Babli Alias Vinay Kumar (Since Deceased) and anr. Vs. State - Court Judgment

Prafulla C. Pant, J.

1. These two appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr. P.C.), are directed against the judgment and order dated 12th September, 1995, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 133 of 1991, whereby the appellants Babli alias Vinay Kumar, Suresh and Samsher alias Sakal are convicted under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) and each one of the convicts is sentenced to imprisonment for life and directed to pay a fine of Rs. 500/- and in default of payment of which, the defaulter convict has to undergo further one year rigorous imprisonment.

2. Heard learned Amicus Curiae for the appellants and learned Brief Holder for the State.

3. Prosecution story, in brief, is that on 10-12-1990 at about 4-15 p.m. complainant Dayanand Sharma (P.W. 1) resident of 115, Nehru Nagar, Roorkee, along with his son Praveen Kumar (deceased) was going on motor bike towards Ghasmandi to buy a cassette. When the two reached near Gandhi Bal Niketan, the complainant started talking to Naresh Kumar (P.W. 2) and Saeed Kadri (P.W. 3), the three accused namely Shamsher alias Shakal and Babli alias Vinay Kumar armed with country-made pistol and Suresh, armed with Khukari (a sharp edged weapon) came on their motor cycle. They sorrounded Praveen Kumar and on the instigation of Shamsher alias Shakal, Babli alias Vinay Kumar fired on the head of Praveen Kumar, and accused Suresh gave blows with Khukari on the person of Praveen Kumar. After causing injuries, the three fled away in their bike from the place of incident. Soon thereafter, police from Police Station Ganga Nagar reached at the spot and complainant with the help of other took Praveen Kumar to Civil Hospital, Roorkee for medical treatment. After reaching there, complainant lodged First Information Report (Ext. A-1) on the same day, i.e. on 10-12-1990 at 5 p.m. against the three accused relating to an offence punishable under Section 307, IPC. However, injured Praveen Kumar succumbed to his injuries and the case was converted to one relating to the offence punishable under Section 302, IPC. When Praveen Kumar aged 20 years was brought to Civil Hospital, Roorkee for medical treatment, injuries on his person were recorded by Dr. Arun Kumar (P.W. 8), who prepared injury report (Ext. A. 16). After the first and, injured Praveen Kumar was referred by the Medical Officer for further treatment to Meerut, but before he could be taken to Meerut, he was taken to another local hospital, where he was declared brought dead.

4. The investigation was taken up by Sub-Inspector Dhanpal Singh Chauhan (P.W. 7). The inquest report (Ext. A-2) was prepared by the police in presence of the witnesses. The police also got prepared sketch of the dead body (Ext. A-12), letter to Chief Medical Officer (Ext. A-13), Police Form No. 13 (Ext. A.14) and sent the body for Post Mortem Examination report. The autopsy was conducted by Dr. K. P. Sarabai (P.W. 5), Medical Officer of G.M.G. Hospital, Haridwar, who recorded the ante-mortem injuries in the post mortem examination report (Ext. A-6) and opined that the deceased had died on account of haemorrhage and shock due to ante-mortem injuries. Meanwhile, the Investigating Officer S.I. Dhanpal Singh Chauhan (P.W. 7) inspected the spot, prepared site plan, recovery memo of blood stained soil and plain soil. He further recorded the statements of the witnesses under Section 161, Cr. P.C. After concluding the investigation, the Investigating Officer submitted the charge-sheet (Ext. A-8) against all the three accused, namely, Babli alias Vinay Kumar, Shamsher alias Shakal and Suresh for their trial in respect of the offence punishable under Section 302, IPC.

5. The Magistrate, on receipt of the charge-sheet, after giving necessary copies to the accused as required under Section 207 of Cr. P.C. committed the case to the Court of Session for trial. Learned Additional Sessions Judge, Roorkee, to whom the case was transferred for trial, after hearing the parties on 25-6-1991, framed charge of offence punishable under Section 302 read with Section 34, IPC against all the three accused-Shamsher alias Shakal, Suresh and Babli alias Vinay Kumar. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dayanand (complainant), P.W. 2, Naresh Kumar (eye-witness), P.W. 3 Saeed Kadri (another eye-witness), P.W. 4, Indra Prakash, (witness of recovery of country-made pistol and Khukari on the pointing out of accused Suresh), P.W. 5 Dr. K.P. Sarabai, who conducted post-mortem examination, P.W. 6, Hari Prasad Kardam, (a witness of inquest report), P.W. 7, Sub Inspector Dhanpal Singh Chauhan, who investigated the crime, and P.W. 8. Dr. Arun Kumar, who recorded the injuries on the person of the deceased at the time when he was brought in an injured condition to Civil Hospital, Roorkee. All the oral and documentary evidence was put to the accused, under Section 313, Cr. P.C. relating to which the three alleged that the evidence was false and pleaded that they have been implicated falsely due to enmity. However, no evidence in defence was adduced on their behalf. On this, the trial Court, after hearing the parties, found all the three guilty of the charge and convicted them accordingly vide impugned order passed by said Court, and after hearing on sentence, each one of the convicts is sentenced to imprisonment for life and also directed each one of them to pay a fine of Rs. 500/-. In default of payment of fine the defaulter was directed to undergo further one year's rigorous imprisonment.

6. Aggrieved by the said judgment, the appellants Babli alias Vinay Kumar and Shamsher alias Shakal preferred a joint Appeal No. 1484 of 1995 (now renumbered 1487 of 2001) before the Allahabad High Court, where it was admitted on 20-9-1995. The third convict Suresh preferred separate Appeal No. 1485 of 1995 (now renumbered 1488 of 2001) before Allahabad High Court on 19-9-1995, which was also admitted there on 20-9-1995. Both the appeals are received by this Court by transfer under Section 35 of the U. P. Reorganisation Act, 2000, for their disposal. Notices were issued to the appellants from this Court after the records of the appeal were received, but they did not respond to the notices. As such, Sri B. B. Sharma, Advocate, was appointed Amicus Curiae to assist the Court on behalf of the appellants.

7. Before further discussions, we think it just and proper to mention about the injuries found on the person of the deceased Praveen Kumar, when he was taken in injured condition to Civil Hospital, Roorkee. According to P.W. 8, Dr. Arun Kumar as mentioned by him in his report Ext. A-16, the injured Praveen Kumar was bleeding from the scalp near the left ear. He was also having injury on the left part of the chest and was in a condition of shock. The Medical Officer has not done the detailed examination of the patient and to save his life recommended him for further treatment to Medical College, Meerut.

8. After the death of Praveen Kumar on 11-12-1990 in the morning, inquest report (Ext. A-2) was prepared by the police in presence of the witnesses in which five injuries were mentioned. Post Mortem Examination was conducted by P.W. 5 Dr. K.P. Sarabai, who prepared autopsy report (Ext. A-6) on the dead body of Praveen Kumar on 1-12-1990 at 3.30 p.m. recorded the following ante-mortem injuries:

1. Stitched wound 6 cm x 4 cm on left side back of ear, 1 cm. away from it.

2. Fire-arm wound of entrance 1.5 cm x .5 cm x brain cavity deep on the head, 4 cm below the right ear. Margins inverted. Tattooing and scorching present.

3. Traumatic swelling 8 cm x 6 cm. on inner side of right elbow joint.

4. Abrasion 4 cm x 2 cm on the base of ring and little finger.

5. Incised wound 2 cm x 1 cm x chest cavity deep on the left side of the lower part of chest.

6. Incised wound 1.5 cm x 1 cm x chest cavity deep on left side of chest, 8 cm below injury No. 5.

P.W. 5, Dr. K.P. Sarabai after conducting the autopsy opined that cause of death of the deceased was haemorrhage and shock due to ante-motem injuries. From the medical evidence, as discussed above, it is clear that the prosecution has successfully proved that the deceased has died homicidal death.

9. Now, the question before us is whether the appellants, with common intention, have committed murder of Praveen Kumar or not.

10. P.W. 1 Dayanand, complainant, father of the deceased, has stated on oath that on the day of incident, he was accompanying his son to buy a cassette. When he reached near Gandhi Bal Niketan, witnesses Naresh (P.W. 2) and Saeed Kadri (P.W. 3) called him and he started talking to them. His son Praveen Kumar was standing at some distance with his motor bike. It was 4.15 p.m. according to this witness, suddenly, accused-appellants Babli alias Vinay, Suresh and Shakal came on a motorcycle. Shamsher alias Shakal exhorted the other two to kill Praveen Kumar. On this Babli alias Vinay Kumar fired a short at Praveen Kumar and Suresh gave blows with Khukari. P.W. 1, Dayanand further narrated the prosecution story and stated that Shamsher alias Shakal armed with country-made pistol remained standing. After the incident, all the three left the place of incident on their motorcycle. P.W. 1 Dayanand has further stated that after the incident, he took his injurious son to Civil Hospital, Roorkee and there he got written First Information Report, Ext. A-1. This witness has further proved the inquest report, Ext. A-2.

11. The statement of P.W. 1 gets fully corroborated not only from the medical evidence on record, but also from the statements of P.W. 2, Naresh Kumar and P.W. 3 Saeed Kadri, the two eye-witnesses. They have also narrated the prosecution story alleging that on the day of incident, when Dayanand was talking to them and Praveen Kumar was standing at some distance, three accused-appellants Shamsher, Suresh and Babli came on a motor cycle and caused injuries on the person of Praveen Kumar with pistol and Khukari. The testimony of all the three eye-witnesses is natural and trustworthy. We have no reason to disbelieve the same.

12. Learned Amicus Curiae argued that since the injured had not died in Civil Hospital, Roorkee and the police should have recorded dying declaration of the deceased, so that the true story could be disclosed. We do not find any substance in the argument for the reason that after the fire-arm injury was shot on the head of the deceased, it cannot be said that the deceased at the time when brought in an injured condition to Civil Hospital, Roorkee was in a fit state of mind to make any statement. We have already mentioned above that P.W. 8 Dr. Arun Kumar has mentioned in his report, Ext. A-16, that the patient was in a state of shock.

13. The next submission advanced on behalf of the appellants is that there is no motive shown by the prosecution on the part of the accused/appellants to commit murder of the deceased, as such the statements of the eye-witnesses be not taken as true statement. Again, we are unable to accept the contention of the learned Amicus Curiae for the reason the motive relates to state of mind of the person committing the crime and the witnesses need not necessarily know what was the motive on the part of the accused. Had it been a case of circumstantial evidence, motive could have been a relevant factor, but where there is direct eye-witness account of the incident given by the eye-witnesses, non-disclosure of motive on the part of the prosecution does not shake the testimony of the eye-witnesses.

14. Thirdly, it is submitted by Sri B. B. Sharma (Amicus Curiae) that since the murder had taken place inside city, the prosecution should have produced the local independent eye-witnesses. We have scrutinized the evidence on record and we found that neither P.W. 3 Saeed Kadri is relation of the complainant nor Naresh Kumar (P.W. 2) is said to be related with the complainant or the deceased. As such, the argument that no independent witness was got examined carries no force.

15. Lastly, it is argued on behalf of the appellants that it is not clear from the record how the complainant came to know of the names of the accused. Having gone through the evidence on record, we find that it is a case of day light incident, in which the First Information Report has been lodged promptly. As such there is no reason to falsely implicate the accused by name on the part of the complainant, who were known to him. In this connection, complainant Dayanand has stated that the accused were known to him. He has further stated in the cross-examination that they were addressing each other with their names.

16. Having re-appreciated the entire evidence and after considering the submissions of the learned Counsel for the parties, for the reasons as discussed above, we concur with the findings recorded by the trial Court. We also do not find any error of law committed by the trial Court in awarding punishment as directed in the impugned order. Therefore, both the appeals are liable to be dismissed and the same are dismissed. The conviction and sentence recorded by the trial Court against the accused Suresh and Shamsher alias Shakal are affirmed. The appeal of Sri Babli alias Vinay Kumar, who is said to have died during pendency of the appeal, stands abated. The Registry is directed to send back the lower Court record to the Court concerned, so that the convicts may be made to serve out the sentence awarded to them by the trial Court.