Dinesh Kumar Nigam vs State of U.P.

K.S. Rakhra and R.K. Rastogi, JJ.—This is an appeal u/s 374(2) Cr.P.C. against judgment and order dated 1.10.2004 passed by the Addl. Sessions Judge, Court No. 1, Kanpur Nagar, whereby he convicted the appellant and sentenced him to undergo life imprisonment and io a fine of Rs. 2000/- u/s 302 I.P.C. in Sessions Trial No. 320 of 2003, State v. Dinesh Kumar Nigam. and also rigorous imprisonment for two years and a fine of Rs. 1000/- u/s 25, Arms Act in S.T. No. 321/2003, State v. Dinesh Kumar Nigam.

According to prosecution, one Prem Narain Misra, Commercial Officer. Telephone Exchange, was posted at Krishna Nagar branch of the Exchange. He was to handle and dispose of applications with regard to grant of licence for running a P.C.O. Dinesh Kumar Nigam had moved an application on 10.6.2002 for grant of licence but the licence had not been issued till the date of incident, i.e.30.9.2002.

It is alleged that on 30.9.2002 Dinesh Kumar Nigam had gone to Krishna Nagar Exchange to contact Sri P.N. Misra in connection with his application. File of the appellant relating to said licence was lying on the table of Sri P.N. Misra. Entry in the Exchange was guarded by the guards of Security agency which was engaged by the department and entry was restricted by pass only. Dinesh Kumar Nigam had obtained entry pass which was issued to him by Sri S.K. Lal P.W. 5. It is alleged that at 13.40 hours Sri Prem Narair Misra was shot dead in his office and when sound of the shot was heard, the people ran towards the chamber of Sri Prem Narain Misra and shouted that Prem Narain Misra had been murdered Two security guards, namely, Jaiveer Singh Yadav P.W. 8 and Devendra Kumar Misra P.W. 9 were deputed on that date to guard entry at the gate. They immediately locked the main gate and asked their Supervisor to inform the police on telephone number 100 that Sri Prem Narain Misra had been murdered. After this they ran towards the chamber of Sri Prem Narain Misra which was on the second floor. They found the appellant Dinesh Kumar Nigam coming down on the stairs with pistol in his hand. The security guards caught him on the stairscase and recovered country made pistol from his hand in which there was a bullet also loaded in the barrel. It is claimed that after the appellant was apprehended he admitted before the security guards that he had killed Prem Narain Misra. On his search, the gate pass issued to him for entry in the office on that date was also recovered. The appellant disclosed to them his name and address and also disclosed that he had killed Prem Narain Misra because Mr. Misra was not clearing his application for running the P.C.O.

Sri S.L.Gupta P.W. I was posted as Divisional Engineer, (Phones) in that branch and was present in his office at that time and on getting information about the incident and other details from the security guards & the supervisor Phul Chand Yadav, and having come to know that the culprit has been apprehended by the security guards with arm & ammunition, on knowing his name and address, sent a written report to the police station Chakeri of Kanpur Nagar.

On the basis of the written report, Head Constable Baluster Singh P.W. 3 registered case crime No. 807 of 2002 u/s 302 I.P.C. against accused Dinesh Kumar Nigam. Prior to this, the same Head Constable had received a radio message on wireless control that an incident had taken place at Krishna Nagar Telephone Exchange, and a person had been fired at. He had recorded the said message at serial No. 44 in the G.D. at 13.45 hours,i.e. five minutes after the alleged incident.

On the case being registered at the police station, Sub Inspector Raghubir Singh of police station Chakeri, P.W. 11 took up the investigation. At 13.45 hours when this Investigating Officer was busy in law and order duty at Rama Devi Chauraha he had received information that firing had taken place at Krishna Nagar Telephone Exchange and on the said information he immediately proceeded to the place of occurrence with some police force. He reached the place of occurrence and found that the appellant had already been apprehended by the security guards and a country made pistol and a live bullet had been recovered by them from him. In the meanwhile other police force also reached there and the report of the incident was registered at the police station at 14.45 hours.

The Investigating Officer took the appellant in his custody and also took in his possession the country made pistol and bullet which were sealed in a bundle. He also took in his possession the gate-pass which was in the name of the appellant and was recovered from him. The country made pistol as well as the bullet in sealed bundle were sent by the Investigating Officer to the police station through constable Bijendra Singh, where another case crime No. 808/02 was registered u/s 25 Arms Act by Head Constable Radhey Shyam Dwivedi at 15.20 hours.

Appellant Dinesh Kumar, who had been beaten by the persons present in the building at the time of incident, had received injuries and he was sent by the Investigating Officer for medical examination and after medical examination he was sent to the lock up at the police station, where his entry was recorded at 20.30 hours on the date of incident by Head Constable Radhey Shyam Dwivedi P.W. 4.

The Investigating Officer also went to the chamber of Sri Prem Narain Misra, deceased and found him lying dead on his chair. Inquest was preformed and the inquest report was prepared by Sub Inspector, Laxmi Prasad under supervision of the Investigating Officer and after preparing necessary documents and observing formalities, the dead body in sealed condition was sent for autopsy through constables Ram Sewak and Jugul Kishore.

From the place of occurrence .i.e. chamber of the deceased, the Investigating Officer collected blood stained and plain sample of flooring and he also recovered there one empty shell of bullet, a pair of Chappals and a bullet which was fired at the deceased. Necessary memoes were prepared in respect of those articles. He also found on the table of the deceased the file relating to the P.CO. matter of the appellant. There were blood stains on the file also. The fired bullet Ex. 17 and empty shell and bullet along with other materials were put in sealed bundle and a memo was prepared.

The post-mortem of the dead body was performed by P.W. 2 Dr. S.V. Misra, Medical Officer, L.L.R. Hospital, Kanpur Nagar on 30.9.2002 at 7 P.M. He found the following ante-mortem injuries on the body of the deceased:

A firearm wound of entry 1.5 cm x 0.8 cm x brain cavity deep, present on the Rt. Side of skull, 2 cm above the Rt. ear, margins inverted, skull hairs singed, black and abraded collar was present around the wound.

A firearm wound of exit 3 cm x 2.2 cm x brain cavity deep present on the skull, 3 cm above the Lt. Ear, in parietal area, brain tissue was coming out, margins everted.

In the opinion of the doctor, death had resulted due to shock and haemorrhage as a result of ante-mortem fire arm injury and death had occurred quarter a day before the time of post-mortem examination.

The police after investigation submitted the charge sheet and the appellant was put to trial. His case is that of denial. He claims that he was picked up from his house and was falsely implicated in this case and that nothing was recovered from him.

12 In order to prove its allegation, the prosecution examined twelve witnesses before the trial court. Out of them, S.L. Gupta, who was Divisional Engineer, Telephones and was working in the same office and had lodged the F.I.R. Ex. Ka 5, was examined as P.W. 1. Dr S.V. Misra P.W. 2 had conducted the post-mortem examination which has already been mentioned earlier. Head Constable Balaster Singh P.W. 3 had registered the F.l.R. as case crime No. 807/02 u/s 302 I.P.C. P.W. 4 Head Constable Radhey Shy am Dwivedi had registered another case crime No. 808/02 u/s 25 Arms Act and had made entries in the G.D. relating to the said crime. Niraj Kumar Misra P.W. 5 is cousin brother of the deceased and claims to be an eye witness of the incident. P.W. 6 Head Constable Shivendra Singh Sengar of the office of D.l.G. ( P.A.C.) at Kanpur Nagar had reached the aforesaid telephone exchange at 2 P.M on hearing the noise and had seen that a young man had been apprehended by certain persons in the office and was being beaten. He confirmed the fact that the police had also arrived there.

Nasim Ahmad Ansari was examined as P.W. 7. He is a tailor by profession and he claimed that he was called by Sri Prem Narain Misra in his office for the purpose of taking measurement etc. for some tailoring job. He also claimed to be an eye witness of the occurrence.

Jaiveer Singh Yadav P.W. 8 and Devendra Kumar Misra P.W. 9 are two security guards who were posted there and had apprehended the accused in the office itself and had recovered the country made pistol with a bullet loaded therein and the gate-pass from his pocket. They also stated about confession made by him before them with regard to this crime and also the motive for commission of the crime.

S.K. Lal P.W. 10 is the person who was issuing gate-passes permitting entry in the telephone exchange. He has stated that he had issued gate-pass to Dinesh Kumar Ni gam which was recovered from his possession by the security guards.

Sub Inspector Raghubir Singh P.W. 11 is the Investigating Officer whose role has already been discussed and Harish Chandra P.W. 12 is the Office Assistant of the Commercial Office of Telephone Exchange, Krishna Nagar, Kanpur Nagar, who has given statement with regard to the file of the appellant relating to grant of P.C.O. licence.

In addition to the above, there are two Ballistic Experts reports. The missed bullet and the bullet recovered from the place of occurrence were sent along with pistol for opinion and the opinion given by the Expert was that signs and marks on the disputed bullet and the misfired bullet were not sufficient for comparison and so no definite opinion could be formed as to whether they had been fired from the weapon recovered from the appellant. It appears that the empty shell of bullet which was recovered from the place of occurrence and which was required to be sent to the Ballistic Expert and was mentioned as such in the letter, was not sent to the said Laboratory, but the empty shell of misfired bullet was sent by the office of the Chief Judicial Magistrate, Kanpur Nagar to the Laboratory. Hence, the country made pistol recovered from the appellant and the empty shell of the bullet recovered from the place of occurrence were again sent for opinion and this time the Ballistic Expert after comparing the marks of test fired bullet and empty shell came to the conclusion that the empty shell recovered from the place of occurrence had not been fired from the pistol alleged to have been recovered from the appellant.

No evidence was led by the accused in his defence.

The learned trial court after considering the evidence adduced by the prosecution came to the conclusion that the appellant had murdered Prem Narain Misra in his office on 30.9.2002 at 13.40 hours since the matter for grant of licence for P.C.O. was pending before him and it was being dealt with by the deceased; and that he was apprehended in the manner alleged by the prosecution. Consequently the prosecution evidence was relied upon and conviction was recorded.

We have heard Sri G.S. Chaturvedi, learned Senior counsel, assisted by Sri Shishir Tandon for the appellant and Sri P.N. Misra, learned Senior Counsel assisted by Sri Apul Misra for the complainant and Sri R.A. Shukla, learned A.G.A. for the State and have carefully gone through the entire evidence on record.

Argument of the learned Counsel for the appellant was that f^iraj Kumar Misra P.W. 5, who is cousin brother of the deceased, and Nasim Ahmad Ansari P.W. 7, who claims to be a tailor, were not present in the office and could not have seen the occurrence. No gate-passes were issued in their names and they claim that they were allowed entry on oral permission of the deceased. It was further argued that there was no occasion for them to be there and the prosecution has named them only to create evidence.

In support of this, the learned Counsel pointed out that the statements of these witnesses u/s 161 Cr.P.C. were recorded by the Investigating Officer as late as on 4.12.2002 without assigning any reason there for. Similarly it has been argued that the testimonies of Jaiveer Singh Yadav P.W. 8 and Devendra Kumar Misra P.W. 9 are not reliable because their statements u/s 161 Cr.P.C. were also recorded after expiry of about 16 days from the occurrence. The contention of the learned Counsel is that the possibility that somebody else might have killed Sri Prem Narain Misra cannot be ruled out. The learned Counsel for the appellant also laid emphasis on the report dated 25.2.2004 of the Ballistic Expert of Vidhi Vigyan Prayogshala. Lucknow in which he has clearly stated that after microscopic inspection of the empty shell and test cartridge, he was of the opinion that empty shell found at the place of occurrence was not fired from the pistol recovered from the appellant.

Sri P.N. Misra, learned Senior Counsel appearing for the complainant, and the learned A.G.A. appearing for the State, have argued that there was sufficient motive for the offence as established by the evidence and circumstances in this case. The appellant had applied for licence to run the P.C.O. and his application was pending since 10.6.2002.The matter was being dealt with by the deceased and file of the said matter was on his table when the incident took place. The victim was killed in his office while sitting on his chair. The people who heard the sound of firing raised alarm and the appellant was apprehended on the spot itself while he was trying to escape from the staircase. It has been further argued that the two security guards had absolutely no motive for giving false statements before the court, so they are wholly independent witnesses and further that the presence of Sri Niraj Kumar Misra P.W. 5 and Nasim Ahmad Ansari P.W. 7 should not be doubted only because their statements u/s 161 Cr.P.C. were recorded by the Investigating Officer after lapse of two months. It has further been argued that in view of the direct evidence produced by the prosecution , opinion of the Ballistic Expert should be ignored.

After going through the entire evidence on record, we have absolutely no doubt in our mind that Sri Prem Narain Misra, who was Commercial Officer in the Telephone Exchange of Krishna Nagar, Kanpur Nagar was done to death in his chamber on 30.9.2002 at 13.40 hours. The security guards had immediately come into motion and a message was passed to the police by dialling telephone No. 100 and the corresponding entry was also recorded by the Head Constable Balaster Singh P.W. 3 in the G.D. of the police station Chakeri at 13.45 hours. The date, time and place of occurrence are confirmed also by the fact that the police had arrived there immediately after the incident and had recovered bullet shell and a bullet from the room where the crime was committed. There was blood found on the floor and its sample was taken by the Investigating Officer.

According to the statement of Harish Chand P.W. I2 it is also established beyond doubt that the office file which has been produced before the trial court as Ex.Ka 27 and which was numbered as C.U./K.S.N./P.P.-653 relates to the application of Dinesh Kumar Nigam, accused-appellant and it was being dealt with by Sri Prem Narain Misra, deceased. He has proved certain endorsements made by Sri Prem Narain Misra on this file. From the statement of the Investigating Officer Raghubir Singh P.W. 11 it is established that this file was recovered from the table of the deceased when the Investigating Officer made first visit to the place of occurrence after the incident. Since the application of the appellant was pending since 10.6.2002 and he was not conveyed any positive order till the date of the incident, we infer that he got motive for commission of this crime.

After carefully scrutinising testimonies of the two security guards, namely, Jaiveer Singh Yadav P.W. 8 and Devendra Kumar Misra P.W. 9, we find them to be wholly reliable and natural. There is nothing on record to doubt the truth of their statements. It is not disputed that both of them were deputed there by the security agency engaged by the department. Jaiveer Singh P.W. 8 has stated that on the fateful day at 13.40 hours he heard a sound of firing from second floor of the building. At that time this guard was on the main door. Immediately some people, after hearing cries that Sri Prem Narain Misra had been murdered, asked the security guards to reach there. Both these security guards immediately contacted their supervisor sitting in the guard room and they closed both the gates. He says that he requested the supervisor to inform the police on Telephone No. 100 and also requested him to get the doors locked. He then advanced towards the staircase and found that appellant Dinesh Kumar Nigam with pistol in his hand was coming down the stairs facing backward. This gave an opportunity to the guards to catch him from behind. They snatched the pistol from his hand. He also stated that there was a bullet loaded in the pistol and on search of the pocket of the appellant they found gate-pass in the name of the appellant which was issued on the same day at 11.40 A.M. He has also stated that the appellant on being asked gave out his name and address and also admitted that he had killed Prem Narain Misra because Mr. Misra was not clearing his application for grant of licence of running the P.C.O.

The testimony of Jaiveer Singh Yadav P.W. 8 is fully corroborated by Devendra Kumar Misra P.W. 9, the second security guard. They also stated that they had noticed two persons, namely, Niraj Kumar Misra P.W. 5 and Nasim Ahmad Ansari, tailor master, who were chasing the appellant. Jaiveer Singh Yadav has stated that Niraj Kumar Misra had come with Sri Prem Narain Misra deceased in the morning on his scooter, and the other person was tailor master, who was called by Sri Prem Narain Misra for tailoring job. Jaiveer Singh Yadav has also stated that both of them were allowed entry in the office without gate-passes, as Sri Prem Narain Misra had granted them permission on telephone.

It is not disputed that Niraj Kumar Misra P.W. 5 is the cousin brother of Sri Prem Narain Misra, deceased. Nasim Ahmad Ansari. who is a tailor, claims to have reached there on being called by the deceased. We do not agree with the argument of the learned Counsel for the appellant that their presence should be doubted because gate-passes were not issued to them. It is a matter of experience that at many places where such security arrangements are made, certain entries are allowed on oral instructions of the senior officers. In the instant case, Sri Prem Narain Misra, who was Commercial Officer, had been contacted by the security guards on phone and the tailor master Nasim Ahmad Ansari was permitted entry whereas Niraj Kumar Misra had accompanied Sri Prem Narain Misra himself.

The testimony of Jaiveer Singh Yadav P.W. 8 as well as Devendra Kuamr Misra P.W. 9, the two security guards, is wholly corroborated by the testimony of Niraj Kumar Misra P.W. 5 and that of Nasim Ahmad Ansari P.W. 7. Niraj Kumar Misra P.W. 5 has stated that he had accompanied Sri Prem Narain Misra to his office and after reaching there the deceased engaged himself in his office work and that this witness was sitting there. At about 1.30 P.M. the deceased had gone to toilet and he was waiting at the Verandah and several persons were present there. After the deceased returned to his chamber, the appellant was talking to him loudly and when this witness was trying to enter the room, the appellant fired at Sri Prem Narain Misra. Sri Misra received fire-arm injuries and died. The witness has further stated that the appellant tried to re-load his pistol and made an attempt to run away from the door and proceeded towards staircase where he was caught by the security guards. He has also confirmed the fact that after being apprehended by the security guards, the appellant had confessed that he had killed Prem Narain Misra because Sri Misra was not clearing his file for grant of P.CO. licence.

The testimony of Nasim Ahmad Ansari P.W. 7 is also wholly in consonance with the testimonies of other witnesses which have already been discussed. Confirming his presence in the office of the deceased on the date of incident Nasim Ahmad Ansari stated that at about 1.30 P.M. he had noticed Dinesh Kumar Nigam appellant in the chamber of the deceased. The deceased at that time was not in the chamber as he had gone to ease himself in the toilet. This witness was waiting for arrival of the deceased and as soon as Sri Prem Narain Misra returned to his chamber, this witness heard the loud voice in the chamber of Prem Narain Misra, and when he looked into the room he found that Prem Narain Misra had.already received bullet injury. The witness saw the appellant coming out of the room with a country made pistol in his hand, and he was being chased by several persons present in the building. He also confirmed that the appellant was apprehended by the security guards within the building of the telephone exchange office itself.

After perusal of the statements of the witnesses we have no doubt in our mind that the appellant had gone to the deceased in connection with his P.C.O. licence and that he was apprehended by the security guards after the incident and he had a pistol in his hand at that time which was loaded. From the statement of the Investigating officer we also have no doubt in our mind that the fired bullet and shell of the bullet were found in the chamber of Sri Prem Narain Misra . There was a file relating to the P.C.O. licence of Dinesh Kumar Nigam. We also have no reason to doubt that the gate-pass issued in the name of the appellant on the same day at 11.40 A.M. was recovered from his possession. The above facts and circumstances taken with the testimony of Niraj Kumar Misra P.W. 5 and Nasim Ahmad Ansari P.W. 7 establish beyond doubt that the appellant had committed murder of Sri Prem Narain Misra, Commercial Officer, who was not clearing the P.C.O. Licence file of the appellant.

So far as the opinion of Ballistic Expert is concerned, it is true that the said expert in his report dated 25.2.2004 gave an opinion that the shell which was recovered from the place of occurrence was not fired from the pistol recovered from the appellant, but a perusal of the said report would clearly show that it is based on subjective satisfaction and no details or datas are given on the basis of which the Ballistic Expert gave his opinion to the above effect. Such a report, in our opinion, is to be rejected when there is a direct reliable evidence with regard to the commission of the crime linking the accused with it.

In instant case, there is direct evidence and all the circumstances go to establish the charge against the appellant. In our opinion, the trial court has rightly rejected the opinion of the Ballistic Expert relying upon the case '' Lakhbir Singh and another Vs. State of Punjab, wherein the Hon''ble Apex Court observed in para 7 of the judgment:

...In view of this positive evidence even if some of the recovered weapons as per the ballistic expert''s evidence could not have been used, that by itself is not a serious infirmity. The eye-witnesses have categorically stated that country-made pistols were used and the medical evidence shows that the death was due to injuries caused by fire-arms.

In instant case in view of the positive evidence available, we reject the opinion given by the Ballistic Expert vide his report dated 25.2.2004.

We, therefore, find no force in this appeal and it is accordingly dismissed. The order of conviction of the appellant u/s 302, I.P.C. and 25 Arms Act as recorded by the trial court and sentences passed thereunder are confirmed.

Let a copy of this judgment be certified to the trial court for information and necessary action.