Admissibility of information leading to the discovery of a fact under Section 27 of the Evidence Act.

ORDER :

Pritinker Diwaker, J.

1. This appeal arises out of impugned judgment and order dated 08.11.2013 passed by Additional Session Judge, Court No. 12, Meerut in S.T. No. 217 of 2010 (State of U.P. vs. Manoj) arising out of Case Crime No. 191 of 2009, convicting the appellant under Section 302 of I.P.C. and sentencing him for life imprisonment alongwith fine of Rs. 20,000/-. Under Section 504 of I.P.C. for one year imprisonment, plus default stipulations.

2. As per prosecution case, the accused-appellant was required to pay Rs. 25,000/- to the deceased Ripudaman, which despite repeated demand was not paid by him. It is said that on 27.06.2009 sometime in the morning, the accused-appellant had promised to pay Rs. 25,000/- to the deceased Ripudaman and when in the evening at about 6.30 P.M. the deceased Ripudaman had gone to collect his money, instead of giving his money, the accused-appellant took out his country made pistol, which was hidden by him and caused gunshot injury on the chest of the deceased resulting his instant death. At 9.15 P.M. prompt FIR (Ex. Ka-15) was lodged by PW-1 Omveer Singh, father of the deceased against the appellant under Section 302 and 504 of I.P.C. Inquest on the dead body of the deceased was conducted on 27.06.2009 vide Ex. Ka-6 and the dead body was sent for postmortem, which was conducted on 28.06.2009 by PW-3 Dr. V.P. Singh vide Ex. Ka-2. As per the autopsy surgeon, following injuries have been noticed:

"Gun shot would entry on left side chest, 9 cm below and medial to left nipple, size 1 cm x 0.75 cm blackening present, margins inverted on probing prob goes to downward and laterally damage the mesentery and piercing the vertebra column at L2 and L3 and and fracturing the vertebra and goes to the right side abdominal wall. One bullet recovered from lateral wall right side abdominal wall."

3. PW-3 Dr. V.P. Singh has opined the cause of death due to shock and hemorrhage as a result of ante mortem injuries.

4. During investigation, name of one Vikas also figured as co-accused. However, he remained absconded and, therefore, the trial court proceeded with the case of the appellant alone.

5. While framing the charge, the trial judge has framed the charge against the accused appellant under Sections 302/34 and 504 of I.P.C. So as to hold the accused appellant guilty, prosecution has examined ten witnesses, namely, PW-1 Omveer Singh, PW-2 Vinod Kumar, PW-3 Dr. V.P. Singh, PW-4 Vikas, PW-5 Dharmendra Kumar, PW-6 Virendra Kumar, PW-7 Head Constable Bijendra Singh, PW-8 Sub Inspector Madan Pal, PW-9 Rajkumar and PW-10 Amar Singh. The statement of accused-appellant was also recorded under Section 313 of Cr.P.C. in which he has pleaded his innocence and false implication.

6. In a separate trial i.e. S.T. No. 218 of 2010, the appellant has also been tried for the offence under Section 25 of Arms Act, but in the said case he has been acquitted by the trial judge.

7. Learned counsel for the appellant assailing his conviction under Sections 302 and 504 of I.P.C. submits as under:

(i) that though there are two eye witnesses i.e. PW-4 and PW-5, but they are not reliable and trustworthy.

(ii) there was no occasion for PW-5 to remain present at the place of occurrence, but yet his presence has been shown and he has been cited as an eye witness, who under no circumstances can be relied upon.

8. On the other hand, supporting the impugned judgment, it has been argued by State counsel that conviction of the appellant is in accordance with law. He submits that a very prompt FIR was lodged by PW-1 Omveer clearly mentioning the name of the appellant. He further submits that in the FIR itself, the presence of PW-4 and PW-5, as an eye witnesses to the incident have been shown and, thus, it cannot be said that any of the eye witness to the incident has been planted by the prosecution. He further submits that PW-2 saw the appellant fleeing from the spot and most importantly at the instance of the appellant, the weapon used in the com