Dismissed

Anil Kumar Jaiswal v. State Of Uttarakhand

Uttarakhand HC29 Apr 2015CRLA/246/2013

Case brief

AI extract

What is this about?

The High Court dismissed two criminal appeals filed by Anil Kumar Jaiswal challenging his conviction under Section 302 IPC and Section 25 of the Arms Act. The court upheld the trial court's finding that eyewitness testimony was credible and supported by forensic evidence, rejecting arguments that the witnesses were biased relatives.

What did the court decide?

Criminal appeals dismissed; impugned judgment and order of conviction and sentence affirmed; appellant to serve the awarded sentence in jail.

Anil Kumar Jaiswal Vs State Of Uttarakhand — Cheque Dishonour | Uttarakhand HC (2015)

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Reserved Judgment

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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(1) Criminal Appeal No.245 of 2013

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Anil Kumar Jaiswal … Appellant

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Versus

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State of Uttarakhand … Respondent

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Mr. A.K. Sharma and Mr. Abid Ali, Advocates for the appellant. Mr. H.O. Bhakuni, AGA for the State/respondent.

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(2) Criminal Appeal No.246 of 2013

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Anil Kumar Jaiswal … Appellant Versus

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State of Uttarakhand … Respondent

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Mr. A.K. Sharma and Mr. Abid Ali, Advocates for the appellant. Mr. H.O. Bhakuni, AGA for the State/respondent.

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Coram: Hon’ble Alok Singh, J. Hon’ble Servesh Kumar Gupta, J.

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Per: Hon’ble Servesh Kumar Gupta, J.

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Both the appeals, tiled above, have arisen out of a common judgment and order, hence are being adjudicated by this common verdict.

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Criminal appeal no.245 of 2013 has been filed by the appellant assailing his conviction u/s 302 IPC whereas that of bearing no.246 of 2013, accused has challenged his conviction recorded u/s 25 of the Arms Act.

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Learned Sessions Judge, Nainital, vide judgment and order dated 14.05.2013, found the appellant guilty for the offences of section 302 IPC and section 25 Arms Act, wherefor he has appropriately been sentenced. The S.T. No.163 of 2006 pertaining to crime No.2762 of 2006 was adjudicated by learned Judge, wherein four accused

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persons, Deepak Pathni (A1), Anil Kumar Jaiswal (A2), Manoj Jaiswal (A3) and David @ Devi Lal (A4), were tried for the offences of section 302 and 120-B IPC at P.S. Haldwani and the Trial Court found that the prosecution could not prove the case as against A1, A3 and A4, at the same time, the Court below found the case proved as against A2 beyond reasonable doubt, so he was convicted and awarded sentence, as afore-stated.

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Along with the said sessions trial, A2 was also tried for the offence of Section 25 Arms Act, allocating a separate S.T. No.165 of 2006 (crime no.2996/2006), though clubbed, so the evidence was recorded in all the session trials together which met with the end, as indicated hereinabove.

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Facts of the case, sans unnecessary details are that a youth, named Sunil, running in his mid twenties, was shot dead on 14.5.2006 at around 08.45 PM while he was in the company of PW4 Godhan Singh and PW5 Trilok Singh in the vicinity of Kaladhungi intersection of Haldwani town; he fell down and breathed his last on the spot. The incident was telephonically informed by PW5 Trilok Singh (friend of victim) to PW1 Lal Singh (father of deceased) immediately. So, the matter was promptly reported by the hapless father (PW1) in the police station at 10.15 PM viz. within 1½ hour of the incident, implicating A1, A2 and one un-named. In the FIR (Ex.Ka-1), complainant has averred that his son Sunil was returning home on foot along with PW4 and PW5 from the Tempo-stand of Kaladhungi intersection; Sunil was a bit ahead from his friends; meanwhile three motorcycle borne youths, including A1 and A2, came from front and stopped his son Sunil and made indiscriminate firing on him thereby causing the

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incident. Witnesses Godhan Singh and Trilok Singh strived to apprehend the assailants but in vain. Accused were identified in the electric light at the spot. The Chick report is Ex.Ka-3.

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Police then came into motion and recovered covers of three cartridges, one of 315 bore pistol while two were of 12 bore weapon; the dead body of Sunil was also taken into possession; memo of recovery of all above things is Ex.Ka-13, whereas Ex.Ka-14 is the memo of recovery of plain soil.

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A2 could be arrested on 26.5.2006 from Haldwani town itself and at his instance, one country-made pistol of 12 bore, which was disclosed by him to be the murder weapon, was recovered on that day, memo of such recovery is Ex.Ka-18. Although, A1 could also be arrested at some other time and a 12 bore country-made pistol, disclosed by him as the murder-weapon, could be recovered on 01.06.2006 at his instance, the recovery memo is Ex.Ka-22. One pistol of 315 bore could also be recovered at the instance of other accused persons but the same is not relevant because other accused persons have already been acquitted and such exoneration has not been challenged before us.

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Police culminated investigation into the submission of chargesheet against all the accused persons and after the evidence was led by the prosecution, the judgment could be rendered, as indicated above.

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We have heard learned counsel for the appellant as well as learned State counsel for the State.

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Nothing significant could be argued before us in the defence except taking this Court to the statements of

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PW4 Godhan Singh and PW5 Trilok Singh, who are the eyewitnesses of the incident. It was vociferously contended that PW5 Trilok Singh has not supported the version of prosecution and he became hostile in his chief-examination itself. Further, PW4 Godhan Singh, another eyewitness, is a cousin of victim, thus, the testimony of a near relative cannot be placed reliance upon.

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We have given our anxious consideration on both the submissions put forth by learned counsel for the appellant and we discard the same for the following reasons:-

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The incident occurred on 14.5.2006; chargesheet was submitted at the end of June, 2006 and soon after taking cognizance on the same, the levelling of Charge was protracted, on account of one reason or the other, and the same could be framed only on 20.2.2007. After examination of PW1 Lal Singh (informant), PW2 Dr. Vimal Pant (who conducted autopsy) and PW3 H.C. Kishan Ram, a formal witness, the turn was for the eyewitness account. PW4 Godhan Singh, though being in some private job posted in remote Punjab, was produced at least five times and he could not be examined on account of repeated adjournments on each and every date by the defence counsel. His chief examination could be recorded only on 1.12.2007 when he turned up for the fifth time and he expressed his inability to put his presence before the Court any further because of the repeated harassment. Even though, the defence counsel did not cross-examine him, nonetheless the opportunity was rendered. Thereafter, on some other date, application was moved on behalf of the accused to provide him an opportunity for crossexamination. This application was heard by learned Trial

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Judge and vide order dated 17.10.2008, such opportunity was further re-opened. This time, the witness was again summoned and he could turn up on 2.9.2011 i.e. after 5½ years of the incident, his cross-examination could be done, and this harassment too could not deviate him from his version to what he disclosed to the Investigating Officer u/s 161 Cr.P.C.

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PW4 Godhan Singh has specifically named and identified A2, who was the assailant. He has testified his presence on the spot and it has been a law laid down by the Hon’ble Apex Court in a galaxy of judgments that the testimony of a near relative cannot be brushed aside just on the basis of his relations with the victim because in such matters, people hardly take trouble to face the ordeal of a witness which he is supposed to undergo in the Indian Courts. That apart, people also do not like to be a subject of ire, wrath and hostility as against the dreaded assailants who dare to open fire from the lethal weapons even on the public roads. In this regard law laid down by Hon’ble Apex Court may be taken note of as under:-

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In “Seeman Vs. State, 2005 SAR (Cri) 562,” it is held that evidence of sole related witness cannot be discarded merely on ground that he is a sole and related witness if his evidence is found worthy of credit.

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The evidence of PW4 Godhan Singh is corroborated by the report Ex.Ka-46 of the Forensic Science Laboratory, whereby the recovered country-made weapon of 12 bore, along with the empty cartridge case of such bore, was examined in the laboratory and it was found that such empty case of 12 bore was fired from the country-made pistol recovered from A-2. Although, another entry case of 12 bore cartridge was also put to examination

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in the laboratory along with another country-made pistol recovered from another accused, but the firing of such cartridge from either of the pistols could not be ascertained. That being the situation, the certainty of firing by 12 bore country-made pistol recovered at the instance of A2 with a cartridge, which was recovered from the spot soon after the incident, is decisive in the result of Laboratory. So, in view of this corroborative evidence, the testimony of PW4 Godhan Singh becomes reliable.

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As regards the argument that PW5 Trilok Singh became hostile, we cannot ignore the factor that he could be examined in the Court on 2.8.2008, so he was constrained to return without examination from the Court a number of times along with other witnesses. He is the resident of Haldwani town itself. So, in all probableness his winning over on account of fear or other consideration is at the countenance.

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In the post-mortem report Ex.Ka-2, PW2 Dr. Vimal Pant has expressed the cause of death of deceased due to hemorrhage and shock as a result of firearm injury. The ante-mortem injury, in the nature of lacerated wound measuring 12 cm x 13 cm x bone deep x brain matter deep, was found present over mastoid process from right to left aspect of skull; further, two pellets were recovered by PW2 from the body which also indicate that the injury was caused on account of hitting of 12 bore cartridge launched from the weapon.

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One more significant fact requires to be mentioned here that appellant Anil, while being examined u/s 313 Cr.P.C., has not denied even his signatures on the recovery memo of country-made pistol in reply to question no.15, though it was specifically asked from him. He has

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given only an evading and usual blank reply to the effect ‘wrong to say’ which is alike of reply ‘wrong to say’ of other questions.

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Other witnesses are either formal or do no have any occular account of the incident with them, so it is not of much significance to reproduce their evidence once again over and above the impugned judgment.

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Thus, in view of what has been stated hereinabove, we do not find any force in these appeals, which are liable to be dismissed. Accordingly, both the appeals, titled above, are dismissed. Impugned judgment and order of conviction and sentence of the appellant, as mentioned above, is affirmed.

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Appellant is in jail. He shall serve out the sentence so awarded to him.

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Let a copy of this judgment and order along with the LCR be sent to the Court concerned for compliance.

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(Servesh Kumar Gupta, J.) (Alok Singh, J.) 29.04.2015

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Rdang

Anil Kumar Jaiswal v. State Of Uttarakhand

Case brief

What is this about?

What did the court decide?

Anil Kumar Jaiswal v. State Of Uttarakhand

Case brief

What is this about?

What did the court decide?

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