Vijendra vs State of Uttarakhand

Nirmal Yadav, J.—Present appeal is preferred against the judgment and order dated 20.09.2005 passed by Additional Sessions Judge/Second FTC, Hardwar in Sessions Trial No. 284 of 2002 and Sessions Trial No. 285 of 2002. In Sessions Trial No. 284 of 2002, accused Vijendra was convicted and sentenced to undergo life imprisonment u/s 302 Indian Penal Code (for short "IPC") and to pay a fine of Rs. 5000/-. In default of payment of fine, he has been ordered to undergo further six months rigorous imprisonment. In Sessions Trial No. 285 of 2002, accused Vijendra was also convicted and sentenced to undergo two-year rigorous imprisonment u/s 25 of Arms Act and to pay a fine of Rs. 2000/-. In default of payment of fine, he has been ordered to undergo two-month rigorous imprisonment.

The prosecution case, in brief, is that on 26.03.2002 complainant PW1 Shyam Lal along with his nephew Rajesh (deceased) were standing at Bus Stand, Laksar at about 3.00 p.m. Pradeep, son of Narendra, who was having scooter spare parts shop at Haridwar Road, Laksar came to Rajesh and asked him to accompany him to clear his accounts. Rajesh accompanied him. Complainant Shyam Lal also followed them. When Rajesh reached the shop of Pradeep, accused Vijendra, who was already present there, started abusing Rajesh and Vijendra stated that let his accounts be cleared. At that very moment, Vijendra took out one country made pistol from his waist and fired a shot towards Rajesh. At that time, PW2 Madan Lal and PW3 Dheer Singh were also present at the shop and had seen the occurrence. PW1 Shyam Lal immediately went to the police station Laksar and submitted complaint exhibit Ka 1 before SHO, Laksar on the basis of which chick First Information Report exhibit Ka 3 was recorded at 3.40 p.m. The inquest report exhibit Ka 7 was prepared by PW8 SI Jawahar Singh Rathor. Dead body was made into sealed parcel and handed over to Constable Pramod Kumar and Constable Sudesh Kumar along with other papers for postmortem. On 26.03.2002 accused Vijendra surrendered himself before police and produced a 315 bore country made pistol, in whose barrel a cartridge was lying entrapped. He stated before police that he had fired at Rajesh with the said weapon. Accused Vijendra was taken into custody on the same day at 09.10 p.m. Country made pistol and empty cartridges were taken into possession vide memo exhibit Ka 5. Chick First Information Report u/s 25 of the Arms Act was registered by PW11 Ram Chandra and investigation of the case was conducted by PW 10 Assistant Sub Inspector Dinesh Kumar. PW 10 Assistant Sub Inspector Dinesh Kumar obtained permission from the District Magistrate for prosecution of the accused u/s 25 of the Arms Act which is exhibit Ka 14. PW11 Ram Chandra had prepared memo of country made pistol as material exhibit 7 and empty cartridge as material exhibit 8. The postmortem of the dead body was conducted by PW5 Dr. O.P. Sharma and postmortem report is exhibit Ka 2.

On completion of the investigation, charge-sheet/final report was submitted before the court against accused Vijendra. On the basis of evidence on record, accused Vijendra was charged u/s 302 IPC and 25 of the Arms Act, to which he pleaded not guilty and claimed trial.

The prosecution in order to prove its case produced as many as twelve witnesses. PW1 Shyam Lal, PW2 Madan Lal and PW3 Dheer Singh are the eye witnesses, but PW2 Madan Lal and PW3 Dheer Singh were declared to be hostile. PW4 Vinod Kumar was the witness to the inquest report. PW5 Dr. O.P. Sharma, conducted the autopsy on the dead body of Rajesh. PW6 Constable Bramhraj Singh recorded the First Information Report u/s 302 IPC and had also prepared the General Diary report No. 26 in this respect (exhibit Ka 4). He was also signatory to the recovery memo with regard to the country made pistol and empty cartridge produced by accused Vijendra in the police station which is exhibit Ka 5. On 02.04.2002, the investigation of the case was handed over to PW7 SI Yogendra Pal Singh Bhadoria. He recorded the statement of the witnesses. Inquest report was prepared by PW8 SI Jawahar Singh Rathor. Inquest proceedings were initiated at 4.15 p.m. and finalized at 6.00 p.m. PW9 SI Darmayan Singh was also present at the time of preparation of inquest report. He had received a copy of chick FIR and GD report with regard to the arrest of the accused at the place of occurrence. PW10 ASI Dinesh Kumar had investigated the case u/s 25 of Arms Act against the accused. PW11 Constable Ram Chandra recorded the FIR exhibit Ka16 with regard to case registered u/s 25 of the Arms Act. He had also prepared memo of country made pistol as material exhibit 7 and empty cartridge as material exhibit 8. PW12 Satya Veer Singh is the independent witness in whose presence inquest report was prepared.

Accused when examined u/s 313 Cr.P.C. denied the allegations put to him by the prosecution and pleaded false implication.

We have heard Mr. Rajendra Singh, learned Counsel for the appellant and Mr. S.S. Adhikari, learned AGA for the State of Uttarakhand/respondent.

Learned defence Counsel argued that FIR, inquest report and other police papers are ante-timed. According to him, FIR was not in existence at the time of preparation of inquest report as chick FIR and GD were not sent along with other papers to the Medical Officer when the dead body was sent for autopsy. Learned defence Counsel referred to the cross examination of PW9 Darmayan Singh where he stated that name of accused is not endorsed on the inquest report, police form No. 13, sample of seal, site plan and letter to CMO.

Learned Counsel further argued that PW2 Madan Pal and PW3 Dheer Singh, the cousin of deceased Rajesh, have not supported the prosecution case. They have denied that occurrence took place in their presence. It is argued that the only evidence supporting the prosecution case is the testimony of PW1 Shyam Lal, who is the real uncle of deceased Rajesh. PW1 Shyam Lal being interested and related witness, the conviction cannot be based on his sole testimony. Learned Counsel for the appellant further attacked the testimony of PW1 Shyam Lal. He submitted that presence of PW1 Shyam Lal at the place of occurrence appears to be doubtful, as he is not one of the panch witnesses of the inquest report. He further submitted that as per statement of PW8 Jawahar Singh Rathor, he was asked by PW9 Darmayan Singh through wireless set to give information regarding death of Rajesh to his family members.

Learned Counsel for the appellant referred to the statement of PW2 Madan Lal, where he has stated that he along with PW1 Shyam Lal and police reached the spot from village Raisi. Learned Counsel for the appellant argued that there is inordinate delay in recording the statement of the witnesses u/s 161 Cr.P.C. It is pointed out that statement of PW2 Madan Pal and PW3 Dheer Singh was recorded on 23.05.2009 and even the statement of PW1 Shyam Lal was recorded after two months of the incident.

According to the learned Counsel for the appellant, recovery of weapon is also doubtful. It is highly impossible that the accused would himself surrender before the police and produce the weapon of offence. It is further submitted that the weapon of offence and empty cartridge, allegedly produced by the accused, were not sent to Forensic Science Laboratory or to Ballistic expert for examination.

Learned Counsel for the appellant argued that copy of alleged memo of recovery of weapon and the empty cartridge was given to the accused but from perusal of the exhibit Ka 17 (fard jama talashi) it appears that nothing was found on the person of the accused while he was taken into police custody.

On the other hand, learned AGA submitted that prosecution case is fully supported by the testimony of PW1 Shyam Lal. Despite being strenuously cross examined nothing could be elicited which would demolish the prosecution case. His presence at the place of occurrence has been proved beyond doubt. Even PW2 Madan Pal, who has been declared to be hostile, has admitted in the cross examination that when he reached the spot PW1 Shyam Lal was present there. He has rather further specified that when he reached the spot at 5.00 p.m., PW1 Shyam Lal already there.

Learned AGA further submitted that statement of PW1 Shyam Lal is duly supported by the recovery of weapon of offence i.e. country made pistol and empty cartridge produced by accused Vijendra himself before PW11 Ram Chandra and PW6 Bramhraj Singh. Medical evidence fully corroborates the ocular testimony of PW1 Shyam Lal. As per opinion of doctor, injury No. 1 was sufficient to cause death of deceased Rajesh and injury could possibly be caused at 3.00 p.m. He further argued that trial court has rightly based conviction of the accused by relying on the sole testimony of PW1 Shyam Lal, which is wholly reliable, consistent and worthy of credence.

On careful consideration of the rival submissions of learned Counsel for the parties and securitizing the entire evidence on record, we find that prosecution case is mainly based on the testimony of PW1 Shyam Lal. According to PW1 Shyam Lal, he started from his village at about 2.00 p.m. and reached Laksar Bus Stand around 2.30 p.m. where he met his nephew Rajesh, who was working at Laksar Bus Stand as agent of Buses. Learned defence Counsel however pointed out that it was not possible for the complainant to reach the place of occurrence within half an hour as PW2 Madan Pal, who is also resident of the same village Raisi stated that it took 1 � hours to reach Laksar Bus Stand from his village as bus stops at many places on the way. This argument of the learned Counsel is not at all acceptable in view of the statement of PW8 Jawahar Singh Rathor, who in his cross examination has stated that village Raisi is about 7-8 kms. from the place of occurrence. Thus, this distance of 7-8 kms can easily be covered in half an hour by bus and therefore, presence of PW1 Shyam Lal at Laksar Bus Stand at 2.30 p.m. could very well be possible.

The mere fact that PW1 Shyam Lal is related to deceased Rajesh would not create serious doubt on the prosecution case. Of course, the court has to scrutinize such testimony with care and caution. We have been taken through the testimony of PW1 Shyam Lal and we find his testimony to be consistent and reliable and no material contradiction has been pointed out by the learned Counsel for the appellant.

Learned Counsel for the appellant urged that there is material improvement in the statements of PW1 Shyam Lal. In the FIR he stated that around 3.00 p.m. Pradeep, son of Narendra, who was running scooter spare parts shop at Laksar came to Rajesh and asked to accompany him for clearing his accounts, however, while appearing before the court he has totally changed the version stating that accused Vijendra had come to Rajesh at Laksar Bus Stand and asked Rajesh to accompany him to get his accounts cleared. There is no dispute about the above facts but PW1 Shyam Lal has made clarification in his statement that he did not scribe the complaint himself but he got the complaint scribed by his son Jitendra at the place of occurrence itself. Many persons were collected at the place of occurrence and there was lot of hue and cry at the spot, thus, his son might have mentioned the name of Pradeep instead of accused Vijendra inadvertently. Learned AGA also pointed that PW7 Yogendra Pal Singh Bhadoria in his cross examination stated that complainant has made statement before him that his son Jitendra might have mentioned the name of Pradeep in the complaint though he had not mentioned his name. The Investigating Officer also stated that Jitendra had disclosed to him that many persons had collected at the spot and there was lot of hue and cry and in such circumstances, he could not understand what exactly was stated by his father about Pradeep and he, therefore, inadvertently had mentioned name of Pradeep instead of Virendra. Moreover, PW2 Madan Pal as well as PW3 Dheer Singh had submitted affidavits before the Investigating Officer that Pradeep was not present at the place of occurrence and it was accused Vijendra who alone was present at the time of occurrence, therefore, Pradeep was not chargesheeted in the present case.

PW5 Dr. O.P. Sharma conducted the postmortem on the dead body of deceased and found following injuries:

i. Fire arm circular wound of entry having 1 cm diameter. Blackening around the wound in the area of 3.0 cm X 1.5 cm is present. Wound was on the left side of the chest about 6.5 cm from the left nipple. Direction of the wound was from front to backward. Margins were inverted.

ii. Abrasions 6.0 cm X 4.0 cm on the left side of forehead.

iii. Abraded contusion 4.0 cm X 2.0 cm on the front of the nose.

On further exploration of the wound, fourth rib on the front side was found fractured. Upper part of left lung was lacerated. Bullet passed through and through from left side and right ventricle of the heart. Right lung was lacerated from middle and bullet had also passed through liver and finally it got embedded. Bullet was recovered from right lung which was taken out and handed over to the police after making the same into a sealed parcel. 1.5 litre blood was found in both the lungs and 750 ml blood was found in the abdominal cavity. 400 gm of semi digested food was found in the stomach. Small intestine contained digested food and gases. Faecal matter was present in the large intestine. The liver was lacerated and pale. As per opinion of doctor, death might have occurred about half to one day prior to the post mortem, thus the death could possibly occur on 26.03.2002 around 3.00 p.m. Cause of death was due to haemorrhage on account of ante mortem injuries. Injury No. 1 was sufficient to cause death in the ordinary course. As per prosecution, only one fire arm injury was caused by accused Vijendra and injury was caused from close range, therefore, blackening was present around the wound. PW5 Dr. O.P. Sharma, in the cross examination stated that injury No. 1 could have been caused by fire arm from a distance of one feet. A perusal of the site plan exhibit Ka 12 shows that accused and the deceased were very close to each other when occurrence took place.

Prosecution case further finds supports from the recovery of country made pistol and the empty cartridge which was produced by accused when he surrendered himself in the police station on the date of occurrence i.e. on 26.03.2002. Learned Counsel for the appellant, of course, argued that this does not appear to be probable that accused would himself produced weapon of the offence and surrender himself in the police station. However, it does not appear to be improbable, as conduct of an individual depends on his mental faculty. Since it was day time when occurrence took place and occurrence was witnessed by many persons, it was quite possible that accused might have thought it proper to surrender himself before the police instead of absconding. The official witness namely PW11 Ram Chandra and PW6 Brahm Raj, who are witnesses of recovery of weapon of offence and empty cartridge, had no enmity against the accused.

It has come in the testimony of constable PW6 Bhram Raj and PW11 Ram Chandra that PW11 Ram Chandra was on night duty on 26.03.2002. After taking into possession the country made pistol and empty cartridge handed over by the accused, GD Report was entered in this respect and signature of accused Vijendra were also obtained on the memo for taking the articles in possession, which is exhibit Ka 5. Accused has not denied his signature on exhibit Ka 5. Even no suggestion has been given to PW11 Ram Chandra that signature of the accused were not obtained on the memo exhibit Ka5. It is of course argued by the learned defence Counsel that copy of the report was not given to the accused, otherwise this fact would have been mentioned in memo of Jama Talashi, where it is mentioned that nothing was recovered from the accused in the memo of Jama Talashi which was prepared PW11 Ram Chandra. It may be mentioned that in the memo of Jama Talashi it is correctly mentioned that nothing was recovered from the accused, actually, the search on his person was with regard to some articles like money or his personal belongings. Moreover, no suggestion has been given to PW 11 Ram Chandra as to whether copy of exhibit Ka 5 was not given to the accused immediately after his arrest or recovery of weapon of offence and empty cartridge. Moreover, accused was produced before the Magistrate for remand proceedings on the next day of the occurrence i.e. on 27.03.2002, he could have disclosed before the Magistrate that he himself did not surrender before the police and did not hand over the weapon of offence and empty cartridge to the police. He could have also disclosed as to how and when he was arrested and in what manner recovery of weapon of offence and empty cartridge was made. Even in his statement made u/s 313 Cr.P.C. he did not clarify with regard to his arrest and recovery of weapon of offence and empty cartridge. He had sufficient opportunity to disclose about place of his arrest and the recovery of weapon of offence. In such circumstances, the fact that accused himself surrendered before police and produced the weapon of offence and empty cartridge as put forward by the prosecution cannot be disbelieved.

Learned Counsel for the appellant argued that prosecution has failed to send the weapon of offence and empty cartridge to the Forensic Science Laboratory or to the Ballistic Expert for examination and the Investigating Officer did not even lift the blood stained earth from the alleged place of occurrence. Of course, this appears to be serious lapse on the part of the Investigating Officer, however, prosecution has tried to explain about not lifting the blood stained earth saying that place of occurrence was common passage and there was lot of crowd at the spot, therefore, blood stained earth could not be lifted.

The above explanation of the prosecution does not appear to be plausible as PW5 Dr. O.P. Sharma stated that since dead body was lying on earth for some time, there must be lot of bleeding from the body of the deceased. However, we feel that mere lapse on the part of the Investigating Officer cannot demolish the prosecution case altogether and no benefit can be given to the accused on this account alone, if we find that prosecution case is otherwise proved from the ocular evidence and other corroborative circumstances as discussed above. The testimony of PW1 Shyam Lal has been proved to be reliable, cogent and consistent which is duly supported by medical evidence and the recovery of weapon of offence on the same day at the instance of accused himself. There is nothing on record to prove as to why PW1 Shyam Lal would falsely implicate accused Vijendra. Admittedly, accused was working on the scooter auto spare parts shop of Pradeep and occurrence had taken place during the broad day light in front of the shop of Pradeep. This fact is proved by the statement of independent witness PW4 Vinod Kumar and PW8 Jawahar Lal, who have stated that panchyatnama was prepared in front of shop of Pradeep. PW1 Shyam Lal has also proved the motive for the commission of offence. He has stated that occurrence took place due to some money transaction and accused had stated before causing injury that he will settle the accounts of the deceased on that day. Even if the motive is not proved to be very strong it would not cast any shadow on the reliable, consistent and cogent ocular testimony of PW1 Shyam Lal, who had no scores to settle with the accused.

With regard to the argument raised by the learned defence Counsel that there is inordinate delay in recording the statement of PW1 Shyam Lal, PW2 Madan Lal and PW3 Dheer Singh u/s 161 Cr.P.C. It may be mentioned that PW2 Madan Lal and PW3 Dheer Singh have been declared to be hostile, while PW1 Shyam Lal is the author of the first information report. Since PW1 Shyam Lal had already made statement with regard to occurrence vide complaint exhibit Ka 1, any delay in recording his statement u/s 161 Cr.P.C. would not make any impact on the prosecution case. Moreover, in the present case, there appears to be no embellishment or embroidery having been made by PW1 Shyam Lal. It has already come in the evidence, as discussed above, initially in the first information report name of Pradeep was mentioned inadvertently by the scribe Jitendra but later on it was clarified in the affidavit that Pradeep had no role and it was accused Vijendra only who had come at Laksar Bus Stand and asked Rajesh to accompany him for getting his accounts settled, thus, even if there is any delay in recording the statement, it does not affect the prosecution case.

The facts of the authority cited by the learned Counsel for the defence are not applicable to the facts of the present case. In the case of Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors. reported in 2004 SCC (Cri.) 2032 the Investigating Officer had not questioned the eye witnesses, son and widow of the deceased though they had been projected as eye witnesses and their statements were, for the first time, recorded much after the incident. In the present case, PW1 Shyam Lal is the first informant and reported the matter immediately after the occurrence, therefore, even if his statement u/s 161 Cr.P.C. was recorded after two months would not cause any substantial impact on the prosecution case.

From the above discussion, we do not find any ground to interfere with the findings recorded by the trial court, as prosecution has been able to prove its case beyond reasonable shadow of doubt.

Accordingly, the appeal is dismissed. Judgment and order passed by the trial court is affirmed.

Appellant is in jail. He shall serve out the sentence as ordered by the trial court.

Let the lower court record be sent back.