Allahabad High Court
Amit Kaushik vs State Of U.P. on 8 February, 2017
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 53 Case :- CRIMINAL APPEAL No. - 40 of 2006 Appellant :- Amit Kaushik Respondent :- State Of U.P. Counsel for Appellant :- Pankaj Bharti,Anurag Pathak,P. Dixit,P.S. Pundir,Pankaj Kumar Tyagi Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Vijay Lakshmi,J.
This criminal appeal is directed against the judgment and order dated 16.2.2005 passed by the Sessions Judge, Baghpat, in S.T. No. 396 of 2004, State Vs. Amit Kaushik, convicting the appellant under section 307 I.P.C. and sentencing him to undergo ten years rigorous imprisonment and a fine of Rs. 15,000/- and in case of default in payment of fine to undergo two years further simple imprisonment.
Heard Ms. Vatsala Pandey, learned Amicus Curiae and Sri Ram Raj Pandey on behalf of the appellant and learned AGA for the State. Perused the record.
The facts in brief are that on 10.6.2004 at 4.00 P.M. a first information report was lodged by one Manoj Kumar stating therein that at 3.00 P.M. on the same day one boy, in an injured condition came running towards him and informed that his friend Amit, with whom he had come from Shamli, had taken him to Gurana Gate and he had inflicted gunshot injuries on him.
Before lodging the of the FIR, the injured Anuj was immediately taken to C.H.C. Baraut, District Baghpat, by the first informant Manoj and his brother, where the injured was medically examined. Following injuries were found by the doctor on his body:
1. Gunshot wound of entry 1.5 x 1 cm. middle of back of chest upper part 20 cm. below base of neck. Blackening and tattooing present in an area of 6 cm x 4 cm. K.U.O.
2. Gunshot wound of exit 3 cm x 2 cm Rt. side front of chest 3 cm below mid clavicle. K.U.O.
3. Gunshot wound of entry 1 cm x 1 cm in inner aspect of Rt. forearm. 3 cm above wrist joint. Blackening present in surrounding 8 cm. K.U.O.
4. Gunshot wound of exit 1 cm x 1.5 cm on back of Rt. wrist joint.
5. Gunshot wound of entry 1.5 cm x 1 cm on mastoid region Rt. side. Blackening around the wound present. K.U.O. All injuries K.U.O. All caused by firearm. Fresh in origin. Referred to P.L. Sharma Hospital, Meerut, for X-Ray, admission and treatment.
On the basis of the first information report a case was registered at Case Crime No. 273 of 2004, under section 307 I.P.C. Police Station Baraut, District Baghpat, against the accused-appellant Amit Kaushik and the matter was investigated.
The investigating officer interogated the witnesses, prepared the site plan and after conclusion of the investigation, submitted charge sheet against the appellant.
The offence being triable by the court of Sessions, it was committed to the Sessions Court, where charge under section 307 I.P.C. was framed against the appellant. As the appellant denied from the charge and prayed for trial, the trial proceeded.
The prosecution in order to prove its case, produced four witnesses in all. PW1 is the first informant Manoj Kumar, PW2 is the injured Anuj Kumar, PW3 is Dr. B. K. Bajpayee, who had examined the injured at C.H.C. Baraut, District Baghpat, and PW4 is the Investigating Officer of the case S.I. Mukut Singh.
After conclusion of the prosecution evidence the statement of the accused- appellant was recorded under section 313 Cr.P.C. The appellant denied from all the allegations and alleged his false implication by the injured due to enmity. No defence evidence was produced by the appellant.
In order to properly appreciate the case, it appears necessary to have a glance on the statements of the witnesses examined before the trial court.
PW1-Manoj Kumar has stated that at about 3.00 P.M. on the day of occurrence, one boy came running towards him. He informed that his friend Amit Kaushik had brought him to this place from Shamli and had fired shots on him. PW1 has further stated that the injured was immediately taken to the Government Hospital by him and his brother Rajesh and a written report in his own handwriting was also lodged by him at the police station. PW1 has identified his handwriting and signature on the first information report and has duly proved it in the court, which was marked as exhibit Ka-1. This witness has been cross-examined at length by the learned defence counsel but nothing has been elicited to cast a shadow of doubt on his statement. All the answers given by this witness in reply to the questions put to him appear natural, reliable and trustworthy. He has stated that the boy had fallen down in front of his shop and as there was no one to help him, he along with his brother Rajesh took him to the hospital and then lodged the FIR against the appellant on the basis of the information given by the injured. His above statement finds corroboration with the injury report Ex. Ka-2, in which it is mentioned that injured was brought by Rajesh Kumar. Thus the prosecution case finds full support by the statement of PW-1.
The injured Anuj Kumar has been examined as PW2, who has stated that the accused Amit, who is present in the court, was his friend. The accused had taken a loan of Rs. 7500/- from him for the treatment of his daughter and when he (PW2) asked him to return the loan, Anuj called him to 'Baraut' assuring that he would pay him the amount. PW2 has further stated that on 10.6.2004 he had come with the accused from Shamli to Baraut. The accused took him to Gurana Gate at about 3.00 P.M. and there he shot three fires on him with intention to kill, out of which one bullet hit at his right shoulder, which went through and through, the second shot hit on his right wrist, which also went through and through and the third shot hit behind his head. PW2 has further stated that after sustaining gunshot injuries he fell down on the earth. The accused, leaving him at the place under the impression that he had died, went away from the spot. Thereafter he (the injured/PW2), somehow managed to come on the road where he met the informant Manoj and his brother Rajesh, they took him to C.H.C., Baraut, by a rickshaw and lodged the report. The first informant also informed the father of injured about the incident, who came to C.H.C. Baraut and took the injured to Delhi for better treatment.
PW2 has faced grueling cross-examination by the learned defence counsel but he has been throughout cogent and consistent and his statement has remained unshaken. There does not appear any material contradiction, exaggeration, omission or embellishment in his testimony.
Learned counsel for the appellant has tried to raise a doubt in the prosecution case, by contending that the identity of the culprit is uncertain in this case because the injured has clearly stated that he was attacked from behind. Learned counsel has drawn the attention of this court to following statement of PW2:
"esjs mij geyk if'pe dh rjQ ls gqvk FkkA"
Learned counsel has contended that in such situation it cannot be ascertained that, who had made attack on the injured by firing shots.
I do not find any substance in the aforesaid contention of learned counsel for the applicant in view of the following statement of PW2 in which he has narrated in detail the manner of occurrence in the following words:-
"eSa xksyh yxus ds ckn csgks'k ugh gqvk Fkk cfYd eSus ihNs iyV dj ns[kk fd eqfYte gkftj vnkyr ds gkFk esa reapk gS vkSj og nwljh xksyh Hkj jgk Fkk tc eSus bldks nwljh xksyh Hkjrs gq;s ns[kk rks eS vkxs dks c<+k] eSa dqN djus dh fLFkfr esa ugh Fkk rHkh eqfYte us nwljh xksyh pyk nhA xokg us viuh nkfguh dykbZ U;k;ky; esa fn[kkrs gq;s dgk fd blus esjs nwljh xksyh ;gkW ekjh Fkh tc eqfYte us esjs nwljh xksyh ekjh rks oks eq>ls 5] 6 QhV nwj FkkA"
Moreover, PW2 has been asked a specific question by the trial court in this regard and the reply given by PW2 is such, which appears true and natural and inspires confidence.
iz'u%& ftl le; vkidks igyh xksyh yxh rks vki ;s ugh ns[k ik;s fd xksyh fdlus ekjh\ mRrj%& th ugh ns[k ik;k Fkk] ysfdu tc ,dne ihNs iyVk rks vfer ds gkFk esa reapk Fkk vkSj og nwljh xksyh Hkj jgk FkkA PW-3 is Dr. V. K. Bajpai, who was posted as Superintendent C.H.C., Baraut, Baghpat, at the time of occurrence. He has stated that on 10.6.2004 at 3.15 P.M. he had medically examined the injured Anuj. He has proved the injury report Ex. Ka-2 by identifying his handwriting and signature on it. There does not appear any reason to disbelieve his testimony.
PW4 is S.I. Mukut Singh, is the investigating officer of the case. He has corroborated the prosecution case and has duly proved the site plan and charge-sheet in court, which were respectively marked as Ex. Ka-3 and Ex. Ka-4. He has also proved the check FIR and GD entry no. 37 dated 10.6.2004, which were marked as Ex. Ka5 and Ex. Ka6. There does not appear any such material discrepancy in his statement so as to make it unreliable.
Learned counsel for the appellant has assailed the legality and correctness of the findings arrived at by the learned trial court on the following grounds:
I. The injury report shows that the doctor has found blackening and tattooing around the wounds, which is possible only when the fire is hit from a distance of two or three feets whereas the PW2 has stated that the accused was 5 or 6 Ft. away from him when the fire was shot.
II. The story of lending money to the accused-appellant appears to be false in view of the clear admission of PW2 made during cross-examination that at the time of the incident he had no source of income and he was a student.
III. The place of incident is also doubtful. Admittedly, nothing like empty cartridges etc. has been recovered by the Investigating Officer from the place of incident.
IV. Neither any blood stained cloth has been recovered by the I.O. nor blood stained earth has been collected by him from the spot.
V. There is apparent contradiction between the oral evidence and the medical examination report because injury no. 5 as mentioned in the medical report, is a gunshot wound of entry on mastoid region whereas PW3, the doctor has stated that the injury no. 5 was found on the jaw region.
On these grounds learned counsel for the appellant has submitted that the appeal be allowed and the appellant be acquitted from the charge.
Per contra learned AGA has vehemently opposed the aforesaid prayer by contending that the trial court, after discussing in detail, all the important aspects of the case and after a thorough appreciation of evidence, has rightly convicted the accused-appellant for the offence under section 307 I.P.C. Learned AGA has contended that from the grievousness and nature of the gunshot injuries in this case, the Court can infer that the intention of the accused-appellant was to kill the injured. It is further contended that the injured Anuj has fully supported the prosecution case during his testimony. He has also stated about the motive behind the occurrence. Learned AGA has contended that there is no reason that an injured would falsely implicate a stranger while exonerating the real culprit. Learned AGA has further contended that there is no contradiction in the injury report and the statement of Doctor/PW3. In the injury report injury no. 5 is mentioned as a gunshot injury on mastoid region, (a place at the end of upper jaw behind the ear) and the doctor has stated that he had found injury on the jaw of the injured. Thus, there is no discrepancy in the statement of the doctor and the injury report. The remaining injuries are exactly on the places as stated by the injured. The mastoid region is a place behind the ears, which is a place at the joint of head and neck. Therefore, there is no discrepancy in the statement of injured too. Learned AGA has lastly contended that the appellant has continuously inflicted three gunshot injuries one after another, which clearly shows that his intention was to kill the injured.
Considered the rival submissions made from both sides and examined the evidence available on record.
It is true that the prosecution in this case has examined only two witnesses of fact but it does not make any difference in view of the well settled legal position that it is the quality and not the quantity, which matters. Both the material witnesses produced by the prosecution are most important witnesses in this case one being the first informant and the second being the injured, who have fully supported the prosecution case by offering a consistent, coherent and convincing narration thereof, which does not admit any doubt of their trustworthiness. The medical evidence reveals injuries on the injured compatible with the weapon used. Hence, there is no reason to disbelieve the testimony of injured witness- PW2, in wake of the law laid down by Hon'ble Supreme Court in a catena of judgments.
The Apex Court in the case of Kunjumon Vs. State of Kerela, (2012) 13 SCC 750 has held that "Evidence of a victim of a crime must be placed on a somewhat higher pedestal in terms of credibility attached to it, than evidence of any other witness."
In Mohd. Ishaque Vs. State of W.B., (2013) 14 SCC 581 the Apex Court observed that "It is unlikely that an injured witness would spare the real culprit and implicate an innocent person .... whether witnesses are interested persons and whether they had deposed out of some motive cannot be sole criterion for judging credibility of a witness. Main criteria would be whether their physical presence at the place of occurrence was possible and probable."
In Mano Dutt Vs. State of U.P., (2012) 4 SCC 79 the Apex Court has held as under:
"Ordinarily an injured witness would enjoy greater credibility because he is the sufferer himself and thus there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in bargain protect real culprit. Convincing evidence is required to discredit an injured witness"
In so far as the contention raised by learned counsel for the appellants with regard to non-recovery of blood stained clothes of injured and blood stained earth from the spot by the Investigating Officer is concerned, the investigating officer has given satisfactory answers to all the questions asked by learned defence counsel about the same during his cross-examination. Even assuming that there was some lacuna on the part of I.O. in not collecting those articles, it cannot give any benefit to the accused, in view of the well settled legal principle that lacunae and latches on the part of Investigating Officer is not fatal to the prosecution case.
Considering the facts and circumstances of the case in wake of above discussed legal position, there does not appear any reason to interfere with the judgment of conviction passed by the trial court and the findings of trial court in so far as the conviction of the appellant is concerned are hereby confirmed.
Now comes the sentence part, and the question is whether the sentence awarded by trial court is less or excessive? The trial court has awarded ten years R.I. to the appellant with fine of Rs. 15,000/-. As per the report dated 7.1.2016 submitted by Senior Superintendent of District Jail, Agra, the appellant has already spent six years eight months and 27 days in jail. Thus the applicant has already spent more than seven years under detention till today. The instant appeal, which is related to an occurrence of the year 2004, is pending since 2005 meaning thereby that the appellant is prosecuting this case for more than twelve years and while prosecuting his case in various courts, he must have undoubtedly undergone mental agony and financial sufferings. Considering all these circumstances and the time lag in between, it appears that the justice would be served if the sentence imposed by the trial court is reduced to the sentence already undergone by the appellant.
Accordingly, the sentence of imprisonment awarded by learned trial court is reduced to the period already undergone.
A fine of Rs. 15000/- was also imposed on the appellant by the trial court, out of which one-half of the amount of fine has already been deposited by him at the time of admission of appeal. The appellant is directed to deposit the remaining one-half of the amount of fine before his release from jail.
The appeal is partly allowed.
The appellant, Amit Kaushik, is in custody. As his sentence of imprisonment for ten years has been reduced to the period already undergone in jail, he be released from jail forthwith, if he is not required to be detained in connection with any other case.
Let the lower court's record be sent back to the trial court along with a copy of this judgment. The trial court is directed to take follow up action, as per rules.
Ms. Vatsala Pandey,who has very efficiently assisted this court as learned Amicus Curiae, shall be paid Rs. 10,000/- as fee.
Order Date :- 08.02.2017 Pcl