Allahabad High Court
Nakul Sharma vs State Of U.P. on 19 December, 2016
Bench: Prashant Kumar, Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED Case :- CRIMINAL APPEAL No. - 331 of 2012 Appellant :- Nakul Sharma Respondent :- State Of U.P. Counsel for Appellant :- Firoz Ahmad Khan, Arun Sinha, Indrajeet Shukla, Shashank Shekhar, Umesh Chandra Counsel for Respondent :- Govt. Advocate Hon'ble Prashant Kumar,J.
Hon'ble Mahendra Dayal,J.
( Delivered by Hon'ble Prashant Kumar, J. )
1. This appeal is directed against the judgment of conviction and order of sentence dated 09.02.2012 passed by Additional District and Sessions Judge, Ex-Cadre, Court no. 2, Sultanpur in S.T. Nos. 298 of 2007 & 299 of 2007, corresponding to case crime no. 223 of 2007 under Section 302 of the IPC of P.S.- Bazar Shukul District Sultanpur and case crime no. 225 of 2007 under Section 3/25 of Arms Act, P.S.- Bazar Shukul, District Sultanpur, respectively, whereby and whereunder the appellant was convicted under section 302/34 of the IPC and 3/25 of the Arms Act and sentenced to undergo imprisonment for life and pay fine of Rs. 5000/- for the offences under Section 302 r/w 34 of the IPC. The appellant was further sentenced to undergo imprisonment for two years and pay fine of Rs. 1000/- for the offences under Section 3/25 of the Arms Act.
2. The case of prosecution, in short, as per the written statement of Sunil Kumar Sharma (P.W. 1) is that on 07.05.2007 at about 04.30 PM, he alongwith his brother- Vinod Kumar Sharma (deceased) and co-villager- Abhimanyu Sharma were sitting on a cot in front of shop of Shiva Kant Sharma and talking with each other. It is stated that at that time itself, appellant- Nakul Sharma and co-accused (Arjun Sharma) came in the shop of Carpenter, where Shyam Kumar and Bhagwan Deen were working. It is alleged that Nakul Sharma started talking with Shyam Kumar. At that time itself, informant's sister- Kanchan Kumari (P.W. 2) came and demanded money from the deceased for purchasing vegetable. At that time itself, Nakul Sharma fired on the deceased by a tamancha. It is then alleged that when informant and Abhimanyu were trying to catch Nakul Sharma, co-accused (Arjun Sharma) also fired from his tamancha, which also hit the deceased and then he who fell on the ground. Thereafter, both the accused fled away after making several fire. The informant further disclosed that the aforesaid occurrence took place because the deceased had inimical relation with Hitlal Sharma (father of Nakul Sharma), as the deceased contested the last election of village Pradhan, inspite of threatening given to him by Hitlal Sharma and his son for withdrawing his candidature.
3. On the basis of aforesaid information, the Police instituted the case and took up investigation. During the investigation, the Investigating Officer made inspection of the place of occurrence, prepared inquest report, sent the dead body for post-mortem examination and also recorded the statements of the witnesses. It further appears that after completing the investigation, the Police submitted charge-sheet against the appellant and co-accused Arjun Sharma under Section 302 of the IPC and also under section 3/25 of the Arms Act.
4. The learned Chief Judicial Magistrate, Sultanpur took cognisance of the aforesaid offences. Thereafter, after completing the formalities, prescribed under section 207 of the Cr.P.C, learned Chief Judicial Magistrate, Sultanpur committed the case to the court of Sessions as the offence under Section 302 of the IPC is exclusively triable by the court of sessions. After commitment above sessions trial cases instituted against the appellant and co-accused (Arjun Sharma). The learned Sessions Judges framed charges against the appellant- Nakul Sharma and co-accused (Arjun Sharma) under Sections 302 of the IPC and 3/25 of the Arms Act and explained the charges to the accused to which they pleaded not guilty and claimed to be tried. During the trial, the prosecution examined altogether nine witnesses and also brought on record several documentary evidence in support of its case. After close of the case of prosecution, both the accused were examined under Section 313 of the Cr.P.C., in which their defence is of total denial and false implication.
5. It appears that the learned trial court after hearing the argument of the Advocates, appearing for the parties had concluded that the deceased had received only one firearm injury and the said firearm injury was possible by a 315 bore gun. Therefore, the learned court below had dis-believed part of the statements of P.Ws. 1 & 2 and acquitted co-accused (Arjun Sharma), because from his possession, a 12 bore gun (tamancha) recovered.
6. However, on the same set of evidence, the learned court below convicted appellant-Nakul Sharma because on his instance, a 315 bore tamancha recovered. The appellant Nakul Sharma convicted under section 302/34 of the IPC and also under section 3/25 of the Arms Act and sentenced as stated above. Against the above, present appeal filed by appellant Nakul Sharma.
7. Learned counsel appearing for the appellant assailed the impugned judgment and submits that the entire prosecution case rests on the testimony of P.Ws. 1 & 2, who are own brother and sister of the deceased. It is submitted that they are highly interested in the prosecution case, because of their relation with the deceased and also due to previous enmity between the two families. It is submitted that part of their statement had been dis-believed by the learned court below, thus on their testimonies, which do not find corroboration from any independent source, the conviction of the appellant not warranted. It is submitted that in the first information report, it is mentioned that co-villager (Abhimanyu) was also sitting along with the deceased on the cot, but he has not been examined in this case and absolutely no explanation given by the prosecution for his non-examination.
8. It is further submitted that Shyam Kumar and Bhagwan Deen Ahir, who were working in the Carpenter's shop, also not examined and for their non-examination, no explanation given by the prosecution. It is further submitted that in the instant case, the alleged recovery of 315 bore tamancha, at the instance of appellant has not been proved. It is submitted that prosecution had not examined any witnesses of recovery and the disclosure statement of the appellant had not been brought on the record. Accordingly, it is submitted that the learned court below wrongly came to the conclusion that at the instance of the appellant a 315 bore tamancha recovered. It is submitted that even the bullet recovered from the body of the deceased had not been produced in the court nor the opinion of ballistic expert obtained as to whether the injury found on the deceased was possible from the tamancha, alleged to have been recovered from the appellant. Accordingly, learned counsel for the appellant submits that the prosecution had failed to prove the charges lebelled against the accused beyond the shadow of all reasonable doubt. Hence, the impugned judgment of conviction and order of sentence cannot be sustained.
9. On the other hand, Sri Umesh Chandra Verma, learned Additional Government Advocate submits that there is direct evidence to show that the appellant inflicted firearm injuries on the deceased. The doctor also found firearm injury on the deceased and had given opinion that the deceased died due to that injury. It is further submitted that 315 bore tamancha recovered by the Polcie on being pointed out by the appellant- Nakul Sharma. The injury found on the body of the deceased is possible by the said tamancha. Thus, the statement of P.Ws. 1 & 2 find full corroboration from independent source. Accordingly, it is submitted that no interference required in the impugned judgment by this Court.
10. Having heard the submission, we have gone through the record of the case.
11. The Doctor (P.W. 4), who conducted the post-mortem examination had found the following ante-mortem injuries on the body of the deceased:-
" 1. Wound of entry: LW 15.0 cm x 4.0 cm x bone deep on rt. side of head, 3.0 cm. above rt. ear, extending from outer end of rt. eyebrow to backwards. In the middle of the wound there is a circular hole skull bone on temporal region of the size of 1.5 cm x 1.5 cm through which brain matter is coming out. Margins of wound are inverted.
2. Wound of exit: LW 1.0 cm x 1.0 cm x brain cavity deep. Margins are everted. It is situated on left side of head 6.0 above and behind left ear. One bullet is recovered in wound skull bone is having a circular hole underneath this wound. Injury nos. 1 & 2 communicate each other."
12. The doctor opined that the deceased died because of aforesaid ante-mortem firearm injury. Thus, it is clear from the evidence of P.W.-1, which has not been challenged by the appellant, that the deceased died a homicidal death. Thus, now the question arose for determination, whether the appellant had any hand in the commission of present crime ?
13. In the instant case, the prosecution tried to prove the guilt of the appellant on the basis of evidences of P.Ws. 1 & 2. The prosecution had also relied upon the factum of recovery of 315 bore tamancha by the Police, on being pointed out by the appellant. It is worth mentioning that P.Ws. 1 & 2 are brother and sister of the deceased. It has also come in the evidence that the families of deceased and the appellant have previous enmity. Under the said circumstance, the evidence of P.Ws 1 & 2 is required to be scrutinized cautiously. Their testimonies become the basis for conviction, if found wholly reliable.
14. Accordingly, we are proceeding to examine the evidences of P.Ws. 1 & 2.
15. P.Ws. 1 & 2 had stated that at the time of occurrence, they were present at the place of occurrence. They further stated that accused Nakul Sharma fired from a tamancha, which hit the deceased. Thereafter, Arjun Sharma fired from another tamancha, which also hit the deceased and then he fell down.
16. Thus, according to aforesaid two witnesses, the deceased had received two firearm injuries, but from perusal of the post-mortem report and the deposition of P.W. 4, we find that the deceased had received only one firearm injury. It is worth mentioning that the learned trial court after considering the above fact had acquitted co-accused (Arjun Sharma) from all the charges lebelled against him. In that view of the matter, the learned court below had concluded, in our view rightly, that P.Ws. 1 & 2 are not wholly reliable witnesses.
17. However, learned Additional Government Advocate submitted that from perusal of the dimension of injuries, it appears that the deceased had received two firearm injuries. Due to the first fire, he received lacerated wound of 15 cm x4 cm x bone deep on the right side of the head and after causing the said injuries, the bullet remained inside the brain cavity, whereas the second fire had caused injuries of the size 1.5 cm x1.5 cm, which goes through and caused wound of exit. The aforesaid submission of learned Additional Government Advocate is not worth acceptable because it is the definite case of prosecution that from the possession of co-accused (Arjun Sharma), a tamancha of 12 bore recovered. It is worth mentioning that when a cartridge is fired from a tamancha of 12 bore from a distance of 8 to 10 meters, it disperses several pillets. There is no injury of pillet on the deceased and/or any other person sitting on the cot along with the deceased. As per the evidence of doctor, the deceased had not received any injury caused by a 12 bore gun.
18. In the instant case, according to P.Ws. 1 & 2, at the time of occurrence, co-villager (Abhimanyu) was also sitting on the same cot and was talking with the deceased but he has not been examined in this case as witness. The prosecution had not given any explanation as to why he has not been examined. In the first information report, it is mentioned that appellant- Nakul Sharma was talking with Shyam Kumar and Bhagwan Deen Ahir, who were working in the shop of carpenter. But the aforesaid two person also not examined in this case. For their non-examination also, no explanation given.
19. Now, coming to the factum of recovery of 315 bore tamancha by the police on being pointed out by the appellant, it is worth mentioning that from perusal of Exhibit K-14, it appears that the said tamancha was recovered in presence of two witnesses (Prabhakar Singh and Indrajeet Singh) but aforesaid two witnesses of recovery have not been examined in this case to prove that the said tamancha recovered by the police on being pointed out by the accused-appellant. It is also worth mentioning that the prosecution had not brought on the record the statement of the appellant, on the basis of which alleged recovery made.
20. It has been held by Hon'ble Supreme Court in the case of Jaskaran Singh vs. State of Punjab [1997 SCC (Cri.) 651] that in the absence of signature or thumb impression of the appellant on the disclosure statement and if the punch witnesses have not been examined, then no reliance can be placed on the disclosure statement and on the alleged recovery of the weapon. As noticed above, in the instant case also, the disclosure statement has not been produced in the court nor the recovery witnesses have been examined. In that view of the matter, no reliance can be placed on the alleged recovery of 315 bore tamancha by the Police at the instance of appellant.
21. In view of the discussions made above, since P.Ws.1 & 2, who are highly interested witness but not wholly reliable because part of their evidence is liable to be dis-believed as we find that their evidence does not find corroboration from the medical evidence. We further find that though independent witnesses were available, the prosecution had not examined them for examination and had not given any explanation for their non-examination, thus we are of the view that the prosecution had failed to prove the charges against the appellant beyond the shadow of all reasonable doubt.
22. Accordingly, we find that the judgment of acquittal and order of sentence passed against the appellant suffers from material illegality and irregularities.
23. In the result, this appeal succeeds and accordingly the same is allowed. The impugned judgment of conviction and order of sentence dated 09.02.2012 passed by Additional District and Sessions Judge, Ex-Cadre, Court no. 2, Sultanpur in S.T. No. 298 of 2007 and S.T. No. 299 of 2007, corresponding to case crime no. 223 of 2007 under Section 302 of the IPC of P.S.- Bazar Shukul District Sultanpur and case crime no. 225 of 2007 under Section 3/25 of the Arms Act, P.S.- Bazar Shukul, District Sultanpur, respectively, are hereby set aside. The appellant is acquitted from the charges framed against him. It appears that the appellant namely Nakul Sharma is in jail custody. Under the said circumstance, the appellant- Nakul Sharma is directed to be released forthwith, if not wanted in any other case.
Order Date :- 19.12.2016 Nitesh ( Mahendra Dayal, J. ) ( Prashant Kumar, J. )