Manoj Kumar Gupta, Sunil Gupta and Chandrasen Gupta (In Jail) vs State of U.P.

Saroj Bala, J.—These two connected criminal appeals are directed against the judgement and order dated 29.11.2007 passed by the Sessions Judge Kannauj in ST. No. 294 of 2006 whereby convicting the appellant Keshav Kumar Gupta for the offence u/s 302 I.P.C. and rest of the appellants for the offence under Sections 302 I.P.C. read with Section 34 I.P.C. and sentencing each of them to rigorous imprisonment for life and fine of Rs. 10,000/-.

The prosecution case put briefly was that on 15.3.2006 at about 10.40 A.M. Amit Kumar alias Bauwa son of complainant Premchand (P.W.I) along with other family members was playing Holi colours outside of his house situated in Mohalla Bazaria Chhibramau District Kannuaj. At the same time the accuses appellant Keshav, Sunil, Manoj and Chandrasen armed with licenced revolver, double barrel gun and country made pistols came there. The accused-appellants Keshav Kumar Gupta opened fire from his licenced revolver at complainant''s son Amit Kumar alias Bauwa and seriously injured him. The victim died on the way to the hospital. The complainant got scribed the written report (Ext.Kal) from Rakesh Babu Tripathi and laid it at P.S. Chibbramau at 11.45 A.M. on 15.3.2006. On the basis of written report check F.I.R. (Ext.Ka3) was prepared by constable Mohrrir Tukman Singh(P.W.6) and crime was registered in the G.D.(Ext.ka4). The special report was sent to the higher officers the same day at 12.15 hrs. noon.

The inquest on the dead body was conducted by S.I. Nisar Ali (P.W.7) at P.H.C. Chibbramau. During the course of inquest, inquest memo, challanlash, photolash, letters to C.M.O. (Exts. Ka.6, 7, 8, & 9) were prepared. The sealed bundle containing the dead body along with police paper was handed over to constable Shiv Narain Singh for transportation to the mortuary for postmortem.

The postmortem on the dead body of Amit alias Bauwa was conducted by Dr. Narendra Babu(P.W.5) on 15.3.2006 at 3.45 P.M. and following antemortem injuries were found:

Firearm wound of entry 0.5 cm. x 0.5 cm, x cavity deep on right lateral aspect of abdomen 12 cm. above o/d bullet recovered from right abdomen cavity.

Firearm wound of entry 0.5 cm. x 0.5 cm. x cavity deep on right side back 13 cm. below from posterior axilla fold, 12 x5 cm. from mid line blackening present around the wound, margins lacerated and inverted. O/D bullet recovered from T 9 vertebra.

Firearm wound of entry 0.5 cm x 0.5 cm. X cavity deep on the right side back 7 cm. below from injury No. 2 and 9 cm. from midline, lacerated and inverted. O/d bullet recovered from T11 vertebra.

Firearm wound of entry 0.5 cm. X 0.5 cm. x cavity deep on left side back of chest, 13 cm. below from base of neck, cm. from mid line lacerated and inverted. O/d bullet recovered from left chest wall lateral aspect.

Firearm wound of entry 0.5 cm. x 0.5 cm. x cavity deep on left side back 20 cm. below from base of neck, 9 cm. from midline lacerated and inverted left lung lacerated. O/d bullet recovered from left side chest wall laterally.

Firearm wound of entry 0.5 cm.x 0.5 cm. cavity deep on midline 18 cm. above the buttock lacerated and inverted. O/d 12th (T12) vertebra and bullet recovered from vertebra, T9, T12 vertebra are fractured.

According to the doctor the death was caused due to shock and hemorrhage as a result of antemortem injuries. The postmortem certificate was (Ext.ka2).

S.H.O. Kripa Shankar Saroj took the responsibility to investigate the crime. He interrogated the witnesses, and prepared the site plan of the place of offence. After completing the necessary formalities he submitted the charge sheet against the accused-appellants for the offences u/s 302 I.P.C. and Section 30 of Arms Act.

After committal proceedings the accused-appellant Keshav Kumar Gupta was charged for the offence u/s 302 I.P.C. The rest of the accused-appellants were charged for the offence u/s 302 I.P.C. read with Section 34 I.P.C. They pleaded not guilty and claimed to be tried.

The prosecution in all examined seven witnesses. Out of whom Premchand (P.W.1), Hari Om (P.W.2), Lallu alias Rajendra (P.W.3) and Lalji (P.W.4) were eyewitnesses to the incident. The rest of them were formal witnesses.

On appraisal of evidence adduced at the trial the Sessions Judge found the accused-appellants guilty for causing the death of Amit alias Bauwa and recorded the finding of conviction.

We have heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Anjani Kumar Dubey appearing for the accused-appellants, learned A.G.A. and have scrutinised the trial court record.

Challenging the finding of conviction the learned Counsel for the appellants submitted that eyewitnesses Hari Om, Lallu alias Rejendra, Lalji (P.W.2,3,4) having not supported the prosecution case were dubbed hostile. Premchand (P.W.I) in his re-examination stated having seen a fleeting glimpse of accused-appellants. The son of the accused-appellant Kehsav Kumar Gupta was abducted and murdered and deceased was convicted for the said offence. The licensed revolver used by accused-appellants Keshav Kumar Gupta and bullets recovered from the person of deceased were sent to the ballistic expert for examination. The ballistic expert did not find similarities in the bullets recovered from the dead body and sample bullets fired from the revolver. The solitary testimony of Premchand (P.W.l)is of snaky nature.

The learned A.G.A. supporting the finding of conviction submitted that Premchand(P.W.l) in his examination-in-chief and cross examination on behalf of accused-appellants Sunil Gupta and others supported the prosecution story. His cross examination was deffered on 29.5.2007 on the application of accused-appellant Keshav Kumar Gupta. Thereafter he was cross examined on 4.7.2007. On account of pressure exerted upon him by the accused-appellants he tried to support them in his cross examination. The witness(P.W.l) was re-examined by the prosecution wherein he stated having seen accused-appellants running away. The hostile witnesses (P.W.2, 3, 4) supported the prosecution case with regard to the date, time and place of the offence and other material particulars.

The prosecution case depended on direct evidence of Premchand (P.W.1) Hari Om (P.W.2) Lallo alias Rajendra(P.W.3) and Lalji (P.W.4). The witnesses (P.W.2,3,4) having not supported the prosecution case were dubbed hostile. The evidence of a hostile witnesses cannot be treated as effaced or washed off the record. His testimony can be accepted to the extent that it is found to be dependable on careful examination. The witness Hari Om(P.W.2) testified that the incident took place 15.3.2006 at about 11 AM. and it was the day of Holi festival. The incident took place at Mohalla Bazaria Tirah and the said place is situated at a distance of 7-8 meter towards the eastern side of the house of Premchand (P.W.1) He admitted that the victim was convicted in the case of abduction and murder of the son of Keshav Kumar Gupta and was released on bail by the order of the High Court. The victim was shooted in brilliant day light at about 11 A.M. in the middle of Tirah. He admitted that the place of offence was clearly visible from the house of Premchand(P.W.1). It is there in his testimony that his brother Premchand disclosed to him in the hospital that Keshav Kumar Gupta had opened fire at his son. According to the witness Lallu alias Rajendra (P.W.3) the incident took place on the day of Holi festival at 10-10.30 A.M. He deposed that victim was shooted at the Tirah situated towards the eastern side of the house of Premchand. He disclosed the distance between the house of Premchand and place of offence as 15-20 paces. The witness Lalji (P.W.4) deposed that the Amit alias Bauwa was killed on 15.3.2006 at about 10-11 A.M. Prem Chand had disclosed that Keshav Kumar Gupta had shooted his son. He admitted that shots were fired from revolver. He had seen about 5-6 shot wounds on the body of the victim in the hospital.

The witnesses (P.W.2,3,4) have supported the prosecution case on the point that incident took place on 15.3.2006 at about 11 A.M. at Mohalla Bazaria Tirah and the place of offence is visible from the house of complainant Premchand(P.W.l).

Coming to the testimony of Premchand (P.W.I) he testified that on 15.3.2006 he was playing Holi colours along with Hari Om, Lallu alias Rajendra and Lalji(P.W.2 to 4) and many others. At about 10.40 A.M. accused Keshav Kumar Gupta armed with revolver along with co-accused all armed with gun and country made pistols came there. Co-accused Sunil Gupta exhorted to open fire at Amit Kumar alias Bauwa. At this accused Keshav Kumar Gupta opened fire from the revolver at his son and discharged six shots of fire in his body. His son was rushed to the hospital and was declared dead. He got scribed the First Information Report (Ext. Kal) in the hospital from Rakesh Tiwari. According to him Rakesh Tiwari wrote down what he had dictated and report was read over to him. He testified that son of accused Keshav Kumar Gupta was abducted In the year 2000 and report was lodged against him and his son. He was acquitted after the trial and his son was convicted and sentenced to life imprisonment. His son was on bail at the time of the incident. The incident took place at the Tirah situated at a distance of 20 paces from his house. In his cross examination on behalf of co-accused Sunil Gupta and others he deposed that Holi colours were being played at the time of the incident. He admitted having got written in the First Information Report that Keshav Kumar Gupta opened fire at his son from his licensed revolver on exhortation of Sunil Gupta. According to him all the cartridges in the barrel of the revolver were discharged and at that time the assailant was at a distance of 20 paces from him. He went on to state that he was at a distance of 20 paces from his son. Keshav Kumar Gupta was towards the northern direction from his son. The commission of offence was viewed from the place where he was at that time and he reached at the spot when shots were fired. He further stated that he had seen the accused persons fleeing away towards the northern side. It is spelt out from his testimony that he was on the road outside his house and incident took place on the road. It is there in his testimony that faces of accused persons were clean and they came at the spot from their house. The cross examination of the witness (P.W.I) was deffered on the application of accused-appellant Keshav Kumar Gupta and was recorded more than a month after his earlier examination-in-chief and cross examination. In his cross examination on behalf of accused Keshav Kumar Gupta he deposed that his house is situated at a distance of 20-25 paces towards the western side of the Tirah on which incident took place. According to him he was sitting on the door of his house at the time of the incident because of leg injury. He gave out that his son was shooted in the lane situated towards the northern direction of Tirah. The shots were fired from a distance of 4-5 paces and he heard the sound of firing at his house. When he looked towards the eastern side his son was lying on the road. He stated that shots were fired from the northern direction, therefore, he could not see the assailants. He further deposed that accused had killed his son before he reached near him. In his re-examination witness (P.W.I) stated that he had seen the accused running away from the spot.

We have carefully examined the testimony of witness Premchand (P.W.I) and find that on account of pressure exerted upon him he tried to support the accused in his cross examination conducted on behalf of accused-appellant Keshav Kumar Gupta more than a month after his earlier examination-in-chief and cross examination. The witness in his examination-in-chief and cross examination recorded on the first day supported the prosecution case in all material particulars. He categorically stated that he was present outside his house at a distance of about 20 paces and from there he viewed the commission of offence. His evidence recorded on the first day was consistent on the point that the accused-appellant Keshav Kumar Gupta opened six rounds of fire at his son from his licensed revolver. His testimony finds corroboration from the medical evidence. Dr. Narendra Babu (P.W.5) testified that injuries found on the person of deceased could be caused by six shots of fire. The deceased suffered six entry wounds and from each entry wound one bullet was recovered. There was strong motive for killing the victim.

In the site plan (Ext.ka11) the distance of the house of complainant (P.W.I) has been shown as about 25 paces from the spot. The incident took place on the day of Holi festival at a time when fun and frolic of playing with colours was at its peak. The presence of the witnesses Premchand (P.W.I) and others outside their houses at the relevant time was quite natural and probable. The testimony of (P.W.I) is found truthful and reliable and there is absolutely no reason to take a different view.

Now comes the question of joint liability of accused-appellants Manoj Kumar Gupta, Sunil Gupta and Chandrasen Gupta for the offence u/s 302 read with Section 34 I.P.C. The accused -appellant Manoj Kumar Gupta and two others and Kehsav Kumar Gupta are real brothers. The witness Premchand (P.W.I) deposed that all the four accused persons resided separately. The house of Keshav Kumar Gupta is situated towards northern side of the place of offence at a distance of 50 paces and house of co-accused Sunil is situated about 50 paces away from the house of Keshav Kumar Gupta. The houses of other accused were at a distance of 10-15 paces. In the deposition of witness (P.W.I) no overt act was assigned to the accused- appellants Manoj Kumar Gupta and Chandrsen Gupta. The role of exhortation was attributed to the accused-appellant Sunil Gupta. He spoke about the mere presence of accused-appellant Manoj Kumar Gupta and two others at the spot when shots were fired by accused-appellant Keshav Kumar Gupta.

In order to establish the charge u/s 302 I.P.C. with the aid of Section 34 I.P.C. it is to be established that the criminal act was done by one of the accused in furtherance of common intention. Common intention is to be gathered from the manner of assault, injuries caused and subsequent conduct of accused after killing.

The Apex Court in Suresh and Anr. v. State of U.P. XXXXII 2001 ACC 770 has held that "the accused who is to be fastened with liability on the strength of Section 34 I.P.C. should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act."

In Mithu Singh Vs. The State of Punjab, the Apex Court has held that, " common intention has to be distinguished from same or similar intention on the basis of facts of each case. In that case the Court opined that merely because the appellant armed with pistol alongwith co-accused came to the place of deceased did not indicate the common intention of the appellant for causing death of deceased."

In Ramashish Yadav and Others Vs. State of Bihar, , and Ajay Sharma Vs. State of Rajasthan, the Apex Court held that "accused caught hold of the deceased whereas the co-accused mounted assault did not indicate that the accused who caught hold the deceased shared common intention of main accused."

In Harjit Singh and Ors. v. State of Punjab XXXXVII 2003 ACC 388, the Apex Court held that "common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused."

The incident took place on the day of Holi festival and at the time when Holi colours were being played. The main accused-appellant Keshav Kumar Gupta resided in the same vicinity at a distance of about 50 paces from the place of offence. The presence of accused -appellants Manoj Kumar Gupta, Sunil Kumar Gupta and Chandrasen Gupta along with their brother on Holi festival day does not lead to the inference that they shared common intention with the main assailant Kehsav Kumar Gupta to cause the death of the victim. No overt or covert act was done by these accused-appellants to fasten them with joint liability.

The accused-appellants Manoj Kumar Gupta, Sunil Gupta and Chandrasen Gupta had not participated in the commission of offence. Their presence in the vicinity of the spot on the day of Holi festival does not show that they shared a common intention with the main assailant Keshav Kumar Gupta to kill the victim . The recovery of any weapon was not made from the possession or at the pointing out of these appellants. In view of these facts the prosecution has failed to prove the case beyond reasonable doubt against the accused-appellants Manoj Kumar Gupta, Sunil Gupta and Chandrasen Gupta.

The accused-appellant Keshav Kumar Gupta having caused the death of victim Amit Kumar alias Bauwa by opening fire from his licenced revolver he cannot escape the liability of conviction. The order of conviction and sentence u/s 302 I.P.C. passed against Keshav Kumar Gupta by the trial court is affirmed. The criminal appeal No. 8249 of 2007 is dismissed. He is in jail. He shall remain in jail to serve out the sentence awarded by the trial court and affirmed by us.

The criminal appeal No. 8127 of 2007 of accused-appellants Manoj Kumar Gupta, Sunil Gupta and Chandrasesn Gupta is allowed. The judgment and order of conviction so far its relates to these accused-appellants is set aside and they are acquitted of the charge u/s 302 read with Section 34 I.P.C. They are on bail to which they need not surrender. Their bail bonds are cancelled and sureties are discharged.

Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Kannauj within four weeks from date of receiving the copy of this order.