Shekhar Joshi vs State of Uttarakhand

Servesh Kumar Gupta, J.—Both the aforecaptioned appeals, filed at the behest of same appellant, are being decided by this common judgment and order as the challenge made in both these appeals, though pertain to different crimes, is to the same judgment and order dated 8.8.2012/13.8.2012, rendered by the Sessions Judge, Nainital. By the judgment impugned, learned Sessions Judge decided the Sessions Trial Nos. 32/2009 and 33/2009 together. In Sessions Trial No. 32/2009, two accused persons, namely, Shekhar Joshi and Gopal Singh @ Guddu were tried for the offences under sections 302, 323, 504 and 506 IPC, while in Sessions Trial No. 33/2009 accused appellant Shekhar Joshi was tried for the offence u/s 25 of the Arms Act. At the end of the trial, accused Gopal Singh @ Guddu was acquitted of all the charges levelled against him, whereas accused appellant Shekhar Joshi was found guilty of the offences u/s 302 IPC and section 25 of the Arms Act and, he was appropriately sentenced to. However, Shekhar Joshi was acquitted from the charge of offences under sections 323, 504 and 506 IPC. Prosecution story, as has been divulged in the First Information Report lodged by Balvinder Singh (father of the deceased), is that on 29.8.2008 at about 5 P.M., his son Paramjeet Singh along with his companion Sukhveer, on one motorcycle, and Jasvinder Singh and Annu Bhojak, on another motorcycle, were going from Haldwani to Gaulapar. When all these four persons reached at a place known as Poorvi Khera, accused appellant Shekhar Joshi and his cohorts, which were 3-4 in number, stopped their bikes and began to abuse. It soon turned into scuffling. Meanwhile, Shekhar Joshi opened fire resulting into the death of Paramjeet Singh @ Pammi at the spot, while Annu Bhojak became injured. Shekhar Joshi and his companions escaped from the spot after threatening the companions of the deceased. With the aforesaid averments FIR Ex. Ka-7 was lodged at 9.30 PM on the date of incident itself with Police Station Kathgodam (District Nainital), which is situated at a distance four kilometers from the place of occurrence. Chick FIR thereof is Ex. Ka-2.

Main accused Shekhar Joshi, who was on bail in another crime, requested the Court concerned for cancellation of his bail bond in that crime and went to the jail. The police reached at the spot, but by that time it was dark. So, the inquest report could not be prepared immediately, and the same was prepared on 30.8.2008 between 8 A.M. to 9.54 A.M. This is Ex. Ka-7A. As per the inquest report, Paramjeet Singh @ Pammi died on account of firearm injuries. Autopsy on the person of the deceased was conducted on 30.8.2008 at 12 O''clock in the noon in the Government Hospital, Haldwani. In the opinion of the doctor, the deceased died as a result of shock and haemorrhage due to ante mortem gun shot injuries. Following ante mortem injuries, as recorded in the post-mortem report Ex. Ka-1, were found on the body of the deceased Paramjeet Singh @ Pammi, a youth of 22 years:

(1) Lacerated wound over left flank of abdomen, 11 c.m. from umbilicus and 9.5 c.m. from left nipple, measuring 9 x 4 c.m. x cavity deep, irregular edges with blackening of margins. On exploration, spleen is ruptured, 1.5 litres of blood present in peritoneal cavity, there are multiple perforations, bowel protruding out from wound. In transverse descending loaf of large bowel, one cork like structure and three metallic pallets recovered and sealed.

(2) Multiple lacerated wound over an area of 12 x 10 c.m. in between left anterior axillary and posterior axillary line of left side chest with blackening around each, 18 (eighteen) metallic pallets recovered from anterior chest wall, on exploration fractured 3rd, 4th, 5th and 6th ribs of left side found, left lung is lacerated and thoracic cavity is filled with blood, 4 metallic pallets recovered from left thoracic cavity.

(3) Seven small lacerated wound over an area of 10 x 8 c.m., over dorsum of left hand, seven metallic pallets recovered from subcutaneous tissue and sealed.

(4) Lacerated wound over right hand measuring 12 x 10 c.m., on dorsum x bone deep, on exploration fractured I, II and III metacarpal bones and fractured ligaments found.

When the investigation proceeded, the Investigating Officer found that the main accused had surrendered before the concerned Court of Magistrate on 30.8.2008 in another case after getting his bail bond cancelled. Then he applied to the concerned Magistrate for police remand of the accused. The same was granted on 17.9.2008 for 24 hours with the object of recovery of the weapon used in the crime, as the accused in his statement u/s 161 Cr.P.C. had disclosed about the place where he had hidden the weapon used in the commission of crime. The Investigation Officer took the accused at the place where he had hidden the said weapon and, at the instance of the accused, recovery of one pistol of 12 bore was made on 18.9.2008 at 7.35 A.M. The recovery memo is Ex. Ka-6. On this, a separate case under the Arms Act was registered against the accused appellant. At the time of recovery, case of used cartridge was found inside the barrel of the pistol. Recovered country made pistol and the case of used cartridge were sent for the forensic analysis, the reports thereof is Ex. Ka-20. The same will be discussed hereinafter in the body of the judgment.

Investigation culminated in the submission of the charge-sheets against the accused Shekhar Joshi and Gopal Singh @ Guddu for the offences indicated above. These charge-sheets are Ex. Ka-16 and Ka-19. The charges were, accordingly, levelled against both the accused persons.

Prosecution, in order to prove its case, examined as many as ten witnesses. PW 1 Annu Bhojak is the injured eye-witness, who turned hostile; PW 2 Jasvinder Singh and PW 3 Sukhveer Singh are also the eye-witness; PW 4 is Dr. B.N. Singh, who conducted the postmortem examination; PW 5 is Constable Mohan Singh, who registered the crime under sections 302, 323, 504 and 506 IPC on the basis of the report of the complainant; PW 6 is Head Moharrir Dan Singh, who registered the crime u/s 25 of the Arms Act on the basis of the recovery of weapon; PW 7 is Constable Narendra Yadav, witness of recovery of weapon; PW 8 is complainant Balvinder Singh, father of the deceased; PW 9 is Dinesh Kumar Rana, who had received the information about the incident on the telephone and conducted the proceedings of inquest and sent the dead body for the post mortem; and PW 10 is the Investigation Officer Jagdish Singh Thakariyal, the then Station Officer, P.S. Kathgodam.

After prosecution evidence, statements of the accused persons were recorded u/s 313 Cr.P.C. They simplicitor denied their complicity and alleged that they have been falsely implicated on account of village enmity.

We have heard learned Counsel for the appellant as well as learned Counsel for the State and have perused the evidence available on record and the impugned judgment and order as well.

Learned Counsel for the accused appellant argued that PW 1 Annu Bhojak, the alleged injured eye-witness of the prosecution, has been declared hostile inasmuch as he has not supported the prosecution version as to in what manner Paramjeet @ Pammi was murdered. However, we gather from his testimony that he has accepted his acquaintance with the deceased and has ratified that he was murdered on the date 29th, a year before his deposition on 25.6.2009, yet he has denied his presence at the time of incident.

Contending the above argument of defence Counsel, prosecution has placed reliance upon the evidence of other eye-witness account, which are of PW 2 Jasvinder Singh and PW 3 Sukhveer Singh. PW 2 Jasvinder Singh has supported the prosecution version and has stated that on 29.8.2008, he was going on his motorcycle from Haldwani to his home. In the way near Tikonia intersection, he met Annu Bhojak, who joined him as the pillion rider. On proceeding a little ahead, he met Paramjeet Singh, who was going to his home on his own motorcycle. Further, they came across to Sukhveer Singh, who became the pillion rider on the motorcycle of the deceased. It was about 5 PM. No sooner they reached at the place known as Poorvi Khera, accused Shekhar Joshi and Gopal Singh, who were going on a motorcycle, met them. Shekhar Joshi started hurling abuses on Paramjeet Singh. Annu Bhojak got down from the motorcycle and asked Shekhar Joshi not to hurl abuses. Shekhar Joshi gave a blow of baton on the hand of Annu Bhojak, who suffered hidden injury. Meanwhile, the hot exchange converted into the scuffle between Parmjeet Singh and Sekhar Joshi. During the course of that scuffle, Shekhar Joshi fell down on the earth. Thereafter, while lying on the earth itself, Shekhar Joshi took out a country made pistol from his waist and opened fire upon Paramjeet Singh. This gunshot hit the right hand of Paramjeet, which made him to segregate himself from the duel. Shekhar Joshi loaded his pistol again and opened fire second time, which hit the abdomen of Paramjeet, who fell down and died at the spot. After committing this incident, Shekhar Joshi along with his companion fled away from the spot. This witness and Jasvinder Singh unsuccessfully tried to inform the family members of Paramjeet Singh. Then, he informed another person Baljeet Singh, who in turn passed on the information to the father of deceased Balvinder Singh, who during the course of time reached at the spot. Police was also informed telephonically. On getting this information, a Sub Inspector PW 9 Dinesh Kumar along with two constables reached there. However, by that time it was quite dark. So, after leaving the dead body under the care of the constables, he returned to the police station and on the next day morning, the people and the police personnel again assembled there and thereafter inquest report was prepared, which is Ex. Ka-7A. By that time, FIR was already lodged just within four and half hours of the incident.

PW 3 is Sukhveer Singh, who was present at the spot. He was travelling as a pillion rider on the motorcycle of the deceased. He has also corroborated the statement in the same manner as has been deposed by PW 2 Jasvinder Singh.

It has been argued that three months prior to his deposition, this witness PW 3 had moved an affidavit in the Court expressing his unawareness about the incident. However, we find that moving of such an affidavit has been explained by him in his deposition, as he has stated that he had moved the said application under pressure. During the entire period of three months preceding to his deposition, he continuously pondered over the issue and, on hearing his conscience, he ultimately reached at the conclusion that he shall disclose the truth before the Court. Despite long cross-examination, the credibility of this witness could not be shaken by the defence.

PW 4 is Dr. B.N. Singh, who had conducted the post-mortem examination and has proved the injuries, as reproduced above, found on the person of the deceased. These injuries corroborate the manner in which the gunshots were suffered by the deceased Paramjeet Singh on his hand and abdomen.

PW 5 Mohan Singh is the formal witness. He had recorded the FIR pertaining to crime under sections 302, 323, 504 and 506 IPC in the General Diary of the police station, and has proved the same.

PW 6 is Head Moharrir Daan Singh, who is also a formal witness. He has recorded the Chick FIR Ex. Ka-1, pertaining to crime u/s 25A of the Arms Act after the recovery of the weapon and the cover of used cartridge at the instance of the accused on 18.9.2008. He has proved the same.

PW 7 Constable Narendra Yadav is the witness of recovery of the country made pistol at the instance of the accused Shekhar Joshi on 18.9.2008. He has proved the recovery memo Ex. Ka-6.

PW 8 Balvinder Singh is the father of the deceased. He has deposed that on 29.8.2008, Baljeet Singh and Lakhvinder came to his house at 6.30 P.M. and informed him that his son Paramjeet was being assaulted. Thereafter he went at the spot, where he saw the dead body of his son and he sat near the dead body of his son in a state of utter desperation. The aforenamed witnesses Annu Bhojak, Jasvinder Singh and Sukhveer met him there. They narrated to him the entire incident. Subsequently, he lodged the FIR.

Learned Counsel for the appellant has argued that information of gunshot was not given by Balvinder Singh, it was simply an information of assault. This argument is not acceptable for the reason that Baljeet Singh and Lakhvinder are not the eye-witnesses of the incident. They got the information on phone simply from the pillion rider PW 2 Jasvinder Singh regarding the incident, which he passed on over the phone to Baljeet Singh. So, when this question was not put to PW 2 Jasvidner Singh, then PW 8 Balvidner Singh cannot be blamed for his deposition that he got the information only regarding assault of Paramjeet Singh.

PW 9 is Dinesh Kumar Rana, who, on receiving the information about the incident over the telephone, reached at the spot. On the next day, he completed the proceedings of inquest and sent the dead body for the post-mortem. PW 10 Jagdish Singh Thakariyal is the Investigation Officer, who after completing the investigation submitted the charge-sheets Ex. Ka-16 and Ka-19, and has also proved the same.

The very significant evidence available on the record against the accused appellant is the reports Ex. Ka-20 and Ka-21 of the Forensic Science Laboratory. These reports have been tendered by the prosecution and the same are admissible in view of the provisions contained u/s 293 Cr.P.C. It has been disclosed in the report Ex. Ka-20 of the Forensic Science Laboratory that on chemical examination of the barrel swabs of pistol marked ''A'', firing discharge residues were detected in the barrel of the said pistol. So, it was opined by the ballistic expert that the pistol was fired through. On thorough examination and comparison of individual characteristic marks present on the crime and the test fired cartridge case under the microscopic comparison, it was reported that the 12 bore cartridge case marked ''C-1'' was fired through the pistol marked ''A''.

When the question was put to the accused Shekhar Joshi u/s 313 Cr.P.C., he could not specifically deny the recovery of the country made pistol of 12 bore at his instance, while he was in the police custody. He has given only an evading answer stating about the entire facts and the incident either as wrong or showing his unawareness from each and every fact. So, in view of absence of any specific denial or explanation about the recovery of the weapon at the instance of the accused appellant, coupled with the fact that forensic analysis revealed that fire was made from the recovered weapon and also keeping in view the foregoing discussion of ocular and medical evidence, it is established beyond doubt that the accused appellant Shekhar Joshi committed the murder of deceased Paramjeet Singh in the evening of 29.8.2008 with the same country made pistol and the cartridge, which was recovered at his instance.

As such, we have no hesitation in holding that the prosecution has successfully proved its case and the learned Sessions Judge has rightly convicted the accused appellant. Accordingly, we find no merit in either of the appeals, which are liable to be dismissed. Consequently, we dismiss both these appeals, and affirm the conviction and sentence of the accused appellant Shekhar Joshi awarded to him by the impugned judgment and order dated 8.8.2012/13.8.2012, passed by the Sessions Judge, Nainital in Sessions Trial Nos. 32/2009 and 33/2009. Appellant Shekhar Joshi is already in jail. He is to serve out the remaining period of sentence. LCR along with copy of this judgment and order be sent back to the Court below.