Ram Parvesh alias Pakori vs State of U.P.

Saroj Bala, J.—This criminal appeal is directed against the judgment and order dated 1.8.2006, passed by the Additional Sessions Judge/FTC-III, Gorakhpur in S.T. No. 68 of 2004 whereby convicting the Appellant Ram Pravesh alias Pakori for the offences u/s 307, I.P.C. and Section 3/25 of the Arms Act and sentencing him to R.I. for ten years and fine with default clause u/s 307, I.P.C. and R.I. for two years and fine with default clause u/s 3/25, Arms Act.

The facts giving rise to the appeal are that on 9.2.2003 at about 7.45 a.m., the first informant''s father Harihar Prasad had been coming to his residence in village Samrona. When he reached near the grocery shop of Vijay Narayan Chaurasia the Appellant and co-accused demanded the reason for abusing them. The injured denied having ever abused them. At this the co-accused exhorted the Appellant to kill him and the Appellant took out the country made pistol and placing it at the abdomen of injured opened fire. On hearing the sound of fire the witnesses reached there and tried to overpower the Appellant and co-accused but they managed their escape showing country-made pistols and threatening the witnesses. The injured was taken to the District Hospital Gorakhpur from where he was referred to the Medical College. The first informant Varun Kumar (P.W. 1) got scribed the report of the incident (Ext. Ka-1) from Ajay Kumar and laid it at P.S. Jhagha on 9.2.2003 at 9.20 a.m. On the basis of written report chick F.I.R. (Ext. Ka-10) was prepared by C.P. Kuber Ram (P.W. 9) and crime was registered in the G.D. at serial No. 19 at 9.20 a.m. on 9.2.2003 (Ext. Ka-11).

The injured was medically examined on 9.2.2003 at 9 a.m. by Dr. S.K. Srivastava (P.W. 10). Two lacerated wounds 3 cm. x 2 cm. x depth under observation over abdomen with tattooing and blackening around the wound and another. 2 cm. x 1 cm. x depth under observation over right side of abdomen were noticed as per injury report (Ext. Ka-13). The injuries were caused by some firearm and were kept under observation. The injured was referred to Gandhi Memorial and Associated Hospitals, Lucknow and was admitted there on 9.2.2003. He was attended by Dr. Dhiraj Raj (P.W. 7), then posted as Junior Resident-I, in the department of surgery at G.M. and Associated Hospitals, Lucknow. The injury report (Ext. Ka-2) was prepared on 11.4.2003 by Dr. Dhiraj Raj under the instruction of Dr. K.K. Singh. On 9.2.2003, the statement of injured Harihar Prasad (Ext. Ka-3) was recorded by Dr. Dhiraj Raj. The bed head ticket of injured (Ext. Ka-4) was produced by the doctor at the trial. The injured was discharged from the hospital on his request on 24.3.2003.

The case was investigated by Rajendra Pratap Singh Yadav (P.W. 8) then posted as incharge police outpost Barahi. He interrogated the witnesses and injured. The police custody remand of Appellant was taken and recovery of country-made pistol. 315 bore, one empty cartridge. 315 bore and a live cartridge. 315 bore was made from the bushes situated near Gura river in pursuance of disclosure statement of Appellant. The recovery memo (Ext. Ka-6) was prepared at the spot. The recovered weapon and cartridges were sealed. After completion of investigation the Investigating Officer submitted the charge-sheet (Ext. Ka-8) after taking sanction (Ext. Ka-9) for prosecution from District Magistrate for the offence u/s 25 of the Arms Act.

The Appellant was committed to the Court of Sessions by the order dated 20.2.2004, passed by the A.C.J.M. Court No. 14, Gorakhpur. The Appellant and two others were charged for the offences under Sections 307/34 and 504, I.P.C. The Appellant was separately charged for the offence u/s 3/25, Arms Act. The Appellant pleaded not guilty and claimed to be tried.

At the trial the prosecution examined Varun Kumar (P.W. 1), Vijay Narayan Chaurasiya (P.W. 2), Akalu (P.W. 3) as witnesses of fact. The witnesses (P.W. 2 and P.W. 3) having not supported the prosecution case were declared hostile. S.I. Shyam Singh (P.W. 6), Jagar Nath (P.W. 4) and Sidheshwar Nath Mishra (P.W. 5) were witnesses of recovery of country made pistol and cartridges. The public witnesses (P.W. 4 and P.W. 5) having not supported the factum of recovery they were declared hostile. Dr. Dhiraj Raj (P.W. 7) was examined to prove the injury report, statement of injured and bed head ticket. The injured was initially examined by Dr. S.K. Srivastava.

The Appellant in his statement u/s 313, Code of Criminal Procedure denied the prosecution allegations in its entirety and stated that he was a physically challenged person suffering disability of 70% in left leg.

The trial Court placing implicit reliance on the testimony of witness (P.W. 1) and statement of injured (Ext. Ka-3) recorded the finding of conviction.

Heard Shri M.P. Yadav, learned Counsel for the Appellant, learned A.G.A. for the State and have waded through the trial Court record.

The finding of conviction has been assailed by the learned Counsel for the Appellant on the grounds inter alia: (i) the statement (Ext. Ka-3) of the victim is not admissible u/s 32(1) of the Evidence Act as the cause of death is not under consideration; (ii) Varun Kumar (P.W. 1), the first informant having reached at the spot after hearing the sound of shot of fire, he was not an eye-witness; (iii) there was no motive for commission of offence; (iv) the Appellant is a disabled person aged 34 years.

The first and foremost question for consideration is about the evidenciary value of the statement of injured (Ext. Ka-3) recorded by Dr. Dhiraj Raj (P.W. 7) then working as Junior Resident-I in the Surgery Department of K.G.M.U., Lucknow. The incident took place on 9.2.2003 at 7.45 a.m. The injured Harihar Prasad was rushed to the District Hospital Gorakhpur and was medically examined at 9 a.m. on 9.2.2003 by Dr. S.K. Srivastava (P.W. 10). The injured was referred to Gandhi Memorial and Associated Hospitals, Lucknow and was admitted there on 9.2.2003 at 10.30 p.m. The injured was discharged from the hospital on his request on 24.3.2003. He died on 11.6.2003. There is no evidence as to the cause of his death. The injured was medically examined at G.M. and Associated Hospitals, Lucknow on 9.2.2003 by Dr. Dhiraj Raj. According to the medical report (Ext. Ka-2) firearm wound of entry 0.75 cm. x 0.75 cm. at the junction of upper 1/3 and lower 2/3 of line joining sternum and umblicus with exit wound 0.5 cm. x 0.5 cm. at about 6 cm. at highest point of iliac crest was found. The injured was operated on 9.2.2003. Soon before surgery the statement of injured (Ext. Ka-3) was recorded by Dr. Dhiraj Raj (P.W. 7) at 10.30 p.m. on 9.2.2003 wherein he stated that ''today in the morning at about 8 a.m. he was coming from his field. There has been an altercation with Ram Pravesh who opened fire at him by placing the country-made pistol.'' The statement of injured was proved by the witness Dr. Dhiraj Raj (P.W. 7). The injured having died on 11.6.2003 he could not be examined at the trial. u/s 32(1) of the Evidence Act, the statement made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death, in cases in which the cause of that person''s death comes into question is a relevant fact. The statement made by a person as to the cause of his death or as to any circumstances resulting in his death becomes relevant in a case where the cause of death of that person comes into question. In the instant case, the cause of death or the circumstances resulting in death of injured Harihar Prasad not being under consideration before this Court the statement (Ext. Ka-3) is not a relevant fact u/s 32(1) of the Evidence Act.

Section 6 of the Evidence Act makes facts forming part of same transaction and the statement of injured or accused or by-standers at the beating or so shortly before or after it as to form part of the same transaction a relevant fact. The statement made by the injured Harihar Prasad shortly after sustaining injuries is admissible in evidence u/s 6 of the Evidence Act. Dr. Dhiraj Raj (P.W. 7) has categorically stated that he had recorded the statement of Harihar Prasad on 9.2.2003 and at that time he was in a fit mental condition. According to him he recorded what was spoken by the injured. The thumb impression of the injured was affixed after the statement was read over to him. In the cross-examination the witness stated that the statement (Ext. Ka-3) was recorded by him before the operation. This part of the testimony of the witness remained unshaken in the cross-examination. The statement made by the injured the same day before the operation being admissible u/s 6 of the Evidence Act, the trial Court was perfectly justified in accepting the statement of injured (Ext. Ka-3) and relying on it as a credible piece of evidence.

Besides the statement of the injured there is testimony of witness Varun Kumar (P.W. 1) who deposed that on hearing the sound of fire he alongwith villagers reached at the spot and tried to capture the accused who fled away showing country made pistol and threatening to kill them. The witness Vijay Narain Chaurasiya (P.W. 2) who turned hostile supported the prosecution on the point that Harihar Prasad sustained firearm injury and that the accused Ram Pravesh alias Pakori resided in his village with his father''s sister. The learned Counsel for the Appellant submitted that there is omission in the first information report and statement of Varun Kumar (P.W. 1) recorded u/s 161, Code of Criminal Procedure about his reaching the spot after hearing the sound of fire. The witness for the first time in the deposition at the trial stated having reached the spot after hearing the sound of fire his testimony is to be discarded. In the first information report the fact that the witnesses and many others reached the spot on hearing the outcries and sound of fire and tried to capture the accused Pakori Kahar finds mentioned. Varun Kumar (P.W. 1) has not stated having seen the Appellant opening fire at his father. In case he had to make an improvement in his testimony he would not have stated having seen the Appellant running away from the spot. He would have easily introduced the fact of his presence at the time the shot was fired at his father. For these reasons the trial Court committed no illegality by relying on the testimony of Varun Kumar (P.W. 1).

In view of the foregoing discussion the finding of conviction recorded by the trial Court does not suffer from any infirmity or drawback to warrant interference.

The learned Counsel for the Appellant submitted that incident having taken place all of a sudden in a heat of moment over a small verbal dual and there being no intention to cause death the sentence of ten years R.I. is too harsh. It was argued that Appellant is a disabled man aged 34 years. The learned Counsel relied on the Apex Court decision in Ram Kumar Vs. State (NCT) of Delhi, where the accused after chasing and firing with country-made pistol had injured the victim the sentence of ten years R.I. was reduced to seven years.

There was no previous enmity between the Appellant and injured. There was a small acrimonious exchange of words. The Appellant in a heated moment opened fire at the injured. The Appellant is a physically challenged person. He is in jail for the last four years. The Appellant had no blameworthy past. Keeping in view these facts the reduction of sentence of ten years R.I. to five years R.I. will meet the ends of justice.

In view of the foregoing discussion partly allowing the appeal the conviction of Appellant Ram Pravesh alias Pakori is maintained and sentence awarded is modified and reduced to five years R.I. The sentence of fine imposed is affirmed.

Certify the judgment to the lower Court within a week. The original record of the case be transmitted to the Court below immediately. The compliance shall be reported by the Additional Sessions Judge/F.T.C. No. 3, Gorakhpur within four weeks from the date of receiving the copy of this order.