Ashok Kumar & Anr. vs State of U.P.

Rakesh Tiwari, J.—In the cause list names of Sarva Sri Apul Mishra, N.I. Jafri and P. N. Mishra, Sr. Advocate, as counsel for the appellants are shown but Sri Apul Mishra on his own behalf and on behalf of Sri P.N. Mishra states that they have no instructions to argue the appeal, Sri N.I. Jafri did not appear, therefore, we appointed Sri Fanish Mishra as Amicus Curiae for the appellants for final hearing.

The appellants have preferred this criminal appeal challenging the validity and correctness of the impugned judgment and order dated 19.08.2004 in S.T. No. 337/1997 connected with S.T. No. 338/1997 whereby the learned trial Court has convicted appellant Ashok Kumar under section 302 IPC and section 25 (1)(kha) of Arms Act, sentencing him to imprisonment for life and three years R.I. respectively. Both the sentences have been directed to run concurrently. Appellant No.1 Ashok Kumar is serving out this sentence in jail at present. The court below has also convicted the appellant no. 2 Chhakori Pathak under section 30 of Arms Act and sentenced him to the period already undergone by him.

The facts culled out from record are that on 03.06.1997 informant Prem Pratap submitted a written report in police station Kotwali Tundla, District Firozabad alleging that Daman Pratap @ Kallu and real brother of the informant was on friendly terms with one Laturi of his mohalla and that accused Ashok Kumar Pathak did not like their friendship. On 03.06.1997 at about 8.00 A.M. accused Chhakori came to the house of his brother namely, Daman Pratap @ Kallu and took him to his shop, where the other accused Ashok Kumar Pathak was already standing there with his D.B.B.L. Gun. On seeing Daman Pratap @ Kallu, he fired two shots upon him from the aforesaid gun, who on receiving gun shot injuries fell down. Thereafter the accused fled away from the scene with his firearm.

It was stated in the written report that apart from the first informant other residents of Mohalla namely Ashok Kumar Rawat, Sushil Yadav and Dr. Radha Charan had also witnessed the occurrence. On the basis of written report of the complainant criminal case crime no. 213/1997 was registered against the accused under section 307 IPC and section 30 of the Arms Act in P.S. Tundla on 03.06.1997.

The investigation at the first instance was handed over to S.I. S.R. Singh, PW4 who after interrogating the complainant at the police station reached the spot and prepared site plan. He took sample of blood stained & plain earth from the spot in two separate containers in presence of the witnesses and prepared recovery memo thereof. He also recovered two empties of 12 bore cartridges from the spot on 03.06.1997. Accused Ashok Kumar was arrested at about 10 A.M. by the police along with loaded D.B.B.L. gun no. 14896 of his father and a belt containing 3 live cartridges. Recovery memo of gun & cartridges was prepared on the spot and its copy was furnished immediately to the accused, on the basis whereof case at crime no. 215/97 under section 25/27 Arms Act was also registered against accused Ashok Kumar on the same date at 11.50 A.M. Its investigation was entrusted to S.I. R. S. Nishad.

In the meantime, injured Daman Pratap Singh was taken to S. N. M. Hospital, Firozabad where he was examined by Dr. Vijay Kumar and general surgeon at 8.48 A.M. The doctors did not note his injuries but referred him to S.N. Medical College, Agra immediately after giving first aid because of his low general condition. The injured was taken to S.N. Medical College Hospital Agra where Dr. V. K. Singh PW10 examined him at 10.15 A.M. on 03.06.1997. The following injuries on the person of the injured Daman Pratap @ Kallu were found by the doctor:

Gun shot wound of entry 4 cm x 4 cm x probing not done due to surgical reason. Margins inverted over right side front of axilla, bleeding present, blackening & tattooing present. Advise: xray chest AP & lateral.

Multiple pellets wound on right side of chest � cm in diameter average size.

The injuries above mentioned found to have been caused by fire arm and were kept under observation. The duration of injuries was reported fresh and xray of chest was also advised. However, the injured succumbed to the injuries at 10.35 A.M. the same day in the Medical College at Agra during his treatment. After inquest the autopsy on the cadaver of the deceased was conducted by Dr. R. Kumar PW8 on 03.06.1997 at 3.00 P.M. in Agra. The following antemortem injuries on the person of the deceased were reported:

Gun shot wound of entry 6 cm x 3 cm x cavity deep. Front of right side chest upper part 8 cm above right nipple at 11 o'' clock position margins inverted surrounded by blackening.

Two gun shot wound of entry 4 cm apart 0.3 cm x 0.3 cm size x cavity deep. One cm below injury no.1 margins inverted. Blackening present.

Abrasion 2 cm x 1 cm front of right side chest upper part just above nipple.

Two abrasion 2 x 1.5 cm on front of right forearm.

After the death of injured Daman Pratap Singh the case was converted under section 302 IPC at 8.30 P.M. on 03.06.1997 and its investigation was taken over by the second I.O. namely, Inspector Sukhpal Singh. He recorded the statements of other witnesses and sent the D.B.B.L. gun seized from possession of accused and two empty cartridges recovered from the spot for examination to Forensic Science Laboratory, Lucknow. The report of ballistic expert dated 15.03.1998 (Ex. Ka20) shows the following results:

The investigation in both the cases culminated in charge sheets. After committal of aforesaid cases, the trial Court by its order dated 21.11.1998 charged Ashok Kumar in S.T. No. 337/98 for offence punishable under section 302 IPC and accused Chhakori Pathak under section 30 of the Arms Act whereas in S.T. No. 338/98 the court vide its order dated 21.11.1998 charged accused Ashok Kumar for offence punishable under section 25 Arms Act. The accused denied the charges and claimed to be tried in the S.T. No. 337/98 and 338/98.

Ten witnesses were examined by the prosecution in S.T. No. 337/98 namely, Prem Pratap (PW1), first informant Ashok Kumar (PW2), Manohar Lal (PW3), Shishram Singh (PW4), Radha Charan (PW5), Chandrashekhar Sharma (PW6), Sukhpal Singh (PW7), Dr. R. Kumar (PW8), Rajesh Yadav (PW9), Dr. V. K. Singh (PW10) whereas in S.T. No. 338/98 the prosecution has examined Muneer Khan (PW1), Sukhpal Singh (PW2), Manohar Lal (PW3) and S.I. S.R. Nishad (PW4) who investigate the case.

The trial Court after hearing the counsels for the parties and on perusal of record found that the accused persons are not liable to be released in view of provisions contained in section 232 Cr.P.C. and directed them to produce defence in support of their case. It also recorded findings of facts that accused Ashok Kumar had fired upon the Daman Pratap @ Kallu on 03.06.1997 in the morning at about 8.00 A.M. from D.B.B.L. Gun of his father. The report of this fact was lodged under section 307 IPC in the police station at about 8.50 A.M. The injured was medically examined and was referred to Medical Hospital, Agra where he succumbed to his injuries; the case was then converted into under section 302 IPC after the information regarding death of injured came from Agra in the evening. Accused Ashok Kumar was found guilty under section 302 IPC and under section 25 (Kha) of the Arms Act. After hearing the arguments on behalf of the accused the trial Court sentenced them as noted in para2 of the judgment. As regards the case against coaccused Chhakori Pathak under section 302 read with section 109 IPC the court found that prosecution could not prove its case beyond reasonable doubt but has succeeded in proving its case under section 30 of the Arms Act against him.

Assailing the aforesaid findings of the court below, learned Amicus Curiae for the appellants Sri Fanish Mishra submitted before us that:

It is a case of no motive or very weak motive assigned by the prosecution;

Witnesses mentioned in the FIR as PW1, PW2 and PW5 have not supported the prosecution story;

The FIR is ante timed as from a plain reading of FIR it is apparent that first informant had said that accused had used his father''s licensed gun in committing the crime. According to him how did first informant knew that the D.B.B.L. gun used in the crime was in the name of father of the accused? Therefore this shows that FIR is ante timed and had been written after the fact that it was a licensed gun came to the knowledge of the complainant and the police.

The postmortem report does not support the prosecution story as there were two fires said to have been made from D.B.B.L. gun but post mortem report shows only one gun shot injury;

The recovery shown is in violation of section 27 of the Evidence Act.

First Investigating Officer was changed without any reason on the same day and investigation was taken by the S.H.O. which creates doubt in the manner of investigation;

Accused is said to be having a loaded gun in his possession when he was challenged by the S.H.O. about 40 Kms. from the place of occurrence. The counsel questions as to why did he not retaliate with loaded gun as no one was present at that place rather chose to surrender himself meekly.

Ms. Usha Kiran, learned AGA has submitted that place of occurrence of crime is not doubtful. According to her, initially the case was registered under section 307 IPC and investigation was handed over to S.I. but on receipt of the report that injured Daman Pratap @ Kallu has succumbed to the injuries at Agra the S.H.O. himself took the charge of the investigation, therefore, it cannot be said that there is any illegality or ill motive of the S.H.O. in taking over the investigation by himself after conversion of offence from section 307 IPC to section 302 IPC. In reply to the query about the alleged discrepancy in the FIR regarding licensed gun having been used, learned AGA submitted that admittedly the deceased and son of the accused were friends, therefore, there is every possibility of Prem Pratap the first informant and brother of the deceased of knowing that the licensed gun belonged to the father of the accused. She further submits that when there is direct evidence to any incident, the motive becomes insignificant and that in the instant case independent witnesses have also supported the prosecution case with their testimony which has been found cogent and reliable by the court below. It is lastly stated that murder of Daman Pratap @ Kallu was committed in broad day light, hence there was no chance of any misidentification of the accused and that it is proved that Chhakori had called the accused from his house took him towards his shop where he was killed by his son with DBBL gun in presence of ocular witnesses.

Upon hearing counsel for the parties and on perusal of record, it appears that motive for the crime has been mentioned in the prompt written report of the incident, wherein it has been noted by PW1 that the deceased and Laturi (brother of Ashok Kumar accused) were friends, but this friendship was not liked by the accused persons as the former did not desist even on objection by the accused. It may be noted that Amicus Curiae had submitted that this motive is too weak for commission of any petty crime what to say of killing. It has come in evidence that PW1 and deceased were residing separately, therefore, the complainant has stated the motive which was perceived by him. We agree with the contention of learned AGA as there is direct evidence of the crime in the instant case, hence motive is insignificant. It is trite law that in criminal cases based on ocular testimony of the witnesses, the motive takes back seat. It is sealed in the mind and heart of the accused. Motive is neither sina qua non for the prosecution nor it is an ingredient of crime. The ultimate success of the prosecution would depend upon the reliability of evidence direct or circumstantial including medical evidence adduced in the case.

The alleged incident took place at about 8 A.M. on 3.6.1997 and its written report was made to the police at 8.40 A.M. the same by complainant at 8.50 A.M., which is at a distance of about one kilometer from the place of incident. In the written report itself it has been mentioned that after the incident, the injured was taken to hospital for treatment. The record shows that after the incident the injured was taken to S. N. M. Hospital, Firozabad, where Dr. Vijay Kumar CW1 examined him at 8.48 A.M., but after checkup by the general surgeon he was referred to S.N. Medical College, Agra for further management. Dr. V. K. Singh PW10 has testified about the medical examination of deceased in S. N. Medical College Hospital, Agra at 10.15 A.M. on 3.6.1997. The evidence adduced during the trial further shows that Daman Pratap @ Kallu succumbed to the injuries in the hospital during treatment at 10.35 A.M. After inquest, the autopsy on the cadaver of the deceased was conducted by Dr. R. Kumar on 3.6.1997 at 3 p. m. and after receipt of death report, the case was converted into Section 302 IPC. Thus, the sequence of events that took place on 3.6.1997 in quick succession clearly show that there was no delay at any step by the complainant or other family members of the deceased what to say reporting the crime to the police. Constable Manohar Lal PW3 has also testified about preparation of check report Ex.Ka2 and corresponding G.D. Report copy Ex. Ka3. He has also stated that at 8.30 p.m. the same day the complainant orally informed about the death of Daman Pratap and thereafter the case was converted into Section 302 IPC through GD report Ex.Ka4. This witness has been crossexamined by the defence, but nothing could be elicited therefrom which may show that the report of PW1 was not registered at the time given in the check report Ex.Ka2.

The prosecution has examined three eye witnesses of the incident, out of them PW1 is the real brother of the deceased and PW2 and PW5 namely Ashok Kumar and Radha Charan are two other independent eye witnesses of the vicinity. The incident took place in broad day light in the market. The presence of the accused on the spot is natural as he was at his shop. The clinic of PW5 is situated near the place of incident and Ashok Kumar PW2 resides nearby. These witnesses have been subjected to grueling crossexamination, but nothing could be elicited which may create even a shadow of doubt about their presence on the spot at the time of incident. All the witnesses of fact have testified about the presence and purpose of each other. The names of PW2 and PW5 find place in promptly lodged report of PW1. These witnesses have no animosity with the accused nor it could be shown that they are in any manner close to complainant or the deceased. These witnesses are independent witnesses and cannot be termed as interested or partisan witnesses, as stated by accused Ashok Kumar in his statement u/s 313 CrPC. We have thoroughly examined the deposition of all the three aforesaid witnesses of fact and find that they have supported the prosecution story on all material particulars and there are no material contradictions or inconsistencies therein. No doubt PW1 is the real brother of the deceased, but his testimony cannot be discarded only on the ground of this relationship with the deceased. He would be the last person to conceal the real culprit and falsely nominate the accused persons without any rhyme or reason. The testimony of these witnesses is supported by the formal witnesses. CW1 Dr. Vijay Kumar has referred the injured to the hospital immediately after giving him firstaid in S. N. M. Hospital, Firozabad at about 8.48 A.M. on 3.6.1997. Dr. R. Kumar PW8 has performed autopsy on the cadaver of the deceased and he has proved is postmortem notes. The deceased has sustained fire arm injuries on his chest and blackening was found on the wound of entry, showing that the fire was made from close range, which is congruent with the eyewitness account of the incident.

Learned counsel for the appellants has also drawn our attention to the statement of PW5 given in crossexamination where he has stated that after arrival of dead body of the deceased he along with others had gone to police station and then the report was lodged. No doubt such statement had been given by PW5, but it pertains to the information regarding demise of deceased in the hospital at Agra and not about the first information report, which was lodged by PW1 soon after the incident. It is important to note that at about 10 A.M. on the day of incident accused Ashok Kumar was apprehended by the police along with the DBBL gun of his father, and a case u/s 25/27 Arms Act was registered against him. In the recovery memo as well as in the check report registered on its basis, crime number and sections pertaining to the main case against the accusedappellants have been mentioned. Thus, the instant FIR cannot be termed as delayed or antetimed, rather it is very prompt, importance whereof is well known as it rules out the chances of deliberations and concoction in the making of the prosecution story about the incident.

The case of the accused before the trial court was that FIR has been lodged alleging incorrect facts, the witnesses of the fact produced by the prosecution have given false testimony to implicate him as they are interested witnesses and that the Investigating Officer has misdirected himself in drawing conclusions after the investigation. Whereas in S.T. No. 338/97 the prosecution produced PW1 Muneer Khan, PW2 Sukhpal Singh, PW3 Monohar Lal and PW4 the Investigating Officer. In this case also the accused were examined u/s 313 Cr.P.C. wherein they again reiterated that they have been falsely implicated and witnesses having given false testimony as well as questioned the manner of investigation by the I.O. and the conclusions reached by him on the basis of alleged farzi documents prepared by the police. It was also stated by the accused that the officer who had investigated the case u/s 25 Arms Act was subordinate to the I.O. of the case u/s 302 IPC and the police had falsely shown recovery of the gun and cartridges from their house. However, no witness in defence was produced by the accused persons in support of their case.

It appears from the judgment that the case was thereafter fixed for hearing. The court subsequently found that an application of the prosecution dated 28.01.1999 (paper no. 13B) was undisposed off. After calling for objection on it from the defence, the court vide its order dated 10.03.2004 granted opportunities of hearing on additional charge to accused Chhakori Pathak u/s 302 read with section 109 IPC. As a consequence of the order charge was framed and on request of the defence PW1 Prem Pratap, PW2 Ashok Kumar and PW3 Radha Charan were further crossexamined. I.O. Sukhpal Singh was also recalled on the request of the defence for crossexamination. In the meantime, the accused Chhakori Pathak challenged the aforesaid order before the High Court in revision, which was disposed of by order dated 26.04.2002 directing that the trial court to proceed day to day hearing after conclusion of evidence to dispose of the preferably within eight weeks from the date of receipt of the order.

SI Munir Khan PW1 and Inspector Sukhpal Singh PW2 (examined in S.T. no. 338/97) have proved the arrest of accused Ashok Kumar on 3.6.1997 at about 10 A.M. along with the DBBL gun of his father used in the crime. The learned trial Court has correctly appreciated the evidence of these witnesses. No doubt there is no public witness to this arrest and recovery but it is not the law that testimony of police witnesses if found reliable and trustfully cannot be relied upon without corroboration from any public witness. Therefore, their testimony is to be evaluated like any other public witness. The accused could not show that the local police was in any manner inimical with him which may be a ground for his false implication. The gun aforesaid was sent for examination by ballistic experts to Forensic Science Laboratory, Agra along with the two 12 bore empties seized from the spot and through their report Ex.Ka20 they have opined that both the empties had been fired from right and left barrel of DBBL aforesaid. This fact further unerringly fortifies the participation of accused Ashok Kumar and use of the DBBL of his father in the crime.

Challenging the conviction and sentence passed by the trial Court, the learned Counsel appearing for the appellant would submit that before prosecuting the accused under Section 25 of Arms Act, sanction has not been obtained as per Section 39 of Arms Act, from District Magistrate, so the entire prosecution under Section 25 is non est in the eye of law. It is the case of the prosecution that accused Ashok Kumar has used the licensed DBBL gun of his father (coaccused) found in his possession when he was arrested by the police on 3.6.1997 few hours after the incident. Hence, the trial court has committed an error in convicting the accused under Section 25 of Arms Act.

Admittedly no sanction for the prosecution of accused Ashok Kumar has been obtained from concerned District Magistrate as required u/s 39 of the Arms Act. Learned trial Court has rejected the defence argument on the premise that sanction would be necessary only for possessing illicit arms. This finding of the trial Court is erroneous. In such circumstances, it would be appropriate to have a look on the relevant provisions of Arms Act. Section 39 of the Act, reads as under :

"Section39: Previous sanction of the District Magistrate necessary in certain cases:

No prosecution shall be instituted against any person in respect of any offence under Section 3 without the previous sanction of the District Magistrate."

Section3 of the Act provides:

"Section3: Licence for acquisition and possession of firearms and ammunition:

(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

(Subsections 2, 3 and 4 omitted as they are not relevant for disposal of the instant case).

The evidence on record clearly proves possession and use of DBBL gun of accused Chhakori Pathak by his son Ashok Kumar in the murder of deceased. The report of FSL further fortifies this fact. The accused was not having any written permission of his father for possessing his DBBL gun. It has also not been alleged that he was carrying the gun for repair or for renewal of the licence or for use by such holder. The instant case against accused Ashok Kumar is covered by proviso to Section 3(1) of the Act as aforestated. He could have carried the licensed gun of his father provided he had written authority of his father and that to carry the gun for repair or for renewal of the license or for use by such holder. So, the accused was in possession of DBBL gun of his father in violation of the provisions of the Act, is proved which is an offence under Section 3 of Arms Act. Admittedly, no sanction has been obtained from the District Magistrate before prosecution. So, the entire prosecution is vitiated in respect of offence under Section 25 of Arms Act as a result conviction/sentence passed against accused Ashok Kumar under Section 25 Arms Act is liable to be set aside.

Since it has been proved beyond all reasonable doubt that DBBL gun of accusedappellant no. 2 Chhakori Pathak was used by his son Ashok Kumar in eliminating the deceased, so the learned trial Court has, therefore, not erred in convicting and sentencing him for the offence punishable u/s 30 of Arms Act.

In view of our reassessment of entire evidence led by the prosecution in support of the charge against the accusedappellants, we find that the learned trial Court has not at all erred in concluding the culpability of accused Ashok Kumar in broad day light murder of the deceased.

As a result of the foregoing analysis is that the learned trial Court has rightly convicted accused Ashok Kumar for the offence punishable u/s 302 IPC and accused Chhakori Pathak u/s 30 Arms Act and further we find that appropriate sentences have been awarded. However, accused Ashok Kumar has been illegally convicted and sentenced for the offence punishable u/s 25 Arms Act, so he is liable to be acquitted on this count.

For the reasons stated above, we affirm the findings recorded by the learned trial Court with regard to conviction and sentence of accused Ashok Kumar u/s 302 IPC and accused Chhakori Pathak u/s 30 of the Arms Act. Accused Ashok Kumar is acquitted for the offence punishable u/s 25 Arms Act. The impugned judgment and order is modified to this extent only. The appeal is accordingly dismissed.

A certified copy of the judgment be sent forthwith to the Court concerned and C.J.M. Firozabad for necessary action and ensuring compliance which should be reported in 6weeks.

Sri Sri Fanish Mishra, Amicus Curiae would get Rs. 2,100/ as his remuneration, which should be paid to him within a month.