The Allahabad High Court has dismissed the appeal of one Pawan and his cousin Amit, accused of killing their own brother 15 years ago at Kotwali police station in Moradabad.
The Division Bench of Justice Mahesh Chandra Tripathi and Justice Chandra Kumar Rai passed this order while hearing a Criminal appeals filed by Amit @ Amit Yadav and Pawan.
Both Criminal Appeals are directed against order dated 03.06.2011 passed by Additional District and Sessions Judge, Moradabad in Sessions Trial whereby, Pawan and Amit @ Amit Yadav have been convicted and sentenced under Section 302 read with Section 34 IPC for life imprisonment with fine of Rs 20,000 each and in default of payment of fine to further undergo imprisonment for three years. They have also been convicted and sentenced under Section 504 IPC to undergo R.I for six months with fine of Rs 1000 each and under Section 506 IPC to undergo R.I for two years with fine of Rs 4000 each. They have further been convicted and sentenced under Section 25 of Arms Act to undergo three years R.I with fine of Rs 6000 each.
The prosecution allegations against appellants, as were contained in the written report dated 09.8.2007, were that the informant Rajaram submitted a written report on 09.8.2007 alleging therein that on 08.8.2007 at about 11.00 p.m, when he was about to take dinner, his elder son Pawan, real nephew Amit and one more boy armed with country made pistols, entered his house and Pawan abused and threatened him stating that as the complainant had given the shop to Amod (younger son), today he will not let him live.
They got the complainant and his wife, namely Hansho Devi, to sit down at the verandah. At that point of time, his son Amod returned home after shutting shop and all three persons caught him. Pawan fired the first shot while Amit fired the second shot at Amod with intention to kill him due to which he sustained injuries. He had taken his injured son to the hospital from where he was referred to ‘Sai Hospital’ and while they were leaving for ‘Sai Hospital’, Amod succumbed to injuries.
The complainant went to the Police Station Kotwali, Moradabad on 09.8.2007 and submitted the written report, whereupon Case under Section 302/504/506 IPC and Case under Section 25 of Arms Act, Police Station Kotwali, Moradabad, were registered against the accused persons.
The investigation of the case was conducted and three separate charge sheets were submitted on 31.8.2007 and 23.9.2007.
The accused persons pleaded not guilty and claimed for a trial.
After appreciating the evidence available on record, the trial court found the occurrence duly proved by ocular account as well as material collected during investigation. Consequently, the trial court has convicted and sentenced the appellants as aforementioned on the ground that the convict-appellants Pawan and Amit had murdered their real brother and real cousin Amod with the illegal weapons in their hands and the accused persons had committed this offence at the house of their father in which the only witness is the father of accused-appellant Pawan and the offence of the accused persons is of grievous nature.
The counsel for the appellants submitted that there was a delay in lodging the FIR. The incident took place on 08.8.2007 at about 11 PM and the FIR was lodged on 09.08.2007 at about 01.00 a.m. (night) alleging that the accused persons injured his son Amod with fire shots in which he sustained injuries and died in the hospital.
In the post-mortem report, the cause of death was shown due to shock and hemorrhage, as a result of ante-mortem firearm injuries. The appellants have been assigned the role of firing of one shot each on the deceased. The co-accused Subhash was assigned the role of holding the deceased and he has been acquitted by the trial court. One country made pistol of 315 bore and one live cartridge were allegedly shown to be recovered from Pawan and one country made pistol of 12 bore and one live cartridge were allegedly recovered from Amit @ Amit Yadav.
It was submitted that two eye-witnesses namely Rajaram (father of the deceased) and Hanso Devi (step mother of the deceased) were present at the time of occurrence. The statement of the father of the deceased (Raja Ram) was only recorded and the statement of the step mother of the deceased was not recorded.
Per Contra, on behalf of the State it was argued that the convict-appellants Amit @ Amit Yadav and Pawan had fired one shot each on Amod (deceased), who sustained fire arm injuries. Further, the recovery of the weapon was made on the pointing out of the appellants. Raja Ram had deposed and had been cross examined in the year 2008. The said witness has also proved that the appellants had assaulted with the firearms referred to above and he was also present at the time of occurrence and had witnessed the crime as stated by the informant.
Therefore, AGA contended that the presence of the witness, the place and time of incident, the use of firearms and cause of death keeping in view of the postmortem report as well as inquest report establishes the guilt of the appellants beyond doubt. He contended that any minor discrepancy in the investigation cannot belie the said incident, where the murder had taken place. He has invited attention of the Court to the statements of witnesses to urge that there is no infirmity in the description of the manner of assault, the place of assault and the timing thereof. Once the post-mortem report confirmed the injuries as well as the timing of the injuries, the chain of events through this direct evidence leaves no room for doubt that the appellants were not guilty.
Having heard counsel for the parties, the Court found that the conviction was substantially based on the evidence of Raja Ram. He is the sole witness of the incident. When the appellants entered into his house, his son Amod was not present at that time. They did not fire at the complainant and he saw the appellants, who fired tamanchas on his son Amod. In the cross examination, he has categorically stated that the occurrence took place on 08.8.2007 at 11 o’clock at night and the incident was seen in the electric light of the inverter. In the same light, he recognised the appellants properly. The accused Pawan is his elder son and lived separately after marriage and the other accused Amit is his nephew. They used to visit his house sometimes and therefore, the question of identity does not arise. Defence has cross-examined this witness at length, but has not been able to elicit anything in his cross-examination to discredit his testimony that the appellants have not fired tamanchas on the deceased. His evidence clearly reveals that he was present on the spot and witnessed the incident, which is sufficient for drawing inference that the appellants have shot his son Amod by tamanchas. On 17.8.2007 at 05.25 a.m., accused persons Pawan and Amit were arrested at Kashipur Bus Station.
In the case, the evidence of the eye-witness (Raja Ram) examined on behalf of the prosecution raises no doubt on his presence at the time of actual occurrence. The eye-witness has stated that at the time of occurrence, his wife Hanso Devi was very much present but in such situation, the Court further found that whether in the facts and circumstances of the case, it was necessary to examine such other witness especially Hanso Devi and if so, whether such witness was available to be examined and she was being withheld from the Court. If the answer is positive, then only the question of drawing an inference may arise but at no point of time during the trial, such a situation had ever happened even from the defence side or from the Court. Once the testimony of the eye-witness was trustworthy and even his testimony was intact in the cross-examination then in such situation we do not find any good ground to make any adverse reference against the prosecution to the effect that even though other witness i.e Hanso Devi was available but she was being withheld from the Court.
The Court opined that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness.
The Court noted that in the matter, nowhere it is brought on record or even to suggest that prior to the said occurrence Raja Ram had any animosity or annoyance with his son, Pawan. Mere relationship with the deceased is not a ground to discredit his testimony, if it is otherwise found to be reliable and trustworthy.
It is difficult to accept that the father, who had lost one son, would implicate the other son, who is innocent. Therefore, considering the facts and circumstances, we do not find that it is necessary to scrutinize other witnesses with more care, caution and circumspection and we hold that the testimony of Raja Ram is wholly reliable testimony, though the memo of recovery was not made in presence of public witness. Since no public witness has been examined to the said occurrence then in such a situation the statement made by Constable and investigating officer will have to be scrutinized with care, caution and circumspection.
“Considering their testimony that the recovery of country made pistols were made from the public place (bushes) which were accessible to one or all as such no reliance could be placed on such recovery. The said argument is not acceptable in this backdrop. The same is fully corroborated with the medical evidence and the injuries sustained to the deceased. In case of direct evidence and the ocular testimony of the eye witness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for crime. In the matter, the appellants were annoyed with the settlement of the shop in question. However, we have already held hereinabove, that the testimony of the eye-witnesses could not be said to be unreliable.
Considering the facts, we are of the considered opinion that the trial court has discussed the entire evidence in detail and we have already recorded our reasons hereinabove for not accepting the stand taken on behalf of the appellants. We hardly find that there is any scope of doubt about the date, time, and place of occurrence which is also established by the ocular testimony of Raja Ram. The recovery of the weapons on their pointing out, the utilization thereof and the manner of assault by the appellants all stood corroborated with the medical evidence and further fortified by the post-mortem report. We are also of the opinion that the inquest proceedings also do not create any doubt. The trial court is also fully justified in coming to the conclusion that there was a meeting of mind established from the evidence on record. The evidence on record also indicates that all the accused had joined together on spot with the common intention of committing murder of the deceased.
On close scrutiny of the evidence, we do not find any error in appreciation of evidence by the trial court and arrive at the conclusion of convicting the appellants. Consequently, both the appeals, being devoid of merit, are liable to be dismissed,” the Court observed while dismissing the appeal.