9911796707
TMI Blog2009 (2) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25 of the Arms Act. 2.1] The incident leading to the prosecution of the appellant occurred on 12.02.1975 at about 1.00 P.M. at bus stand Lalitpur. According to the prosecution case, on the day of the incident one passenger Bus No. MPR 5393 on its route from Madanpur to Jhansi was stopped by its driver Sukhnandan (CW-3) at bus stand Lalitpur. The departure time of the said bus from the bus stand Lalitpur was 1.00 P.M., but it remained parked till 1.10 P.M. beyond schedule time fixed by the Road Transport Authority. One more Bus No. USG 5519 came from Jammi Dem and reached bus stand Lalitpur at about 1.15 P.M. as per schedule time which was to proceed from Lalitpur bus stand at 1.20 P.M. for Jhansi. Matin Khan (PW-8) driver of Bus No. USG 5519 stopped the vehicle at bus stand Lalitpur at 1.00 P.M. Laxman Dass (PW-4) and his brother Prahlad Babu (PW-9) the owners of the said bus reached at bus stand Lalitpur for settlement of fare accounts with PW-8 Matin Khan-Driver. They noticed some passengers boarding Bus No. MPR 5393 in place of their bus. They asked Sukhnandan (CW-3) driver of Bus No. MPR 5393, to drive his vehicle out of the parking place in order to provide halting place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he way Devendra Singh died. PW Prahlad Babu remained indoor patient in the Medical College for more than three weeks. 2.3] The investigation of the case was conducted by K.P. Singh (PW-17), Station Officer, Police Station Girwar, District Lalitpur. He recorded the statement of PW Constable Sukhram Singh. He also recorded the statement of PW Vimal Kumar Tiwari at the Police Station and then left to the scene of occurrence where statement of PW Laxman Dass was recorded and Site Plan (Ex. K-42) of the spot was prepared. He collected blood-stained earth and plain earth from the spot and sealed them in separate packets (Exs. 16 and 17). He recorded the statements of CW Ram Ratan Joshi and CW Dhanna Lal, injured persons. On 15.02.1975, he handed over the investigation of this case to Shri Chottey Lal Tewari (PW- 18) who, at the relevant time was Station Officer at Kotwali, Lalitpur. 2.4] The second Investigating Officer sent the weapon of offence (rifle) and recovered bullets to Ballistic Expert for examination and comparison. He took the licence of the seized rifle from Raghunath Singh - father of the appellant and later on entrusted the same to him vide supurdarinama (Ex. K- 46). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Singh (Ex.Ka-69) and retired Head Constable Shital Singh (Ex.Ka-71). Reports of the Chemical Examiner (Ex.Ka-52) and the Serologist (Ex.Ka-53) were also tendered in evidence. The prosecution had given up injured Dhanna Lal on the ground that he had joined hands with the appellant. Ram Ratan Joshi injured and Sukhnandan driver of Bus No. MPR 5393 were also given up being unnecessary witnesses. However, later on, the Court examined Dhanna Lal, Ram Rattan and Sukhanandan as CW-1, CW-2 and CW-3 respectively. 2.6] The appellant in the statement recorded under Section 313 of the Criminal Procedure Code (for short `Cr.P.C') denied the incriminating evidence appearing against him. He examined Chandan Singh (DW-1) in his defence. His plea was that he was not present at the scene of occurrence on the alleged day of incident. He pleaded that at the relevant time his father Raghunath Singh was sitting MLA of Jansangh Party who did not have good relations with Shri Maurya the then Superintendent of Police, who was Ex-officio member of Nehru College Committee. He pleaded that two student leaders of Nehru College were got terminated by Shri Maurya the Superintendent of Police and were lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/4 X 1/8 1 1/2 below the injury No. 1 on the lateral side in the upper 1/3rd right fore arm. Bleeding. Margins inverted wound of entry. 3) A gunshot wound 1/4 X 1/8 on the left fore arm middle 1/3rd 5 below the elbow in the posterior part lateral side. Margins inverted. Wound of entry. 4) A gunshot wound 1/2 X 1/4 , 1 1/2 above the highly part of iliac crest left side abdomen, margins inverted. Wound of entry. 4.] According to Dr. S.P. Singh, all the injuries were found fresh and without any blackening and tattooing. The injuries were caused from fire arm. Dr. S.P. Singh examined PW-Laxman Dass and found injury on his head caused by a blunt weapon like a stone. He stated that on 14.02.1975 at about 6.00 P.M. injured Ram Ratan Joshi (CW-2) slipped away from the hospital without informing him or any other staff member of the hospital. It is his evidence that when PW- Prahlad Babu, Devendra Singh (deceased) and Dhanna Lal (CW-1) were brought to the hospital, their physical conditions were serious. Dhanna Lal's arms had to be amputated on the same day. On their request, PW-Prahlad Babu and Devendra Singh (deceased) were referred to the Medical College of Jhansi at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any body. (c) There were vital inconsistencies in the statements of the witnesses, which led to the inference that the accused named by PW-Prahlad Babu and Dhanna Lal (CW-1) in the court was an innovation and an after thought on which no reliance could be placed. (d) The accused was not named in the statements recorded as Dying Declarations although the accused was known to the injured eye-witnesses much before the incident. iv) That the prosecution story that Sukhnandan (CW-3) actually moved the bus was an innovation and should be rejected and consequently it must be held that there was no objection from the accused against the movement of Bus No. MPR 5393. v) That the evidence of Sukhanandan (CW- 3) would cut at the very root of the prosecution story. vi) That it was doubtful that the accused was arrested during the course of the incident of shooting. vii) That it could not be said with certainty as to what were the circumstances or the exact facts of this incident, but if it did not take place in the manner and under the circumstances suggested by the prosecution or even if it was doubtful that it took place in such manner and circumstances, the benefit there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith hereinafter in later part of the judgment. 11.] Mr. Ratnakar Dash, Senior Advocate appearing on behalf of the State, has canvassed correctness of the views taken by the High Court in the impugned judgment. He submitted that the approach of the High Court in re-appreciating the evidence led by the prosecution cannot be found faulty. He then contended that the evidence of the eye-witnesses PW-Laxman Dass; PW-Matin Khan; injured Prahlad Babu; PW-Vimal Kumar Tiwari; PW-Shikhar Chandra and injured Dhanna Lal (CW-1) is concise, cogent and satisfactory on the point that it was the appellant alone, who fired a single bullet shot from a rifle hitting Prahlad Babu; Dhanna Lal (CW-1); Ram Ratan Joshi (CW-2) and Devendra Singh, as a result thereof Devendra Singh later on succumbed to the injuries sustained by him and if some minor discrepancies have come in the evidence of the witnesses, they are all of insignificant nature and immaterial and the case of the prosecution, which is otherwise proved beyond reasonable doubt, cannot be disbelieved and discredited on such discrepancies. In support of the submissions, reliance is placed on the decisions of this Court. 12.] Before considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved: In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. 12.4) In Inder Singh Anr. v. The State (Delhi Administration) (1978) 4 SCC 161, this Court while dealing with the appreciation of evidence in a criminal case, held that creditability of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. 12.5) In Ram Narain Singh v. State of Punjab (1975) 4 SCC 497, it was held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, relied upon by the learned counsel for the State, this Court while dealing with the case of accused who was found guilty by the trial court as well as by the High Court for committing sexual intercourse with a minor girl, held that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. More so, when the all important `probabilities factors' echoes in favour of the version narrated by the witnesses. Further, it was observed that it was neither appropriate nor permissible to enter upon a re-appraisal or re-appreciation of the evidence in the context of the minor discrepancies in exercise of the power under Article 136 of the Constitution of India. 12.9) In Rajesh Thakur v. State (1988) Crl. J. 1477, learned Single Judge of the Calcutta High Court found the story in the First Information Report regarding the time, place and manner of the occurrence, the name of assailant, the testimony of eye-witnesses corroborated by medical evidence and the fact of apprehension of the accused by the people of the locality immediately after the occurrence with a knife in hand, recovery of blood-stained kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wari; PW-Shikar Chand Naik, Mangal (not examined) and PW-Matin Khan driver, over- powered the appellant and snatched the rifle (Ex-2) from his hands. He clearly deposed that one more person, whose name he did not know caused stone injury on his head. The appellant was handed over to the custody of PW-Matin Khan whereas he took injured PW-Prahlad Babu, injured Dhanna Lal (CW) and Devender Singh to Lalitpur hospital while Ram Ratan Joshi (CW) who had suffered lesser injuries, reached the hospital on foot. PW- Vimal Kumar Tiwari recorded report (Ex.-Ka22) at his instance which later on was handed over to Police Officer at the Police Station, on the basis of which First Information Report was recorded. PW-Prahlad Babu was taken from Lalitpur Hospital to Medical College, Jhansi, whereas Devendra Singh was left in Lalitpur Hospital for getting treatment. In cross-examination, this witness has admitted that one Kamaldin had filed a criminal case against him. One more case under Sections 147/323/504/506 IPC was pending in the court of C.J.M, Lalitpur, against him, Prakash Chand Lohia, PW-Vimal Kumar Tewari and his brother Ashok Kumar Tiwari. 14.] PW Matin Khan driver of the Bus No. USG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.] PW-Vimal Kumar Tiwari deposed that on the day of incident the appellant fired one single bullet shot, which first hit Prahlad Babu and then Dhanna Lal and the bullet came out of the body of Dhanna Lal and in the process hit two other persons whom he did not know. It has come in his evidence that he could not tell whether all the injured persons were standing in a queue when they received bullet shot. 18.] Radhey Shyam Singh (PW-11) a Fire Arms Expert, Forensic Science Laboratory, C.I.D., Lucknow, U.P., examined one rifle number 243 of 0.302 bore on 07.04.1975. He also scientifically examined three live cartridges and one missed fire round. It is his opinion that two pieces of metal marked EB2 and EB3 could have been fired from rifle number 243. He placed on record copy of the test report (Ex.K-29). In cross-examination this witness stated that he could not definitely point out whether pieces of metals i.e. EB2 and EB3 were the pieces of same bullet which was fired from rifle number 243. It is his opinion that rifle (Ex.2) was of .302 bore and not of .315 bore. He also categorically stated that one bullet could cause only one entry wound to a person. 19.] PW-Shikhar Chandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including injured witnesses had seen the appellant travelling on Bus No. MPR 5393. It is their evidence testimony that there were some more persons present at the bus stand, who took the luggage of the appellant after the same was unloaded from the rooftop of the bus. It has come in the evidence of these witnesses that one person hit PW-Laxman Dass. The Investigating Officer has not cared to find out the identity of those persons who were accompanying the appellant on the scene of occurrence and took his luggage or out of those persons who hit PW Laxman Dass with a stone. It appears that the prosecution has suppressed the genesis of the evidence. PW- Matin Khan, driver of the bus owned by PWs 4 and 9, clearly deposed that Shambhu Dayal Chaurasia handed over the rifle, the alleged weapon of offence to the police official at Police Station, Lalitpur. It is the evidence of PW-H.C. Sukhram Singh that rifle and cartridges were handed over to him by PW-Vimal Kumar Tiwari. The evidence of injured Prahlad Babu would show that he did not see the other three injured persons standing behind him nor he knew Devendra Singh (deceased) prior to the incident. His statement was recorded by the Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from consideration cannot be accepted. 23.] It is the case of the prosecution that single bullet was fired by the appellant from rifle of .315 bore which caused injuries to four persons. Dr. S.P. Singh - Medical Officer, Civil Hospital, Lalitpur, medically examined injured Prahlad Babu on the day of incident, i.e. 12.02.1975 at about 2.00 P.M. and found one gun shot wound 1/2 x 1/4 on the lower part of left side chest, 6 1/2 below the nipple. It was wound of entry, whereas the wound of exit of the bullet was 3/4 x 1/2 on the left side back, 2 away from the middle line wound. On the same day he examined Devendra Singh who received gun shot wound 3/4 x 1/2 x abdominal cavity deep on right side of the abdomen, 2-1/2 above the anterior superior iliac spine which was stated to be entry wound, whereas the exit wound was 1-1/2 x 3/4 , 1 below the anterior superior iliac spine. On the same day at about 3.00 P.M., he medically examined Dhanna Lal (CW-1) and on his person one lacerated wound 7-1/2 x 2-1/2 x bone deep on the front upper part of the right upper arm with commuted fracture of humorous bone and severance of blood vessels and nerves of the arms were found injured. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged and tried for the offence punishable under Section 27 of the Arms Act for using the said firm arm. In that view of the matter, the appellant could not have been convicted and punished by the High Court for committing an offence under Section 25 of the Arms Act. 27.] Having regard to the entire evidence discussed above and having carefully and closely considered the judgments of the trial court and the High Court, it appears that the view taken by the trial court was reasonable and plausible. It is well settled that, if, on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible one as held by the trial court for acquitting the accused and the other for convicting the accused, in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusion of the trial court drawn on the evidence on record are found to be unreasonable and perverse or unsustainable, the High Court should not interfere with the order of acquittal. From the above discussion of the evidence of the eye-witnesses including injured witnesses, their evidence does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
