Allahabad High Court
Kaptan vs The State Of U.P. on 12 September, 2016
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgement Reserved on 21.06.2016 Judgement Delivered on 12.09.2016 Court No. - 4 Case :- CRIMINAL APPEAL No. - 1115 of 2007 Appellant :- Kaptan Respondent :- The State Of U.P. Counsel for Appellant :- Munnilal Yadav,Soniya Mishra Counsel for Respondent :- Govt.Advocate With Case :- CRIMINAL APPEAL No. - 94 of 2006 Appellant :- Suresh Respondent :- The State Of U.P. Counsel for Appellant :- Rishad Murtaza,M.L.Yadav Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Vinod Kumar Srivastava-III,J.
Delivered By Hon'ble Ramesh Sinha,J.
1. Both the aforesaid criminal appeals have been preferred against the judgment and order dated 23.12.2005 passed by the Additional Sessions Judge, Kheri in S.T. No.412/2002 whereby the appellant Kaptan and Suresh have been convicted u/s 302 IPC and sentenced to undergo for life imprisonment with fine of Rs.4,000/- and in default further undergo for a period of six months imprisonment.
2. As both the above mentioned criminal appeals have been preferred against a common judgment and order, hence the same are being heard and decided together by a common judgment.
3. Prosecution story in brief is that the complainant Ram Chandra lodged an FIR by submitting an application Ext. Ka.1 at the concerned police station stating that on 5.12.2001, he along with his son Raj Bahadur were constructing a toilet in the North side of their house. One of his friend Lalta Prasad, S/o Jugunu R/o village Pasgaon was also present at the time of incident i.e. about 5 p.m. in the evening and at that time, accused Kaptan and Suresh, r/o his village also started to construct a wall adjoining to toilet. The informant and his son Raj Bahadur objected the accused-appellant Kaptan and Suresh from constructing wall. On this accused-appellant Kaptan and Suresh took out their country-made pistol and fired at Raj Bahadur. On an alarm raised by them which was heard by one Pratap and Smt. Ramshree wife of informant and other persons came there. Thereafter the accused-appellant Kaptan and Suresh ran away towards their house. The son of the informant died due to fire-arm injury.
4. On the basis of written report Ext. Ka.1, a first information report Ext.Ka.2 was registered at Police Station Pasgaon, District Kheri. The investigation of the case was started and investigated by the Station Officer Devendra Pandey. During investigation, the Investigating Officer prepared the site-plan Ext. Ka.11 of the place of occurrence. He also took the plain and blood-stained soil and prepared memo Ext.Ka.12. The inquest was prepared Ext.Ka.5, Police Form No.13 Ext. Ka.6, specimen seal Ext. Ka.9, sent the dead-body for postmortem and its report Ext. Ka.4 and also submitted charge sheet Ext. Ka.13 against accused-appellants Kaptan and Suresh.
5. The case was committed to the Court of Sessions and charges were framed against the two accused-appellants u/s 302 IPC by the trial court. They pleaded not guilty and claimed to be tried.
6. The prosecution in support of it's case has examined P.W.1 Ram Chandra, P.W.2 Lallu, P.W.3 Pratap, P.W.4 Shiv Shankar Singh, Head Moharir, P.W.5 Smt. Ramshree, P.W.6 Dr. S.P. Verma who conducted autopsy on the dead-body of the deceased, P.W.7 Devendra Pandey, Investigating Officer of the case.
7. The statement of the accused-appellant Kaptan and Suresh were recorded u/s 313 Cr.P.C who denied the prosecution story and stated that they have been falsely implicated due to enmity. Opportunity to produce the defence evidence was given to the accused-appellants thrice but on 7.12.2005 counsel for the accused-appellants stated that the defence would lead no evidence.
8. P.W.1 Ram Chandra, the informant of the case and the father of the deceased deposed before the trial court reiterating the prosecution case as narrated by him in the FIR. He stated before the trial court that when he and his son objected the accused from constructing the wall adjacent to his toilet, then accused Kaptan and Suresh took out country-made pistol and accused appellant Suresh caught-hold of Raj Bahadur and accused Kaptan fired shot on Raj Bahadur which hit him on his neck. Raj Bahadur sustained fire-arm injury then fell down and died. On hearing alarm, one Pratap of his village and his wife Ram Shree and other villagers came there. On this accused ran away towards their house. He submitted written report at the Police Station which he proved to be in his hand-writing and signature and marked as Ext. Ka.1.
9. The said P.W.1 Ram Chandra in his cross-examination further stated that the deceased Raj Bahadur sustained fire-arm injuries on his neck. The deceased fell near about 10-12 paces away from the door of accused Kaptan. Toilet was constructed on the date of occurrence. The accused Kaptan fired on Raj Bahadur at a distance of 4-5 paces. The altercation between the accused and Raj Bahadur did not take place at the time of occurrence. The I.O has inspected the place of occurrence.
10. P.W.2 Lallu who is stated to be the friend of P.W.1 and is eye-witness of the occurrence has been examined by the trial court and he stated that he was present at the house of P.W.1 Ram Chandra as he had gone there to participate in Anna Prashan ceremony of his grand-son. Ram Chandra and Raj Bahadur were constructing toilet in the North side of the house. The accused-appellants Suresh and Kaptan also started to construct the wall. P.W.1 Ram Chandra and his son Raj Bahadur prevented the accused to construct a wall on which the accused Suresh caught-hold of Raj Bahadur and Kaptan fired on Raj Bahadur. Raj Bahadur sustained fire-arm injuries, he fell and died. The occurrence taken place in the evening at 5 P.M. The accused Suresh was also armed with country-made pistol. On the alarm raised by him and Ram Chandra, P.W.5 Ram Shree came there along with other villagers and accused ran away from the place of occurrence.
11. In the cross-examination, P.W.2 Lallu Ram stated that he does not remember the date of occurrence but only stated that he remember that it was Wednesday on the date of occurrence in Aghan (Hindi month). He also did not told about the date of incident to the I.O. When he reached the house of Ram Chandra, he saw that the two accused were constructing there a wall and they have constructed near about 4 feet high wall. Ram Chandra and Raj Bahadur came there and Ram Chandra tried to take out brick. Accused Kaptan slapped to Ram Chandra after which Suresh and Kaptan fired on Raj Bahadur from their country-made pistol. Raj Bahadur received one injury on his neck and other injuries of fire-arm at his hand. The accused persons fired twice at the place of occurrence and the accused-appellant Kaptan made first fire on Raj Bahadur. Ram Chandra was not assaulted by the butt of the country-made pistol and he was only slapped. After hearing fire shot, he saw Raj Bahadur was lying to the North side of the toilet. The blood also fell on the ground where Raj Bahadur has fallen. The Police had come at the place of incident at 9 p.m. in the night. The police sealed the dead-body and he remained present at about two hours. The police had taken the dead-body of the deceased to the police station. He did not go to the police station with Ram Chandra.
12. P.W.3 Pratap who is an eye-witness of the occurrence and a villager was examined by the trial court and he has stated that he was at his house on the date of occurrence and on hearing the noise at 5 p.m, he reached to the house of P.W.1 Ram Chandra where he saw the dead-body of the deceased Raj Bahadur lying. He did not see the two accused firing at Raj Bahadur, thus the witness was declared hostile by the prosecution.
13. P.W.4 Shiv Shanker Singh, Head Constable has stated before the trial court that on 5.12.2001, he was posted as Head Moharir at Police Station Pasgawan. On the said date, he scribed the FIR on the basis of written report as Ext. Ka.1. The informant Ram Chandra came out at the police station for lodging FIR with written report FIR who proved the FIR as Ext. Ka.2 which is in his hand-writing and signature. He also recorded the summary of the case in G.D which was proved as Ext. Ka.3. In his cross-examination the witness has stated that Ram Chandra was present at about 8.10 p.m. At that time the Station Officer Devendra Pandey was also present at the Police Station who on receiving the information proceeded to the place of occurrence at about 8.10 p.m.
14. P.W.5 Smt. Ram Shree W/o P.W.1 Ram Chandra the mother of the deceased has stated before the trial court that at about 5 p.m. in the evening, her husband and son were constructing the toilet in the North side of the house. Her husband and son prevented the accused Kaptan and Suresh from raising a wall on which accused Kaptan and Suresh took out country-made pistol and fired at her son who received fire-arm injury and died. The accused-appellant Suresh and Kaptan ran away towards their houses.
15. In cross-examination the witness stated that on the date of occurrence, she was present at her house. On hearing the firing shot, she came out of the house. After that accused ran away towards their house. She heard three fire shots. Raj Bahadur died in-front of the house and the blood was oozing out. The police came in the night at the place of occurrence and she witnessed the accused committing the murder of her son and running from the place of occurrence.
16. P.W.6 Dr. S.P. Verma who has conducted the post-mortem of the deceased was examined by the trial court and he deposed that he has conducted the postmortem of the deceased and found following ante-mortem injuries on his person:-
(I) Fire-arm wound of entry measuring 6.00 cm.x 3 cm. over front of neck, 4 cm. below chin and 7 cm. above sterno sternal notch, margins inverted, irregular and echy-mosed, blackening and tattooing present 2.00 cms. around the wound. On dissection underlying muscles, vessels, trachea found lacerated and second cervical vertebra found 42 small metallic pellets and material recovered from neck.
(II) Fire-arm wound of entry 2 cms. X 2 cms. X through and through over right palm, 2 cms. below base of right thumb, margins inverted, irregular and echymosed.
(III) Fire-arm wound of exit 6 cms. X 3 cms. X through and through over dorsum of right hand-joint below right wrist, margins everted, irregular and echymosed.
17. In the opinion of the said doctor the deceased died due to fire-arm injuries which he sustained on his person before the death. He proved the postmortem report under his hand-writing and signature as Ext. Ka.4. The fire-arm injuries were caused to the deceased by country-made pistol. The death of the deceased was caused on 5.12.2001 at 5 p.m.
18. In his cross examination, the said witness has further stated that the injury no.1 was caused from a distance of 3 feet. The injury no.2 was on the hand of the deceased. Blackening and tattooing was not present on injury no.2. Injury no.1 was caused by first fire and injury no.2 was caused by second fire. In his opinion, it is a case of two shots. He further deposed that the two injuries cannot be caused by single fire.
19. P.W.7 Devendra Pandey, Station Officer of the concerned police station is the I.O of the case. He recorded the statement of witnesses u/s 161 Cr.P.C. And also made spot inspection of the place of occurrence and prepared site-plan as Ext. Ka.11. In his cross-examination the said witness has stated that the case was registered in his presence at the concerned police station and he recorded the statement of Ram Chandra at the Police Station and further reached the place of occurrence near about 11.30 p.m in the night. He further stated that the witness Ram Chandra did not give him statement that the accused Suresh caught Raj Bahadur. The witness Lallu gave statement u/s 161 Cr.P.C. that Suresh taken out country-made pistol and fired on Raj Bahadur.
20. On the basis of aforementioned evidence of the prosecution the trial court has convicted the accused-appellants for the offence u/s 302 IPC and sentenced them for life imprisonment. Aggrieved by the same, the present appeals have been preferred by the aforesaid two appellants.
21. Heard Ms. Soniya Mishra, learned counsel for the appellants and and Ms. Nand Prabha Shukla, learned AGA for the State and perused the record.
22. It has been argued by learned counsel for the appellants that there was no motive to commit the crime by the two accused-appellants. It has been further submitted that there was no dispute between the parties prior to the present incident. The incident has occurred due to sudden provocation on a issue of raising a wall adjacent to the toilet of the informant. The accused-appellant Suresh as per evidence of P.W.1 Ram Chandra, it is evident that the accused-appellant Suresh is said to have caught-hold of the deceased whereas the accused-appellant Kaptan is said to have fired shot at the deceased which hit him on the neck. Thus the case of accused-appellant Suresh is distinguishable from the case of accused-appellant Kaptan and the conviction of the appellant under Section 302 IPC with the said accused on the basis of evidence of P.W.2 Lallu Ram and P.W.5 Ram Shree by the trial court considering the statement of the witnesses u/s 161 Cr.P.C. that it was the appellant Suresh who also fired at the deceased along with appellant Kaptan with his country-made pistol and the deceased received two injuries on his person, one on the neck and other on the hand is absolutely incorrect as the trial court has misread the evidence of the said two witnesses and convicted the appellant Suresh also under Section 302 IPC which should be set-aside.
23. It was lastly argued that even if the case is taken on it's own face value, the case would not travel beyond Section 304 Part-1 IPC as the incident has taken place on the spur of moment on the issue of raising a wall by the accused persons adjacent to the toilet of the informant on which the deceased is said to have received injuries at the hands of the appellant Kaptan by fire-arm. Therefore, the conviction of the appellant Kaptan under Section 302 IPC and sentence for life imprisonment be set-aside. The accused-appellant Kaptan has already undergone fourteen years of imprisonment, hence he may be released to the period already undergone after conviction under Section 304 Part-1 IPC. Learned counsel for the appellants in her support has relied upon the judgment of the Apex Court in the case of Murlidhar Shivram Patekar and another Vs. State of Maharashtra reported in 2014(3) JIC 830 (SC).
24. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellants and submitted that as per the evidence of prosecution led before the trial court, the two accused-appellants who were armed with country-made pistol fired at the deceased who received two injuries on his person and the cause of death as per the postmortem report is shock and hemorrhage as a result of ante-mortem injuries. The ocular testimony of P.W.1, 2 and 3 fully corroborates the prosecution case and the presence of the said witnesses at the place of occurrence appears to be natural, hence the trial court has rightly convicted the appellants for the offence in question.
25. Considered the submissions advanced by learned counsel for the parties and perused the record.
26. Admittedly as per prosecution case set-out in the FIR and by the witnesses before the trial court, it is apparent that the informant and the deceased were constructing a toilet at their house and simultaneously the accused-appellants Kaptan and Suresh also started raising a wall adjacent to the toilet of the informant and the deceased which was objected by them on which the two accused took out their country-made pistol and shot at the deceased who died on account of fire-arm injuries received on his person. From the FIR lodged by the informant P.W.1 Ram Chandra it has been stated by him that the two accused persons fired shot at the deceased who died on account of fire-arm injuries. He has reiterated the prosecution case and in his examination-in-chief, he has deposed that the accused Kaptan and Suresh had took out their country-made pistol and accused Suresh had caught-hold the son of the informant Raj Bahadur and accused Kaptan fired at the deceased with his country-made pistol which hit him on his neck on account of which he sustained injuries and died on the spot. It further transpires from the cross-examination of the said witness that after the shot was fired by accused-appellant Kaptan on the deceased, he had fallen on the ground and thereafter no person had shot at him or caught-hold the deceased. There is also evidence of P.W.2 Lallu Ram who is also an eye-witness of the occurrence has narrated the prosecution case and had claimed his presence at the place of occurrence. He has also deposed before the trial court in his examination-in-chief that while the accused-appellant were raising the wall adjacent to the toilet of the informant on which they objected, the accused-appellant Suresh had caught-hold of the deceased Raj Bahadur and the accused-appellant Kaptan fired shot with the country-made pistol at him which hit him on his neck and the deceased had fallen on the ground and died on the spot. The other eye-witness P.W.5 Ram Shree, W/o P.W.1 Ram Chandra and mother of the deceased has deposed before the trial court that on hearing of fire shot, she reached the place of occurrence and witnessed the incident and further saw the accused-appellant running from the place of occurrence. According to her she heard three shots of fire-arm whereas P.W.2 Lallu Ram in his deposition before the trial court has stated that he heard two shots. The trial court has considered the evidence of P.W.7 Devendra Pandey, I.O. of the case and further taken into account the statement of the said witness recorded u/s 161 Cr.P.C in which it was stated by them that both the accused persons fired shot at the deceased and on the basis of which the trial court has arrived at a conclusion that from the evidence of three prosecution witnesses, it is clear that both the accused-appellants shot fire at the deceased who received two injuries on his person and died and convicted the appellants.
27. In our opinion though in the FIR it has not been alleged by the informant that it was the accused Suresh who had caught-hold the deceased and the shot was fired by accused-appellant Kaptan at the deceased as in the FIR, it has been stated that both of them had fired at the deceased but subsequently when the P.W.1 Ram Chandra and P.W.2 Lallu Ram were examined by the trial court and they in the examination-in-chief have categorically stated that accused Suresh had caught-hold the deceased and accused Kaptan fired shot at the deceased Raj Bahadur on neck who died on the spot. The conviction of the appellant Suresh on the basis of the statements recorded u/s 161 Cr.P.C of the witnesses P.W.2 and P.W.3 is contrary to their evidence which was recorded by the trial court, does not appear to be correct as it amounts to misreading of their evidence. More so, even if the prosecution case is taken on it's face value, it has come in the evidence of two eye-witnesses i.e. P.W.1 and P.W.2 that the first shot was fired by the accused Kaptan on the deceased which hit him on his neck and the second shot which hit the deceased received on his hand which was injury no.2 and the injury no.3 is communicating injury of injury no.2 cannot be said to be a fatal injury to cause the death of the deceased as the injury no.1 which has been attributed to accused Kaptan was fatal one and caused from a close range and 42 pellets were recovered from the said injury.
28. Thus the participation of the accused-appellant Suresh appears to be doubtful from the evidence on record and the prosecution has failed to prove it's case beyond reasonable doubt against him. He is given benefit of doubt and his conviction and sentence by the trial court is hereby set-aside. He is on bail. He need not to surrender. His bail bonds and sureties are discharged.
29. So far as accused-appellant Kaptan is concerned, the prosecution has proved its case beyond reasonable doubt from the evidence on record and his participation in the incident cannot be ruled out. The injury no.1 which has been caused on the neck of the deceased and is proved to be fatal one, has been attributed to him. The contention of learned counsel for the appellants that it is a case of sudden provocation and the case would not travel beyond Section 304 Part-1 IPC and the accused has already served out fourteen years of imprisonment may be reduced to period already undergone has no substance and the said contention is hereby rejected. No doubt the accused-appellant Kaptan has been in jail for last fourteen years but as he has been convicted under Section 302 IPC and sentenced for life imprisonment by the trial court, the minimum punishment under Section 302 IPC is life imprisonment, therefore, his incarceration for fourteen years in jail is immaterial and he has to serve out the sentence awarded by the trial court for life imprisonment as has been ordered by the trial court. The case law cited by learned counsel for the appellants is distinguishable from the facts and circumstances of the present case. In view of the judgment of the Apex Court in the case of Gopal Vinayak Godse Vs. State of Maharashtra 1961 (3) SCR 440 wherein it was held that imprisonment for life lasts until the last breath and whatever the length of remission earned the prisoner can claim release only if the remaining sentence is remitted by the Government. The judgment of Gopal Vinayak Godse (Supra) was followed by the Apex Court in its recent judgment of Muthuramalingam and others Vs. State reported in J.T. 2016 (7) SC 1. Therefore, the conviction and sentence of accused-appellant Kaptan by the trial court under Section 302 IPC for life imprisonment is hereby upheld. He is already in jail, hence shall serve out the sentence awarded by the trial court.
30. The appellant Suresh is on bail. He need not surrender and his bail bonds and sureties stands discharged.
31. Thus, the appeal of appellant Kaptan is hereby dismissed and the appeal of appellant Suresh stands allowed.
(Vinod Kumar Srivastava-III, J.) (Ramesh Sinha, J.)
Dated:-12.9.2016
Gaurav