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BHOPAL versus STATE OF U.P.

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Bhopal v. State Of U.P. - CRIMINAL APPEAL No. - 5382 of 2002 [2007] RD-AH 14583 (28 August 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVE

Criminal Appeal No. 5382 of 2002

Bhopal.............. .................. ............ Appellant.

Versus

State of U.P. ............................. Respondent.

*************

Hon'ble S.S. Kulshreshta, J.

Hon'ble Vijay Kumar Verma, J.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. This appeal has been preferred against the judgment and order dated 08.11.2002 passed by Sri D.S. Tripathi, the then Addl. Sessions Judge/Fast Track Court-I, Ghaziabad in Sessions Trial No. 1940 of 2000, whereby the appellant-accused Bhopal has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- under section 302 Indian Penal Code with further imprisonment for six months in default of payment of fine in Case Crime No. 650 of 2000, P.S. Sihani Gate, Ghaziabad.

2. The incident resulting in the death of Krishna Kumar Sharma, husband of the complainant Smt. Beena Sharma r/o 134, Luharpura, Ghaziabad, occurred on 04.09.2000 at about 9.50 p.m. on G.T. Road, Ghaziabad near Naz Hotel. First information report ( Ext. Ka 8) was lodged by the complainant at P.S. Sihani Gate, Ghaziabad. The case of the prosecution as appearing from the FIR and statement of the complainant Smt. Beena Sharma (P.W.1), in brief, is that on 04.09.2000 the complainant and her husband Krishna Kumar Sharma were going to their house situated in Mohallah Luharpura from railway station Ghaziabad. When at about 9.50 p.m., they reached near Naz Hotel on G.T. Road in front of Pawan Cinema, the accused Bhopal S/o Chhotey r/o village Girdharpur along with one other person all of a sudden came from ahead and fired on Krishna Kumar Sharma from tamancha, due to which he sustained serious injuries. In serious condition, Krishna Kumar Sharma was carried to Shankar Hospital, from where he was referred to Government Hospital Ghaziabad, where primary treatment was given to him and thereafter he was sent to Teg Bahadur Hospital New Delhi, where he was admitted in the same night. During treatment, Krishna Kumar Sharma expired on 12.09.2000 at 6.25 p.m.

3. In District Hospital Ghaziabad, Krishna Kumar Sharma was medically examined by Dr. R.K. Verma (P.W.3) on 04.09.2000 at 10.00 p.m. The following injuries were found on his person :-

1. Lacerated wound circular 1 cm x ?? cm depth under observation on right side back of chest just behind the posterior axillary illegible, 11 cm from the axilla, blood oozing. Multiple abrasions pin head size all around the wound in the area of 7 x 7 cm, margin inverted.

2. Lacerated wound circular in shape 4 cm. x 2 cm x depth under observation, on the right side front of chest, 4 cm below and outer from the medial end of right clavicle. Depth could not measured. Small multiple abrasion pin head size in the area of 8 cm x 7 cm around the wound.

Both injuries were caused by fire arm and the duration was fresh.

4. Smt. Beena Sharma got the written report (Ext. Ka 1) scribed by Devendra in Government Hospital Ghaziabad and handed over the same at P.S. Sihani Gate, where P.W.6 Narayan Dutt Sharma prepared chik FIR (Ext. Ka 8) and registered a case under section 307 IPC against the accused Bhopal and his unknown companion at Crime No. 650 of 2000 on 04.09.2000 at 11.15 p.m. and made its entry in G.D. No. 71 vide Ext. Ka 9.

5. When Krishna Kumar Sharma died in Teg Bahadur Hospital Delhi on 12.09.2000, P.W. 7 S.I. Sanjay Kumar Singh came to hospital and conducted inquest proceedings on dead body, during which inquest report (Ext. Ka 10) and connected papers (Ext. Ka 11 and Ka 12) were prepared. Thereafter, the dead body in sealed condition was sent for post mortem examination, which was conducted by Dr. N.K. Agrawal (P.W. 4) on 13.09.2000 at 12 noon. In post-mortem report (Ext. Ka 10), following wounds have been shown under the heading ante mortem injuries:-

1. Surgically stitched wound obliquely present in lower front of chest having 14 stitches. The wound starts from the 4th inter-costal space in the ant. Axillary line and goes up to 6th intercostal space medially. On removing the stitches, the underlying stitched portion of tissues of skin are there and underlying ribs have been cut.

2. Surgically stitched wound having two stitches present over the upper, inner front of right side of chest. On removing the stitches, the fire arm entry wound of 1.5 x 1.5 cm is there. The inner margin of the injury is 3 cm away from the mid line. The injury is 3 cm below the (Right) clavicle. The injury has entered the chest cavity through 2nd intercostal space and cutting the 3rd rib at costochondral junction. It has gone downwards, inwards and back wards into the chest cavity, through the (right) upper lobe of lung and then (sic) and then inner portion of lower lobe of (right) lung and has ended there at the outer aspect of (right) side of 11th thoracic vertebrae. Catgut stitches are seen at the outer aspect of 11th thoracic vertebrae, adjacent muscles cut in the (right) lung at various places.

3. Infected gun shot entry wound of 1.5 x 1.5 cm present over middle outer back of (right) side of chest in the post-axillary line. The injury had entered the chest cavity by fracturing the 8th rib and then goes upwards, backwards and inwards through (right) lung. A bullet is recovered from the space between 4th & 5th thoracic vertebral spines. The bullet is 3 cm in length and 0.5 cm in breath.

4. Surgical drainage wound of 1 x 1 cm present over lower later aspect of (right) side of chest.

Wound no. 1 and 4 were surgical wounds, whereas wound no. 2 and 3 were ante mortem injuries.

According to Dr. Agrawal, death of the deceased was caused due to septicaemia as a result of ante mortem injuries to chest produced by projectiles of fire arm.

6. Investigation was entrusted to S.I. Randhir Singh (P.W. 5) who recorded the statement of injured Krishna Kumar Sharma in intervening night of 4/5.09.2000 in M.M.G. Hospital Ghaziabad. Thereafter, statements of other witnesses were recorded and after making spot inspection site plan Ext. Ka 6 was prepared. When Krishna Kumar Sharma died in the hospital, the case was converted under section 302 IPC on 28.09.2000 and after completion of the investigation, charge sheet (Ext. Ka 7) was submitted against the accused-appellant Bhopal on 23.11.2000.

7. On the case being committed to the court of session for trial, charge under section 302 IPC was framed against the appellant-accused, to which he pleaded not guilty and claimed to be tried.

8. The prosecution in order to bring home the guilt of the appellant/accused, examined as many as seven witnesses in this case. P.W. 1 Smt. Beena Sharma is eye witness of the occurrance. She has proved written report Ext. Ka 1. P.W. 2 Anil Kumar is the brother of the complainant. The accused Bhopal and his companion Ajit are said to have confessed their guilt on 09.09.2000 before this witness. P.W. 3 Dr. R.K. Verma has proved the injuries of deceased and his injury report (Ext. Ka 4). P.W. 4 Dr. N.K. Agrawal has proved post-mortem report (Ext. Ka 5). P.W. 5 Randhir Singh, is the Investigating Officer, who has proved site plan (Ext. Ka 6) and charge-sheet (Ext. Ka 7). P.W. 6 Head Constable Narayan Dutt Sharma is the scribe of chik FIR (Ext. Ka 8), which has been proved by him. He has also proved the copy of G.D. No. 71 (Ext. Ka9). P.W. 7 Sanjay Kumar Singh has proved inquest report (Ext. Ka 10), form No. 25 and 35/1-B ( Ext. Ka 11) and case summary report (Ext. Ka 12).

9. In his statement recorded under section 313 Cr.P.C., the accused-appellant has denied his participation in the alleged incident and he has stated that due to village partibandi and enmity, he has been falsely implicated in this case by the complainant. No evidence has been led by the appellant in defence.

10. The learned Trial Court after considering the evidence on record, convicted and sentenced the appellant as aforesaid. Hence this appeal.

11. We have heard Sri Maqsood Ahmad learned counsel for the appellant and learned AGA for the state and perused the impugned judgment and entire evidence on record carefully.

12. To prove the incident in which the deceased Krishna Kumar Sharma sustained injuries, Smt. BeenaSharma (wife of deceased) has been examined by the prosecution as P.W. 1. Regarding her testimony, it was submitted by learned counsel for the appellant that it is unsafe to place reliance on the testimony of this witness, because being the wife of deceased, she is interested witness and her presence at the time of incident is also doubtful. After careful scrutiny of the statement of Smt. Beena Sharma, we are not impressed with the aforesaid submission made by learned counsel for the appellant. Smt. Beena Sharma in her statement recorded in trial court on 30.06.2001 has stated that she along with her husband Krishna Kumar Sharma had gone to Vijaypur Delhi to see the ailing son of Umesh, who is brother-in-law of the brother of her husband. It is further stated by her that on 04.09.2000 at about 9.45 p.m. she and her husband were coming to their house in mohallah Loharpur from railway station Ghaziabad and when they reached near Naz Hotel on G.T. Road, in front of Pawan cinema, the accused Bhopal present in court along with his one other companion met them and he said to her husband "Khana kha le. Pati ne khana khane ke liya mana kiya to phir kaha ki apane hotel ka pichhala bill to leta ja, aur ekdam mere pati par muljim bhopal ne do fire kiya. Mere pati goli lagane se wahin gir gaye". Smt. Beena Sharma has further stated that she with the help of one or two other persons carried her husband to Shankar Hospital, from where he was sent to District Hospital Ghaziabad for treatment. It is also stated by this witness that after primary treatment in District Hospital Ghaziabad, her husband was referred to Teg Bahadur Hospital Delhi, where he died during treatment on 12.09.2000. Regarding the written report (Ext. Ka 1), it is stated by Smt. Beena Sharma that in hospital she got the report scribed by a person named Devendra and, thereafter, she went to P.S. Sihani Gate, and lodged the FIR there. An application Ext. Ka 2, was given by Smt. Beena Sharma regarding the death of her husband. This application also has been proved by her. Regarding the motive for committing the murder of her husband, Smt. Beena Sharma has stated in her statement that prior to this incident, her husband used to run hotel of a Sardar at Lal Kuan Ghaziabad. Her husband had told her that Bhopal r/o Girdharpur and some other miscreants after taking meal did not make payment. It is further stated by Smt. Beena Sharma that one day Bhopal along with 2-3 persons had taken meal in the hotel of her husband and on demanding money, he did not make payment and threatened her husband exhibiting DADAGIRI. At that time some police personnel also were present on the hotel, who carried Bhopal to Police Chauki and confined him there. Smt. Beena Sharma has further sated that due to that incident, Bhopal began to have enmity with her husband.

13. Lengthy cross-examination has been made by the learned counsel for the appellant-accused from Smt. Beena Sharma, but nothing material adversely affecting her testimony could be elicited in cross-examination. There is no material contradiction in her statement. Hence, there is no reason to disbelieve the testimony of this witness and on the basis of her testimony, it is fully proved that injuries to her husband were caused by the accused Bhopal by firing two shots from tamancha on 04.09.2000 at about 9.45 or 9.50 p.m. on G.T. Road Ghaziabad, in front of Pawan Cinema near Naz Hotel. During treatment in Teg Bahadur Hospital Delhi, Krishna Kumar Sharma died on 12.09.2000 due to septicaemia caused by ante mortem fire arm injuries no. 2 & 3, shown in the post-mortem report Ext. Ka. 5. On the basis of testimony of Smt. Beena Sharma it is also proved that there was motive for the accused Bhopal to cause injuries to deceased, because he was having enmity with him prior to the incident.

14. The testimony of Smt. Beena Sharma finds corroboration from injury report Ext. Ka 4 and post mortem report Ext. Ka 5. At the time of medical examination of the injured Krishna Kumar Sharma by Dr. R.K. Verma on 04.09.2000 at 10.00 p.m., two lacerated wounds caused by fire arm were found on his person. Dr. R.K. Verma has stated that injuries of the injured were possible to be caused on 04.09.2000 at about 9.50 p.m. Dr. N.K. Agrawal (P.W. 4) who conducted post-mortem examination on the dead body has opined that ante mortem injuries no. 2 & 3 combined and separately also were sufficient to cause the death in ordinary course. According to Dr. Agrawal septicaemia resulting in the death of deceased was caused due to ante mortem fire arm injuries.

15. Although Smt. Beena Sharma is the wife of deceased, but her testimony cannot be discarded merely on this ground. In a catena of decisions, the Hon'ble Apex Court has held that the testimony of any witness cannot be discarded merely on the ground that he is related to the victim or deceased. It is also well settled principle of law that conviction can be based on the testimony of single witness, if his testimony is found trustworthy.

16. In Dalip Singh and others vs. State of Punjab (AIR 1953 SC 364), it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause fro enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilt, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

17. The above decision has been followed in Guli Chand and others v. State of Rajasthan 1974 (3) SCC 698, in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon. Again in Masalti and others v. State of U.P., AIR 1965 SC 202, the Hon'ble Apex Court observed:-

" But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.................The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

18. It is also settled principle of law that even if independent witnesses do not come to court to depose, conviction can be based on the testimony of the witnesses, which have been examined by the prosecution and this principle will apply in the case of relative witnesses also. The Hon'ble Apex Court in para 31 in the case of Krishna Mochi vs. State of Bihar 2002, SCC (Cri) 1220 has made the following observations:-

"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power."

In para 33 it is further held:-

" It is well settled that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy inasmuch as what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses, but the quality of their evidence".

19. In the case of Chuhar Singh vs. State of Haryana AIR 1977 SC 386 a Bench of three Hon'ble Judges of Apex Court has held that :-

"The fact that the prosecution has been able to examine but one eyewitness to the occurrence cannot detract from the strength of its case. What is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a hast of vulnerable witnesses may fail to support a single charge of hurt. Since the case must stand or fall by the evidence of the solitary eyewitness it is necessary to examine that evidence critically."

20. The following observations made by Hon'ble Apex Court in the case of Sunil Kumar vs. State Government of NTC of Delhi (2003 (11) SCC 367 are also relevant:-

"As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there arose doubts about the testimony, the courts will insist for corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."

21. Therefore, having regard to the observations made by Hon'ble Apex Court, in our considered view the conviction recorded by learned Trial Court on the basis of sole testimony of Smt. Beena Sharma does not suffer from any illegality.

22. It was vehemently contended by Sri Maqsood Ahmad learned counsel for the appellant that presence of Smt. Beena Sharma at the time of incident is doubtful, because the injured Krishna Kumar Sharma was not brought to the hospital by her, as it is not mentioned in the injury report Ext. Ka. 4 that injured was brought by his wife Smt. Beena Sharma. It is true that in the injury report Ext. Ka 4, the name of the person who brought the injured Krishna Kumar Sharma to hospital is not mentioned, but merely due to this omission, the presence of Smt. Beena Sharma on the place of occurrence cannot be doubted, because on the basis of her reliable testimony, it is established beyond reasonable doubt that she was coming with her husband at the time of incident from New Delhi after seeing the ailing son of Umesh who is brother-in-law of the brother of deceased. It is specifically stated by Smt. Beena Sharma in her statement that after incident she with the help of one or two other persons carried her husband to Shankar Hospital and from there she carried him to Government Hospital Ghaziabad, where her Jeth and mother-in-law also had reached on getting information of the incident. No effective cross-examination on this point has been made from this witness. Hence, there is no reason to disbelieve her testimony, which is wholly reliable.

23. Next submission made by the learned counsel for the appellant that there is no mention of light in the first information report and hence due to darkness in the night at about 9.45 p.m. it was not possible to identify the assailant. We do not find force in this submission. The incident had occurred near Naz Hotel and in front of Pawan Cinema on G.T. Road, Ghaziabad. Hence, there was possibility of light either of electricity or generator at the place of occurrence out side Naz Hotel and Pawan Cinema. Moreover, no cross-examination has been made from Smt. Beena Sharma on the point of light. Therefore, it cannot be presumed that there was failure of electricity at the time of occurrence. The accused-appellant Bhopal was known to Smt. Beena Sharma as is evident from her statement. She was very near to her husband at the time of incident. Hence, there was no difficulty for her to recognize the appellant-accused at the time of incident.

24. It was further submitted that incident did not occur at the place where it is shown, because no blood was found at that place. In this regard, our attention was drawn towards the statement of S.I. Randhir Singh P.W. 5, who has stated that he did not find any blood at the place of incident in the night of occurrence when he reached there at about 2.30 a.m. or on 05.09.2000 at the time of spot inspection. The incident had occurred on G.T. Road Ghaziabad, which is very busy road. Therefore, if due to running vehicles and passers-by, the blood stains were wiped out and no blood was found at the time of spot inspection on 05.09.2000 at about 5.00 p.m. or in the intervening night of 04/05.09.2000 at about 2.30 a.m., then on this ground the entire prosecution case cannot be thrown out, because on the basis of wholly reliable testimony of Smt. Beena Sharma, it is fully established beyond reasonable doubt that incident in which her husband sustained injuries at the hand of accused-appellant Bhopal had occurred just near Naz Hotel on G.T. Road Ghaziabad.

25. It was also contended by learned counsel for the appellant that blood stained clothes were not taken into possession by the police and due to non-examination of wearing blood stained clothes of the deceased, the incident becomes doubtful. We are not at all impressed with this argument. It has come in the testimony of Anil Kumar (P.W. 2) that wearing clothes of deceased were thrown somewhere by the employee of Teg Bahadur Hospital Delhi at the time of operation, which could not be traced out even after search. There is no reason to disbelieve this part of the statement of this witness. Hence, in our view non-examination of wearing blood stained clothes of the deceased is not very material having regard to the convincing evidence of this case.

26. Our attention was drawn towards the following statement of Smt. Beena Sharma recorded under section 161 Cr. P. C. by the Investigation Officer in case diary which has been proved by S.I. Randhir Singh P.W. 5:-

"Naz hotel ke ek naukar ne hamare ghar jakar bataya".

Much thrust was laid by the learned counsel for the appellant on the aforesaid statement of Smt. Beena Sharma and it was strenuously contended that Smt. Beena Sharma had reached on the place of occurrence on getting information from the servant of Naz Hotel. We are not impressed with this argument also. On the basis of aforesaid statement, it cannot be inferred that Smt. Beena Sharma reached at the place of incident on getting information through the servant of hotel, because on the basis of her substantive evidence given in court, it has been proved beyond doubt that she was coming with her husband from Delhi on the fateful night and whole incident had occurred in her presence.

27. Regarding the evidence of so called extra judicial confession of the appellant-accused Bhopal and Ajit before P.W. 2 Anil Kumar as alleged by him in his statement, it was contended by learned counsel for the appellant that no reliance can be placed on the evidence of alleged confession. We find force in this submission. P.W. 2 Anil Kumar is the real brother of the complainant. Hence, there was hardly any hope to get some help from this witness in the case. Being close relative of the deceased, the witness Anil Kumar will be the last person to help the murderer of his brother-in-law. Although the learned Trial Judge has placed reliance on the evidence of alleged extra judicial confession also, but for the reasons which we have mentioned above, the evidence of so called extra judicial confession of the appellant may be excluded from consideration.

28. The Investigating Officer S.I. Randhir Singh is said to have recorded the statement of injured Krishna Kumar Sharma in District Hospital Ghaziabad. Regarding that statement of the deceased recorded in the case diary, it was submitted by learned AGA that said statement will be treated as dying declaration of the deceased under the provisions of Section 32 of Indian Evidence Act. In this regard, it was contended by learned counsel for the appellant that alleged statement of the deceased has not been proved by P.W. 5 S.I. Randhir Singh in his statement and hence, the said statement recorded in case diary cannot be read in evidence. It was also submitted by learned counsel for the appellant that condition of injured Krishna Kumar Sharma was very serious and he might not be in a position to give any statement in District Hospital Ghaziabad. It was further submitted that time of recording the statement of deceased has not been mentioned in the case diary and hence, for all these reasons, no reliance can be placed on the alleged case diary statement of the deceased. We find force in this submission also. At the time of examination of S.I. Randhir Singh in trial Court, the alleged statement of deceased recorded in the case diary was not got proved in accordance with law and the said statement has not been exhibited during trial. Therefore, we agree with the learned counsel for the appellant that the Trial Judge has committed gross error in using the statement of deceased recorded in the case diary as evidence in the trial.

29. The weakness of motive was also brought to our notice and in this regard it was submitted by learned counsel for the appellant that the motive as alleged in the statement of Smt. Beena Sharma is very weak. The contention of the learned counsel for the appellant was that due to alleged minor dispute regarding non-payment of money after taking meal at the hotel of deceased, the appellant-accused Bhopal would not go to the extent of committing the murder of deceased. We are not impressed with this argument. On the basis of direct testimony of Smt. Beena Sharma, the case of the prosecution has been proved beyond reasonable doubt. Hence, absence or weakness of the motive is not material in this case, because it is well settled principle of law that where the prosecution has led cogent and trustworthy evidence to prove the crime, matter of motive looses significance . In the case of Thaman Kumar vs. State of Union Territory of Chandigarh, reported in (2003) 6 SCC 380: (AIR 2003 SC 3975), the Hon'ble Apex Court has observed as under:-

"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust worthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved".

30. The following observations have been made in the case of State of H.P. vs. Jeet Singh, reported in (1999) 4 SCC 370: (AIR 1999 SC 1293), by the Hon'ble Apex Court:-

"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended".

31. On the basis of foregoing discussion, we come to the conclusion that although reliance cannot be placed on the evidence of so called extra judicial confession of the appellant-accused before the witness Anil Kumar and alleged dying declaration of the deceased in the form of statement under section 161 Cr. P. C., but on the basis of cogent, convincing and wholly reliable testimony of Smt. Beena Sharma, it is proved beyond reasonable doubt that murder of her husband was committed by the appellant-accused Bhopal by firing two shots on him on the alleged date, time and place. Presence of Smt. Beena Sharma at the time of occurrence is not doubtful. She had duly recognized the appellant-accused Bhopal at the time of incident. He was well known to her by face and name prior to the incident. Hence there was no question of mistaken identity. There was no reason for Smt. Beena Sharma to falsely implicate the appellant in this heinous crime. Therefore, for all these reasons, interference by this Court in the impugned judgment is not warranted.

32. Consequently, the appeal is hereby dismissed. Conviction and sentence of the appellant-accused Bhopal awarded by the trial court is affirmed. The appellant is undergoing sentence in Jail. He shall be kept there to serve out the remaining sentence.

Office is directed to return trial court record expeditiously along with a copy of this judgment for necessary action.

v.k. updh

Dated: 28.08.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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