Allahabad High Court
Nekpal & Others vs State Of U.P. on 18 April, 2017
Bench: Ramesh Sinha, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- CRIMINAL APPEAL No. - 2594 of 2012 Appellant :- Nekpal & Others Respondent :- State Of U.P. Counsel for Appellant :- Jitendra Pal Singh,Ashutosh,Rajesh Kumar Dubey Counsel for Respondent :- Govt. Advocate,Manoj Kumar Srivastava Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Rekha Dikshit,J.
(Delivered by Hon'ble Rekha Dikshit, J.)
1. This appeal assails the correctness of the judgment and order dated 15.06.2012 passed by Special Judge, SC/ST Act, Bareilly, in State of U.P. Vs. Nekpal and others whereby the Special Judge has convicted the appellants-accused namely, Nekpal, Harish alias Bablu and Mahesh and sentenced them to undergo life imprisonment under section 307 read with section 34 I.P.C. and also to pay a fine of Rs.20,000/- each half of which shall go to the injured Omprakash. If they fail to deposit the fine they will undergo additional imprisonment for one year each.
2. Narrated consicely, prosecution case against the appellants is that on 13.02.2009 around 05:30 pm in the evening the informant, Omveer along with his uncle Omprakash son of Dhakan Lal, was returning from Faridpur to his house on motorcycle of his uncle. The informant was driving the motorcycle and his uncle was at the back seat. As soon as they reached the telephone tower near Dwarkesh Sugar Mill Bhagwanpur, Phulwa, accused Nekpal son of Ram Bharose, Harish alias Bablu and Mahesh both sons of Nekpal came on a motorcycle from behind. Mahesh was driving the motorcycle Nekpal and Harish both possessed with country-made pistol were sitting behind. As their motorcycle approached the motorcycle of informant, Nekpal exhorted his uncle using castistremark and Harish alias Bablu fired aiming his uncle Omprakash with a country-made pistol of 315 bore with the intention to kill him which hit below the left shoulder on the back of Omprakash. Immediately, Nekpal also fired a shot which missed and there after they ran towards Nagla Jasi. At the same time, Shahdat alias Pintu and Narendra Kumar, employee of Rampura Nayan Petrol Pump, reached the spot and saw the accused fleeing towards Nagla Jasi. The injured Omprakash was firstly taken to Faridpur on motorcycle and therefrom having regard to the seriousness of his injuries, he was admitted in Siddhi Vinayak Hospital, Bareilly for treatment. Since the condition of his uncle, Omprakash was serious, the complainant could not inform the police immediately.
3. The F.I.R. was lodged on 14.02.2009 at 07:00 pm, registered as Case Crime No.71/2009, under sections 307, 504 IPC and section 3(2)(5) SC/ST Act. The injured was medically examined at Siddhi Vinayak Hospital, Bareilly by Dr. Deepak Kudeshiya (PW-4). The injury report reads as follows:-
(a) A punctured wound measuring 2 cm x 1 cm wound margins everted, charring present, blood and air was coming out from wound. Wound was present on back of left side of chest wall 4 cm below inferior angle of scapulla.
(b) X-Ray of Chest A bullet was scene on upper part of chest on left side. Haemo Pneumo thorax present.
Patient was subjected to urgent inter coastaldrainage about 800 ml of blood and air came out from plural cavity. Patient shifted to emergency and blood transfusion advised.
4. The case was investigated by circle officer Dayaram Chaudhary (PW-5) who submitted charge-sheet (Exhibit K-8) after completing the investigation. The charge was framed against all the accused persons under section 307 read with section 34 I.P.C. on 12.07.2010 by the trial court.
5. To bring home the guilt of the applellants, the prosecution has examined seven witnesses and one witness has been adduced in defence.
6. PW-1 Omprakash, injured and eye-witness has categorically substantiated the entire incident which took place on 13.02.2009 when he along with his nephew Omveer was returning from Faridpur to his house on motorcycle around 05:30 pm in the evening, when all the three accused, namely, Mahesh, Nekpal and Harish alias Bablu on a motorcycle approached their motorcycle near telephone tower, Bhagwanpur, Phulwa, at the instigation of Nekpal, Harish fired a shot from 315 bore pistol on Omprakash which hit him below his left shoulder on his back. At the same time, Shahdat Ali alias Pintu and Narendra reached the place of occurrence who saw all the accused fleeing away on their motorcycle. They immediately rushed to Faridpur for his treatment, finally he was admitted in Siddhi Vinayak Hospital, Bareilly. Considering his critical condition the informant lodged FIR the next day when his condition improved. He further deposed that he had political enmity with accused persons due to which this incident occurred.
7. PW-2 Omveer has narrated the entire incident in the same manner establishing the prosecution case and the alleged incident which occurred on 13.02.2009 around 05:30 pm in the evening. He has also specified that it was accused Harish who fired at Omprakash which hit him below his left shoulderand the shot fired by Nekpal did not hit anyone. It has also been stated that Shahdat Ali alias Pintu and Narendra reached the place of occurrence immediately and saw the accused persons running away on motorcycle.
8. PW-3 Shahdat alias Pintu has deposed that on 13.02.2009 around 05:30 pm he was going to Faridpur with Narendra from petrol pump on his motorcycle, he saw Omprakash and Omveer coming from Faridpur near telephone tower Bhagwanpur, Phoolwa when all the three accused on one motorcycle approached the motorcycle of Omprakash and Omveer and Harish fired a shot aiming Omprakash which hit him below his left shoulder. He has further deposed that Nekpal also fired a shot which missed. He alongwith Narendra took the injured to Faridpur and Omveer accompanied them on his own motorcycle.
9. PW-4, Dr. Deepak Kudeshiya has proved the injury report (Exhibit Ka-6) prepared by him after medical examination of injured Omprakash on 13.02.2009 around 07:30 pm.
10. PW-5 Dayaram Chaudhary, circle officer is the second Investigating Officer of the present case who finally submitted charge-sheet (Exhibit Ka-8) after examining all the relevant witnesses and preparing all the ncessary documents.
11. PW-6 constable clerk 308 Gajendra Tyagi has proved Chik FIR (Exhibit Ka-9) and copy of GD (Exhibit Ka-10) in his deposition.
12. PW-7 Intejar Ahmad Siddiqui, Zonal Officer, Intelligence Department has deposed that initially he was entrusted the investigation of the present case as circle officer, Faridpur who prepared site-plan (Exhibit Ka-11) and recorded the statements of certain witnesses.
13. Incriminating evidence and circumstances were put to the appellants under sections 313 Cr.P.C. who denied all of them and stated that they are on inimical terms with the complainant as accused Nekpal was an eye-witness in case crime No.415/2008 under section 332 I.P.C. in which the complainant was an accused. It has further been stated by the accused person that there is political enmity between them regarding election of Pradhan, as such, they have falsely been implicated in the present case. It has also been stated that they were not present at the place of occurrence as they were in a marriage ceremony on 11.02.2009 and 12.02.2009.
14. The trial court held that the appellants committed the said incident and the prosecution established the circumstance, proving their guilt under section 307 read with section 34 I.P.C. and sentenced them to undergo life imprisonment. Aggrieved by the verdict of conviction, the appellants preferred this appeal.
15. Heard Sri Rajesh Kumar Dubey, learned counsel for the appellants, Sri Ashish Pandey, learned AGA for the State and perused the record.
16. Learned counsel for the appellants submitted that accused Nekpal has merely been assigned the role of exhortation and a single shot which did not hit anybody. Accused Mahesh was driving the motorcycle, as such, he was not in a position to participate in the alleged commission of crime. He has also pleaded that due to enmity, they have falsely been implicated, though, they were not present at the place of occurrence.
17. It has further been argued that the FIR has been lodged after a delay of 25 hours and no plausible explanation has been put forth by the prosecution. Moreover, the document (Exhibit Kha-1) referred to concerned police station by Siddhi Vinayak Hospital, Bareilly does not contain the name of any of the accused which indicates that some unknown person shot at Omprakash and the accused have been falsely implicated due to enmity.
18. Learned counsel for the appellant has also argued that the witnesses of fact produced in the trial are of the same family as such fall in the category of related witnesses and Shahdat (PW-3) happens to be at the spot mere by chance as such is a chance witness, thus, their evidence cannot be relied upon. Moreover, there are lot of discrepancies and contradictions in their evidence which goes to falsify the prosecution case.
19. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The FIR version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference.
20. We have considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.
21. In the instant case, injured Omprakash received single injury on his back below the left shoulder which was caused by the shot fired by accused Harish as per prosecution version. The said fact is substantiated by the averments in first information report lodged by (PW-2) who is eye-witness and medical evidence. The informant Omveer (PW-2) has categorically established the fact that the said occurrence took place in his presence as he was driving the motorcycle with his uncle Omprakash (PW-1) as pillion rider. He has further stated that all the three accused approached from behind and Harish fired on Omprakash which hit him on his back below the left shoulder. The entire commission of crime has been corroborated by Shahdat (PW-3) also.
22. Though, the appellant Nekpal has been assigned the role of exhortation and firing from country-made pistol, admittedly, it did not hit anyone. As far as accused Mahesh is concerned all the three witnesses of fact (PW-1), (PW-2) and (PW-3) have not assigned him any such role but for the fact that he was driving the motorcycle on which all of them were riding.
23. The informant was driving the motorcycle whereas injured was on the back seat. He has categorically stated that when the motorcycle of the accused persons approached by the side of his own motorcycle, accused Harish fired aiming the injured whereas accused Nekpal fired which missed and did not hit anyone. Though, the informant, Omveer has deposed about the exhortation and firing by Nekpal but whether he was able to view the entire commission of crime is questionable as he was on the driving seat. As far as accused Harish is concerned, the injured was on the back seat he could have easily view the conduct of assailants but the person who is driving can hardly disturb his vision. Neither of the eye-witness has deposed that Mahesh was armed with any weapon nor any overt act has been attributed to him and there was no such allegation in the first information report also.
24. Now, we move to the question, whether section 34 I.P.C. can be attributed to accused Mahesh and Nekpal. section 34 I.P.C. requires pre-arranged plan and pre-supposses prior consort, therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre-arranged or pre- mediated consort, two things must be established common intention and participation of accused in the commission of offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted but if participation of the accused in the crime is proved and common intention is absent section 34 cannot be invoked. In the present circumstances, evidently all the three accused were on one motorcycle, Mahesh was looking forward while driving the same, Nekpal sitting in between the two accused, allegedly exhorted and subsequently accused-Harish the real culprit who fired aiming injured Omprakash with the intention to kill him. The alleged words used in exhortation do not indicate any intention of killing either the complainant or his uncle and even the first shot was not made by the person assigned the role of exhortation, as such, common intention to kill the complainant appears to be doubtful. Further no convincing material could be pointed out to establish any pre-arranged plan or prior meeting of minds. If the factum of common intention being developed at the spur of moment be taken into account then also application of section 34 I.P.C. cannot be attributed the accused Mahesh and Nekpal as there was no actual participation by Mahesh and alleged fire shot by Nekpal missed. There is also no recovery to substantiate missed shot by Nekpal.
25. The injured (PW-1), complainant (PW-2) and eye-witness (PW-3) all have deposed that accused Harish fired on Omprakash which hit him and his injury is corroborated by the evidence of (PW-4) Dr. Deepak Kudeshia, who has categorically stated that a punctured wound below the left shoulder on the back was found and a bullet was visible in the X-Ray in the left chest of the injured. He has also confirmed that this injury is caused by fire arm and it could possibly have occurred around 05:30 pm on the same day. He has also deposed that the visible bullet was operated upon, as such, the medical evidence and the ocular evidence, vis-a-vis, the injury received by the injured are in consonance with each other. This fact is established beyond doubt that the injured received fire arm injury and the manner of the incident has been substantiated by eye-witness and the injured himself. Thus, there remains no doubt that accused, Harish intentionally fired on Omprakash causing him serious injury.
26. Learned counsel for the appellants has raised vital question regarding lodging of first information report after a delay of 25 hours, i.e., the FIR was lodged on 14.02.2009 at 07:00 pm as is apparent from written report (Exhibit Ka-4) and chik FIR (Exhibit Ka-9) whereas the incident took place at 05:30 pm on 13.02.2009. The informant Omveer has categorically mentioned in written report (Exhibit Ka-4) that due to serious condition of his uncle, Omprakash, he could not lodge the FIR promptly. Later on, when Omprakash injured regained conciousness on 14.02.2009 then he lodged the first information report. The explanation given by the informant for not lodging the FIR at the first instance appears to be more humane and plausible, as the treatment of the injured has to be taken on priority. The human life takes precedence over lodging of FIR or informing the police.
27. We, now advert to other contention, like motive as has been canvassed by learned counsel for the apellants. So far as motive is concerned, since, this being a case based on eye-witness count of the injured and the informant, who is nephew of the injured, supported well by witness present at the spot, it relegates into insignificance. Further, it has been contended that the alleged motive is more of a reason for false implication of the accused than to commit the said crime. Admittedly, the parties were having inimical relations on account of some criminal case and political rivalry due to election of Pradhan, such type of enimity works on both sides but in the present case three witnesses have substantiated and corroborated the commission of crime. It is well settled that where the direct evidence is worthy of credence and can be believed then the question of motive does not carry much weight.
28. It has also been argued that the two alleged eye-witnesses belong to the same family and are closely related to each other. The third witness (PW-3) is merely a chance witness and there is lot of discrepancies and contradictions in the evidence of all the three factual witnesses. Admittedly, the informant (PW-1) is eye- witness and injured, Omprakash (PW-2) is his uncle but mere relation does not falsify their testimony espcially in absence of any material contradiction or discrepancy. Both the witnesses (PW-1) and (PW-2) have narrated the incident with truthfulness and their appears no contradictions, as such, to negate the prosecution case. (PW-3) Shahdat alias Pintu (PW-3) may be in the category of chance witness but the veracity of his testimony cannot be doubted as he corroborates the prosecution case, as well as, the testimony of (PW-1) and (PW-2) to the hilt. Even the minute scrutiny of the testimony of all the three witnesses do not falsify the alleged commission of crime. Thus, the contention of learned counsel for the appellants do not adversely affect the veracity of their evidence.
29. Thus, the trial court has rightly arrived at the conclusion on the basis of the prosecution evidence that appellant no.2 Harish alias Bablu was involved in the commission of crime and he took active participation through the use of a country-made pistol of 315 bore in firing on the injured. The finding recorded by the trial court for convicting the appellant no.2 does not call for any interference by this Court and the conviction of appellant no.2 is hereby upheld.
30. On an overall analysis, we find present appeal of Harish being devoid of any merit and liable to be dismissed, hence, dismiss it by confirming conviction and sentence awarded to appellant no.2 Harish alias Bablu through impugned judgment and order.
31. As is clear from the aforesaid discussion, as per the prosecution three persons took active part in assaulting Omprakash who had come at the place of occurrence on a motorcycle. Specific role is attributed to Harish alias Bablu, who had fired the shot from his pistol, which hit below the left shoulder of Omprakash. The motorcycle was driven by Mahesh. The prosecution contends that Nekpal had also fired a shot from his pistol, though it did not hit the injured. Since all the three accused are of one and the same family, Nekpal being the father of the Mahesh and Harish, it appears that the eye-witnesses have extended their exaggerated version towards their involvement in the crime. Having regard to the import of common intention attributed to both of them, after sifting and analysing the evidence, we are of the view, that there are sufficient reasons to come to a conclusion, that case against Nekpal and Mahesh has not been proved beyond reasonable doubt. Thus, the prosecution case qua then has been found doubtful for the aforesaid reasons.
32. In the result the appeal is partly allowed, the conviction of appellant no.2, Harish alias Bablu is confirmed and the conviction of appellant nos. 1 and 3, namely, Nekpal and Mahesh is set aside. Appellants Nekpal and Mahesh are already on bail, they need not surrender their bail bonds and sureties be discharged.
33. The appellant no.2 Harish is in jail. He shall remain in jail to serve out sentence awarded by the trial court in pursuance of the impugned judgment and order.
34. Registrar General is directed to ensure the compliance by forwarding the copy of the judgment to the District Judge, Bareilly.
(Rekha Dikshit, J.) (Ramesh Sinha, J.)
Order Date :- 18.4.2017
Nitin Verma