Allahabad High Court
Devendra Pal Singh vs State Of U.P. & 4 Others on 28 November, 2014
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No. 126 of 2013 Devendra Pal Singh Vs. State of U.P. Connected with Government Appeal No. 2781 of 2013 State of U.P. Vs. Ran Vijay and others. Hon'ble Rakesh Tiwari, J Hon'ble Vijay Lakshmi, J.
(Delivered by Hon'ble Vijay Lakshmi, J.) Re:- Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No. 126 of 2013 In view of the judgment rendered in the case of Lekhraj Vs. State of U.P. And others, Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No. 6 of 2014 decided on 10th October, 2014, no leave to appeal is required for the victim to prefer an appeal on the grounds mentioned in proviso to Section 372 Cr.P.C. because the victim has indefeasible statutory right to file the appeal and the complainant Devendra Pal Singh being the grandfather of the deceased victim comes within the purview of the definition of "victim" as provided under Section 2 (wa) of Cr.P.C. amended by Act No. 5 of 2009.
The complainant u/s 372 Cr.P.C. and the State under Section 378 Cr.P.C. have come to this court in appeal challenging the correctness and validity of the judgment and order dated 15.2.2013 passed by the Special Judge (E.C. Act)/ Additional Sessions Judge, Etah, in S.T. No. 279 of 2001, State Vs. Ranvijay and others, under sections 302, 504, 506, 120B I.P.C. in Case Crime No. 85 of 1999, P. S. Kotwali Dehat, District Etah, whereby the accused respondents Ran Vijay, Ripu Vijay, Digvijay and Ajay Pal have been acquitted from the charges framed against them under the aforesaid sections. As both these appeals arise out of the same judgment and order of acquittal are being decided by a common judgment.
We have heard Sri V. P. Srivastava, learned Senior Advocate, assisted by Sri Sanjeev Kumar Pandey, on behalf of the complainant and learned A.G.A. for the State of U.P. on the point of admission respectively in both the above mentioned connected appeals and have carefully gone through the lower court's record.
The prosecution case in brief is that on 6.4.1999 a written report was filed by the complainant Devendra Pal Singh at Police Station Kotwali Dehat, district Etah, to the effect that inimical relations were persisting between him and Ajay Pal Singh since long. Due to this enmity on 6.4.1999 at about 6.00 A.M. when the complainant's grandson Gajendra Pratap Singh was going to appear in his High School examination at Varni Jain Inter College, Etah, by a cycle and the villagers Raghuveer Singh, Gyanendra Singh and maternal uncle of Gajendra Pratap Singh namely Mahesh were following him, suddenly the accused persons Ran Vijay, Ripu Vijay, Digvijay all sons of Ajay Pal and Ajay Pal son of Prithvi Singh armed with country made pistols obstructed his way. While exhorting the words "blds ifjokj okys cgqr curs gSa lkys dks xksyh ekj nks " they opened fire on the grandson of the informant due to which he sustained firearm injuries on his head and on right side of chest and fell down on the road. On alarm being raised by the people the accused persons ran away from the spot. The grandson of the informant died on the spot. Hearing sound of fire a chaotic situation was created. Due to hue and cry, the commotion of people and out of fear, the traffic got stopped and the public life became disturbed.
On the basis of this written report a criminal case was registered against the respondents. The matter was investigated, statements of witnesses U/s 161 Cr.P.C. were recorded by the I.O. The inquest on the dead body of the deceased Gajendra Pratap was conducted and the dead body was sent for post mortem examination to District Hospital, Etah. The post mortem was conducted on the same day i.e. on 6.4.1999 at about 2.00 P.M. at the District Hospital. The I.O. prepared the site plan, collected blood stained and plain earth and also an empty cartridge from the spot. On 14.4.1999 the informant deposited the cycle and Geometry Box of the deceased Gajendra at the police station. After conclusion of the investigation the police submitted charge sheet against all the accused persons. The case being triable by the Court of Sessions, it was committed to the Court of Sessions Judge where charges under sections 302, 504, 506 I.P.C. were framed against the accused Ran Vijay, Ripu Vijay, and Digvijay sons of Ajay Pal and Ajay Pal son of Prithvi Singh. Accused Ajay Pal was charged with section 120B I.P.C. All the accused persons denied from the allegations and claimed their trial.
The prosecution in order to prove its case produced only four witnesses out of which two witnesses were of fact and two were of formal character. PW1 is the informant Devendra Pal Singh himself and PW2 is Mahesh, who is maternal uncle of the deceased Gajendra Pratap. Both these material witnesses are said to be eyewitness of the occurrence. Although three witnesses have been summoned as court witnesses in this case and the defence has also produced two witnesses in support of defence version but the learned lower court has not found the statements of the defence witnesses or court witnesses useful in this case. It may be mentioned here that the court witnesses CW1 Pravesh Dikshit, CW2 Rishi Chauhan and CW3 Munendra Rawat are the news reporters of various newspapers, who had published the news about this occurrence in their respective newspapers. Learned court below had rightly not relied on their testimony for the reason that the news published in the newspapers is usually based on hearsay evidence.
The learned trial court disbelieved the evidence of PW1 and PW2, the only two witnesses produced by prosecution in the case. Accordingly, the trial court finding the prosecution case unreliable and unworthy of credence, acquitted all the accused persons.
Sri V. P. Srivastava, learned Senior Counsel, appearing on behalf of the appellant, has assailed the judgment impugned vehemently arguing that the learned trial court has disbelieved the evidence of eyewitnesses on insignificant grounds. The learned Senior Counsel has submitted that the trial court has acquitted the accused persons on the following grounds :-
I. The time of death does not coincide with the post-mortem report because according to the Post-Mortem report rigor mortis was found in full body of the deceased.
II. The Geometry Box and Cycle were not recovered by the I.O. from the spot but these articles were handed over by the complainant to the I.O. after several days of the occurrence.
III. No Admit Card was recovered from the dead body of the deceased although it was alleged that the deceased was going to appear in the High School examination at the time of occurrence.
IV. No independent witness has supported the prosecution story. The two only witnesses produced by the prosecution in this case are grandfather and maternal uncle of the deceased, who are close relatives and interested witnesses.
V. The police has recorded statement of Mahesh after 10-15 days from the date of incident.
VI. The presence of both the prosecution witness on the spot is highly doubtful.
Learned senior counsel has challenged the correctness of the aforesaid findings recorded by the learned trial court by contending that the trial court has committed gross illegality while assessing the evidence despite the fact that there are several clinching evidence in support of the prosecution case. It was a broad daylight murder. Prompt FIR was lodged against the accused persons. There is no discrepancy in the statements of the eyewitnesses. Medical evidence has completely supported the prosecution case and even if some discrepancy between the medical evidence and oral evidence exists, the oral evidence will prevail, which fully supports the prosecution case. He has next contended that the evidence of prosecution witnesses cannot be discarded on the ground that they are closed relatives. It is further contended that late recording of statement of the witnesses by the I.O. does not affect the gravity of the prosecution case as the latches and lacunaes on the part of I.O. will not come to benefit the accused persons. Learned Senior counsel has submitted that the learned trial court without considering these well settled legal principles has discarded the prosecution evidence on irrelevant grounds and has passed the impugned judgment only on the basis of surmises and conjectures, which is liable to be set aside.
A perusal of the impugned judgment shows that the lower court, while relying on the Modi's Medical Jurisprudence and Toxicology has found the time of death doubtful in this case. Apart from it, the statements of both the witnesses were also found by the trial court being suffering from so many contradictions and embellishments making the prosecution story unreliable.
According to Modi's Medical Jurisprudence and Toxicology Edition 1977 at page 125 Rigor Mortis in General, sets into 1-2 hours after the death. It is well developed from head to foot in about 12 hours and is maintained for about 12 hours and ends in about 12 hours.
The time of death as alleged by the prosecution in this case is 6 A.M., the Post-mortem has been conducted at 2.00 P.M. on the same day and the doctor has found rigor mortis present on the whole body of the deceased, which according to Modi develops from head to foot in about 12 hours. Keeping in view these facts the court below expressed its view that the time of death could have been some time earlier than 6.00 A.M. i.e. between 2.00 A.M. to 4.00 A.M., which finds corroboration with the description of stomach contents as mentioned in the post mortem report. The contents of the stomach of the deceased do not support the time of death as his large intestine has been found full of fecal matter and gases. 200 ml. semi digested food has also been found in his stomach, which shows that the time of death could not have been 6.00 A.M. because normally a person before leaving his house in the morning would ease himself. The deceased was going to appear in the examination and it can not be assumed that he was going so without attending the call of nature.
No Admit Card pencil, pen etc. have been recovered from the pocket of the deceased or near the place of occurrence. The Cycle and Geometry Box of the deceased were handed over to the I.O. by the complainant himself on 14.4.1999 i.e. after 8 days from the date of occurrence.
It is worth mentioning that PW4 I.O. of the case has admitted the fact that criminal proceedings under National Security Act were also initiated against the accused respondents which were dropped later on by the Advisory Committee.
The following lines mentioned in the FIR itself also raise a serious doubt in the prosecution story and clearly suggest that these lines were inserted in the FIR for the purpose of concocting a false case under National Security Act against the accused persons.:-
"eqfYteku }kjk fd;s x;s Qk;jksa dh vkokt ls vklikl okys yksxksa esa HkxnM ep x;h vkSj ph[kiqdkj gksus yxh rFkk Mj dh otg ls ;krk;kr vo:) gks x;k rFkk Mj ls tu&thou vLr&o;Lr gks x;kA"
It may be noted that the occurrence has taken place on a Village road at 6.00 A.M. in the morning. At 6.00 A.M., generally, there is very little crowd even on the busiest city roads, how can there be such a large crowd and heavy traffic on a village road causing chaotic situation, commotion and traffic obstruction?
There appears material contradictions between the statements of PW1 and PW2 at various places. Both these witnesses have stated different words used by the accused persons while exhortation. PW1 has stated that the accused persons forcibly stopped his grandson and exhorted with the words that "blds ifjokj okys cgqr curs gSa lkys dks xksyh ekj nks]" whereas PW2 Mahesh has stated that the accused stopped his nephew and exhorted that "blds ifjokj okyksa us lR;fot; dh gR;k dh Fkh cnyk ys yks".
The aforesaid lines stated by the witnesses make the 'motive' doubtful. The motive as alleged by the prosecution appears to be very week. It has been alleged that about 2 or 3 years prior to the occurrence the accused Ajay Pal's fourth son Satyavijay had died due to electrocution, however the accused persons thought that since Satyavijay had been killed by the complainant and in order to take revenge they killed the grandson of the complainant.
The aforesaid motive as alleged by the prosecution does not inspire confidence. A perusal of the statements of the witnesses shows that no FIR was lodged by the accused persons against the complainant or his family members after the death of Satyavijay. It appears unnatural on the part of accused persons to sit quietly for 2-3 years and then suddenly to kill the deceased. Hence the statement of PW2 Mahesh that "blds ifjokj okyksa us lR;fot; dh gR;k dh Fkh cnyk ys yks" loses its importance.
The presence of PW2 Mahesh appears doubtful at the time and place of occurrence in view of his statement regarding leaving the place of occurrence just 5-6 minutes after it and then not returning till 10-12 days.
So far as the charge framed against Ajay Pal under section 120B I.P.C., is concerned, PW2 is the only witness produced by the prosecution to prove this charge. PW2 has stated that about 15-20 days ago, when he had come to his sister's place, he had overheard the conversation between Ajay Pal and his sons planning about murder of the deceased Gajendra. PW2 has further stated that he was standing about 20-25 paces away from the accused persons, who were talking very loudly about the planning of murder.
The aforesaid statement of PW2 appears not only unnatural but ridiculous too, as no one would hatch a conspiracy or make a plan of murder by speaking loudly at a public place. More so, he (PW2) has neither informed about the conspiracy to anyone nor to her sister whom, he had come to visit and not even to the grandfather of the deceased Gajendra.
Thus the prosecution story apparently being suffering from several discrepancies, embellishments, omissions and improvements appears to be wholly unreliable and untrustworthy. Learned trial court has rightly disbelieved the prosecution story and has acquitted the accused persons. We do not find any reason to interfere with the findings of the trial court. Both the appeals are devoid of merits and are liable to be dismissed at the admission stage.
Accordingly, both the appeals are dismissed.
Dt/- 28.11.2014 Pcl.