Jaswant Singh Garewal vs State of U.P.

Rakesh Tiwari, J.—Heard learned Counsel for the Appellant and Sri. K.N. Bajpai and Sri. Sher Singh learned A.G.A. and perused the record.

This appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 22.10.2003 passed by Sri. B.N. Mishra, IInd Additional Sessions Judge, Sonebhadra in Special Session Trial No. 19 of 2001, State v. Jaswant Singh Garewal, convicting and sentencing the Appellant u/s 302, I.P.C. to undergo life imprisonment.

The appeal has been filed on the grounds that the conviction of the Appellant is against the weight of the evidence on record and findings of the learned Judge are perverse, illegal and contrary to the facts which have resulted into miscarriage of justice. It is also challenged on the ground that the conviction of the Appellant is based on wholly insufficient evidence as such the sentence awarded to the Appellant is bad in law.

According to the prosecution case, the first informant Naresh Kumar S/o Sohan Lal was resident of T. S. Colony of Quarter No. 44 of type-I, Vindhyanagar, P.S. Vindhyanagar, district Sidhi, Madhya Pradesh. On 8.6.2001, he alongwith his elder brother Kiran Kumar alias Tota had gone to meet Jaswant Singh, Appellant who was living at N.C.L. Khadiya in Quarter No. MQ-266 by his motorcycle No. U.A.U. 2619. It is averred that he had gone to meet Jaswant Singh with regard to a truck which was being run under the alleged partnership of the Appellant and elder brother of the first informant. While they were talking at the residence of Jaswant Singh at about 2.30 p.m., the Appellant became angry and abusing brother of the first informant he came out with a gun from his quarter and fired upon Kiran Kumar alias Tota with an intention to kill him. On seeing shot being fired, upon his brother, the first informant hid due to fear. It is also averred in the first information report lodged on 8.6.2001 at about 16.15 p.m. that his brother was lying dead at the spot of occurrence which has also been witnessed by other persons also.

According to the first information report Ex. Ka-1, it appears that occurrence had taken place on 8.6.2001 at about 2.30 p.m. and the F.I.R. was lodged by the first informant Naresh Kumar younger brother of the deceased Kiran Kumar alias Tota at about 4.15 p.m. After the report was lodged, investigation was taken up by Jagdhari Chaudhary, S.H.O., Shaktinagar on the same day. He prepared the inquest report and sent the body of Kiran Kumar alias Tota duly sealed for the post-mortem in the custody of Constable Arun Kumar Singh and Constable Ajeet Kumar Singh. He, thereafter, recorded the statement u/s 161, Code of Criminal Procedure of the witnesses and also added Section 3(2)(5) of S.C./S.T. Act on an application of Sohan Lal father of the deceased which was investigated by Jagdeep Singh the then Circle Officer, Pipri. Jagdhari Singh also collected sample of blood stained and plain soil from the spot of occurrence on the same day and after taking possession of the motor cycle the same was handed over in the supurdagi of the first informant Naresh Kumar. During investigation, on an information received, the accused-Appellant Jaswant Singh is said to have been arrested from Shaktinagar Bus Stand and on his pointing out in the presence of witnesses Durgapati Jha and Sudarshan Pandey, S.B.B.L. gun which was used in the incident alongwith 12 bore cartridges and empty cartridges were recovered from the quarter of the Appellant-accused.

The second investigator Jagdeep Singh also recorded the statement of the first informant Naresh Kumar, his father Sohan Lal and forwarded charge-sheet u/s 302, I.P.C. read with Section 3(2)(5) of S.C./S.T. Act.

The Appellant denied from the charges levelled against him and claimed to be tried.

The prosecution produced P.W. 1 Naresh Kumar, P.W. 2 Sudarshan Pandey who were witnesses of recovery of S.B.B.L. gun from the quarter of the accused, and P.W. 3 Sub-Inspector Ram Surat Pandey, P.W. 4 Jagdhari Chaudhary-In-Charge Police Station, P.W. 5 Dr. Pramod Kumar, P.W. 6 Sohan Lal, P.W. 7 H.C.P. Ram Sudhar and P.W. 8 Zonal Officer. The statement of the accused was also taken u/s 313, Code of Criminal Procedure on 13.2.2003 who denied prosecution case and claimed that he had been falsely implicated. He also produced D.W. 1 Vinod Kumar in support of his case.

P.W. 1 Naresh Kumar is an eye-witness of the occurrence. He proved the first information report Ex. Ka-1 lodged by him on 8.6.2001 in respect of the aforesaid incident. P.W. 2 Sudarshan Pandey is the witness of recovery of gun alongwith empty cartridges from the house of the Appellant on his showing. He proved recovery memo of the gun and its cartridges. P.W. 3 Sub-Inspector, Ram Surat Pandey is also witness of recovery of gun and cartridges, aforesaid. P.W. 4 Jagdhari Singh had conducted investigation of the case. He proved the site plan as Ex. Ka-4, blood stained and plain soil as well as recovery memo of motor cycle, S.B.B.L. gun of 12 bore alongwith live and empty cartridges. panchayatnama, photo lash and letter sent to C.M.O. for the post-mortem alongwith sample of seal as well as site plan showing place of recovery of gun etc. have been exhibited as Ex. Ka-10.

Dr. Pramod Kumar, who conducted post-mortem on the body of the deceased has been examined as P.W. 5. He has proved the post-mortem report as Ex. Ka-11.

Apart from the above, Sohan Lal father of the deceased has been examined as P.W. 6 as witness of the fact, H.C.P. Ram Sudhar proved the chick report as Ex. Ka-1. He also proved addition of Section 3(2)(5) of S.C./S.T. Act which was entered in the G. D. proved by him. Lastly Jagdeep Singh P.W. 8 has proved the charge-sheet. In the post-mortem report, the following ante-mortem injuries had been found:

(1) Abrasion 6 cm. x 4 cm. above left wrist joint.

(2) Wound of entry 3 cm. diameter, left front chest wall just below left nipple.

(3) Marks of tattooing in area of 10 cm. at the site of injury No. 1.

(4) Wound of Exit 3 cm. diameter right lateral exit wall 15 cm. lateral to right nipple.

According to the opinion of the doctor who had conducted the post-mortem report, the death was caused as a result of shock by gun shot injury which was 24 hours old. 9th, 10th and 11th ribs were broken, the right lung was internally damaged and 8 to 10 pallets were recovered from internal injury.

The contention of the learned Counsel for the Appellant is that there is no independent witness of the aforesaid occurrence; that father of the Appellant is not shown in the F.I.R. as one of the person present on the spot; that there is contradiction in the statement of witnesses and no case against the accused-Appellant is made out. Hence he is liable for acquittal.

Learned Counsel for the Appellant in support of his submissions contends that from the report of Vidhi Vigyan Prayogshala, paper No. 14/3 it is apparent that empty cartridges which are said to be recovered on pointing out, had not been fired from S.B.B.L. gun on the same date makes the case of prosecution doubtful. He has placed certain discrepancies in the statements of the witnesses in this regard. An emphasis has also been laid that the prosecution story is false and the deceased had been killed by some one else, but the accused has been falsely implicated. He has next contended that there was no motive for the accused to have killed the deceased as the truck in respect of which the alleged partnership is being claimed neither belong to the deceased nor to the accused and in fact the accused was not at the spot of occurrence at the time when the said incident had taken place.

It is clear from the statement of Vinod Prasad Yadav who has stated on 8.6.2001 that the accused-Appellant had worked in N.C.L. Khadiya Pariyojna from 8 a.m. to 11 a.m. only on the date of occurrence which is also reflected from his attendance register.

Learned A.G.A. submits that the contradictions pointed out in the statement of witnesses are minor and the incident is proved beyond doubt by the eye-witness who was present on the spot of occurrence. He also submits that the accused-Appellant fired upon the deceased with an intention to kill him. The bullet had hit on the chest of the deceased due to which he fell down. The second fire which is said to have been fired by the accused might have missed him. The first informant had seen the incident and had hid himself. On hearing the fire the crowd was also formed and emboldened by it he came out from his hiding place and found that his brother had died and that he had immediately gone to the police station for lodging the F.I.R.

It is urged by the learned A.G.A. that occurrence is said to have taken place at 2.30 p.m. and the F.I.R. was lodged promptly at about 4.15 p.m. on the same day. The first informant had walked 3 km. to the police station for lodging the report, therefore, there is no delay in lodging the F.I.R. and as such any question of planning to implicate the accused-Appellant does not arise. The motive is also proved as the business of truck was being looked after by the deceased Kiran Kumar alias Tota on the instruction of his father. He had sent the deceased to have a talk with the accused who was instrumental in giving business from V.I.P. quota for loading unloading etc.

The contention of learned A.G.A. is that the recovery has been made after some hours of the incident and the accused who is very clever person had every chance to change the empty cartridges and plan another fire from any gun to prove that it was not fired from the gun which had been recovered. He has also submitted that from ocular evidence of eye-witness, i.e., first informant Naresh Kumar and covered with corroborating report of post-mortem conducted on the body of the deceased as well as evidence of P.W. 5 Dr. Pramod Kumar, it is evident that death of Kiran Kumar alias Tota had occurred due to shot fired by the gun of the accused. The doctor has clearly opined that the injury had not been caused by country-made pistol and he had recovered 7 pellets and has also opined that Kiran Kumar died by gun shot injury from pellets of country-made pistol fired from about 10 metres.

As regards, case u/s 3(2)(5) of S.C./S.T. Act is concerned, the court below has disbelieved the case.

After hearing the parties, we are of the considered opinion that the murder of Kiran Kumar had taken place in the manner as has been scribed by the first informant Naresh Kumar who was also eye-witness of the incident. The motive has been proved beyond reasonable doubt and probability cannot be ruled out that the accused had changed the empty cartridges after the incident as the cartridges were recovered after many hours of incident when the accused had been arrested near the bus stand.

Thus, contention of learned Counsel for the accused-Appellant is that it is proved from the report of Vidhi Vigyan Prayogshala that empty cartridges recovered from the accused were not fired by the gun recovered from him which is said to have been used in the killing of Kiran Kumar.

The irregularities shown by the counsel for the Appellant in the various statements, are minor and can be attributed to time lapse in the prosecution.

The death of the deceased by fire of the accused is fully established by ocular evidence as well as medical evidence, even defence witness D.W. 1 who was declared hostile has stated that the accused was at the place of working from 8 a.m. to 11 a.m. even otherwise the fact that the accused was not at his working place at about 2.30 p.m. is also established by attendance register.

In the circumstances, after hearing the arguments and going through the records, we affirm the view taken by the court below as there is no illegality or infirmity in the order dated 22.10.2003 passed by it. Accordingly, the order of conviction and sentence of the court below is confirmed and the appeal stands dismissed.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.