Pradeep Kumar and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Since both these appeals i.e. (Criminal Appeal No. 828 of 2008- Pradeep Kumar @ Bhuria Kashyap V. State of U.P.) and (Criminal Appeal No. 1634 of 2008 - Ishwardeen Lodh @ Rajendra V. State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together.

Sri Bhola Singh Patel, learned counsel for the appellants and Sri Dharmendra Singh, learned Additional Government Advocate were heard at length.

Criminal Appeal No. 828 of 2008 has been preferred by the appellant-Pradeep Kumar @ Bhuria Kashyap and Criminal Appeal No. 1634 of 2008 has been preferred by the appellant Ishwardeen Lodh @ Rajendra challenging the judgment and order dated 12.03.2008 passed by learned Additional Sessions Judge, Court No. 17, Lucknow, in Sessions Trial No. 444 of 1993, arising out of Case Crime No. 392 of 1992, Police Station Aliganj, District Lucknow, whereby both the appellants were convicted under Section 302 read with Section 34 IPC and were sentenced with imprisonment for life and also with fine of Rs. 10,000/- each, with default stipulation of four months additional imprisonment.

In brief, the case of the prosecution was that the complainant Amar Pal Singh lodged an FIR at Police Station Aliganj, District Lucknow on 07.08.1992 at 22:45 hours alleging therein that he was leading the police team which was searching one Radhey dacoit. In that connection when he was going from Kursi Road to Sangam Chauraha then at about 21:30 hours when they reached near the petrol pump then they found that four persons were indulged into altercation with a shopkeeper and they saw that one of them fired at the shopkeeper and thereafter all the four persons ran towards the petrol pump. Those four persons were chased by the complainant and the police party but only one of them was apprehended at a distance of about 30 paces. Remaining three appellants were successful in fleeing away from there. The apprehended accused disclosed his name as Rajesh @ Tahlu. The injured shopkeeper after sustaining the injury came on the road and fell down then the complainant inquired with him, then with great difficulty, he told him that Bhuria @ Pradeep Kumar Kashyap of Pandey Tola and his companion Nigam who was a Tea stall vendor were on inimical terms regarding the payment of Dalda ghee. In that connection, they alongwith their companions Tahlu Panda and Rajendra Yadav came to his shop entered into altercation and thereafter Bhuria fired at him with countrymade pistol. After giving this statement the injured became unconscious. The complainant immediately informed the City Control Room and called for a patrol car and on the said patrol car the injured was sent to the hospital. The persons of the vicinity on inquiry disclosed about the identity of the other accused persons also.

On the basis of this information this case was registered and investigation proceeded. During investigation, the deceased Sunil Kumar died in Medical College and information of the same was sent to Police Station Chowk. On the basis of this information of the death of Sunil Kumar inquest proceedings were conducted at the mortuary and after completing the necessary formalities the dead body was sent for postmortem which was conducted on 08.08.1992 at 4.10 p.m. As per postmortem report the following ante-mortem injuries were found on the body of the deceased Sunil Kumar:--

"(i) Multiple gun shot wound of entry in an area of 11 cm x 9 cm on the neck adjacent to supra sternul notch. Varying in size from 0.2 cm x 0.2 cm to 0.5 cm x 0.5 cm and the depth was also varying. The injuries were present in skin and muscles. The margins were inverted. On opening the injuries the underlying muscles were ecchymoised . Muscles of neck, vessels and trachea were blood stained. In the muscles of neck and trachea 27 pellets were recovered. As per postmortem report postmortem staining was present on the back. Digested food and gases were found in small intestine and in the large intestine gases and faecal matter was found."

In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante-mortem fire arm injury.

During course of investigation, the place of occurrence was inspected and its site plan was prepared. The blood stained and plain earth were taken into custody.

After completing the investigation the charge-sheet was filed against all the four accused persons.

It transpires from perusal of the record that during trial one of the accused namely Satish Chandra Nigam expired and because of his death his case was abated. One accused namely Rajesh alias Tahlu was on bail during trial. However, he absconded for a long time, therefore, he was declared absconder vide order dated 14.09.2006 by the trial court and proceedings under Section 299 Cr.P.C. were initiated against him. So, only two remaining appellants are before us.

Both the appellants in the instant case have pleaded their false implication due to enmity.

In order to prove its case the prosecution has examined PW-1 Amar Pal Singh, the complainant of this case, PW-2 Satyendra Prabhakar, PW-3 Santosh Kumar as witnesses of fact, PW-4 S.I. Kalika Prasad, who has proved the chik report and G.D. of this case, PW-5 Tejpal Singh Verma, Inspector who has taken up the investigation from first Investigating Officer Musai Prasad after conversion of the case under Section 302 IPC, PW-6 Dr. S.M.I. Zaidi, who has conducted the postmortem on the body of the deceased and PW-7 S.I. Musai Prasad the first Investigating Officer of the case.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence both these appeals.

Submission of the learned counsel for the appellants was that keeping in view the injuries sustained by the deceased he was not in a position to speak and as per the case of the prosecution the identity of the appellants was disclosed by the deceased himself on inquiry made by the complainant at the place of incident. It has also been argued regarding Ishwardeen Lodh that there was absolutely no evidence that he shared common intention with appellant Pradeep Kumar @ Bhuria Kashyap. Learned counsel for the appellants has also argued that the prosecution has examined two independent witnesses in support of its case. PW-3 Santosh Kumar happens to be real brother of the deceased, but both of them have turned hostile. The sole evidence of PW-1 Amar Pal Singh was not wholly reliable.

Learned Additional Government Advocate has argued that learned trial court has correctly appreciated the prosecution evidence and has not committed any error of fact or law in convicting the appellants and the judgment is well reasoned and all the aspect of the case have been considered. Appeal has no merits, therefore, no interference is called for in this appeal. He has also argued that the appellants have contested trial in a very negligent manner and have not even cross examined the witnesses inspite of sufficient opportunities having been provided to them for cross-examination of the witnesses and to defend them. So the evidence of the witnesses remains unchallenged.

Before proceedings further, we would like to give a brief description of the evidence of the witnesses.

PW-1 S.I. Amar Pal Singh is the complainant of this case who has stated that while he was on duty alongwith police party he saw that near Agarwal General Store four persons were indulged into altercation with the shopkeeper and in the meantime, one of them fired at the shopkeeper and ran away from there. With the efforts of the police party one of them (Tahlu alias Rajesh) was apprehended at some distance (he is absconding) and his case has been separated by the trial court. He made an inquiry from injured Sunil Kumar Agarwal who had fallen because of the gun shot injury then he told him that some dispute exists between him and the appellant Bhuria alias Pradeep Kumar and Nigam regarding the payment of ''Dalda Ghee''. They and two others persons who are known as Rajendra Yadav alias Ishwardeen and Rajesh Chandra, Bhuria alias Pradeep Kumar fired at him. After giving this information he became unconscious. This witness was cross examined on behalf of the appellant Ishwardeen. He was mainly cross examined on behalf of appellant Ishwardeen on the point that Ishwardeen is also known as Rajendra Yadav though he is ''Lodh'' by caste and word ''Yadav'' is the part of his name and does not denote his caste. But perusal of the cross examination shows that nothing material could be elicited to discard the testimony of this witness. He was not cross examined on behalf of the appellant Pradeep. No suggestion was given to this witness that at the relevant point of time the deceased was not in a position to give any statement.

PW-2 Satyendra Kumar was examined by prosecution as eye witness but he has not supported the case of prosecution and has been declared hostile. Likewise, is the evidence of PW-3 Santosh Kumar who happens to be elder brother of the deceased.

PW-4 has proved the chik report and G.D. of this case so his evidence is formal in nature.

PW-5 Inspector Tejpal Singh Verma is the Investigating Officer of this case. No cross examination was done to this witness on behalf of any of the appellant. Therefore, the investigation part of this case remains absolutely unchallenged. Not even any suggestion was given to this witness. PW-6 Dr. S.M.I. Zaidi, has proved the postmortem report. On the date of his examination-in-chief the hearing was adjourned and even on the adjourned date none appeared on behalf of any of the accused to cross examine the witness. Hence opportunity to cross examination was closed. PW-7 S.I. Musai Prasad was the first Investigating Officer of this case and he has been cross examined on behalf of the appellants. He has stated that he had arrested one accused Rakesh alias Tahlu. However, no suggestion was given to this witness that the deceased was not in a position to speak after sustaining injuries.

In the statement under Section 313 Cr.P.C. specific question was put to the accused persons that PW-1 Amar Pal Singh has proved the oral dying declaration and in reply to this question the appellants have stated that it is wrong and he has been falsely implicated. Defence of the appellants was that they have been falsely implicated due to enmity but no such enmity either with the police or with the complainant side could be suggested to any witness nor any evidence in support of any such enmity has been produced in defence. So the theory of false implication because of enmity has no substance. It also becomes unreliable because the elder brother of the deceased himself has not supported the case and has turned hostile. So if this witness was on inimical terms with the appellants then he would not have turned hostile. Evidence of PW-1 has also been criticized on the ground that he is a member of police force. There is no law that evidence of police witnesses should not be relied upon. Their evidence has to be considered in the same manner as the evidence of any other witness. If the same is found to be wholly reliable court can record conviction on the evidence of such police officer.

Now we will come to the oral dying declaration of the deceased. Before proceeding further, we would like to discuss the law on oral dying declaration.

In the case of Ramawati Devi v. State of Bihar reported in , (1983) 1 SCC 211, Hon''ble Apex Court has considered this aspect and has observed in para 7 as under:--

"A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case."

In the case of Vishram and others v. State of Madhya Pradesh reported in , 1993 Supp (2) SCC 274 has acted upon an oral dying declaration made by the deceased to his father and wife and the Hon''ble Apex Court has also observed that it is most unlikely that the deceased would have implicated the appellant falsely leaving out the real culprits.

In the case Darshana Devi v. State of Punjab reported in , 1995 Supp (4) SCC 126, the Hon''ble Apex Court has again considered the point whether oral dying declaration can be acted upon and has observed that even though an oral dying declaration can form the basis of conviction in a case, but such dying declaration has to be trustworthy and free from every blemish and inspire confidence.

In the case of Arun Bhanudas Pawar v. State of Maharashtra reported in , (2008) 11 SCC 232, the Hon''ble Apex Court has observed in para 25 as under:--

"It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination."

Perusal of the aforementioned case law shows that the oral dying declaration if found to be credible and reliable can be acted upon. In this case oral dying declaration was made just after the incident to the complainant S.I. Amar Pal Singh who has reproduced the same in his FIR and has also proved same during trial. The said oral dying declaration has nowhere been challenged on behalf of any of the appellants. Submission of the learned counsel for the appellants was that keeping in view the injuries sustained by the deceased in his neck it cannot be said that he was in a position to speak. But the doctor has not been put any questions inspite of sufficient opportunity to cross examine him on behalf of the appellants. The postmortem report shows that hyoid bone and muscles bones were blood stained and 27 pellets were embedded in the muscles. But this by itself cannot lead to the conclusion that he was not in a position to speak immediately after sustaining injuries. Immediately after sustaining injury the person can speak. Incident had taken place at 9.30 p.m. and FIR was lodged at 22:45 hours so he was alive when the case was registered because case was registered under Section 307 IPC only and not under Section 302 IPC. So after sustaining injury deceased survived for a long time, hence this fact support our conclusion that immediately after the incident he must have been in a position to speak. So we find oral dying declaration proved by PW-1 S.I. Amar Pal Singh to be wholly reliable.

Now we come to the question whether the appellant Ishwardeen alias Rajendra Yadav has any common intention to commit this offence. According to the oral dying declaration the appellant Pradeep had enmity with deceased who has fired at him. Enmit was also with Nigam but he has expired during trial. It has not been stated by him in the oral dying declaration that he alongwith two other persons came to the place of occurrence. Absolutely no role in this incident has been assigned to any of the appellants. There is no other evidence that all the four persons came together to the place of occurrence. It is clear by the evidence of PW-1 that all of them ran together and one of them was apprehended at a short distance. After the incident it would have been a general reaction of the persons standing there to run away. So simply because they all ran together would not lead to the only inference that appellant Ishwardeen shared common intention. It is clear from the oral dying declaration that the appellant Pradeep Kumar @ Bhuria Kashyap and Nigam were having enmity with the deceased. Appellant Pradeep Kumar @ Bhuria Kashyap came armed with countrymade pistol and fired at the deceased, therefore, the case of the appellant Pradeep Kumar @ Bhuria Kashyap becomes distinguishable from the case of Ishwardeen alias Rajendra Yadav. We do not find any circumstance to show that he shared the common intention. Hence he becomes entitled to benefit of doubt.

In view of the discussion made above, we are of the considered view that Criminal Appeal No. 828 of 2008-Pradeep Kumar @ Bhuria Kashyap V. State of U.P.) deserves to be dismissed and is hereby dismissed. Appellant Pradeep Kumar @ Bhuria Kashyap is in custody. He shall serve out his sentence as inflicted by the learned trial court.

Criminal Appeal No. 1643 of 2008-Ishwardeen Lodh @ Rajendra V. State of U.P.) deserves to be allowed and is hereby allowed. Appellant Ishwardeen Lodh @ Rajendra is in custody. He is acquitted of all the charges levelled against him. He shall be released forthwith, if not, wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.