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CRIMINAL APPEAL NO.1506 OF 2019
SANTOSH & ANR. Appellants
JUDGMENT
1. This appeal under Section 2(A) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 is directed against the judgment and order dated 08.03.2019 passed by the High Court of Judicature at Allahabad in Government Appeal No.448 of 2004.
2. The basic factual aspects of the matter as set out by the High Court in its judgment are extracted hereinbelow for facility:
3. The injuries suffered by Ramesh Yadav and Asgar were noticed by Dr. S.S. Parvez (PW-6) and the injuries were as under: “Ramesh Yadav- (1) Incised wound 3cm x 0.5cm x scalp deep, vertical on the middle part of the left eye brow, bleeding present. (2) Lacerated wound 3cm x 0.5cm x scalp deep, on the outer aspect of left eyebrow, bleeding present. (3) Lacerated wound 1.5cm x 0.5cm x cartilage deep, on the middle of the nose, bleeding present, KUO (kept under observation), Advised X-Ray of Nose. (4) Lacerated wound 1.5cm x 0.5cm x muscle deep, 2cm below the left eye, bleeding present. (5) Contused Trans swelling on the left side of face and forehead, in the area of 10cm x 7cm, KUO, Advised X- Ray of face. (6) Abrasion 5cm x 2cm on the left side back, lateral aspect. (7) Incised wound 1cm x 0.5cm x depth, KUO, on the left side back, middle part. (8) Incised wound 1cm x 0.5cm x depth, KUO, on the right side back, middle part. Both are KUO, advised X-Ray of the chest. (9) Incised wound 1cm x 0.[3] cm on the left side of abdomen, depth KUO, Injury KUO, advised X-Ray. (10) Incised wound 0.5cm x 0.3cm x depth KUO, on the left side of chest, Injury KUO, advised X-Ray. (11) Incised wound 0.5cm x 0.3cm x depth KUO, on the right side of chest, Injury KUO, advised X-Ray. Asgar Ali - (1) Lacerated wound 1cm x 0.4cm x scalp deep on his back of head, right side, blood oozing, 11cm above and back of right ear, KUO (kept under observation), Advised X-Ray of skull. (2) Trans. swelling, tender, 5cm x 4cm on the left wrist joint, KUO, advised X-Ray of the left wrist with hand. (3) Abrasion 3cm x 1.5cm, just above the right knee joint. (4) Abrasion 5cm x 0.25cm on the middle part of he back, upper part.“
4. The autopsy on the body of the deceased was conducted by Dr. Shyam Lal Barnwal (PW-4) on 24.03.1998 at 4.00 p.m., who found the following ante-mortem injuries on the body of the deceased: “(i) Multiple lacerated wound, in an area of 14cm x 12cm, on the right side of abdomen, varying in size, 1.5cm to 2cm in length and 0.5cm in width and muscle deep.
(ii) Firearm wounds of entry, 1.5cm x 1.5cm x abdomen cavity deep, on right side abdomen, upper part, blackening present, margin inverted, underlying peritoneum, liver lacerated and one metallic cog shot recovered from abdomen cavity.
(iii) Multiple incised wound in an area of 12cm x 8cm, on the left side of chest, varying in size 1.5cm to 2cm in length and 0.5cm in width, muscle deep.
(iv) Incised wound 3cm x 0.5cm x muscle deep on the right forearm, upper part.
In the internal examination, peritoneum was lacerated. Abdomen cavity contained 2 liter blood. Stomach contained 3 ounce watery fluid. Small Intestine was empty and large intestine contained gases and fecal matter. Liver was lacerated. Urinary Bladder was empty. According to opinion of the Doctor, death was caused due to shock and hemorrhage, as a result of ante-mortem injuries.”
5. After completion of investigation, six accused persons, namely, Gopal, Bhola, Uma, Ravishankar, Santosh and Sailesh were tried for having committed the offences punishable under Sections 147, 148, 149, 323, 307, 302, 504, 506 IPC in the Court of the Additional Sessions Judge, Court No.3, Gorakhpur in Sessions Trial No.571 of 1998.
6. Apart from examining the informant Shailendra Kumar Tripathi as PW-1, the prosecution mainly relied upon the evidence of the injured witnesses.
7. PW-2 Asgar in his testimony narrated that he and Ramesh Yadav as well as the deceased were surrounded and blows by hockey sticks were showered upon them whereafter the deceased Vivek had taken shelter in someone’s house to save his life. The accused persons gave him a chase and gunshot was fired at Vivek in the house where he had taken shelter. As regards the assault on the witness himself, he gave sufficient particulars in his examination-inchief. Nothing substantial was extracted in the cross-examination.
8. PW-3 Ramesh Yadav gave details about the way the incident had developed and stated as under: “Shailesh, Santosh and Uma fired gunshots with an intent to kill us. All of them chased us. We ran to save us. Vivek, Asgar and I were cornered. I sustained gunshot injury on my back. After cornering us, they started assaulting with gupti, latho and sticks. When Vivek ran towards west to save his life, the accused chased him. He hid himself by entering the house of Mr. Sharma. The accused pushed the door and shot him. After committing his murder the accused while coming out were uttering: “Saala bahut paisa mangta tha, ab nahin mangega. Uska kaam tamam kar diya (He has been repeatedly asking for money, now he will not ask for same. We have killed him)”. When the accused cornered, fired gunshot and started assaulting. Vivek sustained gunshot injury as also the injuries caused by gupti, lathi and stick. Asgar and I sustained several injuries.” The examination further indicated that the witness was required to be hospitalized for a week.
9. The Trial Court by its judgment and order dated 19.08.2003 found that the case of the prosecution as against the accused was not proved. The Trial Court thus acquitted the accused of all the charges levelled against them.
10. Being aggrieved, the State preferred Government Appeal No.448 of 2004 in the High Court. The High Court found the presence of PW[1] Shailendra at the place of occurrence to be doubtful but found the evidence of the injured eye-witnesses i.e. PW[2] Asgar and PW[3] Ramesh Yadav to be credit worthy. It was observed: “According to medical evidence, the deceased Vivek Kumar Pandey received one gunshot injury while Asgar Ali and Ramesh Yadav, the remaining injured did not receive any gunshot injury. Showing pistol in the hands of Uma and Shalesh and their participation in the incident appears to be exaggeration. Many unnamed accused assaulted with lathi as such participation of Ravi Shankar and Gopal are also doubtful and appears to be exaggeration. Uma, Ravi Shankar, Gopal and Shalesh are entitled for benefit of doubts. However, participation of Bhola, armed with gupti and Santosh armed with pistol and some unnamed accused armed with lathi and causing injuries to Vivek Kumar Pandey (the dec
11. Accepting the appeal insofar as accused Santosh and Bhola were concerned, the High Court reversed the order of acquittal and convicted said two accused of the offences punishable under Sections 302, 324 read with 34 IPC and awarded them sentence of life imprisonment under the first count and imprisonment for three years on the second count. The acquittal of rest of the accused persons was affirmed by the High Court.
12. The convicted accused being aggrieved have preferred this criminal appeal.
13. We have heard Mr. Aldanish Rein, learned Advocate for the appellants, and, Mr. Vinod Diwakar, learned Additional Advocate General for the State.
14. The prosecution has mainly relied upon the eye-witnesses account unfolded through the testimonies of PW-2 and PW-3. The injuries suffered by these two witnesses and the fact that those injuries were noticed by the concerned Doctors soon after the incident, sufficiently prove the presence of the witnesses at the time of the occurrence. Their testimonies are quite cogent and consistent with the medical evidence on record. Though the High Court was sitting in appeal against acquittal, in the facts and circumstances on record, the interference at the hands of the High Court was quite justified. We, therefore, see no reason to take a different view in the matter.
15. Affirming the view taken by the High Court, we dismiss this appeal. The appellants shall serve out the sentence awarded to them ............................. J. (UDAY UMESH LALIT) (S. RAVINDRA BHAT) (PAMIDIGHANTAM SRI NARASIMHA) New Delhi, February 22, 2022.