Allahabad High Court
Nandlal And Anothers vs State Of U.P. on 6 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1273, 2019 (6) ALJ 630
Bench: Pankaj Naqvi, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Delivered on 6.8.2019 Court No. - 43 Case :- CRIMINAL APPEAL No. - 1839 of 1986 Appellant :- Nandlal And Another Respondent :- State Of U.P. Counsel for Appellant :- Sanjay Kumar Singh,Gopal Swarup Chaturvedi,Shri Prakash Dwivedi Counsel for Respondent :- A.G.A. ::connected:: Case :- CRIMINAL APPEAL No. - 1841 of 1986 Appellant :- Baggar Respondent :- State Of U.P. Counsel for Appellant :- Anil Kumar Pathak,Anil Kumar Pathak,Brijesh Kumar,Rajiv Lochan Shukla,Sanjay Kumar Singh,Vibhendu Mishra Counsel for Respondent :- G.A., A.G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Suresh Kumar Gupta,J.
(Delivered by Hon'ble Pankaj Naqvi, J.) These criminal appeals assail the judgment and order dated 5.7.1986 by Sessions Judge, Mirzapur, in S.T. No.37 of 1986, convicting / sentencing the appellants under Section 302 IPC to life and under Section 307 IPC to four years R.I.
1. The case of the prosecution in brief is that while informant / the deceased was returning from the theatre after watching a matinee show along with Kripashankar Upadhyay (PW-1), Pawan Kr. Upadhyay (PW-2) and Jagdish Prasad (PW-3); when they reached near a particular crossing about 100-125 paces away from the theatre, around 7 P.M, accused Baggar Pandey @ Ashok S/o Gaysinath Pandey, r/o village Lakhmapur, Jalal @ Joginder and Nandlal, both sons of Parma Dubey of village Nuan, P.S. Kotwali Dehat, arrived from the right alley, latter 2 exhorting and identifying the deceased / informant, upon which accused-Baggar Pandey indiscriminately fired two shots at the deceased, hitting him on the rear side, who fell down, commotion ensued a passerby Baikunth Nath (PW-4) also received a gun shot injury. All the 3 accused-appellants fled from the southern alley. The informant further alleged that all the accused were identified by him and the witnesses in the electricity light.
2. On above allegations, a written report (Exbt. Ka-1) was scribed by PW-3 at the dictates of informant / deceased, which became a basis for registering an FIR dated 3.10.1985 at 7:15 P.M, as Case Crime no. 203 of 1985 under Section 307 IPC, in P.S. Kotwali, District Mirzapur, in respect of an occurrence at 7:00 P.M, with P.S, at a distance of 1-1/2 Km.
3. With the death of the informant/ deceased on 18.10.1985, as per GD report no. 43, case was converted to Section 302 IPC. The deceased on the same date, gave a dying declaration before PW-8 the Magistrate at 8:25 P.M, nominating the roles of the appellants.
4. During investigation, all the 3 appellants surrendered themselves before the Court concerned. PW-12, the I.O, after completing the investigation formalities, submitted a charge sheet (Exbt. Ka-26) against the 3 appellants, case committed to Sessions.
5. The learned Sessions Judge framed charges under Section 302/34 along with 307 IPC against the 3 appellants. The appellants / accused denied the allegations, raised an alibi, claimed to be tried.
6. The prosecution examined PW-1 to 4 as eye-witnesses, who turned hostile. PW-5 is the doctor, who examined the injuiries of the deceased and the injured PW-4. PW-5 also is the author of the certificate of medical fitness of the deceased prior and during for recording the dying declaration. PW-8 is the Magistrate who recorded the dying declaration. PW-6 is the S.I, in whose presence inquest was conducted, he also prepared letters for autopsy, in his handwriting and after sealing the body handed over the same along with police papers to Constable / PW-7 for autopsy, who eventually handed over the body to the doctor for autopsy. PW-9, the doctor, conducted the autopsy of the deceased on 20.10.1985. PW-10 is Constable Rama Shankar Mishra, who had escorted both the injured, i.e, the deceased and PW-4, along with injury letters in a Police vehicle to Government Hospital, Mirzapur for examination of injuries. PW-11, the head moharrir, on 3.10.1985 prepared the check report no. 169 (Exbt. Ka-12), entered its content in G.D. Report no. 44 (Exbt. Ka-13). He also claims to have prepared the injury letters. PW-12 is the I.O, in whose presence the FIR was registered, carried out all investigational formalities including the submission of charge sheet against the accused-appellants.
7. The defence examined DW-1 and 2 to prove the alibi of appellant Nandlal.
8. The trial court after considering the evidence on record convicted all the 3 appellants.
Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Shri Prakash Dwivedi, learned counsel for the appellants in Crl. Appeal No. 1839 of 1986, Sri Rajiv Lochan Shukla assisted by Sri Vibhendu Mishra, learned counsel for the appellant in Crl. Appeal No. 1841 of 1986, and Sri A.N. Mulla, the learned A.G.A.
9. Learned counsel for the appellants have advanced following arguments: -
(i) FIR and police papers are ante-timed.
(ii) Dying Declaration is challenged on the following grounds: -
a) They are multiple and at substantial variance.
b) None of the Dying Declaration disclosed the source of identity of assailants.
c) Testimony of PW-5, 8 and 10 is at variance indicating that the deceased was tutored to disclose against the appellants.
d) All the Dying Declarations have been recorded on 3.10.1985, when the deceased was not under any hopeless expectation of death as he eventually expired on 18.10.1985 due to septicemia and cardiac respiratory arrest.
(iii) All prosecution witnesses of fact have turned hostile and the procedure adopted by the I.O, in not confronting the specific portions of their previous statement rather confronting it in its entirety coupled with PW-12, the I.O, exhibited the previous statement of injured witness as Exbt. Ka-22, which was completely illegal and contrary to the specific bar under Section 162 CrPC rendering the conviction of appellants vulnerable in law.
(iv) Although Dying Declaration was the sole basis of conviction but prosecution witnesses failed to identify the assailant in the docket as also the deceased was not disclosing the source of identity of assailants.
(v) Absence of confrontation of Exbt. Ka-10(Dying Declaration) and Exbt. Ka-12 (FIR) as also the oral testimony of CK Pandey, Addl. City Magistrate is sufficient to vitiate conviction as it has caused serious prejudice to the appellants.
10. Sri Mulla opposed each and every submission, which shall be dealt with appropriately.
11. The occurrence is alleged to have taken place inside the city limits near a cinema theatre on 3.10.1985 at about 7 P.M. The informant / deceased (after getting the report scribed by PW-3) lodged it within 15 minutes of the occurrence at the P.S, at a distance of 1.5 Km. PW-3 turned hostile, as he was alleging that the report was scribed at 10-11 P.M, at the dictates of the police. PW-11 the constable, on the basis of the written report (Exbt. Ka-1) on the relevant date and time registered the FIR (Exbt. Ka-12). He could not be dented on the timing of the FIR. PW-11 denied his signatures on the letters (Exbt. Ka-7) for medical examination of injured persons. This denial is meaningless as the author of (Exbt. Ka-7) is PW-10 / Rama Shankar Mishra. PW-10 acknowledged the receipt of (Exbt. Ka-7), upon which he took both the injured for medical examination. PW-12 / the I.O, was stating that while the check report was prepared in 8 to 10 minutes, PW-10 was preparing (Exbt. Ka-7), but as stated above, PW-10 only acknowledges the receipt of Exbt. Ka-7, i.e, the author remained unknown notwithstanding the signatures of PW-10 on Exbt. Ka-7. There may be some variance between PW-11 and 12, as to who authored Exbt. Ka-7, but that becomes insignificant once PW-10 admitted that he took both the injured to the hospital for their medical examination in police custody who were examined at 7:30 P.M and 7:50 P.M, on 3.10.1985. We on above evidence do not find either the FIR or any police-papers to be ante-timed.
12. Section 32 of the Indian Evidence Act inter alia provides cases in which statement of relevant fact by a person, who is dead, is relevant. Sub-section (1) thereof further provides that when a statment is made by a person, as to the cause of his death, such statements are relevant whether the person, who made them was or was not (emphasis by us) at the time they were made, under expectation of death. Thus hopeless contemplation of death is not a sine qua non for making a statement of such a person relevant as to the cause of his death.
13. The FIR (Exbt. Ka-12) dated 3.10.1985 is lodged by the deceased. The deceased discloses the identity of all the 3 appellants by names, parentage and their addresses, including their roles. The deceased also recorded his statement (dying declaration) in the hospital before PW-8, the Magistrate on similar lines as alleged in the FIR. PW-12 finally recorded the statement of the deceased under Section 161 CrPC, wherein he reiterated similar allegations as made in the FIR. PW-12 on being confronted with the previous statement of the deceased, the former stood by the statement of the deceased recorded by him. We on above evidence do not find any dichotomy in the multiple statements of the deceased. The prosecution was not expected to go on recording the statements of the deceased either by the hour or by the day and failure to do so, cannot dent the prosecution case.
14. Much emphasis was laid on the use of the word "Achanak" (suddenly) in the Dying Declaration (Exbt. Ka-10) to contend that it was only upon tutoring, that the names of the appellants surfaced. We are not impressed with the above plea as the deceased himself lodged the FIR disclosing the names and roles of appellants. Thus, once the names and the roles of the appellants surfaced in the FIR lodged by the deceased, the contention so raised is liable to be rejected.
15. PW-5 is the doctor at District Hospital who on 3.10.1985 at about 7:30 P.M, examined in police custody the following injuries of the deceased:-
"1. Firearm wound of entry of 1.5 cm radius round shape over left back of chest 3.5 cm left from dorsal spine, margin inverted, blackening and charring present, fresh bleeding present, 7 cm below from inferior angle of left scapula, Adv. Xray.
2. Firearm wound of exit of 1.75 cm radius over left lower part of chest 4.5 cm below from left nipple, fresh bleeding present, K 40 Adv. Xray, Margin everted."
16. PW-5 also authenticated the recording of the Dying Declaration (Exbt. Ka-10) after he had appended certificate of fitness (Exbt. Ka- 4 and 5). PW-5 is candid enough to admit that along with the injured / deceased there was a crowd of 10-20 persons but the moment the Magistrate (PW-8) arrived crowd was removed. He remained all throughout present in the hearing range of the deceased. PW-8 was the Addl. City Magistrate, who on 03.10.1985 at around 8 P.M, received information as to the recording of the Dying Declaration of the deceased. He after ascertaining the medical fitness (Exbt. Ka-4) of the deceased as authenticated by PW-5 proceeded to record the statement (Exbt. Ka-10). The deceased disclosed the nature of the occurrence, identity and the role of the appellants including the time of the occurrence and that the firearm shot was fired by Baggar Pandey on account of enmity while the other two accused, i.e, Jalal and Nand Lal facilitated his identity before co-accused Baggar Pandey. After concluding the recording of the statement of the deceased, he again obtained certificate of fitness (Exbt. Ka-5) from PW-5 that the deceased was fully conscious and mentally fit during the course of his entire statement. There is no apparent conflict between PW-5 and 8 as to the recording of the Dying Declaration of the deceased.
17. The contention of the appellant- Baggar is that the deceased did not disclose either in the FIR or in the statement under Section 161 CrPC, source of identity of appellant Baggar. It would be pertinent to state that one Surya Narayan Chaube, a student leader was murdered, who happens to be friends with appellant - Baggar Pandey, in which the deceased was an accused and the other two accused-appellants, Jalal and Nandlal were relatives of Surya Narayan Chaube. Thus there was every occasion for the deceased to be familiar with the identity and name of the main assaillant Baggar Pandey, but the vice-versa, i.e, accused Baggar Pandey not being familiar either with the name or the identity of the deceased, is not so improbable in view of its absence in FIR / 161 CrPC statement or in the Dying Declaration. Once the deceased disclosed the identity and the role of the principal accused-Baggar Pandey in the FIR lodged by himself reiterated in his Dying Declaration and in his statement under Section 161 CrPC, the prosecution case cannot fail only on the ground that none of these statements were disclosing the source of knowledge that the deceased knew the principal assaillant, who was no one else but Baggar Pandey.
18. All witnesses of fact, i.e, PW-1 to 4 including the injrued turned hostile. PW's - 1 and 2 were stating that at the time of occurrence they were in their house. PW-3 stated that at the time of incident, he was in Tehsil. PW-4, the injured alleged that he was shot by unknown assailant and apart from him no one else was shot at. On being confronted with their previous statements wherein they had alleged that they were witnesses to the occurrence as also to the role and identity of assailants, but were denying their previous statements whereas the I.O, was confirming the veracity of the previous statements. But the witnesses in the absence of any malafides against the I.O, were unable to offer any explanation as to how and under what circumstances their previous statements came to be recorded.
19. Section 145 of the Evidence Act relates to cross-examination as to previous statements in writing, which inter alia provides that if a witness is to be contradicted to his previous statement in writing, his attention, must, before the writing can be proved, be called to those parts of it, which part is used for the purpose of contradicting him. Once the prosecution witnesses (hostile) were confronted with their previous statements as to the date, time and place of occurrence, role and identity of assailants and the witnesses apart from a bare denial that they were elsewhere, but for PW-4, the injured present at the scene, denying any other shootout involving the deceased, at the same time, but not lodging any report in respect of the injuries sustained by him leads to only one probable inference that the witnesses had been won over. We thus do not agree with the submission of the appellant that as the entire previous statement was not confronted to the witnesses, the requirement of contradicting a witness is not fulfilled.
20. We now proceed to evaluate contention no. (V) of the appellants.
21. Question nos. 9, 12 and 14 as put to the accused appellants under Section 313 along with their answers are quoted hereunder: -
"+iz'u9& 'kgknr esa ;s Hkh gS fd ?kVuk ds ckn jkew mik/;k us bl ?kVuk dh fjiksVZ txnh'k izlkn mik/;k; ls rgjhj djkbZ o viuk fu'kkuh vaxwBk yxkdj Fkkuk dks0 'kgj esa nh ftlds vk/kkj ij fpd fjiksVZ rS;kj dh xbZ vkSj eqdnek dk;e gqvkA rqedks D;k dguk gS\ mRrj& ;g xyr gSA iz'u12& 'kgknr esa ;g Hkh gS fd fn0 3-10-85 dks jkr ds 8-15 cts Jh C.K. Panday Addl. City Magistrate fejtkiqj us jkew mik/;k; dk Dying declaration c;ku fy;k ftlesa mlus cXxM eqyfte }kjk mlds xksyh ekjuk o tyky o uUn yky eqyfteku dks mlds lkFk ifgpkuokus ds fy, gksuk crk;kA rqedks D;k dguk gS\ mRrj& ;g xyr gSA iz'u14& 'kgknr esa ;s Hkh gS fd jkew mik/;k dk e`R;q iwoZ c;ku ysus ds ckn 9-30 cts jkr foospuk vf/kdkjh us jkew mik/;k; dk c;ku fy;k tks bDt d&19 gS vkSj bl c;ku esa Hkh jkew mik/;k; us ekjus okyksa us rqEgkjs uke crk, Fks rqedks D;k dguk gSS\ mRrj& geas ugha ekyweA"
22. It cannot be gainsaid that under Section 313 CrPC the accused is to be confronted with all the incriminating material so as to enable him to explain the same. It is equally well settled that mere non-compliance of Section 313 CrPC would not ipso facto be fatal to the prosecution unless prejudice is established. Reference may be made to a decision of the Apex Court in Nar Singh vs. State of Haryana, (2014) 1 SCC 496, wherein it held as under: -
"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:
(i) Whenever a plea of non-compliance of Section 313 Code of Criminal Procedure is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits."
23. A perusal of Question no. 5 under Section 313 CrPC to all the accused indicates that it fixes the date, time and place of occurrence. Question no.6 relates to identity of all the accused and the role of exhortation by Jalal and Nandlal to Baggar that the deceased be not spared. Question no. 7 relates to mode and manner of assault by accused Baggar on the deceased involving 2 firearm shots out of which one shot hit him on the rear side. Question no.8 relates to the other shot, which hit PW-4, a passerby in the same transaction. Question no.9 relates to the report being scribed by PW-3 at the dictates of the deceased along with the thumb impression of the deceased lodged at the P.S, concerned, which became a basis for registering the FIR. Mere absence of an exhibit number of the FIR ipso facto cannot defeat the prosecution case as sufficient particulars of the report with the name of the scribe, name of the P.S, where it was submitted and the recitals of the report have been sufficiently disclosed from Question no.5 to Question no. 8. Question no.12 related to recording of the Dying Declaration by Shri C.K. Pandey, Addl. City Magistrate, Mirzapur, of the deceased in which he assigned the role of causing firearm injuries to accused Baggar Pandey and role of exhortation and identity of the deceased to accused Jalal and Nand Lal. Question no.14 relates to the accused being confronted with the statement of the deceased under Section-161 CrPC at 9:30 P.M, recorded after the recording of Dying Declaration at 8:25 P.M.
24. We, after examining the statements under Section 313 CrPC, are of the view that all the accused-appellants right from the very begining were very well aware of the case of prosecution including the mode and manner of occurrence and the role played by each of them as also the fact that apart from the FIR by the deceased attributing their involvement, there was a Dying Declaration of the deceased as recorded by the Executive Magistrate, cumulatively establishing that all the 3 accused appellants despite being confronted with all the incriminating materials including the Dying Declaration, apart from a bare denial there was no tangible explanation.
25. One final submission of the appellants that the offence would not traverse beyond Section- 326 IPC, as death occurred due to septicemia and cardiac respiratory arrest after 15 days, deserved to be rejected outrightly. The doctor (PW-9), who conducted the autopsy (Exbt. Ka- 11) deposed that septicemia and cardio respiratory arrest were on account of firearm injuries coupled with the fact that deceased remained in the hospital till his last breath. There is no evidence to indicate that the deceased was not given proper treatment or care. Thus, the injuries caused to the deceased were sufficient to cause death in the ordinary course of nature.
26. We are thus of the view that the prosecution has established its case beyond a reasonable doubt. The appeals are devoid of merit, liable to be dismissed.
The appeals are dismissed. Appellants are on bail. Their bail bonds stand cancelled. They shall be taken into custody forthwith to serve remainder sentence.
Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance under the intimation to this Court.
Order Date :- 6.8.2019
N.S.Rathour
(Suresh Kumar Gupta,J.) (Pankaj Naqvi.J.)