Vinod vs State of U.P.

S.K. Jain, J.—This Criminal Appeal has been filed u/s 374(2) Cr.P.C. against the Judgment and order dated 20.7.2002 passed by learned Additional Sessions Judge, Court No. 8, Bulandhshahar in Sessions Trial No. 128 of 2000 State v. Vinod, u/s 302 I.P.C. relating to P.S. Shikarpur, district Buland Shahar and Sessions Trial No. 129 of 2000 State v. Vinod u/s 25 Arms Act P.S. Shikarpur, District Bulandshahar, whereby the learned Sessions Judge convicted the appellant u/s 302 I.P.C. and for the offence u/s 25 Arms Act and sentenced him to life imprisonment for the offence punishable u/s 302 I.P.C. and rigorous imprisonment for three years and to pay fine of Rs. 2000/- and in default six months R.I. u/s 25 Arms Act. However, it was ordered that both the sentences shall run concurrently.

The facts for the purpose of this case are that about 4 Vfe months before the present occurrence murder of one Hari Bhagwan was committed. A report of that murder was lodged by one Om Prakash, in which deceased Mihi Lal Sharma of this occurrence and one Pradeep were named as accused. Deceased Hari Bhagwan was cousin of appellant Vinod. Rameshwar father of appellant Vinod was a witness in that case against the deceasedof the present occurrence Mihi Lal Sharma. Because of this murder the family members of Hari Bhagwan bore enmity with the family of deceased Mihi Lai. Deceased Mihi Lal at the time of present occurrence was about 75 years of age.

The occurrence in question took place on 24.10.1999. On that day, deceased Mihi Lal Sharma with his is son Kamal Sharma, the first informant of the case, his wife Basanti Devi were gossiping with one Bishambhar in their house. At about 4.30 p.m. the deceased Mihi Lal asked his wife Basanti to prepare some tea. He went out of the house on the ''Rasta'' to urinate. Kamal Sharma and others heard the alarm of the deceased "Bachao". Kamal Sharma ran out of the house and saw that appellant Vinod had caught the hand of his father and his father was trying to release himself and was requesting Vinod to leave him, but the appellant was saying that "Hatya Ka Badla Hatya Hai" fired at Mini Lal from Tamcha and Mini Lal died on the spot.

A written report of this occurrence Ext. Ka-1 was submitted by Kamal Sharma son deceased Mihi Lal at P.S. Shikarpur on the same day at about 6.20 p.m. The place of occurrence, village Jakhaita is at the distance of about seven kilometer from the police station. Head Moharrir Ram Bilas P.W. 4, registered the case in G.D. No. 26 at 6.20 p.m. as per Ext. Ka-4 after preparing the chick FIR Ext. Ka-3. The investigation of this case was taken by S.I. Ghan Shyam Singh PW 5. He recorded the statement of the witnesses. On 25,10.1999 he held the inquest and got prepared the necessary papers for post mortem under his directions by SI Sunil Kumar, inspected the place of occurrence and prepared site plan Ext. Ka-13. On the place of occurrence, he found one empty cartridge of 315 bore and took it into his possession. He also took blood stained and simple earth in possession. He sealed the same in different boxes and prepared its memo Ext. Ka-14 and Ka-15. Thereafter on 30.10.1999 the investigation was taken up by Inspector P.D. Pathak. Appellant Vinod had surrendered before the court and was sent to jail on 1.11.99. He recorded the statement of the appellant in jail and on 4.11.1999 a�d! took the appellant Vinod on police remand. On 5.11.199 on the pointing out of appellant, in presence of Prem Pal, recovered the country made pistol from the sugar cane agricultural field, sealed the recovered country made pistol on the spot and prepared its recovery memo. On the basis of the recovery memo H/M Ram Bilas PW4 wrote a chick FIR Ext. Ka-5 and registered the case u/s 25 Arms Act as per G.D. No. 19 at 10.00 a.m. P.W.8 SI Ram Bilas Verma investigated the case u/s 25 Arms Act registered against appellant and after usual investigation and obtaining sanction for prosecution from the District Magistrate submitted a charge sheet against appellant u/s 25 Arms Act.

The blood stained earth and simple earth were sent for chemical examination. The country made pistol recovered from the pointing out of appellant Ext. Ka-1 along with the used cartridge were sent for chemical examination. The report of the Expert is Ext. Ka-23 and Ext. Ka-24 on the record and as per Ext. Ka-23 the used cartridge was fired from the country made pistol recovered on the pointing out of the appellant.

The autopsy on the dead body of Mihi Lal was conducted by Dr. Avadhesh Kumar in District Hospital, Bulandshahar on 25.10.1999 at 10.00 a.m. The deceased was about 75 years of age and was of average built, rigor mortis was present all over the body. The following ante mortem injuries were found on the person of the deceased:

(1) Gun shot wound of entry � cm x � cm x abdominal cavity deep on left side back middle at T ten 2.5 cm away from the mid spinal line. Margins were inverted, blackening, tattooing was present over the wound, direction was upward to the right.

(2) Gun shot wound of exit 1 cm x 1 cm x chest cavity deep right on the right side part of chest 8 cm medial to left nipple at 5 O''clock posterior margins were everted both the injuries were communicating to each other.

The cause of death was shock and haemorrhage as a result of ante mortem injuries. In the opinion of the doctor these injuries were caused by fire arm and deceased could suffer these injuries on 24.10.99 at 4.30 p.m.

The prosecution in order to prove the charges levelled against the appellant, examined first informant Kamal Sharma son of deceased Mihi Lal as P.W. 1, Bishambar the alleged eye witness of the occurrence as P.W. 2, Dr. Avadhesh Kumar as P.W. 3, H/M Ram Bilas as P.W. 4, the first I.O. Of the case S.I. Ghan Shyam Singh as P.W. 5 (second investigating Officer of the case). Inspector R.D. Pathak as P.W. 6, Prem Pal Singh witness of recovery of country made pistol on the pointing out of appellant as P.W. 7, S.I. Ram Bilas Verma Investigating Officer of the case u/s 25 Arms Act as P.W. 8. C.P. Rajendra Singh, who took the case property for chemical examination as P.W. 9, Sri Ram Asharey Pandey, Sahayak Nideshak Vidhi Vigyan Prayogshala as P.W. 10.

The appellant in his statement u/s 313 Cr.P.C. admitted that about 4 � months before of the present occurrence Hari Bhagwan was murdered who belonged to his Khandan and deceased Mihi Lal Sharma was accused in that case and his father Rameshwar Sharma was a witness in that case. He further stated that he had been falsely implicated in this case due to earlier murder. Hari Bhagwan was not the son of his uncle. His father and father of Hari Bhagwan were not brothers. Shree Bhagwan the brother of Hari Bhagwan was employed. Bishambar is a professional witness. In defence evidence order sheet dated 27.8.1999 and 20.10.99 of S.T. No. 798 of 1999 State v. Pradeep and Ors. u/s 302 I.P.C.P.S. Shikarpur and copy of calender of S.T. No. 582 of 1997 State v. Sri Bhagwan u/s 302 I.P.C. Ext. Kha-1 to Kha-3 have been filed.

The learned Sessions Judge after going through the evidence on record found the case of the prosecution proved and recorded conviction and passed sentence against the appellant as aforesaid.

We have heard Sri P.N. Misra, learned Senior Advocate, assisted by Sri Apui Misra, learned Counsel for the appellant and Ms Usha Kiran, learned AGA for the State and carefully gone through the record.

The first submission of the learned Counsel for the appellant is that the appellant has been falsely implicated in this case. The first informant PW1 is son of deceased Mihi Lal Sharma. He did not witness the occurrence. He was called from Delhi next day, therefore, the inquest was held on 25.10.1999, while the alleged occurrence took place on 24.10.99. It has also been argued by the learned Counsel for the appellant that the appellant had no motive to commit this murder, because he is not related to Hari Bhagwan, who was murdered about 4 � months before this occurrence. It has also been submitted by the learned Counsel that PW 1 has given this statement u/s 161 Cr.P.C. to the Investigating Officer that on 23.10.99 his father Mihi Lal Sharma had come to attend the date in the sessions trial No. 798 of 1999, but no date was fixed in that case.

Learned AGA supporting the Judgment of the trial court has argued that in this case the occurrence took place in the day light at the house of the deceased. PW1 is the son of deceased and PW2 Bishambar belongs to the same village, who had come to the house of the deceased to take balance money of the buffalo, which he had sold to the deceased. As such his presence at the place of occurrence at the time of occurrence can not be doubted. Nothing could be elucidated from their cross examination to doubt their testimony. Their testimony is consistent and is supported by the medical evidence on record.

We have given our thoughtful consideration to the submissions made by the learned Counsel for the parties.

P.W. 1 Kamal Sharma repeating the prosecution story has deposed that Hari Bhagwan was murdered before this occurrence. Hari Bhagwan was cousin of appellant. They were descendant of of the same grand grand father. Giving details of the occurrence he has stated that on 24.10.99 at about 4.30 p.m. he along with his deceased father Mini Lal Sharma, his mother Basanti Devi and Bishambhar of his village were sitting in the house. His father asked his mother to prepare some tea and said that he would come back after urinating. At about 4.30 p.m. they heard the alarm "Bachao Bachao". He with his mother and Bishambhar came out of his house and saw that Vinod had a country made pistol in his right hand and he had caught the left hand of his father and said "Hatya Ka Badla Hatya Hai." As soon as his father turned and ran the appellant fired at him from behind. His father fell down and died on the spot. When they tried to catch Vinod he again loaded his country made pistol and threatened them to kill. Thereafter he has given the details about the murder of Hari Bhagwan in which his father was accused. He further stated that the appellant had illegally possessed their land and a case is pending on this count and because of this litigation and murder of Hari Bhagwan the appellant also bore enmity with his father. After murder of Hari Bhagwan his father used to reside with him at Delhi. A day before this occurrence he along with his father had come to do pairvi in the case of murder of Hari Bhagwan. Thereafter he proved the report Ext. Ka-1.

PW2 Bishambhar corroborating the statement of PW1 deposed before the court that he had sold one buffalo to deceased Mini Lal Sharma. Mihi Lal had to pay some balance money for the sale of buffalo. On 24.10.99, he came to know that Mihi Lal Sharma along with his son Kamal Sharma had come to their house. Basanti Devi wife of Mihi Lal used to stay in the village and was looking after their agricultural land on 24.10.1999 to take balance money, he had gone to the house of Mihi Lal who was sitting in the court yard of his house on a cot with Kamal Sharma and Basanti Devi he sat with them. Mihi Lal asked his wife to prepare some tea and said that he would come after urinating. Mihi Lal went on the Chak Road outside his house to urinate. At about 4.30 p.m. they heard the alarm "Bachao Bachao". He along with Kamal Sharma and Basanti Devi came out of the door and saw that the appellant had caught hand of Mihi Lal by one hand and in other hand he was holding country made pistol. Mihi Lal was praying to appellant to release him. Vinod said "Hatya Ka Badla Hatya Hai". Mihi Lal released himself and appellant fired at Mihi Lal from his country made pistol. Mihi Lal fell down and died. They tried to catch the appellant, the appellant again loaded his country made pistol and ran towards the west. Thereafter this witness has given the details about the murder of Hari Bhagwan.

These two witnesses were subjected to lengthy and searching cross examination. These two witnesses right from the time of the first information report have given a vivid description about the manner in which the appellant had caused injuries to the deceased. The occurrence took place during the day. The F.I.R. was promptly lodged. The first informant Kamal Sharma is real son of deceased Mihi Lal and he would not falsely implicate the appellant sparing the real assailant. The presence of Kamal Sharma at the time of occurrence can not be doubted as he has stated that he had come from Delhi with his father to do pairvi in the case of murder of Hari Bhagwan, in which his father was an accused. He has specifically stated that no date was fixed in that case one day earlier to the present occurrence. There is nothing on record to suggest that PW 2 is a professional witness. He has fully corroborated the prosecution story in his statement. He is resident of the same village. His presence at the time of occurrence and place of occurrence is probable as he had come there to collect the balance money of sale of his buffalo to the deceased.

The evidence of Dr. Avadhesh Kumar and autopsy report clearly indicated that the deceased died of one gun shot injury and this injury could be suffered by him on 24.10.99 at 4.30 p.m. Thus, the testimony of these two witnesses is corroborated by the medical evidence on record and we find the evidence of the two eye witnesses quite natural, convincing and trustworthy.

The prosecution version is also corroborated by the statement of Prem Pal Singh, PW7, who has deposed that on the pointing put of appellant on 5.11.199 at about 8.30 a.m. from the agricultural field a country made pistol was recovered which was sealed on the spot. The statement of P.W. 10 Ram Asharey Pandey is on the record, who is ballistic expert and who has deposed before the court that the cartridge which was allegedly recovered from the spot by the Investigating Officer was fired from the country made pistol recovered on the pointing out of the appellant.

We do not find any force in this submission of learned Counsel for the appellant that the inquest was held on 25.10.1999 as P.W. 1 Kamal Sharma did not witness the occurrence and he was called from Delhi on 25.10.1999. It has specifically come in the statement of P.W. 5 S.I. Ghan Shyam Singh that he reached the place of occurrence in the night at about 8.30 p.m. when he reached the place of occurrence a gas lantern was burning near the dead body. Light was not available, therefore, the inquest could not be held in the night and he also did not think it proper to hold the inquest in the night. The inquest proceedings started in the morning at 6-30 or 7.00 a.m. It has also come in his statement that he had recorded the statement of Kamal Sharma on the day when the report was written i.e. on 24.10.1999.

We also do not find force in second submission of the learned Counsel for the appellant that on 23.10.1999, no date was fixed in the case of deceased Mini Lai, therefore, this statement of PW1 u/s 161 Cr.P.C. is false that his father had come to attend the date in Sessions Trial No. 798 of 1999. P.W.1 has specifically stated before the court also that no date was fixed. The appellant had a motive to commit murder of Mihi Lal as deceased Hari Bhagwan in which Mihi Lal was accused belonged to his family. Moreover in case of direct evidence motive looses its importance.

For the reasons given above, we see no reason to differ with the findings recorded by the learned Sessions Judge, particularly in view of the fact that the murder of deceased Mihi Lal was the day light murder and the first informant Kamal Sharma has no reason to falsely implicate him sparing the real assailant. The appeal is devoid of merit and is liable to be dismissed.

The appeal is dismissed. Conviction and sentence recorded by the learned Sessions Judge is hereby confirmed. The appellant is in jail. He shall serve out the sentence awarded to him.

Let this Judgment be cited to the learned lower court for compliance within a week and compliance report be submitted in this Court within one month from today.