as a result of the fire arm injury, the sound of which he had heard, while according to him he was not at the place of occurrence. Similarly DW-2 has also stated not to have seen Awdhesh making fire upon the deceased as he was returning home on the date and time of occurrence. In this regard it is held by the trial court that the occurrence is alleged to have taken place on 23.05.2009, which is a time when there could not be possibility of crop of wheat being harvested as the same is normally done in the month of April. Moreover his statement that when he shouted the name of Awdhesh, he was at home, to which the trial court has held that no such averment was made by the accused in his statement under section 313 Cr.P.C.. The statements of both these defence witnesses have been discarded as unbelievable on the ground that they were summoned by the accused and were interested witnesses.
26. It is further argued before the trial court that the prosecution could not prove the charges levelled against each accused separately as the role of making fire upon the deceased is assigned to accused Awadhesh only, as a result of which the case against other accused namely, Ashish and Suresh does not stand proved. In this regard the court held that as per evidence it is true that when the complainant asked for reason of abusing, accused Suresh and Ashish exhorted the complainant to kill informant, at which Awadhesh made fire upon him which hit Manoj Kumar, which makes it clear that at the exhortation of co-accused Suresh and Ashish, Awadhesh had opened fire and hence all the three accused were involved in commission of this offence in the prosecution of their common intention to kill the deceased, therefore the provision under Section 34 IPC was applicable against all the accused named above even though two of them did not fire.
27. The argument before the trial court was also made that the death of the deceased occurred due to septicaemia as correct treatment could not be given to him. In this regard it is noted in the judgment that the fire arm injury was caused to deceased Manoj in his abdominal on 23.05.2009, which resulted in his getting seriously injured, where-after operation was conducted on 24.05.2009 and as a result of that only septicaemia developed, therefore the cause of death was nothing but the injury caused in abdomen by the accused persons.
28. It was also argued before the trial court that the fire was made on the complainant/informant Shiv Bhawan, hence there was no intention to kill Manoj nor knowledge could be attributed to the accused that such act would result in causing death of deceased, hence the offence would not fall under sections 302 IPC rather the same would fall under section 304 IPC. In this regard it is held that as per evidence on record it appears that all the witnesses were standing there including deceased Manoj and the way the fire was made, if the same would not hit the complainant/informant, it would certainly have struck someone else among them, therefore at the time of making the fire the accused persons had full knowledge that their act was certain to result in causing death and intention to cause death was also there which is evident from Ashish and Suresh exhorting the co-accused Awadhesh to kill the complainant/informant, hence the offence would fall under sections 302 IPC only and not 304 IPC.
29. It was also argued before the trial court that though the recovery is shown of the country-made pistol by police from accused Awadhesh, but there was no independent witness of the said recovery nor any fingerprint of the said accused was found on the said weapon nor the said weapon was sent to Forensic Science Lab for its examination nor was it shown in the said recovery memo as to from where the police party ascended the place of recovery and from where they got down and hence it was clear that actually the said country made pistol was falsely shown to have been recovered from him just to implicate him falsely; nor any prosecution sanction was taken from the District Magistrate prior to submitting the charge-sheet as the same was taken subsequently, in these circumstances the offence under section 25 of Arms Act does not stand proved. In this regard the trial court has recorded that from evidence on record it was proved that sub inspector Shiv Asrey, on receiving information on 27.05.2009 from an former that accused Avdhesh was sleeping on the roof of his house situated near brick-kiln had gone there and had recovered a country made pistol of 315 bore and two live cartridges at 03:50 a.m. from beneath lungi kept at the side of his head where he was sleeping and the accused confessed his offence. The said witness had prepared the recovery memo, Exhibit Ka-18 which has been fully proved by him, although the said recovery could not be held to be recovery made under section 27 of the Indian Evidence Act, but recovery of the said weapon could not be denied to have been made. As regards non-procuring of independent witness and other infirmities noted above it is mentioned that it was not possible for the police to find any independent witness in the dead of night i.e. 03:50 a.m. as normally at such point of time people are found asleep. It was evident that there was no Forensic Science Lab's report on record, however, the Investigating Officer had admitted that the country made pistol was sent to the Forensic Science Lab for being tested. Further with respect to non-obtaining of prosecution sanction prior to filing of charge-sheet, it is mentioned that PW-10 had proved that sanction of prosecution was taken from the District Magistrate after submission of charge-sheet on 27.08.2009, while cognizance was taken in the matter on 28.07.2009, in this regard it is mentioned that the prosecution sanction Exhibit Ka-19 has been proved by PW-10 which has been signed by the District Magistrate by gel pen, beneath which the signature made on sample seal is also made by gel pen, while beneath that the date mentioned is 27.08.2009, which is made by ball pen instead of gel pen, which is indicative of the fact that the same is made forgedly and simultaneously it is also recorded that it was also a matter for consideration that in the examination-in-chief of PW-10 the cutting is found on the date 27.08.2009, which might have been some other date, hence on the basis of these interpolations the court has discarded the argument of the defence that the prosecution sanction was taken from District Magistrate after taking cognizance on the charge-sheet.
30. As regards the offence under Section 504 IPC and Section 3 (2) (v) SC/ST Act, it is held that the exact words which are spoken in giving abuse while exhorting to kill the informant, were proved, hence charges under the afore-mentioned sections are also held to have been proved.
The analysis of the evidence and opinion of this court:
31. According to prosecution version as mentioned in the F.I.R. when first informant Shiv Bhawan Pasi (PW-1) was returning from the brick-kiln of Maqsood Ahamad on 23.05.2009 at about 9.30 PM, where he was employed for driving tractor and reached near hand pump situated towards North of his house, all the 3 accused namely Awadhesh Kumar Mishra, Ashish Kumar Mishra and Suresh Kumar were indulging in abusing on account of plucking of lemon and jackfruit and when PW-1 denied that any of his family members had plucked any such fruits and ask them not to abuse, all the three started saying abusingly "Maro Sale Pasi Ko Bachkar Na Jane Paye", hearing this PW-1 ran from there but he was fired upon by accused Awadhesh Kumar which hit his son Manoj Kumar in his abdomen instead of him, who soon fell down and was taken to Swaroop Rani hospital where he was operated. The F.I.R. was lodged on 24.05.2009 at 20:20 hours. Thereafter on 31.05.2009 the deceased was referred to Varansi and died on way to Varansi near Gopi Ganj. His dead body was brought back to S.R.N. Hospital where it was told by the Doctor that he should be taken to P.S. Charwa, where his panchayatnama (Exhibit Ka-12) was prepared on 31.05.2009 at 13:20 p.m. and thereafter the case was converted under section 302 IPC. In panchayatnama the opinion was expressed by the panchas that the deceased died of a firearm injury. It is true that the doctor who had medically examined the injured/deceased immediately after the occurrence has not been examined by prosecution, which is a fault on the part of prosecution, but the benefit of that cannot be allowed to go to the accused, as the prosecution has examined the pharmacist, Atar Singh (PW-11) to prove the said injury memo (Exhibit Ka-20) who has stated that the said report was prepared by Doctor Vikram Anand and that it was by inadvertent mistake that the date of its preparation of injury memo has been mentioned to be 23.05.2009 instead of 24.05.2009. This injury memo contains only one firearm wound which was kept under observation. The explanation given by PW-11 in respect of discrepancy in date of preparation of the injury memo seems to be justified because the examination appears to have been conducted in the intervening night of 23.05.2009 and 24.05.2009 at 1:25 a.m. and that is the reason why the Doctor instead of mentioning 24.05.2009 at 1:25 a.m. has mentioned 23.05.2009 at 1:25 a.m. by mistake. Thereafter his post-mortem was conducted by Dr. Rajesh Kumar (PW-7) on 31.05.2009 at 5:00 p.m. who noted in post-mortem report (Exhibit Ka-2) that there were two stitched wounds found on the person of the deceased, one on the middle portion of the abdomen which was 16 Cms. long and had 14 stitches and the other one on the upper portion on the right side 6 Cms. long having five stitches. The learned trial court has rightly interpreted these two stitched wounds to correspond to one firearm injury as noted by the Doctor in injury memo (Exhibit Ka-20) because they appeared to be two injuries as during operation the stitches were made at two places in the abdomen. No cross-examination has been done by the defence counsel raising any doubt that these two stitched wounds do not correspond to the injury mentioned in the injury memo (Exhibit Ka-20). There also does not appear to be any exceptionally long delay in lodging F.I.R. because whatever delay appears to be there seems to be justified on account of natural conduct of PW-1, whose son was undoubtedly required to be rushed to the hospital first for being given treatment to save his life instead of going to the PS concerned first to lodge a F.I.R. . It was very natural that after having got admitted his son, PW-1 went to lodge F.I.R.
32. Now we find it appropriate to see as to whether the place of occurrence has been held rightly proved by the learned lower court in the light of the statement of witnesses or not. It is apparent from the perusal of the analysis made by the learned trial court of the place of occurrence in the light of the statement of eye-witnesses which has been cited above that very meticulous analysis has been made which does not appear to suffer from any lacuna. Even then we find it necessary to mention that in the site plan (Exhibit Ka-8) the IO has shown by letter "A" the place from where the accused had chased the first informant up to the place shown by letter "B" and from the place shown by letter "B" fire was made upon the informant at place shown by letter "X" from a distance of 5-6 metres, which hit the deceased instead of the informant, which place is towards the North of the house of the informant in front of the hand pump. The IO has, however shown the door of the house of the informant to be on the Eastern side. In this regard the informant (PW-1) has stated that hand pump was situated in the North of the northern wall of his house; at the time of occurrence he was towards North of his house near the door of his house; the door of his house opens towards North; when he reached near hand pump after returning from brick-kiln on foot at about 9:30 p.m. in the night, all the three accused were abusing his family members (his brother, father and ladies were at home) in connection with plucking their lemons and jackfruit whom he asked not to abuse and denied his family members to have plucked any such fruit, then accused Naresh and Ashish exhorted "Maro Sale Pasi Ko", at this accused Awadhesh chased him with a country-made pistol in his hand, seeing whom he ran towards his house and in the meantime accused Awdhesh fired upon him which hit his son in abdomen who had come out of the house after hearing his call. Thereafter this witness in cross-examination turned hostile stating that earlier statement given by him was given under pressure from police and that in fact he had made no complaint to any police officer in regard to the occurrence; no dispute had occurred on the date of occurrence with respect to plucking lemons; he had not seen anyone firing upon his son Manoj nor had he seen Awadhesh firing upon Manoj and denied to have stated this changed statement under any kind of threat from the accused. It is apparent that this witness had initially supported the prosecution version in material respect and subsequently resiled from his earlier statement in the garb of pressure exerted by police upon him, which does not appear to be true and we find that the interpretation made by the learned trial court of his statement is absolutely in accordance with law who has believed his statement given in examination-in-chief in support of the prosecution version and has held that he appears to have resiled from earlier statement only on account of pressure from the accused. Therefore it is clear from the statement of this witness that he has supported the prosecution's version along with the place of occurrence to the extent that accused Awadhesh had fired upon Manoj which hit in his abdomen which resulted in his death after about 7 days.
33. Vimla Devi wife of Shiv Ram (PW-2) though is a relative of PW-1 has stated in examination-in-chief that all the three accused together were beating her Jeth (informant) with an intention to kill, in the meantime accused opened fire upon Manoj as a result of which he died on the spot and all the three accused fled from the spot. At the time of occurrence she was on the spot, the fire was made by Awadhesh. In cross-examination she stated that she never told that her name was Nirmala and had given statement before court by the name Vimla and also she had stated before police her name to be Vimla, therefore if the police recorded her name as Nirmala the same might have been done by mistake. She never stated before IO that all the three accused were beating her Jeth together and she had not seen them doing that. At the time of occurrence she was out of the house. She had stated to investigating officer that she had seen the whole occurrence with her own eyes and if the same was not recorded by him, she could not tell its reason. She had seen Awadhesh firing and if the same has not been recorded by investigating officer, she could not tell its reason. Further she stated that if the Investigating Officer has recorded that all the three accused exhorted "Maro Sale Pasi Ko" and in the meantime fire was made and there occurred noise and Manoj fell down on the ground after crying and the entire people of the locality came out from their houses and the accused ran away from there, she could not tell its reason as to how the Investigating Officer had written said statement. The occurrence happened at 9 PM and that she had not stated to Investigating Officer that they had gone to sleep after having meals and it might have been the time around 9:30 p.m. or 10:00 p.m., if the same had been written she could not tell its reason. The door of the house of Shiv Bhawan was towards North and right in front of that was hand pump. At the time when fire was made she was sitting at the door of Shiv Bhawan and the wife of Shiv Bhawan and her son Manoj were also sitting there. Blood had fallen on the ground where the occurrence took place. As soon as Manoj received gunshot wound he was assisted by all present there to help stop bleeding which resulted in blood stains on their clothes. Aforesaid statement does indicate a bit of departure from the verbatim story mentioned in F.I.R., and also appears to suffer from several modifications/contradictions from the FIR case, but such kind of difference in the statements are very normal when they are recorded after a long gap of time and it is often seen that witnesses in enthusiasm sometimes overstate the facts but that would not take away the basic truthfulness of the statement that this witness does support that she had seen accused Awadhesh making fire. The contradictions which are found in her statement are not material contradictions and simply because she happens to be the informant's relative, would not make her statement to be untrustworthy. We find her statement trustworthy to the extent that Awadhesh made fire which hit the informant's son and that the learned lower court did not commit any mistake in believing her restatement in respect of the place of occurrence as well as Awadhesh opening fire upon informant which hit his son.
34. Sunita PW-3 stated in examination-in-chief that all the three accused were abusing her Jeth Shiv Bhawan in connection with plucking of lemons and jackfruit and when Shiv Bhawan, who had returned from his work, asked them why they were abusing, all the three accused started saying "Maro Sale Ko Jane Na Paye" and at this Awadhesh chased the informant and fired upon him which hit Manoj in his abdomen. In cross-examination she stated that name of her husband is Siyaram not Shiv Ram and that she had not stated to police her husband's name to be Shiv Ram, if the police has written so, she could not tell its reason. On the date of occurrence she was standing on the door of Shiv Bhawan, abusing was going on. She had not stated to police that she was inside her house and that her husband was not at home; she was lying after having had meals and heard the sound of fire, hearing which she came out and saw that near the hand pump the son of her Jeth, Manoj was lying and crying and a lot of villagers had come there, if the investigating officer had recorded so, she could not tell its reason. She had stated to police that all the three accused were abusing her Jeth Shiv Bhawan in respect of plucking of jackfruit and lemon and if the same had not been written by the Investigating officers, she could not tell its reason. Further she stated that she does not recollect as to whether she had stated to police as to when her Jeth Shiv Bhawan returned from work and asked why he was being abused, at this all the three accused stated "Maro Sale Ko Jane Na Paye", if the same had not been written, she could not tell its reason. She had also stated to police that Awadhesh had chased and fired upon Shiv Bhawan which hit Manoj, if the same has not been written, she could not tell its reason. The door of the house of Shiv Bhawan is towards North. The occurrence did not take place at the door of Shiv Bhawan rather the same took place near hand pump. At the time of fire Manoj and accused were close to each other. The aforesaid statement also makes it evident that though this witness is also a close relative of the first informant, but that does not mean that her statement should be discarded on that sole ground. The Hon'ble Apex court has held in a catena of rulings that the statement of relative should be scrutinised closely/minutely to judge the veracity of the same and it should not be discarded at the very outset just because it was a statement of relative witness. In the case at hand we find that nothing in cross-examination could be elicited which might make statement of this witness to be untrustworthy in material aspect of the accused Awadhesh firing upon the informant which hit his son near the hand pump. Therefore this witness's statement has rightly been believed by the learned trial court. The minor contradictions / omissions / exaggerations which are found in her statement do not go to the root of the matter and appear to be ignorable.
35. Shiv Ram, PW-5, who is brother of the informant has stated in examination-in-chief that his brother Shiv Bhawan, who drives tractor at brick-kiln, was returning home after parking tractor and when he returned home he was apprised that all the three accused were abusing the informant's side, at which his brother had asked them the reason why the abusing was being done, at this all the three accused stated "Maro Sale Ko Jane Na Paye". His brother ran towards his house. Manoj his nephew was standing near the hand pump. Awadhesh made fire upon Manoj who fell down on the ground. In cross-examination he stated that when Shiv Bhawan after having returned from brick-kiln saw that accused had abused the family members of the informant, Shiv Bhawan went to the accused persons who were on the road leading towards brick-kiln and enquired from accused as to why they were abusing, at this accused Suresh and Ashish exhorted saying "Maro Sale Pasi Ko" and Awadhesh chased him and he opened fire upon him. Further it is stated that he had stated to police that Suresh and Ashish had stated "Maro Sale Pasi Ko". Hand pump was about 10 feet away from the house of Shiv Bhawan. The deceased was seeing abusing standing at the hand pump. The hand pump is towards North of the house of Shiv Bhawan. He was also standing near hand pump at the time of abusing. The deceased Manoj was not standing immediately next to him. The fire was made from a distance of about 4-5 feet upon the deceased. He was standing about 1 ½ metres away from the deceased when the file was made upon deceased. At that time accused was alone and there were about 4-5 persons of informant's family, which included three ladies and all of them were seeing occurrence standing at the hand pump. This witness is also a close relative of the informant, but his statement is also supporting the prosecution case to the extent that the accused Awadhesh was alone at the time of fire being made upon the informant's side, in which Manoj received the injury and subsequently succumbed to the same. This witness has not disclosed as to where the other two accused had gone when the fire was made upon the informant's side. There is discrepancy with respect to the other two accused accompanying Awadhesh at the time when fire was made which resulted in death of Manoj. The exhortation "Maro Sale Pasi Ko" alleged to have been made by other two accused Suresh and Ashish is not found to have been recorded by the police in the statement of this witness under section 161 of Cr.P.C., which is material contradiction. With respect to abusing being done by all the three accused as well as exhortation "Maro Sale Ko Jane Na Paye" by the accused persons, there appears to be contradictions in the statements of PW-1, PW-2, PW-3 and PW-5, from which it may be concluded that the other two accused namely Suresh and Ashish appear to have been falsely implicated in the present occurrence while in the statements of all the above-mentioned eye-witnesses the role of main accused Awadhesh is clearly proved to the effect that he mainly opened fire upon the informant which instead of hitting him, hit his son Manoj which resulted in his death about 7 days after the occurrence.
36. As regards the argument of the learned counsel for the appellant that there was no intention to kill Manoj as fire was opened upon Awadhesh which by mistake hit Manoj who died subsequently and in the alternative it was also argued that as per post-mortem report the cause of death was reported to be septicaemia which happened because of wrong treatment of the deceased, hence the accused could not be held guilty for an offence under section 302 IPC or at the most could have been held guilty under section 304 IPC, we are not inclined to accept the above view of the learned counsel for the appellant in view of provision mentioned under sections 299 and 301 IPC which read as under: -
"299. - Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, committed the offence of culpable homicide.
.........
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and a skilful treatment the death might have been prevented.
............"
" 301. Culpable homicide by causing death of person other than person whose death was intended. - If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or new himself to be likely to cause."
37. In the light of above provisions it is clear that even if there was knowledge that causing such bodily injury was likely to cause death, even though by skilful treatment death could have been prevented, would not save the accused from being held guilty under section 302 IPC and it is also clear that even if there was no intention to kill a person, even then the person who caused death would be held to have intended to cause death or would be held to know that he was likely to cause death and in such a situation would be open to be held guilty under section 302 IPC. In the case hand, therefore, it is evident that the argument that the intention was to kill the informant upon whom the accused opened fire, but the same hit his son in abdomen which resulted in his death, would fall in the domain of an offence punishable under section 302 IPC. Therefore, in that regard holding the accused Awadhesh to be guilty under section 302 IPC does not appear to be a wrong finding given by the learned trial court. But as regards the other two accused namely Ashish Kumar and Suresh Kumar, the evidence does not appear to be sufficient on record to hold them guilty under section 302 read with Section 34 IPC as well as under Section 504 IPC and Section 3 (2) (v) of SC/ST Act, there being contradictory statements of the eye-witnesses. Even in case of Awadhesh the offences under other sections i.e. Section 504 IPC and Section 3 (2) (v) of SC/ST Act do not appear to be made out on the evidence on record because of contradictory statements of the eye-witnesses. Therefore, the findings of the learned trial court deserve to be set aside in respect of holding the co-accused Ashish Kumar and Suresh Kumar to be guilty under Section 302 read with Section 34 IPC, 504 IPC and Section 3 (2) (v) of SC/ST Act and also in respect of holding accused Awadhesh to be guilty under 504 IPC and Section 3 (2) (v) of SC/ST Act. The accused Awadhesh deserves to be held guilty only under Section 302 IPC simplicitor because he is assigned the main role of opening fire upon the first informant which instead of hitting him, hit the deceased, his son. No prejudice appears to have been caused to the accused by not framing charge against him under Section 302 IPC simplicitor, as the entire evidence which has come on record suggests that it was he and he alone who is stated by the witnesses to have opened fire upon the informant which hit his son. As regards charge under Section 3(2)(v) of SC/ST Act, we are of the opinion that since the deceased was not done to death on the ground that he belonged to Scheduled Caste, even charge under Section 3(2)(v) of SC/ST Act also does not stand proved as occurrence took place on account of dispute to pluck lemon and jackfruit.
38. One important aspect which we would like to deal with is that the learned court below has heavily relied upon the statement of the deceased himself which was recorded prior to his demise by the investigating officer under Section 161 Cr.P.C. by way of treating it to be dying declaration of the deceased in the light of law laid down in Tellu's case (supra). In this regard we would like to refer here the position of law as interpreted in Sri Bhagwan vs State of U.P., (2013) 12 SCC 137.
39. It has been held, in this case that if an injured after having given statement before police under Section 161 Cr.P.C. succumbs to his injuries, his statement may be read in evidence as dying declaration of the said injured/deceased. The relevant paragraphs are quoted hereinbelow:-
"17. While keeping the above prescription in mind, when we test the submission of the learned Counsel for the Appellant in the case on hand at the time when 161 Code of Criminal Procedure statement of the deceased was recorded, the offence registered was Under Section 326, Indian Penal Code having regard to the grievous injuries sustained by the victim. PW-4 was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid. Before sending him to the hospital for proper treatment PW-4 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded. Undoubtedly, the statement was recorded as one Under Section 161 Code of Criminal Procedure. Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration, the question for consideration is whether the submission put forth on behalf of the Respondent counsel merits acceptance.
18. Mr. Ratnakar Dash, learned senior Counsel made a specific reference to Section 162 (2) Code of Criminal Procedure in support of his submission that the said section carves out an exception and credence that can be given to a 161 statement by leaving it like a declaration Under Section 32(1) of the Evidence Act under certain exceptional circumstances. Section 162 (2) Code of Criminal Procedure reads as under:
162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
19. Under Section 32(1) of the Evidence Act it has been provided as under:
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
20. Going by Section 32(1) Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall Under Section 32(1) of the Indian Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
21. As far as the implication of 162 (2) of Code of Criminal Procedure is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior Counsel for the Respondent, once the said statement though recorded Under Section 161 Code of Criminal Procedure assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded Under Section 161 Code of Criminal Procedure. The above statement of law would result in a position that a purported recorded statement Under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling Under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
22 . Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally Under Section 326 Indian Penal Code within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the Appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned Counsel for the Appellant also stands rejected.
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26. Reliance was placed upon Ravikumar alias Kutti Ravi v. State of T.N. - MANU/SC/2280/2006 : 2006 (9) SCC 240 for the proposition that fully supports the case of the prosecution wherein this Court held "once the Court is satisfied that the declaration is true and voluntary, it undoubtedly, can base its conviction on the dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis unless it is corroborated. The rule requiring corroboration is merely the rule of prudence".
40. In view of the above position of law, we have to see as to whether the learned trial court has rightly relied upon the statement of the injured/deceased, which is allegedly made by him before his death, to the Investigating Officer, in Parcha No.3 of the case diary. In this regard, the Investigating Officer, Deep Narain (PW-8) has stated in Examination-in-Chief that he had recorded statement of injured Manoj Kumar in Parcha-3. He did not further elaborate in the said statement as to what that statement was which the injured made before him; whether in clear terms he had stated that the accused of the present case had opened fire upon the father of the deceased which instead of hitting his father hit him in his abdomen, has not been mentioned. In cross-examination, the learned defence counsel has also not made any cross-examination on this aspect of matter as to whether the accused Awdhesh Kumar Mishra along with his companion accused had opened fire at the exhortation of other co-accused, upon the father of the deceased which instead of hitting his father, hit the deceased. The impugned judgment reveals that the learned trial court has mentioned in detail the statement of the decease, which has been recorded in Parcha no-3 of the case diary by IO but the said piece of evidence (statement of deceased recorded before his death) has not been mentioned by PW-8 in his examination-in-ehief nor anything has been revealed in this regard by him in the cross-examination, therefore, merely stating that he had recorded the statement of the injured in Parcha no.-3 would not suffice to make that piece of evidence admissible in evidence. To make the said piece of evidence admissible, it was mandatory for PW-8 to mention in his statement word by word as to what was stated before him by the deceased and then only that statement could have been treated to be a dying declaration of the said deceased and would be admissible under law. Because of this lacuna, it is apparent that the learned trial judge has committed error in placing reliance upon the said statement allegedly made by the deceased prior to his death to the Investigating Officer. But we are of the view that despite the said statement of the deceased having been excluded, there is sufficient ocular testimony on record on the basis of which we have held that the prosecution has been successful in proving that accused Awadhesh Kumar Mishra was solely responsible for making fire upon the deceased as a result of which he died.
41. Now we would like to analyse as to whether on the basis of evidence the charge under Section 25 of Arms Act is proved against the accused-appellant Awdhesh Kumar Mishra or not. In this regard, the sole testimony which is found on record is that of SI Shiv Asrey (PW-10), who has stated in examination-in-chief that when on 27.05.2009 at 5:30 a.m., he received information from an informer that accused of Crime No. 116 of 2009, under Section 302, 504 IPC and Section 3 (2) (v) SC/ST Act could be arrested, who was sleeping on the roof of his house, he accompanied with constable Ram Swaroop Uttam and Mool Chandra Sharma who were busy in patrolling duty, were taken together and all of them went to arrest the accused and by using ladder ascended the roof of his house and arrested him at the time when he was sleeping and recovered from underneath his 'lungi' one country-made pistol of 315 bore and two live cartridges of 315 bore which are marked material Exhibit 1, 2 and 3 respectively. This witness in cross-examination has stated that despite having received information about accused from informer he did not make any effort to call for any public witness. He was directed by the IO of Crime No. 116 of 2009 to arrest the accused but the said order he could not produce at the time of recording of statement before court. In site plan, SI Mahesh Chandra Singh (PW-9) has stated in cross-examination that he had not taken prosecution sanction in this case as he had been transferred and therefore the same might have been taken by some other Investigating Officer. He was also unable to give the reason as to why charge-sheet had been submitted in this case without obtaining prior prosecution sanction. He has further stated that the country-made pistol was recovered from the roof of the 'Bhatta Wala' house of the accused, where he was sleeping. The said pistol was recovered from underneath the 'lungi'. He had seen the place of occurrence after having used ladder and ascending the roof but he could not tell as to what was the height of the roof. In the site plan, there is no such place shown where the ladder was fixed for ascending the roof nor could he pin-point the place where the country-made pistol and cartridges were kept and were recovered.
42. The learned counsel for the appellant has vehemently argued on this point that because of not showing these places specifically, it is apparent that the prosecution has failed to prove the place of recovery of the said country-made pistol as well as cartridges, as alleged by the prosecution. No such recovery was ever made from the accused and the said country-made pistol and the cartridges had been planted upon the accused just to implicate him falsely. Further, it has been argued that because of not obtaining prior sanction to prosecute under Section 25 of Arms Act from the District Magistrate, the case under Section 25 of Arms Act could not have proceeded and suffers from legal infirmity also. We have perused the site plan Exhibit Ka-11 and find that the Investigating Officer has not shown the place from where the country-made pistol and cartridges were recovered which is definitely a lacuna left by the Investigating Officer. It has also not been shown as to where the arresting party comprising of PW-10 and two other witnesses were standing when the arrest was made which was also necessary to be shown in the site plan. It would also be pertinent to mention here that the other two witnesses of recovery namely, constable Ram Swaroop Uttam and Mool Chandra Sharma have not been examined by the prosecution to prove the recovery of country-made pistol and two cartridges from the accused which was essential for corroboration of the statement of PW-10, in particular when there was no public witness. It may also be mentioned that, it is always necessary to make effort to have a public witness for proving such kind of recovery of illegal weapon but in the case at hand it is clearly denied by PW-10 that any such effort was ever made. Therefore, with respect to recovery of the said weapon and two cartridges from the accused in the manner, it has alleged by the prosecution, there is sole uncorroborated testimony of PW-10 alone which it would not be safe to rely upon. The PW-10 has also admitted in cross-examination that the said country-made pistol was not sent to Forensic Science Lab for being tested, to establish that the said country-made pistol was used in commission of this offence. It was essential that the cartridge which was used in causing injury to the deceased should have been sent to Forensic Science Lab along with the said pistol for being tested to establish that the said cartridge which hit the deceased was actually fired from the said pistol, such being not the case here, it could not be held that the pistol which is being alleged to have been recovered from the accused was actually used in commission of this offence, however that does not mean that accused did not kill the deceased by any other weapon. In view of the above infirmities in the investigation with respect to the case under Section 25 of Arms Act, we find that the conviction under Section 25 of Arms Act does not sustain and accordingly the accused-appellant Awadhesh Kumar Mishra deserves to be acquitted of charge under Section 25 of Arms Act.
43. In view of above the appeal is partly allowed, the accused-appellant Awadhesh Kumar Mishra is held guilty only under Section 302 IPC and the punishment of life imprisonment and fine of Rs. 10,000/-, in default of payment of fine six months additional imprisonment awarded by the trial court for the same is upheld, however, he is acquitted of charges under Section 504 IPC and Section 3(2)(v) SC/ST Act. Similarly, the other co-accused namely Ashish Kumar Mishra and Suresh Kumar Mishra are also acquitted of charges under Section 302 read with Section 34 IPC, 504 IPC and Section 3(2)(v) SC/ST Act. Since they are on bail, their sureties stand discharged. The accused-appellant Awadhesh Kumar Mishra is also acquitted of charge under Section 25 of Arms Act.
44. Let a copy of this judgment be transmitted to the lower court immediately for ensuring compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Date : 12.09.2018
AU/JK Yadav