1. The instant appeal filed under section 374(1) Cr.P.C. on behalf of the appellants, is directed against the judgment and orders dated 5th February, 2010 passed by Sri Bhudev Gautam, Additional Sessions Judge, Fast Track Court No. 5, Bareilly in S.T. No. 94 of 2009 (State v. Anuj Kumar and others), whereby all the four appellants have been convicted under sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- failing which to further undergo imprisonment of one year. Appellant no. 2 Ashutosh Kumar @ Ashu has also convicted under section 27 Arms Act and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/- failing which to further undergo imprisonment of six months. Appellant no. 3 Rakesh Kumar has been convicted under section 30 Arms Act and sentenced to undergo rigorous imprisonment of six months, sentences of appellant nos. 2 and 3 have been directed to run concurrently.
2. Heard Sri Dharmendra Dhar Dubey, learned counsel for the appellants, Sri A.N. Mulla, learned Additional Government Advocate for the State and perused the paper book.
3. The facts giving rise to the present appeal may be summarised as under:-
4. That on 29th June, 2008, at 10.00 a.m. Radhey Shyam gave a written report at Police Station Bhuta, District Bareilly, stating therein that he had married his daughter Pooja with Anuj Kumar on 29th April, 2007. He gave usual dowry in the marriage but the accused persons were not satisfied with that. They were demanding Rs. 1,00,000/- more and also torturing the deceased. In spite of his entreaties, they continued to abuse and torture his daughter. On 28th June, 2008, his daughter telephonically requested Radhey Shyam either to pay the amount or take her back to his house. She was apprehensive for her life. At that time, his son Vijay was there who had gone to take Pooja back. On that day at 8.00 p.m. they had abused and beaten Pooja and Ashutosh Kumar @ Ashu had shot his daughter with his father''s gun. Her dead body was in her sasural. Suitable action be taken against the accused persons.
5. At this check F.I.R. was scribed, Case Crime No.326 of 2008 under sections 304B, 323 IPC and 3/4 Dowry Prohibition Act was registered at Police Station Bhuta and investigation was entrusted to the Circle Officer Faridpur. The Deputy Superintendent Harchand Singh, the then C.O., Faridpur, took the investigation into his hand and after investigation submitted the charge-sheet against all the four accused persons.
6. The appellants stood for trial before the Court of Session where they were jointly charged under sections 498-A, 304-B/34, (in the alternative 302/34), 323/34 IPC and 3/4 Dowry Prohibition Act. The appellant no.2 Ashutosh Kumar @ Ashu was also charged under section 25/27 Arms Act and the appellant no. 3 Rakesh Kumar was also charged under section 30 Arms Act separately. All the accused persons denied the charges and claimed to be tried. In order to prove the charges, on behalf of the prosecution, documentary as well as oral evidence was adduced. Documentary evidence will be discussed along with the oral evidence. Summary of depositions of the prosecution witnesses is as under:-
Vijay Kumar, P.W.-1 He is the son of the first informant and brother of the deceased. He has not supported the prosecution version and was declared hostile.
Radhey Shyam, P.W.-2 is the first informant and father of the deceased. According to him, there was no demand of dowry. His daughter was treated well in her sasural. On 28th June, 2008, he came to know that his daughter sustained gun shot injuries in her sasural in the night and died. He along with Vijay and other relatives reached her sasural. Police was present there. Police dictated a report to his relative and it was signed by him. At that time, he was sad and in a state of shock. The witness has proved his signature on the written report Exhibit Ka-1 but he did not substantiate the facts narrated in the First Information Report and he was declared hostile.
Mahesh Chandra, P.W.-3 is the witness of inquest proceeding. Deceased Pooja was his niece. He has proved inquest report Exhibit Ka-2.
Uma Charan, P.W.-4 is the witness of memo of recovery of gun, live and empty cartridges. He has declined his signature on the memo Exhibit Ka-3.
Vipin Sharma, P.W.-5 is the relative of the first informant. He had gone to sasural of the deceased. He witnessed the recovery of broken pieces of bangles, sleepers and clips of the deceased from the spot and taking of samples of blood stained and simple earth, after seeing memo Exhibits Ka-4 and Ka-5. According to him, he had signed the blank papers, he was declared hostile.
Dr. S.C. Sundariyal, P.W.-6 is the doctor, who along with Dr. Rajiv Agarwal performed autopsy on the dead body of Pooja on 29th June, 2008 at 4.15 p.m. He has deposed that time since death was about one day. Rigor mortis was present on the lower limbs and it was passing off from the upper limbs. Eyes were closed. Blood was oozing from mouth and nose. There were two ante-mortem injuries on the dead body. They read as under:-
(1) A circular 3.0 c.m. x 2.0 c.m. firearm wound of entry on the left sub-costal area in the flank area about 16 c.m. below infra axillary fold (left). The margins of the wound were lacerated, inverted. Margins were blackened.
(2) Abrasions 4 c.m. x 2 c.m. at left elbow.
He has further deposed that during internal examination, he recovered 21 pellets with plastic pieces from the body. Stomach was lacerated. Small intestine was partially full and at places and lacerated. Large intestine upper full, lower empty, lacerated at places. Liver left side was lacerated and torn into pieces. Spleen and left kidney were lacerated.
In his opinion, cause of death was shock and hemorrhage as a result of ante-mortem fire arm injury. He has proved postmortem report and signature of Dr. Rajiv Agarwal, Exhibit Ka-6.
Constable Mahipal Singh, P.W.-7 is the scribe of check F.I.R. He has proved Check FIR Exhibit Ka-7 and copy of the report of general diary, Exhibit Ka-8.
Deputy S.P. Har Chand Singh, P.W.-8 is the Investigating Officer. He gave details of the steps taken in the course of investigation. He has proved site plan from where the gun, live and empty cartridges were recovered on the pointing out of the accused Ashutosh Kumar @ Ashu Exhibit Ka-10. He has also proved the chargesheets Exhibits Ka-11 and 12.
S.I. Rajesh Singh, P.W.-9, is the recovery officer. He has deposed that on the information received from mukhbir on 1st July, 2008 at 3.00 p.m. he caught Ashutosh Kumar @ Ashu and Anuj Kumar from the bus station. During interrogation, Ashutosh confessed his crime, volunteered that he would point out the weapon of murder. He was taken to his house. He led the police party through Baggar and from the mound of husk he took out one double barrel gun No. 0223949, two live cartridges 12 bore. On the opening of barrels of the gun, one empty cartridge was found in the right barrel. According to the witness, memo was prepared at the spot. He has proved the recovery memo Exhibit Ka-3. According to him, recovered arm and ammunition were sent to State Forensic Science Laboratory in a sealed bundle and a report was received which is Exhibit Ka-14. The recovered arm and ammunition were produced before the court in a sealed bundle. They were taken out from the bundle and identified by the witness. They have been Exhibited as material Exhibits 1 to 4. Test cartridges were produced and exhibited as material Exhibits 5 to 8. He has also identified the wads picked up from the spot and pellets Exhibits Ka-9 to 31. He has also identified the clothes and ornaments worn by the deceased. They have been exhibited as material Exhibits 32 to 54. Thereafter, he has identified the samples of blood stained and simple earth exhibited as material Exhibits 55, 56 and sealing cloth material Exhibit 57. He has also referred the report of the chemical examiner and Serologist Exhibit Ka-16.
7. Two documents, report dated 28th November, 2008 of ballistic expert and report of chemical examiner dated 10th February, 2009 Exhibits Ka-14 and Ka-16, respectively also require some discussion. In the ballistic report, the ballistic expert after matching signs of firearm, empty cartridges E.C.-1, T.C.-1 & T.C.-3 (test cartridges fired from the right barrel of the recovered gun) has opined that they bear similarity and in his opinion, E.C.-1 was fired from the D.B.B.L. Gun No. 02239-49.
8. The chemical examiner has found large blood stains on the petticoat, blouse and saree worn by the deceased.
9. The defence case before the trial court was that on 28th June, 2003, at about 9.30 p.m., dacoits raided their house and deceased came out of the room and she was shot by the dacoits.
10. In their statements recorded under section 313 Cr.P.C., the appellants denied the facts stated by the prosecution witnesses. According to the appellant Ashutosh Kumar @ Ashu, he was arrested from his house, gun was taken into possession by the sub-inspector on 28th June, 2008 and fictitious recovery had been shown on his pointing out. Empty cartridge was manufactured by the Sub-Inspector. According to him, case was not properly investigated, evidence was manufactured and he reiterated the defence case in his statement. All other appellants also made similar statements.
11. In the defence, the appellant Ashutosh Kumar @ Ashu has been examined. He has deposed that Pooja was his Bhabhi. In the marriage, no dowry was demanded. They never demanded one lakh rupees. On 28th June, 2008, at about 9-9.30 p.m., three-four miscreants armed with country made pistols entered their house, hearing their foot falls they raised alarm and as Bhabhi came out of the room she was shot by the miscreants. They could not identify the miscreants. They took Pooja to the District Hospital, Bareilly, where she was declared dead. They informed the first informant. They also informed the police but their report was not written. Radhey Shyam had lodged false FIR on the ill advice of Kamla Kant Sharma, Advocate, who is the brother-in-law of the first informant and he practices in district court Rampur. On 29th June, 2008, police personnel took gun of his father and 7-8 live cartridges. They fired one-two cartridges from the gun and also took empty cartridge with them. On 1st July, 2008, he was not arrested from the bus station.
12. The learned trial Judge has disbelieved the testimony of Ashutosh Kumar @ Ashu, D.W.-1. He has found that from the medical evidence, death of the deceased by gun shot injury is proved. He has found the evidence of recovery of weapon of murder on the pointing out of the appellant Ashutosh Kumar @ Ashu reliable. He has found that by the circumstantial evidence, charge of murdering Pooja stands proved. He has also opined that charges under sections 27 and 30 Arms Act also proved. He acquitted the appellants from the charges under sections 498A, 323/34, 304-B/34 IPC and 3/4 Dowry Prohibition Act but convicted and sentenced them, as above.
13. On behalf of the appellants, findings recorded by the learned trial Judge have been assailed and it has been submitted that the learned trial Judge has not appreciated the evidence in proper perspective. He has disbelieved the defence evidence without cogent reasons, he has erroneously concluded that on the circumstantial evidence, charge against all the four appellants specially of murdering Pooja, stands proved. The learned counsel for the appellants submits that there is no evidence of common intention shared by all the appellants to murder Pooja. Further against appellants, Munni Devi, Rakesh Kumar and Anuj, there is no evidence to show their involvement in the murder of Pooja. He further submits that evidence of recovery, relevant under Section 27 of the Evidence Act, is unworthy of reliance, if it is found to be reliable, it cannot be read against other co-accused. Therefore, he submits that against all the appellants, there is no cogent evidence to show their complicity in the crime . Even if defence has not produced any evidence, all links in the circumstantial evidence are not complete and appellants have been wrongly convicted.
14. On behalf of the State, these arguments have been repelled and it has been submitted that findings recorded by the learned trial Judge are well substantiated from the record. Cogent reasons have been given by the learned trial Judge in support of the findings and the impugned judgment does not warrant any interference.
15. In reference to our obligation as an appellate court hearing appeal against conviction, we would like to refresh my mind by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
16. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 Cri.L.J. (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
17. In the present case, homicidal death of Pooja from gun shot injury is not disputed. Statement of Dr. S.C. Sundariyal and findings recorded in the postmortem report Exhibit Ka-6 are un-controverted. On the basis of medical evidence, we find that Smt. Pooja had died due to shock and hemorrhage as a result of single gun shot injury noticed in postmortem report Exhibit Ka-6 and her death could have occurred on 28th June, 2008 between 8.00 p.m. to 9.30 p.m.
18. Family members of the deceased did not support the prosecution version before the trial court. Evidence adduced by the prosecution during the trial though devoid of ocular version of the occurrence, is also of circumstantial nature. Thus, the trial court has treated the case based on circumstantial evidence and found all the links in circumstantial evidence complete so as to establish guilt of the appellants beyond doubt.
19. Before proceeding further, we would like to remind ourselves when the circumstantial evidence can be treated to be conclusive so as to prove the guilt of the accused. In the celebrated case of Sharad Birdhichand Sardar v. State of Maharashtra, AIR 1984 S.C. 1622, the Hon''ble Supreme Court has lucidly enumerated when the circumstantial evidence can be treated to be conclusive. The relevant observation reads hereunder:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793 where the following observations were made:
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
20. Taking guidance from the above ratio, we have gone through the evidence adduced by the prosecution and the defence. First we would narrate the circumstances which were taken into consideration by the learned trial Judge against the present appellants. They are as under:-
1. Smt. Pooja after one year of her marriage died homicidal death in her sasural.
2. The weapon of murder belongs to father-in-law of the deceased.
3. The double barrel gun was recovered inside the house on the pointing out of appellant Ashutosh Kumar @ Ashu, younger son of appellant Rakesh Kumar.
4. From the right barrel of the recovered gun on the spot, one empty cartridge was extracted and on ballistic examination, it was found that it has been fired from the recovered gun that too from the right barrel.
5. Defence advanced on behalf of the appellants was found false.
6. Conduct of the appellants was found unnatural in not reporting the alleged incident of dacoity and murder of Pooja by the dacoit.
7. Abnormal conduct of the family members of the deceased while deposing before the trial court.
21. After noticing the circumstances, we are required to see whether these circumstances could be proved by the prosecution by cogent and reliable evidence. First circumstance noticed above is not in dispute and on the basis of medical evidence and evidence of Radhey Shyam, P.W.-2, these facts stand proved.
22. Second circumstance is that the recovered double barrel gun belongs to Rakesh Kumar, this fact is not disputed. By necessary implication, the appellants have also admitted that Rakesh Kumar at the relevant time was having a license of double barrel gun.
23. The third circumstance and one of the most important piece of circumstantial evidence, is of alleged recovery of gun, two live cartridges, one empty cartridge on 1st July, 2008 pursuant to the arrest of Ashutosh Kumar @ Ashu and Anuj Kumar, has been proved by S.I. Rajesh Singh, P.W.-9 and recovery memo Exhibit Ka-3. Before us this link has been hotly impeached. According to argument of the learned counsel for the appellants, Uma Charan, P.W.-4 independent witness of the recovery memo has not supported the factum of recovery. He has denied the signature on the recovery memo Exhibit Ka-3. On this fact, the appellants have emphasised that when the public witness did not support the factum of recovery, the learned trial Judge has committed grave error in placing reliance on the statement of police officer. We are not much impressed by this argument. The Hon''ble Apex Court in the case of Karamjit Singh v. State, AIR 2003, SC 1311 has held that evidence of police officer can also be relied upon, if found credible. After going through statement of S.I. Rajesh Singh, P.W.9, we notice no infirmity therein. S.I. Rajesh Singh, P.W.-9 has proved the recovery and identified the case property. During cross examination, he was merely suggested that the gun in question was taken by him in his possession on 29th June, 2008 and after firing live cartridge from the gun, he has fabricated the empty cartridge marked as E.C.-1. His testimony could not be shaken during cross examination. Now the question arises whether he is speaking truth or Ashutosh Kumar @ Ashu, D.W.-1 is speaking truth. Though evidence of these two witnesses is to be intrinsically examined separately but after separate scrutiny, conclusion has to be drawn as to which of them is right.
24. So far as the question of S.I. Rajesh Singh, P.W.-9 is concerned, on 1st July, 2008, he was engaged in search of accused persons of that date and it is not disputed that till 1st July, 2008, these two accused Ashutosh Kumar @ Ashu and Anuj were free. Therefore, to this extent, his engagement in the aforesaid work appears to be probable. His next link, is that he was informed by the mukhbir, can also not be questioned. Thereafter, he says that after making arrest, he took two villagers to be of the witness of the recovery, volunteered by Ashutosh Kumar @ Ashu. Had this police officer wanted to show fictitious recovery, he could have easily written that no one was willing to become witness of the recovery. Therefore, his request to two persons to become witnesses of recovery shows that till that moment he acted in the bona fide manner. This fact has also not been disputed on behalf of the defence that in the house of Rakesh Kumar, there was Baggar and on the southern side there was mound of husk. In the site plan, Exhibit Ka-10, these places have been shown. This recovery is not fictitious, is also reflected from the fact that no complaint was made by the appellant Rakesh Kumar to police authority that on 29th June, 2008, the Sub-Inspector of Police took his licensed gun along with live cartridges without giving him any receipt. It is significant to note that on 26th June, 2008, at 10.00 a.m. against appellant Rakesh Kumar and his three other family members, F.I.R. was registered at the police station. Therefore, Rakesh Kumar must have every apprehension that anything can be used against him, even then he had not reported the matter to the higher authority, that shows that his claim that gun was taken on 29th June, 2008, was incorrect. Since S.I. Rajesh Singh, P.W.9 the witness of the recovery, his testimony is unshaken. He is not the Investigating Officer interested in the result of the case. He can be treated as impartial witness. Overall his testimony is worthy of reliance.
25. The statement of Ashutosh Kumar @ Ashu, D.W.-1 is belied by his own conduct. Had they taken Pooja to district hospital where she was declared dead, they would not have brought back the dead body to their house. Doctor has to issue a death memo to the police chowki and send the dead body to mortuary but without postmortem examination dead body could not have been brought back. According to them, they have informed the police at police out post but no heed was paid to their information.
26. When a newly wedded bride die a homicidal death, no one takes her death in such casual manner. They could have approached the Station Officer of the police station, they could have given written information about the alleged dacoity and murder. The appellant Ashutosh Kumar @ Ashu in his statement recorded under section 313 Cr.P.C. in reply to question 4 says that gun was taken by the Sub-Inspector on 28th June, 2008. In his statement, he says that it was taken by the Sub-Inspector on 29th June, 2008. He has not disclosed the time when the gun was taken by the Sub-Inspector. Absence of this detail and contradiction noted in his earlier statement make his testimony unworthy of reliance.
27. When these two pieces of evidences are considered in juxtaposition, it appears that testimony of Rajesh Singh, P.W.-9 stands on higher pedestal in reference to his credibility and in comparison to the testimony of Ashutosh Kumar @ Ashu, D.W.-1 who is found to be un-reliable and unworthy of credence.
28. In view of above, recovery of gun, live and empty cartridges as narrated in Exhibit Ka-3 stands fully established.
29. The fourth circumstance is established from the report of Ballistic Expert Exhibit Ka-14. According to Ballistic Expert, empty cartridge extracted from the right barrel of D.B.B.L. gun of Rakesh Kumar was found to have been fired from that gun. This report has not been disputed. Only explanation offered by the appellants is that after firing one live cartridge from the right barrel of the gun, the gun and cartridge were sent for ballistic examination. This explanation is based on fact that gun was taken in possession on 29th June, 2008. This fact has already been found not proved rather found to be disproved. Therefore, explanation offered by the appellants is of no help to them and four pieces of circumstances are fully established against them.
30. In view of discussion made in reference to third circumstance, we have no hesitation to hold that in the present case, defence has taken false defence and had led false evidence. These facts also go against them.
31. Next circumstance is unnatural conduct of the appellants, in whose house a newly wedded bride is murdered by miscreants. The husband, mother-in-law, father-in-law and brother-in-law would not keep mum. They would make every effort to inform the police authorities about this occurrence. The appellants are resident of a village where incident of dacoity is very seriously taken by the villagers. It is highly unnatural that matter was not reported to the higher authorities and even to the doctor. This unnatural conduct give rise to an inference that appellants wanted the matter to be hushed up.
32. In the present case, the prosecution could not prove motive for the murder against the appellants. Though in cases of circumstantial evidence motive plays an important part but were there is strong circumstantial evidence on the basis of which the only inference can be drawn indicating the guilt of the present accused of a crime, we think absence of motive would not in all cases be fatal for the prosecution. We are fortified in our view by the observation of the Hon''ble Apex Court made in the case of G. Parshwanath v. State of Karnataka, AIR 2010 SC 2914.
33. All the members of the family of the deceased who were examined by the trial court have turned hostile. Radhey Shayam, P.W.-2 says that at that time, he was very sad and in a state of shock, however, we noticed that he was alert enough to see that written report was dictated by the police. Appellants have no criminal background. Police has no enmity with them. Why the police would implicate the appellants, keeping this question in mind, when we take into consideration the conduct of the family members of the deceased and the suggestion given to them by the public prosecutor that they were not stating true facts in order to save the accused persons, we think that hostility shown by the members of the family of the deceased during their examination before the trial court, is the result of manoeuvres made on behalf of the accused persons.
34. Except the last circumstance, all other circumstances can be legally taken into consideration to find out as to whether all links in the chain of circumstantial evidence are complete or not. We ignore the reason of hostility shown by the members of the deceased family before the trial court but rest six circumstances have been proved by cogent evidence and they can be taken into consideration lawfully against the appellants. We agree with the argument advanced on behalf of the appellants that recovery made on the pointing out of the appellant no.2 can only be used against him. Though this recovery is based on confessional statement but part of the statement which is relevant under Section 27 of the Evidence Act, be confined to mental knowledge of the appellant no. 2. Appellant nos. 1, 3 & 4 cannot be roped in on the basis of this piece of evidence. In our opinion, against appellant no. 2, charge of murder punishable under section 302 IPC, stands proved beyond reasonable doubt. To this extent, this appeal deserves to be dismissed. However, conviction of appellant no. 1, 3 and 4 under section 302/34 IPC cannot be sustained.
35. Here the question arises whether they can be acquitted for the murder of Smt. Pooja or they have committed some offence which deserves punishment elsewhere. Here Section 201 IPC comes into play. In this section, a person can be held guilty where he causes disappearance of evidence of an offence or give false information touching it to screen the offender. In the present case there is one additional circumstance that when murder of Pooja took place, these three appellants were in the house but they had not reported it to the police. They kept mum and withheld any relevant information from the authorities in order to save Ashutosh Kumar @ Ashu. Their acts are squarely covered under section 201 IPC though they have not been charged under section 201 IPC but for such cases, courts have to take recourse of Section 221 (2) Cr.P.C. With the help of this section we hold appellant no. 1 Anuj Kumar, Appellant no.3 Rakesh Kumar and appellant no.4 Smt. Munni Devi guilty of committing an offence punishable under section 201 IPC. Their conviction under section 302/34 Cr.P.C. is altered and they are convicted under section 201 IPC. In our opinion, instead of imprisonment for life, they deserve to be punished with rigorous imprisonment of two years under this section and their sentences of fine are also reduced from Rs. 10,000/- to Rs. 2,000/-.
36. We find no infirmity in the conviction of Ashutosh Kumar @ Ashu under section 27 Arms Act as also conviction and sentence of appellant no.3 Rakesh Kumar under section 30 Arms Act.
37. Here we would be failing in our duty if we do not bring on record the facts that during trial when the charges were framed under section 25/27 and 30 Arms Act, instead of D.B.B.L gun, it has been referred as S.B.B.L gun but its number has been correctly written. Similar mistake finds place in the statements recorded under section 313 Cr.P.C. in question no.4. Now we have to see whether due to these errors, the appellants have been prejudiced in their defence because in section 464 Cr.P.C., error in charge would only vitiate the trial where failure of justice has in-fact been occasioned.
38. In reference to the error, statements recorded under section 313 Cr.P.C. if it deprives the accused from offering his explanation about the adverse evidence adduced against him, such inference can be made. Thus, the effect of the error finding place in the charges and the statements recorded under section 313 Cr.P.C. must be of such magnitude that it has resulted in miscarriage of justice. Purpose behind framing the charge and offering opportunity to explain the adverse evidence is to inform the accused about the charge and provide him opportunity to offer his reply. If by the error, he has not been mislead, it cannot be said that he has not been given adequate opportunity to defend him. In the present case, identity of gun was never in question. It was the licensed gun of Rakesh Kumar. It is the consistent case of the appellants that gun was taken by the police on 29th June, 2008. They no-where say that gun has been substituted, therefore, we think that error noticed by us was not even noticed by them. From the beginning, they were aware that they were charged for misusing their own licensed gun. Since identity of gun was not confused by the appellants, no prejudice has been caused to them and they had sufficient opportunity to answer the charge and to explain the adverse evidence recorded against them. For this reason, the error noticed by us is a mere irregularity and on its basis no interference is required with the impugned judgment and order.
39. Accordingly, the appeal is partly allowed. The impugned judgment and orders dated 5th February, 2010 are modified to the extent indicated below. The conviction of appellant no. 1 Anuj Kumar, under section 302/34 I.P.C. is altered to section 201 I.P.C. and the sentence from life imprisonment is altered to two years. The conviction and sentences of appellant no.2 Ashutosh Kumar @ Ashu are maintained under section 302 I.P.C. And also under section 27 Arms Act. The conviction and sentences of appellant No.3 Rakesh Kumar and appellant No. 4 Smt. Munni Devi are altered under section 302/34 to section 201 I.P.C. and their sentences are altered to two years rigorous imprisonment. The sentence of fine of Rs. 10,000/- each of the appellants is reduced to Rs. 2,000/-. Conviction and sentence of appellant no.3 under Section 30 Arms Act is maintained. Learned Sessions Judge is directed to procure their attendance and sent them to jail to serve out the modified sentences.
40. Office is directed to communicate this order to the court concerned and to send back the record to the court below.
