Raj Kumar alias Pappu and Others vs State of Uttaranchal

Prafulla C. Pant, J.—These two appeals, preferred u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P.C.) are directed against the same judgment and order dated 17.4.1987, passed in Sessions Trial No. 53 of 1986 by learned 1st Additional Sessions Judge, Dehradun, whereby Appellants Raj Kumar alias Pappu, Chandra Prakash, Raj Kishore (since deceased) and Devki Nandan have been convicted u/s 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of them has been sentenced to imprisonment for life.

We heard learned Counsel for the parties and perused the entire record.

Prosecution story, in brief, is that on 15.1.1986, at about 7.30 p.m., Mahesh alias Pintu (deceased) along with his brother Subhash Chandra (P.W. 2) in O.N.G.C. (Oil and Natural Gas Commission) Colony, Dehradun, was going to the house of Amita Sharma alias Mona (P.W. 3). There was electric light in the colony and on the road. When Mahesh with his brother Subhash was stepping up the staircase in Mona''s house, accused/ Appellant Raj Kumar alias Pappu who was accompanied with accused/ Appellants Chandra Prakash, Raj Kishore and Devki Nandan, asked Mahesh as to why he visits house of Mona, who is his ''mehbooba'' (beloved). On this, he (deceased) replied to him that Mona is his ''dharam behan'' (god sister). But the accused persons did not believe him and they caught hold of Mahesh alias Pintu by neck and dragged him from the staircase to the nearby culvert, across the road. And accused/ Appellants Raj Kumar alias Pappu, Chandra Prakash and Raj Kishore, fired shots from the fire arms from close range at Mahesh alias Pintu and thereafter accused/Appellant Devki Nandan, inflicted knife blows on his (deceased) person. Mahesh alias Pintu died on the spot. Subhash Chandra (P.W. 2), got frightened and hid himself behind a bush. P.W. 1 Raj Rani, mother of Mona, and P.W. 3 Amita Sharma alias Mona, also came out of their house while the deceased was being dragged by the accused persons and they also witnessed the commission of crime. Apart from the said two, one Kalu and Girdhari (P.W. 4), who were passing on the road also saw the occurrence. After committing murder of Mahesh alias Pintu, the accused persons fled towards ''Sheetal Dairy'' through a dilapidated wall. Subhash Chandra (P.W. 2) after sometime came out of the bush and went to his father Mathura Prasad, who took him to one Sudesh Kumar and got scribed the first information report (Ext. A-1). The said report was lodged in early hours at 3.10 a.m. on 16.1.1986 with police outpost Bindal (P.S. Cantt.). On the basis of first information report, check report (Ext. A-2) was prepared by P.W. 5 Head Constable Kalicharan Gupta, who also made an entry (a copy of which is Ext. A-3) in the general diary. P.W. 8 Gyan Chand Yadav, Sub-Inspector, who investigated the crime, went to the spot and took the dead body of Mahesh alias Pintu into his possession and prepared Inquest Report (Ext. A-5). The Investigating Officer got prepared police form No. 13 (Ext. A-10), sketch of the dead body (Ext. A-11), letter (Ext. A-13) to the Chief Medical Officer, requesting him for post-mortem examination of the dead body. The dead body was sent in a sealed condition through P.W. 6 Constable Tota Ram and Constable Harpal Singh for post-mortem examination along with the necessary papers. P.W. 7 Dr. Suresh Mehta, conducted autopsy on the dead body on the very day, i.e., 16.1.1986 at about 3.00 p.m. and prepared the post-mortem examination report (Ext. A-4). He opined that the cause of death was shock, coma and haemorrhage, as a result of ante-mortem injuries. The Investigating Officer recorded the statements of the witnesses and prepared the site plan (Ext. A-9). On completion of the investigation, the Investigating Officer submitted charge-sheet (Ext. A-15) before the Magistrate concerned.

The Magistrate, it appears on receipt of charge-sheet after giving necessary copies to the accused persons, committed the case to the court of sessions for trial. Learned Sessions Judge after hearing the prosecution and the defence, framed charge of offence punishable u/s 302 read with Section 34 of I.P.C. against all the four accused persons namely, Raj Kumar, Chandra Prakash, Raj Kishore and Devki Nandan. All the four pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Raj Rani Sharma (eye-witness), mother of Mona, P.W. 2 Subhash Chandra (informant and brother of deceased), P.W. 3 Amita Sharma alias Mona (eye-witness), P.W. 4 Girdhari (eye-witness), P.W. 5 Head Constable Kali Charan Gupta, who prepared the check report of first information report, P.W. 6 Constable Tota Ram, who took the dead body in a sealed condition for post-mortem examination, P.W. 7 Dr. Suresh Mehta, who conducted autopsy on the dead body and P.W. 8 Sub-Inspector Gyan Chand Yadav, Investigating Officer. All the oral and documentary evidence was read over and explained to the accused persons by the trial court and statement u/s 313 of Code of Criminal Procedure was recorded in reply to which the accused persons alleged that they have been falsely implicated in the crime due to enmity with the police. Learned trial court found all the four accused guilty of offence, punishable u/s 302 read with Section 34 of I.P.C. and after hearing the parties on sentence, the trial court sentenced each of the convicts to imprisonment for life. Aggrieved by said judgment and order dated 17.4.1987, the three convicts Raj Kumar alias Pappu, Chandra Prakash and Raj Kishore, filed Criminal Appeal No. 1142 of 1987 and the fourth convict Devki Nandan, filed a Criminal Appeal No. 1144 of 1987, before the Allahabad High Court. Both the appeals are received by this Court by transfer u/s 35 of U. P. Reorganisation Act, 2000, for their disposal.

Before further discussions, it is pertinent to mention here the ante-mortem injuries found on the person of the deceased at the time of autopsy. Post-mortem examination report (Ext. A-4) read with the statement of P.W. 7 Dr. Suresh Mehta, discloses following ante-mortem injuries on the person of the deceased recorded on 16.1.1986 at about 3.00 p.m. :

(1) Gun shot wound of entry 0.3 cm. x 0.2 cm. x scalp deep over the left side of scalp, 4 cm. above the left ear.

(2) Gun shot wound of exit 3 cm. x 2.2 cm. through and through corresponding with the injury No. 1 over the right side of scalp 3 cm. and backward from the right ear.

(3) A lacerated wound 1 cm. x .2 cm. x .2 cm. over the outer aspect of left eyebrow.

(4) Abraded contusion 10 cm. x 4 cm. on the left side of upper part of face.

(5) Gun shot wound of entry 0.8 cm. x .5 cm. x bone deep on the front and outer side of right forearm 8 cm. below the right elbow, blackening present, pellet palpable beneath the skin on the back of right forearm, 6 cm. below the right elbow joint.

(6) Incised wound 1.5 cm. x 1 cm. x muscle deep on right lateral side of back, 20 cm. below right shoulder joint.

(7) Incised wound 1.5 cm. x 1 cm. x muscle deep on right lateral side of back 2 cm. below injury No. 6.

(8) Incised wound 1.6 cm. x 0.5 cm. x muscle deep, 3 cm. below injury No. 7, right lateral side of back.

(9) Incised wound 2 cm. x 0.4 cm. x muscle deep, 4 cm. below injury No. 8, right lateral side.

(10) Gun shot wound of entry 1.2 cm. x 1.1 cm. x cavity deep on the right side of back about 4 cm. lateral to midline, 20 cm. below right scapula. Blackening present.

(11) Gun shot wound of exit 2 cm. x .8 cm. x cavity deep on the right side of abdomen about 13 cm. below the right nipple corresponding with gun shot wound of injury No. 10.

(12) Incised wound 1 cm. x 1.5 cm. x muscle deep on the right side of abdomen, 2 cm. above injury No. 11.

(13) Incised wound 4 cm. x 1 cm. x muscle deep on the left buttock, about 12 cm. below left anterior superior iliac spine.

(14) Incised wound 1.5 cm. x 0.6 cm. x muscle deep on the left buttock 4 cm. below injury No. 13.

(15) Incised wound 2 cm. x 1 cm. x muscle deep on the outer aspect of left hip joint.

(16) Gun shot wound of entry 1 cm. x .3 cm. x bone deep on the front of left thigh, 10 cm. above the left knee joint.

(17) Gun shot wound of exit 2.5 cm. x 2 cm. on the back of the left thigh 6 cm. above the left knee joint, through and through corresponding with gun shot wound of entry injury No. 16.

Two pellets, recovered from the body of the deceased, one from the back of the right forearm and second from the injury No. 2. In the opinion of the doctor, death of the deceased was caused due to shock, coma and haemorrhage, as a result of above-mentioned injuries.

P.W. 1 Raj Rani Sharma, an eye-witness, has stated on oath before the trial court that she is resident of quarter No. 28/6 in the O.N.G.C. colony. She further states that on 15.1.1986, it was around 7.30 p.m. when she was in her quarter with her son and daughter Mona. According to the witness, Mona was sitting at her window and she saw Mahesh alias Pintu coming in their house. Mona informed this to her mother (P.W. 1). P.W. 1 Raj Rani further states that she was taking bedding through a gallery towards room and noticed that Appellant Devki Nandan was roaming near culvert. She further states that Pintu was coming with his brother through the staircase when Appellant Raj Kumar alias Pappu along with Raj Kishore and Chandra Prakash, came and dragged Pintu from the staircase to the nearby culvert. On this, Pintu shouted, asking to leave him. Seeing this, P.W. 1 Raj Rani, came down along with Mona. through the staircase and asked the three Appellants to leave Pintu but Appellant Chandra Prakash, wielded fire arm at them. And thereafter according to this witness, Appellants Raj Kumar alias Pappu, Chandra Prakash and Raj Kishore took Mahesh alias Pintu to the culvert and all of the three fired at him. Appellant Devki Nandan, who was armed with knife also struck blows of knife on the person of the deceased. Meanwhile, Subhash alias Mota, got hid himself behind a bush. P.W. 1 Raj Rani has also stated that she used to treat Mahesh alias Pintu as her ''dharam beta'' (god son). Lastly, she says that Pintu died on the spot and after commission of crime, accused/Appellants fled towards ''Sheetal Dairy''.

The above statement of P.W. 1 Raj Rani gets full support from the statement of other eye-witness P.W. 3 Amita Sharma alias Mona, who says that Appellant Raj Kumar alias Pappu lived in the O.N.G.C. colony in quarter No. 24/2. She further states that Appellant Pappu earlier came to her mother (Raj Rani), requesting her to permit him to marry her (Mona). P.W. 3 Amita Sharma alias Mona states that she also knew deceased Mahesh alias Pintu from the days when his mother and her mother were admitted in one hospital. The witness further states that Mahesh alias Pintu used to look after her mother in the hospital when she was in school. Since then, according to this witness, she (Mona) treated him (Pintu) her ''dharam bhai'' (god brother). P.W. 3 Amita Sharma alias Mona further states that Appellant Pappu mistook Pintu that he had an affair with her. She admits that she used to write letters to accused Raj Kumar alias Pappu. She further explains that when Raj Kumar alias Pappu wanted to marry her, her mother asked him to first start earning then to talk about marriage. P.W. 3 Amita Sharma alias Mona says that she also knew Appellants Devki Nandan, Chandra Prakash and Raj Kishore Yadav through Raj Kumar alias Pappu. As to the incident, P.W. 3 Amita Sharma alias Mona states that it was around 7.30 p.m. on 15.1.1986, when she saw through her window that Mahesh alias Pintu along with his brother was coming towards their house. There was sufficient electric light on the road and in the staircase. When Mahesh alias Pintu was stepping up the staircase, Appellant Devki Nandan who was roaming near her house made some signal, on which Appellants Raj Kumar alias Pappu, Chandra Prakash and Raj Kishore Yadav came and caught hold of Mahesh alias Pintu. They dragged him towards nearby culvert. P.W. 3 Amita Sharma alias Mona further states that at the culvert Raj Kumar alias Pappu, Raj Kishore Yadav and Chandra Prakash, fired shots at Pintu and thereafter Appellant Devki Nandan inflicted knife injuries on the person of Pintu. She states that she saw the commission of crime by the accused persons along with her mother. She further states that Appellants fled away after the commission of crime.

There are other two alleged eye-witnesses of the incident examined by prosecution, namely P.W. 2 Subhash Chandra, informant and P.W. 4 Girdhari (eye-witness). They have also corroborated the prosecution story by narrating the same. But in our opinion, the statement of P.W. 2 Subhash Chandra, who is a young boy of 14 years only, though has given true account of the incident up to the stage when his brother Mahesh alias Pintu was dragged by the Appellants from the staircase of Mona''s house to the nearby culvert and the three accused/Appellants Raj Kumar alias Pappu, Raj Kishore and Chandra Prakash fired shots at him (deceased) but since meanwhile this boy got hid himself behind a bush, his statement that he witnessed Devki Nandan inflicting the knife injuries on the person of the deceased, appears to be an exaggeration, for the reason that had he witnessed that part of prosecution story, he would have mentioned this fact in the first information report (Ext. A-1). But in our opinion that by itself does not make a difference in the truthfulness of the prosecution story as the full eye-witness account given by P.W. 1 Raj Rani and P.W. 3 Amita Sharma alias Mona is so natural and trustworthy that it does not need any support or further corroboration to believe the same. P.W. 4 Girdhari is also an eye-witness of the incident, who works in ''Sheetal Dairy''. He has also corroborated the prosecution story narrated by P.W. 1 Raj Rani and P.W. 3 Amita Sharma alias Mona, as to the fact that the Appellant Devki Nandan inflicted knife blows on the person of Pintu (deceased) after the above three accused/Appellants fired shots at him.

On behalf of the Appellants, it is argued that the first information report is a delayed one. In this connection, it is pointed out that the incident has allegedly taken place at 7.30 p.m. on 15.1.1986 and the report was lodged only at 3.10 a.m. on 16.1.1986. In our opinion this delay is not fatal for the reason that informant Subhash Chandra, brother of the deceased, who was accompanying him is a young boy of 14 years, who got frightened. He has stated in his examination that after the accused persons fled away from the scene, he dared to come out from bush, then he went to his father who took him to one Sudesh Lala to get the first information report scribed and then he took the report to the police outpost, Bindal. We cannot ignore the fact that it was night time, and delay of seven hours in lodging the first information report, in our opinion, in the above circumstances, stands sufficiently explained by the prosecution.

On behalf of Appellant Devki Nandan, it is argued that it is nowhere mentioned in the first information report that Appellant Devki Nandan was armed with a knife and as such, the improvement made in the prosecution story that Devki Nandan inflicted knife wounds, should not be believed. In appreciating this argument, we are of the view that had the first information report been lodged by P.W. 1 Raj Rani or P.W. 3 Amita Sharma alias Mona or by Girdhari, it could have been said that the mentioning of the fact in the first information report that all the four accused, fired shots at the deceased could have saved Devki Nandan, as he was not armed with any firearm. But the first information report, in the present case is lodged by none other than Subhash Chandra, a young boy of 14 years, who is brother of the deceased. From the evidence on record, it is clearly established that when the accused persons dragged Mahesh alias Pintu (deceased) from staircase of Mona''s house to the culvert, this boy (Subhash Chandra) got frightened and hid himself behind a bush. From the site plan (Ext. A-9), also it appears that the point ''D'' where Subhash Chandra got himself hid, could have only heard the sound of firing of shots and it is quite possible that the boy who is the informant could not see Devki Nandan, armed with knife. The narration on the part of P.W. 2 Subhash Chandra that Devki Nandan inflicted knife blows on the person of the deceased, appears to be improvement on his part. But said improvement on the part of P.W. 2 does not shake natural eye account on the part of the rest of the eye-witnesses.

The third submission on behalf of the Appellants is that Appellants Chandra Prakash and Raj Kishore, though not named in first information report, were not put to test identification parade, as such, naming them by witnesses is nothing but their false implication. We see little force in the submission in the circumstances that it is clear from the trial court''s record that on 25.8.1986, accused Chandra Prakash and Raj Kishore themselves moved an application before the trial court, requesting the Magistrate not to conduct identification proceedings and the same be dropped. Even otherwise, had the test identification parade been held, it would have only helped in appreciating the evidence of P.W. 2 Subhash Chandra, the informant. As far as the statements of other eye-witnesses, particularly that of P.W. 1 Raj Rani and P.W. 3 Amita Sharma alias Mona, are concerned since these two accused were known to these eye-witnesses, as is clear from their statements, their evidence, even if the test identification parade is not conducted, remains unshaken. The testimony of these two eye-witnesses is so natural and trustworthy that even after discarding the evidence of P.W. 2 Subhash Chandra, the prosecution story on the record, stands proved.

It is also contended on behalf of the Appellants that witnesses have stated that the shots were fired at the deceased from revolvers, but the ante-mortem injuries, show that the injuries appear to be from country-made pistol. Had the witnesses been literate enough who know what the revolver actually means, we would have accepted this contention. (witness Mona is 16 years aged drop-out of tenth standard). In the present case, defence counsel before the trial court has himself got clarified in the cross-examination of witnesses (P.W. 1, P.W. 2 and P.W. 3) that they do not know what is the difference between a revolver and a country-made pistol. As such, the above contention now is not available to the Appellants to create reasonable doubt in the prosecution story. It is also pertinent to mention here that there are three entry wounds and three corresponding exit wounds shown in ante-mortem injuries. The fourth wound appears to be caused by the pellet, which splintered after shot entered in the body, separated from other pellet of that shot.

Lastly, it is contended, on behalf of the Appellants by their counsel Shri Nand Prasad, that witness P.W. 4 Girdhari is not named in the first information report. In this connection, it is further contended that his testimony should not be believed. We are of the view that the witness, whose name is not mentioned in the first information report, does not make him an incompetent witness. The only caution, which the trial court should take, is that statement of such witness must get corroboration from other evidence on record. In the present case, the statement of other two eye-witnesses namely P.W. 1 Raj Rani and P.W. 3 Amita Sharma alias Mona, whose presence cannot be doubted, gets further corroboration from P.W. 4 Girdhari and their independent evidence, taken together is sufficient to prove the charge against the accused persons. Therefore, non-mentioning of name of P.W. 4 Girdhari in the first information report does not create any reasonable doubt as to the truthfulness of the prosecution story.

For the reasons, as discussed above, we are in agreement with the learned trial court that the charge against the accused/Appellants namely Raj Kumar alias Pappu, Chandra Prakash, Raj Kishore and Devki Nandan, stands proved. As such, there appears no error of fact or that of law in the impugned judgment and order, passed by the trial court convicting the Appellants u/s 302 read with Section 34 of I.P.C. and sentencing each one of them to imprisonment for life. Accordingly, both the appeals are liable to be dismissed. The same are dismissed. The Appellants Raj Kumar alias Pappu, Chandra Prakash and Devki Nandan are on bail. Their bail is cancelled. They shall be taken into custody by the court concerned to make them serve out the sentence. (Appeal of Appellant Raj Kishore, in view of his death, stands abated).